Category Archives: ExpertWitness

Prison, Barbed Wire

Woman Allowed to Present Expert Testimony to Overturn Shaken Baby Conviction

A Mississippi woman who pleaded guilty in 2007 to shaking an infant to death will be allowed a hearing to argue that her life sentence should be overturned.

The Infant’s Death

On July 18, 2005, Amy Wilkerson was 29-years-old when she was caring for an 8-week infant child, Tristan Chinn.  At 2 pm on that day, Wilderson called 911 and told the authorities that Tristan had stopped breathing.

Investigators questioned Wilkerson after the boy’s injuries turned out to be consistent with those of other victims of shaken baby syndrome.  Court records showed that “Wilkerson gave several conflicting accounts of the events surrounding Tristan’s death. At the hospital, Wilkerson told Tristan’s mother that Tristan had been injured while riding in the car. Wilkerson later told police detectives that Tristan’s injury occurred when he fell from the couch and hit his head. Wilkerson eventually confessed that her ‘couch story’ was false and that she had shaken Tristan to death.”

The Legal System

Wilkerson was indicted for capital murder.  Wilkerson initially pled not guilty, but later entered a guilty plea for depraved-heart murder.  Following her guilty plea, Wilkerson was sentenced to life in prison, with eligibility for parole after 30 years.

Three years later, Wilkerson filed a motion for post-conviction relief, arguing that her trial attorneys were ineffective.  The circuit court denied her claim.  Wilkerson appealed the dismissal of her motion, arguing that her guilty plea was involuntary and that her trial attorney was ineffective.  The Court of Appeals of Mississippi affirmed the lower court’s decision.

The Innocence Project

Wilkerson brought her case to the Innocence Project.  The Mississippi Innocence Project and the Wisconsin Innocence Project took her case.

With the help of her Innocence Project lawyers, Wilkerson argues that new evidence has arisen since the date of her trial.  New scientific evidence has increasingly discredited shaken baby syndrome as a cause of death and an expert who had originally consulted on her case has been discredited.

Wilkerson’s original defense attorneys had consulted with pathologist Dr. Steven Hayne before trial.  Dr. Hayne had opined that the cause of death was shaken baby syndrome.  Dr. Hayne has since been discredited.  In 2008, the Mississippi public safety commissioner removed Hayne from the state’s list of authorized medical examiners.

Four medical experts on Wilkerson’s legal team, two forensic pathologists, a pediatric neuropathologist, and a neuroradiologist, reviewed the records and believe that Tristan likely died from a stroke.  Defense expert forensic pathologist Janice Ophoven wrote, “Tristan’s brain reflects a longstanding pathology that eventually led to collapse while in Ms. Wilkerson’s care, for reasons having nothing to do with intentional trauma.”

Wilkerson’s defense team presented this new evidence to the court.  In 2018, Circuit Court Judge Dale Harkey denied Wilkerson a hearing.  However, the Mississippi Court of Appeals reversed Judge Harkey’s ruling and decided to allow an evidentiary hearing in Wilkerson’s case.

At this hearing, Wilkerson will be allowed to present expert testimony showing that the infant’s brain injury happened before the baby was placed in her care and that the brain bleeding may have begun at the time of the infant’s birth.


Lawyer Sanctioned for Intimidating Expert Witness

In an ideal world, all the players in the legal system, including judges, lawyers, and expert witnesses, would behave professionally at all times. Professional behavior includes treating other professionals with civility.

In the real world, participants in the legal system do not always bring a professional demeanor to court. A lawyer who tried to intimidate an expert witness recently learned that unprofessional behavior has consequences.

Intimidating Comments

Rudy W. Gorrell, Jr. is an attorney in Louisiana. He represented Brienne Russ in separate custody cases against the fathers of her two children. Both fathers were represented by Terrance Prout.

Prout called the same pediatric psychologist to testify as an expert witness in each case. She appeared in court three times.

On the first occasion, Gorrell approached the expert in the courtroom before she testified. Gorrell told her: “I’m coming for you”; “You’re not needed here”; “You’re not going to get on the stand”; and “I’m going to make you sit here all day.”

Before the expert testified, the hearing was continued to a new date. The expert appeared again on that date. Before the hearing started, Gorrell approached her in the courthouse parking lot and said, “I’m not sure why you’re here” and “You’re not going to testify again today.” The expert explained that she was in court because she had been subpoenaed to appear. Gorrell then said, “Well, you can’t testify to the child’s anxiety, and I am going to get you.” He added, “I don’t know why you are coming up, because we don’t need you to come up here [to testify].”

The hearing was again continued. The expert returned for the third court date. As she was sitting next to one of Prout’s clients on a bench outside the courtroom, Gorrell approached her and said, “You better stop messing with me, I will get you.”

The expert was finally able to testify at the third hearing. However, she was intimidated by Gorrell’s remarks and at times felt physically afraid of him.

Gorrell’s Explanation

At his disciplinary hearing, Gorrell denied threatening the expert or telling her she didn’t need to be present. He claimed that he merely suggested she should be on call rather than sitting around waiting to testify.

Gorrell testified that he told the expert that he disagreed with the relevance of her opinions because they were based on anxiety the children had experienced two years earlier. Why Gorrell would deem it appropriate to discuss the relevance of testimony with the witness rather than opposing counsel or the court is unclear.

Gorrell suggested that Prout’s animosity toward him accounted for the expert’s accusations. He admitted, however, that he could not think of any reason why the expert would lie about him.

Discipline Imposed

The hearing committee that considered the ethics complaint resolved the conflicting testimony in the expert’s favor. The committee concluded that Gorrell’s comments to the expert “caused her to feel intimidated and had no substantial purpose other than to delay or burden her.”

While the expert felt intimated, the hearing committee noted that Gorrell’s conduct caused no actual harm because it neither delayed the proceedings nor influenced the expert’s testimony. The committee nevertheless recognized the potential for harm. Witness intimidation can discourage witnesses from giving truthful testimony.

Intimidation can also discourage professionals from providing expert testimony in future cases. Experts who suffer abuse may decide that providing expert testimony isn’t worth the trouble.

The Louisiana Supreme Court agreed with the hearing committee. The court noted that Gorrell had no prior discipline during a long career. It therefore agreed with the committee that a public reprimand was warranted as discipline for his unprofessional conduct.

The Need for Civility

Commentators have long bemoaned the loss of civility in the legal profession. Supreme Court Justice Neil Gorsuch has argued that the loss of professional civility reflects a larger “civility crisis” in society. In Justice Gorsuch’s words, the growing tendency to shout down and insult people with whom we disagree reflects a failure to embrace the American ideals of freedom and equality. Maintaining a free society requires “treating each other as equals — as persons, with the courtesy and respect each person deserves — even when we vigorously disagree.”

The Gorrell decision should remind lawyers that the duty to provide vigorous advocacy in the courtroom does not justify an attempt to discourage an expert witness from testifying. Lawyers who disagree with an expert witness can attempt to expose flaws in the expert’s opinions through cross-examination. Confronting and attempting to intimidate an expert witness outside the courtroom is never acceptable behavior.


dollar bills

Expert Witness Helps Gambler Deduct Losses

People who gamble and win are required to report their winnings as income on their tax returns. Gamblers frequently attempt to offset that income by reporting their gambling losses. The IRS allows filers to report losses up to, but not in excess of, their winnings.

