Category Archives: ExpertWitness

Bamboo stick massage