Gamblers sometimes try to offset winnings with losses they can’t easily substantiate. For example, a taxpayer might report $7,000 in winnings from bets placed in casinos. The taxpayer might then claim $7,000 in losses from casino betting. Significant casino winnings are documented in a W-2G form but no comparable tax form is issued to document losses.

The IRS has developed detailed recordkeeping requirements for taxpayers who want to deduct gambling losses. Taxpayers who don’t follow those rules typically learn that the IRS assumes one of two things are true: undocumented losses did not occur or undocumented losses were offset by unreported winnings.

While the IRS usually wins those disputes, a taxpayer recently made use of an expert witness to convince the Tax Court that his gambling losses exceeded his winnings. The case is a reminder that the creative use of expert witnesses can make the difference in difficult cases.

John Coleman’s Gambling

John Coleman retired in 2004. He earned a modest income after retirement from an insurance consulting business.

Coleman was a compulsive gambler. He began gambling on card games in high school. He played slot machines in Atlantic City and gambled closer to home when casinos opened in Maryland. After his retirement, he gambled more frequently.

As is true of most compulsive gamblers, Coleman’s gambling interfered with his life. He became delinquent on property taxes and utility bills. In 2019, he began treatment for a gambling disorder.

During 2014, Coleman gambled away a good bit of a $150,000 insurance settlement he had received. Four casinos gave Coleman W-2G forms that documented about $350,000 in gambling winnings. He won that money by playing slot machines. Casinos must issue a W-2G form when a gambler wins a slot machine jackpot of $1,200 or more.

Two of the casinos made no record of Coleman’s slot machine losses. Nor did those casinos keep track of Coleman’s smaller slot machine winnings that they were not required to report on W-2G forms.

At the other two casinos, Coleman sometimes signed into slot machines using player cards that the casinos issued. Those cards tracked all winnings and losses. However, Coleman did not always use those cards. Sometimes he didn’t have his card with him when he decided to enter the casino. Sometimes he stopped using the card because he thought his luck might change if he didn’t sign into a machine.

Coleman established that he regularly withdrew $2,000 to $3,000 per day from his bank account to fund his gambling. He also established that he made ATM withdrawals and received credit card advances while he was gambling.

Coleman’s Expert Witness

Coleman failed to file a 2014 tax return. After the IRS estimated his income, Coleman challenged the estimate and attempted to file a return that the IRS refused to accept. By the time the case came to tax court, the IRS agreed that Coleman’s reported income and deductions were correct in most respects. The IRS disagreed that Coleman was entitled to offset his gambling winnings with an equal amount of gambling losses.

At trial, the IRS maintained that Coleman could not prove his gambling losses because he had not kept a daily record of his losses at each casino. To overcome his poor recordkeeping, Coleman presented the expert testimony of Mark C. Nicely.

The Tax Court recognized Nicely “as an expert in mathematics, the casino gaming industry, and casino gaming equipment, particularly slot machines.” Nicely worked as a computer software engineer who specialized in algorithm development before focusing his career on the gaming industry. He has testified as an expert witness in a variety of cases that involve gambling.

Nicely made mathematical calculations of Coleman’s probable losses based on the frequency with which he gambled and the expected win percentage of the slot machines in the casinos where he gambled. He based his conclusions on the mathematical likelihood that Coleman lost more often than he won.

Slot machines in Maryland and Delaware are programmed to return 87% to 95% of gamblers’ bets as winnings. A gambler might beat the odds by placing a bet, winning, and going home, but a gambler who continues to gamble on slot machines over a significant period of time is statistically destined to lose more money than the gambler will win. Based on Nicely’s calculations, the odds that Coleman could have won more than he lost over the course of 2014 were about 140 million to one.

Tax Court Decision

While noting that deductions must be supported by evidence, the court recognized that not all gamblers keep meticulous records of their losses. In the absence of those record, the Tax Court can estimate losses, but only if the estimate can be substantiated by reliable evidence.

In Coleman’s case, Nicely’s expert testimony provided that evidence. The court found that Nicely’s testimony was consistent with evidence that Coleman made substantial cash withdrawals to support his gambling habit. In addition, Coleman’s lifestyle and debt problems suggested that Coleman did not spend gambling winnings on anything other that continued gambling. The Court was satisfied that Nicely’s expert methodology confirmed that Coleman’s gambling losses offset his winnings.

Don’t Try This at Home

Coleman benefitted from playing slot machines that have a fixed ratio of wins versus losses. Nicely was able to calculate Coleman’s probable losses based on that ratio. When gambling depends on skill as well as luck — poker, for example — an expert may not be able to save a taxpayer who did not keep adequate records.

Gamblers on horse racing sometimes try to claim losses by gathering losing tickets that other gamblers have discarded. Since they are so easily acquired, the IRS will not accept losing tickets as evidence of gambling losses. For the same reason, the Tax Court is unlikely to so.

Taxpayers rarely win disputes with the IRS about their gambling losses. The safest practice is to avoid disputes by keeping a daily log of money spent gambling and by supporting that log with bank records and other documentary evidence. Under some circumstances, however, the Coleman case demonstrates that expert testimony can help gamblers avoid substantial tax liability.


Fourth Circuit Allows Recovery of Expert Witness Fees

The Fourth Circuit Court of Appeals has allowed the recovery of expert witness fees in Maryland where a fee=shifting provision specifically used the word “fees” separately from “attorney fees.”

The Underlying Dispute

In November 2005, Lennar entered into a contract with three companies (Settlers Crossing, Washington Park Estates, and Bevard Development Company) to purchase 1,250 acres of land in Prince George’s County for $200 million. Lennar paid $20 million in deposits. Sandler, the sole owner of a seller company, personally guaranteed the return of the $20 million deposit if the seller companies breached the contract.

In 2006, Lennar asked the seller companies to renegotiate the contract because of the decline in the residential housing market. The companies agreed and in May 2007, the purchase price of the property was reduced from $200 million to $134 million. All parties agreed to a guarantee of specific performance by Lennar. During this time, the seller companies received a $100 million loan from iStar, which was partially secured by the property and the sellers’ rights under the purchase agreement.

In 2008, following a series of disputes, Lennar notified the companies that it elected to terminate the contract and demanded a refund of its $20 million deposits. The seller companies refused. During this time, the seller companies defaulted on their loan to iStar and iStar foreclosed upon the property.

The District Court Case

In July 2018, Lennar filed a lawsuit against iStar, Sandler, and the three seller companies in the United States District Court District of Maryland. Lennar alleged breach of contract, fraudulent inducement, concealment breach of environmental representations and warranties, and claim for declaratory judgement. The seller companies and iStar filed a joint counterclaim for declaratory relief and specific performance of the contract.

Following pretrial proceedings, two main issues remained for trial: (1) whether the seller companies denial of Lennar’s access to the property constituted a breach of contract; and (2) whether the seller companies had breached the environmental representations and warranties in the purchase agreement. A bench trial was held to resolve these issues.

The majority of the trial was spent on the environmental representations claim. Lennar presented three expert witnesses to testify on this issue. iStar called four experts to testify on this issue.

Following the bench trial, the district court determined that Lennar had failed to satisfy its burdens and iStar was entitled to specific performance of the contract. The district court entered judgment in favor of iStar. Lennar appealed and the Fourth Circuit affirmed the judgment.

The Fee-Shifting Agreement

Following the Fourth Circuit’s affirmance, iStar sought reimbursement of its costs, fees, and expenses in accordance with a fee shifting provision in the purchase agreement. Specifically, iStar requested $14,880,227.82 in attorneys’ fees, $656,002.12 in expert witness fees, and $553,712.56 in costs.

The relevant provision stated:

In the event of any litigation arising under or pursuant to this agreement . . .
the parties hereby agree that . . . the prevailing party in such matter shall be
entitled to recover from the non-prevailing party[] such party’s costs, fees
and expenses incurred in such litigation, including actual and reasonable
attorneys’ fees and court costs.

Lennar challenged the reasonableness of the attorneys’ fees and the entitlement to expert witness fees.

The district court determined that the plain language of the provision entitled authorized the recovery of all attorney fees, fees, and costs. Lennar contested the awarding of expert witness fees, arguing that Maryland law does now allow the recovery of expert witness fees under a fee-shifting agreement. Lennar cited two district court cases where the district court determined that the recovery of “all costs” and “expenses” did not provide for the recovery of expert witness fees.

The Fourth Circuit noted that the fee-shifting provision in this case was broader than the provision in the other cases. Here, the provision specified “attorney fees” as a separate item from “fees.” The court determined that the plain language of the contract indicated that attorney fees were only a subset of that total fees that may be recovered. Accordingly, the Fourth Circuit determined that the awarding of expert witness fees was proper.

Expert Witness

District Court Admits Expert Testimony Regarding Specific Causation in Hernia Mesh Litigation

Thousands of lawsuits against C.R. Bard allege that the company’s surgical mesh products have harmed patients. Cases involving mesh used to repair hernias have been consolidated in the Southern District of Ohio. In a recent decision, that court considered whether a surgeon’s expert testimony about specific causation should be admitted or excluded.

MDL Litigation

When similar lawsuits from around the country end up in federal court, they may be consolidated for pretrial proceedings using multidistrict litigation (MDL) procedures. Consolidation allows plaintiffs to coordinate and share discovery. It also enables a single court to resolve pretrial issues that are common to each of the individual cases. Consolidation arguably promotes the efficient and uniform determination of pretrial motions, although whether it actually does so is the subject of much debate.

Since cases are often removed from state courts that require early designation of expert witnesses, it can be difficult for an MDL judge to resolve Daubert issues efficiently. Different plaintiffs often designate different experts. While procedures vary, a plaintiffs’ steering committee will typically select expert witnesses and other plaintiffs’ lawyers will either adopt those experts or reject them and designate their own.

Experts who testify about general causation can have a far-reaching impact on pending cases. General causation is the concept that a product or substance is capable of causing harm to a patient. When a court grants summary judgment because the consolidated plaintiffs have no admissible expert evidence that a product or substance is capable of causing an alleged harm, all the plaintiffs may lose their cases.

Specific causation focuses more narrowly on opinions that pertain to each specific plaintiff. For that reason, the decision to admit or not to admit specific causation testimony might only affect a specific plaintiff, not the entire universe of plaintiffs who have been consolidated in the MDL.

Specific Causation Expert

Steven Johns is the plaintiff in the first case selected for trial in the Bard MDL. A Bard mesh was implanted in Johns to correct a hernia. Additional surgeries followed that Johns attributed to the failure of the mesh. Johns brought claims under Utah law alleging manufacturing and design defects in the mesh as well as a failure to warn of risks associated with the product.

Johns designated Dr. David Grischkan as a specific causation expert. Dr. Grischkan opined that the Bard mesh at issue caused Johns to suffer adhesions when its coating failed. The coating covers one side of the polypropylene mesh. The coating is designed to decay slowly so that the mesh will be gradually absorbed into the organ against which it is placed. That slow decay, which Bard advertised as occurring over “less than 30 days,” is intended to safeguard against the risk that the mesh will cause adhesions. The formation of adhesions may result in organs and tissues sticking together.

According to Dr. Grishkan, the coating failed to decay slowly. Instead, the mesh was rapidly absorbed into Johns’ organs, quickly exposing them to the polypropylene mesh. Dr. Grishkan noted that Bard’s own studies show that the coating can disappear in less than seven days, which is not enough time to avoid the formation of adhesions during the healing process. Dr. Grishkan’s determined that adhesions attributable to Bard’s product caused Johns’ pain and distress, leading to surgery to remove and replace the mesh.

Expert Qualifications

Bard filed a Daubert motion to exclude Dr. Grishkan’s testimony. Bard complained that Dr. Grischkan is a surgeon, not an expert in mesh design. He did not claim expertise in the chemicals used to coat the mesh that was implanted into Johns and, according to Bard, was unqualified to opine that the coating disintegrated too rapidly.

Parsing Dr. Grischkan’s proposed testimony, the court agreed that the doctor’s experience using mesh products to repair hernias did not qualify him to explain why the coating failed to perform as advertised. He had no experience using the coated product. Nor did he have experience with bioengineering or biochemistry. He could not say how the particles in the coating are broken down by the human body. His review of animal studies and other literature fell short of making him an expert on the coating used on the Bard mesh product.

The court nevertheless recognized that Dr. Grishkan did not need to explain how the coating failed to express an opinion that it failed and that the failure injured Johns. Dr. Grishkan has years of personal experience using a variety of mesh devices to repair hernias. He has personally observed the damaging effects caused by polypropylene mesh. He is capable of recognizing complications caused by mesh when he sees them. His training and experience qualified him to testify about the ways in which polypropylene mesh causes complications after its implantation.

Reliability of Expert Methodology

Dr. Grishkan performed a differential diagnosis to rule out other possible causes of Johns’ continuing medical problems. The rapid absorption of Bard’s polypropylene mesh was the only cause he could not rule out. Dr. Grishkan was qualified to make a differential diagnosis.

The court rejected Bard’s attack on the reliability of Dr. Grishkan’s differential diagnosis. Bard made no showing that Dr. Grishkan inappropriately ruled out other potential causes. Nor did Bard identify potential causes that Dr. Grishkan failed to consider. Rather, Bard complained that Dr. Grishkan “ruled in” the fast absorption of its polypropylene mesh as a potential cause of adhesions when he had no basis for doing so.

The court recognized that Dr. Grishkan relied on medical records that supported his view of the speed at which the mesh was absorbed. Surgical findings made clear that the coating failed to protect Johns’ organs from adhesions and therefore did not serve its intended purpose. Reliance on those facts to form an opinion was a reliable methodology.

Bard also complained that Dr. Grishkan improperly relied on Bard’s internal documents. The court concluded that Dr. Grishkan based his opinion largely on his experience and a review of Johns’ medical records. Experts have wide latitude to consider a variety of facts when they form opinions. The fact that Dr. Grishkan bolstered his opinion with information he found in Bard’s corporate documents did not render his methodology unreliable.

Future Pain and Medical Care

The court agreed, however, that Dr. Grishkan’s opinion about Johns’ ongoing pain and need for future surgery was speculative. Johns’ adhesions were corrected with the same Bards’ mesh. While Dr. Grishkan thought that Johns’ current pain might result from a similar failure of that product, his opinion was not based on a new medical examination. Dr. Grishkan’s opinion that similar problems likely have similar causes did not strike the court as being based on a reliable methodology.

Accordingly, the court allowed Dr. Grishkan to testify that Johns suffered from adhesions caused by the absorption of the Bard mesh and that Johns needed another surgery because the mesh was absorbed too quickly. However, the court did not allow Dr. Grishkan to testify that any problems Johns had after that surgery are related to implantation of another mesh of the same design.

Adequacy of Warnings

Dr. Grischkan also proposed to testify that Bard’s warnings were insufficient to alert doctors about the risks associated with the surgical mesh. The warnings indicate that the coating disappears in “less than 30 days.” Yet Bard’s internal documents show that that the coating can be completely absent within seven days. Dr. Grischkan opined that doctors would want to know that information before deciding whether to take the risk of implanting the product.

Dr. Grischkan’s report stated that any reasonable surgeon would understand Bard’s warning to mean that the coating would remain intact during the healing period and that implantation was therefore safe. Because that representation was contrary to experience, and because Bard’s warning failed to mention various complications that could arise from implanting the mesh, Dr. Grischkan regarded the warning as deficient.

The court concluded that Dr. Grischkan had sufficient experience with surgical mesh to testify about the warning’s adequacy. He could not testify about the adequacy of the warnings from a legal or regulatory perspective, but he could explain whether the warnings adequately disclosed risks that a surgeon would want to understand before deciding to use the product.

Police Officer Was Not Qualified to Testify as an HGN Expert

Kayin Love was charged with driving under the influence of alcohol (DUI). She appealed her conviction, contending that the arresting officer should not have been permitted to testify as an expert witness.

In an unpublished opinion, the Maryland Court of Special Appeals concluded that a police officer must be qualified as an expert to give testimony about the horizontal gaze nystagmus (HGN) test. The court ducked the issue of whether the arresting officer was an expert by concluding that the trial court did not regard the officer as an expert. The court then faulted the defense attorney — who had already objected that the officer was not qualified to testify about the HGN — for not objecting again when the officer testified about the HGN result.

Facts of the Case

Officer Robert Farmer testified that Love did not stop her vehicle behind the crosswalk of an intersection. Although she stopped before she entered the intersection, the vehicle encroached upon the crosswalk in violation of Maryland law.

Farmer detained Love and questioned her while she still in the driver’s seat. Farmer gave familiar testimony that Love had a flushed face and watery, bloodshot eyes. He asked Love if she had been drinking and she said she had one drink and one beer an hour and a half before she started driving. That quantity of alcohol in that time frame would not cause most drivers to exceed the legal limit.

A second officer arrived who apparently had more familiarity with the process of making DUI arrests. Officer William Weill provided inevitable testimony that he smelled the odor of alcohol coming from Love’s vehicle — an odor that Farmer apparently failed to detect.

Weill administered a walk-and-turn test, a one-leg stand test, and a horizontal gaze nystagmus (HGN) test to Love. Based on Love’s performance on those field sobriety tests, Weill decided he had probable cause to arrest Love for DUI.

Field Sobriety Tests

The three standardized field sobriety tests that Weill administered were developed and endorsed by the National Highway Traffic Safety Administration (NHTSA). The same contractor that developed the tests for NHTSA also validated the tests. The validation assessed the tests in controlled laboratory conditions, not as they are actually administered — on the side of road, often on an uneven surface, at night, in a variety of weather conditions. The agency’s failure to subject the tests to real-world validation and to an objective peer-review process suggest that NHTSA was more interested in helping the police justify arrests than in producing good science.

While courts routinely regard the standardized field sobriety tests as evidence that a driver has a blood alcohol content in excess of the legal limit, the tests were developed with little scientific rigor. An independent analysis of the tests found that “research that supports their use is limited, important confounding variables have not been thoroughly studied, reliability is mediocre, and that their developers and prosecution-oriented publications have oversold the tests.”

Even NHTSA agrees that the tests are not valid unless the arresting officer follows the exact procedure described in the training manual. On cross-examination, officers often reveal that they can’t recall the details of the procedure they are supposed to follow.

A larger issue arises when officers testify that the tests are valid. Officers claim the tests are valid because NHTSA says they are valid, not because the officers are familiar with the research methodologies that underlie the tests. Traffic officers simply lack the scientific knowledge and education that is required to give an expert opinion about the validity of field sobriety tests.

The HGN Test

The most doubtful of the three standardized tests is the HGN. The test assumes that a driver has a blood alcohol concentration in excess of 0.08 based on whether and when the driver’s eyes “twitch” or “jerk” while following a pen or some other object.

All eyes twitch (that is, they all show nystagmus) when people move their eyes as far as they can to the left or right. According to NHTSA, there is a correlation between an unlawful blood alcohol concentration and the onset of twitching before the eyes reach a 45-degree angle as they move to the left or right.

Unfortunately, eyes might twitch for dozens of other reasons, particularly if the driver is facing oncoming headlights or gazing in the direction of the police car’s flashing red-and-blue lights. Perhaps more problematic is that the validity of the test result depends on the officer’s accurate determination of whether the driver’s eyes have reached a 45-degree angle. Since officers do not carry a protractor in their tool belts, their estimates are unverifiable and may be wholly unreliable.

Even when the officer performs the HGN perfectly, NHTSA found that the test produces an inaccurate result 22% of the time. Other researchers have determined that nystagmus may appear before the eyes reach a 45-degree angle in drivers who are well under the legal limit. Given the frequent reliance on HGN results as trial evidence, whether a test that is so prone to error meets the reliability standard of Daubert is an important question.

Weill’s Expert Testimony

At Love’s trial, Weill testified that he had “specialized training in alcohol-related offenses,” consisting of the 40-hour course that most police officers take before they are assigned to traffic duty. He also testified that he had made a large number of DUI arrests, although that testimony sheds little light on whether he conducted field sobriety tests correctly before he made the arrests.

Courts commonly hold that police officers can testify about HGN results if they have been “trained.” Yet the training only teaches officers how to administer the test. Whether the test itself satisfies the Daubert requirement that expert evidence must be based on sufficient facts and a sound methodology is not the subject of law enforcement training. Learning how to administer a test is not the same as learning whether the test has a sound scientific basis.

When Weill testified that he performed an HGN test on Love, defense counsel objected that Weill was not qualified to testify as an expert witness regarding the validity or interpretation of HGN test results. The prosecutor initially indicated that Weill would not be asked to testify about the HGN results but proffered Weill as an expert on the other two field sobriety tests. After a confusing colloquy, the court agreed that Weill was an expert on the strength of his testimony that he had been “trained.” Weill then testified about the HGN test result.

The appellate court acknowledged that Maryland precedent requires an expert witness to testify about HGN results. Weill was clearly not an expert. The appellate court overcame that obstacle by deciding that the trial court did not actually intend to qualify Weill “as an expert regarding the HGN test.”

The appellate court concluded that Love’s objection — “the State had failed to lay a sufficient foundation to qualify Officer Weill as expert with respect to the standard field sobriety tests” — did not address Weill’s testimony about the HGN test because the prosecutor claimed that Weill would not testify as an expert regarding that test. According to the appellate court, when the trial court ruled that Weill could testify as an expert, the ruling only applied to Weill’s testimony regarding the other two field sobriety tests. Because defense counsel did not object to Weill’s lay testimony about the HGN results — testimony that was plainly improper under Maryland law — she failed to preserve the issue for appeal.

Lessons Learned

Courts often bend over backwards to preserve DUI convictions. This appears to be one of those cases. The prosecutor clearly understood that the trial judge had agreed that Weill could testify as an expert regarding the HGN. Since the admissibility of an HGN result depends on a foundation of expert testimony, it would have been improper for the prosecutor to try to place the test results before the jury through lay testimony. It seems disingenuous to conclude that the trial judge and parties did not believe that Weill was testifying as an expert. Since there was no evidence of his expertise, the testimony should not have been allowed.

It is always problematic when police officers testify as expert witnesses. It is even more problematic when an officer testifies as an expert to support the officer’s own decision to make an arrest. The testimony is inevitably self-serving and rarely helpful to the jury. While defense attorneys should always object to police officers who testify as expert witnesses, Love’s case is a reminder that those objections should be lodged against every question that asks an officer to give testimony that only an expert witness is qualified to provide.



Lawyer Faulted for Failing to Retain Expert Witness Regarding Voluntariness of Confession

Kenneth Richards beat his wife to death with a baseball bat in their Massachusetts home. He testified at trial that he acted in self defense after his wife stabbed him in the chest. A jury found him guilty of first-degree murder.

While Richards was in the hospital recovering from his stab wound, he gave the police a statement that was used against him at his trial. On appeal, Richards argued that an effective lawyer would have called an expert witness to challenge the voluntariness of that statement. The appellate court agreed that the lawyer erred but affirmed the conviction.

Facts of the Case

The Rowley police received a 911 call from Richards’ young daughter, who advised the dispatcher that her father had a hole in his stomach. When the dispatcher asked why, the daughter said that her mother might have dug the hole. She also told the dispatcher that there might also be something wrong with her mother.

An EMT found Richards covered in blood with a knife at his side. Richards had the kind of lacerations on his hands and arms that are consistent with defending against a knife attack. The EMT also observed that Richards’ wife was dead and that her skull had been fractured.

Richards was rushed to the hospital. Emergency surgery saved his life. Just prior to the surgery, he was given anesthesia and muscle relaxants. During surgery, he was given powerful opioids, including fentanyl and morphine.

As Richards was being transferred to the ICU following his surgery, a nurse asked him if he knew why he was in this hospital. Richards responded, “I stabbed myself and I killed my wife.” He complained of pain and was given additional morphine.

Twenty minutes later, while Richards was still under the influence of narcotics, the police questioned him in the ICU. Interrogating suspects while they are under the influence of thought-altering drugs is an unfortunate but common police practice.

Although Richards was mumbling, not always coherent, and complaining of pain, the police gave him a Miranda warning and accepted his statement that he understood his rights and was willing to waive them. The police made no inquiry into the effect of narcotics on his thought process.

Richards told the interrogating officers that he beat his wife with a bat because she was cheating on him. When asked whether she provoked him, he answered “no.” During another interview a few hours later, while he was still being treated with narcotics, Richards provided similar information and added that he stabbed himself in the chest after cutting his wrists and neck.

Trial Testimony

A state crime lab employee, identified as a forensic biologist, testified about bloodstain patterns. In the expert’s view, some of the bloodstains were consistent with hitting the victim after she stopped moving.

A medical examiner who autopsied the victim testified that she died from blunt injuries to the head. He opined that the victim died about fifteen to thirty minutes after the attack.

The defense consisted almost entirely of Richards’ testimony. He testified that he argued with his wife about her decision to stop taking medication for her bipolar condition. Richards said that at some point after they went to bed, he woke to find his wife kneeling over him. He fell out of bed and had difficulty breathing. At that point he noticed a hole in his chest.

Richards testified that he picked up a bat and used it as a crutch to help him stand. He saw his wife coming toward him and he swing the bat. He told the jury that he was in fear for his life and wasn’t thinking rationally. He said he only recalled hitting her once but conceded that he might have hit her multiple times.

Voluntariness of Confession

Richards’ trial testimony could be reconciled with the physical evidence but it was wholly inconsistent with statements he gave to the police while he was hospitalized. Although Richards’ lawyer challenged the admissibility of those statements, he failed to support that challenge with expert testimony.

The constitutional right to be free from self-incrimination has two components. First, it allows statements a defendant makes to the police to be used as evidence only if they were made voluntarily. Police officers cannot torture suspects to produce a confession. Nor can they use coercive tactics, although courts have a narrow definition of “coercive.” For example, the police can lie to suspects about evidence they don’t have in order to trick a suspect into giving a confession.

Second, suspects must be warned that they have the right to remain silent. The Supreme Court’s Miranda decision was a response to decades of inconsistent court decisions about whether a confession was voluntary — decisions that often excused the infliction of psychological abuse as a tactic to encourage confessions. If a suspect is warned that a statement will be used against him, and is warned that he can choose to remain silent or to consult with a lawyer before deciding whether to answer questions, a suspect who chooses to talk is presumed to have given a voluntary statement.

The Miranda warning is only required if the suspect is in custody. Whether a hospitalized suspect is “in custody” depends on the facts, but the issue did not arise in Richards’ case because he was given a Miranda warning before he was questioned. The question was whether, given his drugged condition, he was capable of understanding his rights or of making a voluntary statement.

Richards’ Expert Witness on Voluntariness

After Richards lost his appeal, he filed a post-conviction motion asking for a new trial. He contended that his trial lawyer was ineffective for failing to use expert testimony in support of his motion to suppress his confession.

Richards’ motion for a new trial relied on the affidavit of Dr. Adam J. Carinci, the director of the Massachusetts General Hospital Center for Pain Medicine. Dr. Carinci is board certified in anesthesiology and pain medicine. Based on a review of medical records, Dr. Carinci concluded that over a five-hour period, Richards was administered “at least eight distinct medications classified as either general anesthetics, benzodiazepines, opioids, cholinesterase inhibitors, or anticholinergics.”

Dr. Carcini stated as a “medical fact that the residual effects of” these medications “detrimentally impact consciousness, awareness, cognition, orientation, concentration, dexterity, comprehension and recall.” He concluded that the drugs “negatively impacted” Richards’ “ability to comprehend his Miranda rights at the time that they were read to him and the voluntariness of the statements that he made to [Trooper] LaBarge.”

Effective Assistance of Counsel

Richards argued that a reasonably effective attorney would have presented the expert testimony of Dr. Carcini or another medical expert to establish that Richards was in no condition to understand the Miranda warnings or to make a voluntary statement. To his credit, Richards’ trial attorney agreed that he should have done so. The attorney stated that he might not have recommended that Richards testify at trial if his incriminating statements had been suppressed.

Both the trial judge and the appellate court agreed that Richards’ lawyer deprived Richards of his constitutional right to effective advocacy by neglecting to retain an expert witness. The recorded interviews should have made it apparent to Richards’ lawyer that Richards “remained, to some extent, impaired by the medications he had received at the hospital and by the physical pain he was suffering from his wounds and from the surgical procedure.”

The appellate court held that “it was manifestly unreasonable for trial counsel not to retain a medical expert to help him understand the effects of the defendant’s medications and physical pain on the voluntariness of his statements or the knowing and voluntary nature of his Miranda waivers.” In other words, the lawyer neglected his duty to his client by not hiring an expert witness.

The trial judge held that he would not have suppressed the evidence even if the expert had testified. The judge was aware that Richards was under the influence of drugs but considered his recorded responses to be coherent and consistent with a clear understanding of his situation. The appellate court deferred to that conclusion. Since the failure to call an expert at the suppression hearing would not have changed the outcome, that failure did not entitle Richards to a new trial.

The appellate court also concluded that expert testimony at trial would not have changed the verdict. Had the expert testified, the jury might have been instructed to disregard Richards’ confession if it concluded that he did not give the confession voluntarily. In the appellate court’s view, however, Richards’ apparent understanding of the Miranda warnings and his clear-headed answers during the interrogation would likely have convinced the jury that Richards’ acted voluntarily, notwithstanding the expert’s opinion.

Lessons Learned

Appellate opinions necessarily make predictions about whether an outcome would have been different if errors had not been made. Those predictions amount to best guesses. The fact is, nobody — including the trial judge — knows whether the trial judge would have suppressed the confession if he had heard Dr. Carcini’s expert testimony before ruling. Nor does anybody know what a jury would have done if it had heard the same testimony.

The odds may be that Richards would still have been convicted if he had hired an expert witness, but defense attorneys have an obligation to assure that a client, innocent or guilty, receives a fair trial. This case stands as a reminder that retaining an expert witness can be a critical part of assuring that trials are fair.

Judge in courtroom

Judge Refuses to Hear Expert Testimony in FTC’s Deceptive Practices Lawsuit

To satisfy the Daubert test, some judges require expert witnesses to explain their reasoning in exhaustive detail. When experts fail to support their conclusions with a high level of detail, parties risk the exclusion of expert testimony.

The Federal Trade Commission (FTC) sued Innovative Designs, Inc. for violating a federal law that prohibits using “unfair or deceptive acts or practices” in commerce. The FTC supported its claim with the expert testimony of David Yarbrough. At the conclusion of a bench trial, the court decided that Yarbrough’s testimony failed to satisfy Daubert because Yarborough did not explain potential deficiencies in his reasoning. The court struck the testimony and later dismissed the case.

Facts of the Case

Innovative Design sells a product called Insultex. The product is marketed as a house wrap that is installed just behind the exterior walls of homes. House wraps are intended to prevent rain from penetrating a home and to allow water vapor to escape so moisture does not accumulate inside the walls.

Innovative Design advertised Insultex as an energy saving product. Its advertising claimed that Insultex products have specific R-values. An R-value is a measurement of a product’s ability to restrict the loss of heat. The FTC argued that Innovative Design overstated the product’s R-value and thus misrepresented the energy-saving properties of its product.

The heart of the dispute at trial concerned the measurement of R-value. The FTC maintained that a particular ASTM standard is the “consensus standard” to measure R-value. ASTM standards are developed by an international organization that creates voluntary technical standards that various materials and products should meet. The court agreed that the ASTM standard for R-value measurement is the prevailing industry standard.

Innovative Design advertises the submitted products as having an R-rating of R-3 and R-6. Innovative Design submitted Insultex for testing to two laboratories in 2009. Using standard testing, the laboratories rated the products as R-0.2 and R-0.3, far less than their claimed R-values.

Innovative Design then paid a different laboratory to build a modified testing device. The new device incorporated air gaps that aren’t present in the standard testing device. A third-party accreditation company inspected the device and accredited it to determine an R-value.

Using the modified device, the testing lab certified that Insultex Products had an R-3 or R-6 value. The certificates of analysis stated that the testing complied with ASTM testing guidelines. Whether a testing device that departs from the ASTM standard by incorporating air gaps is reliable was a disputed question at trial.

Pretrial Rulings Regarding Experts

Innovative Design argued Yarborough’s testimony should be excluded because Yarborough had an employment relationship with a company that Innovative Design once hired to test Insultex. Since Insultex did not provide Yarborough with any confidential information, the court disagreed that he was disqualified from acting as an expert witness.

The FTC also disclosed Anastassios Mavrokefalos as an expert witness and Jonathan Malen as a rebuttal expert. Mavrokefalos had been disclosed as an expert witness for Innovative Design. When the FTC took his deposition, however, he changed his opinions. Innovative Design then withdrew Mavrokefalos as an expert witness. The FTC disclosed that it might use Mavrokefalos’ deposition as evidence in support of its case. The judge denied Innovative Design’s motion to exclude that evidence.

Innovative Design designated Donald Garlotta as an expert witness. The court denied the FTC’s Daubert motion to exclude his testimony after finding that the motion should be treated as a challenge to Garlotta’s credibility. The court said it would determine Garlotta’s credibility at trial. However, Innovative Design did not call Garlotta, or any other witness, to provide expert testimony.

Yarborough’s Testimony

Yarborough testified that an experienced lab technician tested Insultex under his supervision. Applying the relevant ASTM standard, Yarborough concluded that, regardless of the thickness of the specific product, Insultex’s R-value was “negligible at best.” Yarborough also testified that, given the structure of Insultex, the claimed R-values are not theoretically possible.

On cross-examination, Yarborough testified that the lab technician’s testing device was calibrated with a fiberglass board, not with a material that is similar to Insultex as the ASTM standards require. Yarborough explained that testing modifications were necessary because Insultex is an unusual material. If no material with a known R-value is similar to Insultex, it is obviously impossible to calibrate the machine using a similar material.

Examining these and other difficulties with Yarborough’s methodology, the court decided that Yarborough’s explanation of his departure from standardized testing methods was conclusory. While the court recognized that nonstandard testing techniques may be necessary when nonstandard materials are tested, the court concluded that departures “need to be well explained.” The court was not satisfied that Yarborough’s explanation of his decision to calibrate the machine with a fiberglass board established the reliability of his methodology.

The FTC argued that Yarborough employed methods used by other testing labs. The court was not persuaded by that argument because the FTC did not establish that the methods used by other labs are generally regarded as acceptable by the relevant scientific community. The court therefore concluded that Yarborough’s testimony did not satisfy Daubert and declined to rely upon it.

Mavrokefalos’ Expert Testimony

At trial, the FTC contended that Innovative Design engaged in deceptive advertising by promoting values of R-3 or R-6 when standard testing never found a value above R-0.3. The FTC hoped to persuade the court that Innovative Design was trying to game the system by creating a modified testing device that would return the results it wanted without revealing the modification in its advertising.

After Yarborough’s testimony was excluded, the only expert evidence that the FTC introduced in its case-and-chief consisted of Mavrokefalos’ deposition testimony. The FTC wanted to use the deposition because it was more favorable to the FTC’s position than the report Mavrokefalos wrote on behalf of Innovative Design.

After reviewing Yarborough’s report, Mavrokefalos investigated the modified testing device and concluded that it did not always return reliable results. Mavrokefalos believed that the modified device used to test the R-value of Insultex distorted the results by “incorporating the value of the air gaps into every reading.”

Based on his own testing, Mavrokefalos expressed the belief that the Insultex’s R-value was less than R-1. He essentially changed his mind about the reasonableness of Innovative Design’s R-value claims after conducting his own testing.

Court’s Ruling

Since Innovative Design moved for pretrial judgment before putting on any evidence, the court did not consider Malen’s expert opinions when it addressed the motion after the trial concluded. Since Malen had been designated as a rebuttal expert, his opinions could not be used to bolster the FTC’s case-in-chief.

While the FTC claimed that Innovative Design misrepresented the R-value of its product, the court concluded that the claim could only be proved by expert testimony. Since Yarborough’s opinions did not satisfy Daubert and Malen’s could not be considered, the FTC was left with only the expert opinion of Mavrokefalos.

The court declined to credit Mavrokefalos’ testimony because he relied on non-standard testing and failed to give a satisfactory explanation of his departure from the standard testing. Moreover, Mavrokefalos had no experience with the tests that he employed. He did not explain whether those tests are relied upon by the scientific community to determine an R-value. He did not explain whether the tests had a known error rate and did not testify that his methods had been peer-reviewed.

The court faulted some of the tests because they were performed on components of Insultex rather than the product as a whole. Finally, the court found that Mavrokefalos’ credibility was impaired by writing a report that favored Innovative Design and then changing his opinions.

A different court might have deemed Mavrokefalos’ credibility to have been enhanced by his willingness to admit that he was wrong, even after he was paid to give an opinion that favored Insultex. While experts are often condemned for being “hired guns,” Mavrokefalos’ opinions were clearly not influenced by money.

Lessons Learned

Although the laboratories that used standard tests found that Insultex has a minimal R-value, the FTC did not introduce those test results as expert evidence. Since the court did not know whether the testing comported with ASTM standards, the earlier tests could not be relied upon as proof that Innovative Designs made deceptive representations.

The FTC was apparently confident in the opinions formed by Yarborough. However, this case stands as a reminder that even the most competent expert must explain opinions in detail.

When an expert departs in any way from an accepted methodology, the expert must be prepared to justify the departure by explaining why the departure was necessary and why it returned reliable results. The failure to elicit that testimony may result in a trial loss even when the evidence in support of a party’s position seems compelling.


Gavel and Stethoscope on Reflective Table

Lawyer Is Qualified to Give Expert Testimony About Physician’s Right to a Hearing on Revocation of Hospital Staff Privileges

Lawyers might be experts in a field of law, but they are not typically experts in the practices followed by other industries. The California Court of Appeal identified an exception to that rule in a case involving a lawyer who was proposed as an expert witness in medical industry practices concerning a physician’s right to a hearing before the termination of hospital staff privileges.

Facts of the Case

Farzin Tayefeh signed a two-year agreement to work with Somnia, Inc. as an anesthesiologist at Kern Medical Center (KMC) in Bakersfield. Somnia’s anesthesiologists were independent contractors rather than employees.

Tayefeh’s agreement with Somnia required him to maintain his hospital staff privileges at KMC. The suspension or termination of hospital privileges was a ground for the immediate termination of the agreement.

Somnia’s anesthesiologists were given an application for temporary hospital privileges at KMC. If privileges were granted and if Somnia decided that it was satisfied with the anesthesiologist’s work, it would ask KMC to give the anesthesiologist full staff privileges.

By signing the application for temporary privileges, Tayefeh agreed to obey KMC’s bylaws. The bylaws provided that, with one exception, temporary privileges could be terminated with or without cause and without a hearing. The bylaws entitled a doctor to a hearing if termination was based on a “medical disciplinary cause or reason.”

Tayefeh represented on his application for temporary privileges that he was not subject to any pending disciplinary action. About two weeks after Tayefeh was granted temporary privileges, the Medical Disciplinary Board notified KMC that it had filed a complaint against Tayefeh for prescribing medication without a patient examination and without maintaining adequate records. The complaint was filed before KMC granted temporary privileges to Tayefah.

The KMC bylaws require doctors with hospital privileges to notify KMC within ten days after a disciplinary action is commenced. Tayefeh did not notify KMC of the complaint. KMC terminated Tayefeh’s privileges for two reasons: (1) failure to report the disciplinary action and (2) the serious nature of the accusations involved in the complaint.

KMC did not give Tayefeh a hearing because it did not regard either justification for termination as a “medical disciplinary cause or reason.” Because he no longer had staff privileges, Somnia terminated its agreement with Tayefeh.

Tayefeh sued KMC for failing to give him a hearing. The trial judge decided that the meaning of “medical disciplinary cause or reason” was subject to conflicting interpretations as the term applied to Tayefeh’s conduct and should therefore be resolved by a jury.

Expert Witness Dispute

A California statute defines “medical disciplinary cause or reason” as any aspect of a doctor’s “competence or professional conduct that is reasonably likely to be detrimental to patient safety or to the delivery of patient care.”

At trial, KMC called an expert witness to educate the jury about the application of the term “medical disciplinary cause or reason” to the termination of Tayefeh’s hospital privileges. The expert testified that, in his opinion, the reasons for terminating Tayefeh’s privileges did not include medical discipline as that term is understood in the medical industry.

Tayefeh wanted to call Arthur Chenan as an expert witness. Chenan is not a physician. He has never participated in making a decision to revoke or suspend a physician’s hospital staff privileges.

Chenan is an attorney who has advised hospitals and medical staffs about whether state law required them to report a physician’s conduct to the medical board. Reporting is mandatory when staff privileges are suspended or revoked for a medical disciplinary cause or reason.

The court decided that Chenan was not qualified to testify as an expert. The court concluded that Chenan was not a doctor and was thus unqualified to testify about the medical industry. Accordingly, the jury only heard expert testimony from KMC. By a 9-3 vote, the jury ruled in favor of KMC.

Appellate Court Analysis

California law permits courts to rely on extrinsic evidence — any evidence that goes beyond the words themselves — to interpret ambiguous contract language. The court applied that same rule to the bylaws that were referenced in Tayfeh’s contract.

The appellate court agreed with the trial court that the phrase “medical disciplinary cause or reason” was ambiguous. Expert testimony about the meaning that is customarily given to that phrase in the medical industry was therefore the kind of extrinsic evidence that is admissible in a trial that hinged upon the interpretation of that language.

California follows the customary rule that a witness “is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” The appellate court rejected the trial court’s conclusion that only a doctor or a hospital administrator can testify about the customary meaning given to a term used in medical bylaws.

That Chenan is not a doctor or a hospital administrator does not mean he lacks knowledge of industry standards when the term “medical disciplinary cause or practice” is applied in the hospital peer review industry. Chenan was not asked to testify about medical matters that require a physician’s training. Nor was he asked about a topic that only a hospital administrator would be qualified to explain.

Knowledge and experience do not need to be gained by working in a particular field. Chenan has taught courses and has published articles in the area of medical staff credentialing, hospital peer review, physician discipline, and restriction of staff privileges.

The court acknowledged that general litigation experience might be insufficient to qualify an attorney as an industry expert. The court noted that a lawyer who handles bad faith claims against insurance companies is not necessarily an expert in insurance industry standards for approving or denying claims.

While an attorney who occasionally represents doctors in employment matters might not have the requisite experience to support an expert opinion, Chenan had years of experience “advising hospital boards, medical staffs, and physicians specifically about peer review matters.” He frequently advised those entities whether a suspension or revocation of staff privileges triggered a reporting requirement because it was based on a “medical disciplinary cause or practice.”

Chenan’s testimony was not founded on knowledge gleaned from litigation experience, but on specific work as an advisor to the medical industry on peer review matters that required the application and interpretation of hospital bylaws. Given Chenan’s experience, the fact that he is a lawyer advising the medical industry rather than a hospital administrator working within the medical industry did not disqualify him from rendering an expert opinion.

The divided jury verdict indicated that this was a close case. Excluding the plaintiff’s expert testimony left the defendant’s expert testimony unchallenged by another expert. The trial court’s erroneous exclusion of Chenan’s testimony might therefore have affected the verdict. The appellate court accordingly reversed and remanded for a new trial.



Expert Who Did Not Keep Time Records Deemed Unqualified to Testify in Maryland Medical Malpractice Case

At the urging of the medical and insurance industries, Maryland adopted an unusual law that limits the ability to call an expert witness in malpractice cases. At the time Brown v. Falk & Karim P.A. was litigated, Maryland law prohibited the use of an expert witness in malpractice cases if the expert spent more than 20% of his or her professional time acting as an expert witness.

The question in Brown was whether an expert’s word about the time spent working as an expert witness is sufficient to satisfy the 20% rule. On appeal, the court decided that an expert should be prepared to surrender detailed time records to prove the percentage of time spent in medical practice versus the time spent as an expert witness.

Facts of the Case

Brenda Brown sued Dr. Joel Falik for medical malpractice after her husband died. Brown alleged that Falik’s negligence during her husband’s back surgery caused her husband’s death.

Maryland law required Brown to certify, at the time the lawsuit was filed, that her case was supported by an expert opinion. Brown certified that Dr. Sanford Davne, an orthopedic surgeon, would testify that Dr. Falik failed to recognize that Brown’s husband was a high-risk patient and failed to advise Brown’s husband about less dangerous treatments for his back pain.

Dr. Davne’s certification stated that less than 20% of his annual activities were devoted to testifying as an expert. Dr. Davne testified in a deposition that the statement was accurate, but explained that he kept no records of time devoted to expert witness work and time devoted to other work.

The trial court eventually ordered Dr. Davne to produce his tax returns. The defense apparently regarded his income from various kinds of work as a proxy for the amount of time he spent working to produce that income.

At trial, the defense claimed that Dr. Davne had not produced sufficient tax returns to prove that he satisfied the 20% rule. The judge denied a motion to disqualify Dr. Davne and denied a motion for judgment after Brown presented her case.

The jury returned a verdict in Brown’s favor and awarded her more than $900,000 in damages. The judge eventually concluded that Dr. Davne was not qualified to testify and granted a motion for judgment notwithstanding the verdict. Brown appealed.

The 20% Rule

For decades, the medical and insurance industries have worked diligently to make it more difficult for victims of medical negligence to prove their cases. Some of their efforts have focused on vilifying experts who testify for plaintiffs. Compliant legislators have responded to industry lobbyists by enacting a variety of laws to prevent qualified experts from testifying for plaintiffs.

Maryland’s 20% rule was one such law. The law was later amended to exclude expert witnesses who devoted more than 25% of their time to testifying as an expert during the previous year.

The fact that a doctor often testifies as an expert has no rational relationship to whether the doctor is competent to testify. While the medical and insurance industry refers to such experts as “hired guns,” they use that term exclusively to refer to experts hired by plaintiffs. Insurance companies hire the same experts to testify over and over in toxic tort cases, but they never refer to their own experts as hired guns. Whether the frequency of testimony affects an expert’s credibility is a decision that should be made by juries, not by legislators who serve the interests of corporate lobbyists.

As the Baltimore Sun argued, the 20% rule is an arbitrary standard. It applies only in medical malpractice cases because the insurance industry knows how difficult it is for plaintiffs to find a doctor who is willing to testify against another doctor. Brave experts who are willing to give truthful testimony in response to a malpractice epidemic are in demand, so the insurance industry strives to limit their availability.

Notably, nobody claims that Dr. Davne’s lacks the training or experience to advance an expert opinion. Nor does anyone claim that, but for the 20% rule, a jury would not be entitled to accept Dr. Davne’s testimony as credible. The 20% rule therefore took compensation away from the widow of a malpractice victim that a jury decided she deserved.

Appellate Opinion

At the time of trial, Maryland law required a plaintiff to prove that the expert witness did not “devote annually more than 20 percent of [his] professional activities to activities that directly involve testimony in personal injury claims.” Maryland courts view the statute as requiring a mathematical calculation. Courts divide the amount of time that the witness is directly involved in expert testimony by the amount of time that the witness spends performing all professional activities.

After disavowing the need for an “exhaustive accounting of an expert’s timesheets,” the court criticized Dr. Davne for failing to produce timesheets that accounted for the time he spent on patient care and other professional activities. The court also faulted him for not producing a list of every case in which he had ever provided services as an expert.

Dr. Davne did provide an affidavit that described the time he spent on professional activities and expert witness activities, but Dr. Davne’s word was not good enough for the appellate court. He also produced his tax returns, but the court wasn’t satisfied that a calculation could be made from the income information supplied to tax authorities.

The court also thought that Dr. Davne’s testimony about the income he received from expert testimony undermined his affidavit. Since expert testimony often commands a higher hourly rate than other work, it is difficult to correlate time spent on an activity with income received from that activity. In any event, the court of appeals agreed that Dr. Davne’s failure to produce detailed records of his time spent as an expert and in professional practice disqualified him from testifying.

Lessons Learned

Whether an expert has the training, experience, and knowledge to opine about a standard of care is wholly unrelated to how much time the expert devotes to giving that testimony. The Maryland rule harms malpractice victims by depriving juries of valuable testimony while shielding negligent doctors from the consequences of their malpractice.

In light of the Maryland rule, however, plaintiff’s lawyers bringing malpractice cases in Maryland must be careful to select experts who keep track of the time they spend in their professional practices and the time they spend working as an expert witness. Gathering that data will not be as easy as the court seems to suggest.

Since billing records do not reflect the hours a doctor spends reading medical journals or engaging in other nonbillable work that is part of the practice of medicine, witnesses may need to estimate their hours in practice by examining the hours they spend in the office (or attending continuing education seminars) each year. They can probably rely on hourly billing records to determine the time they spend testifying as an expert witness. Doctors who regularly testify as experts should take note of Maryland law and retain those records so that they are qualified to testify in Maryland.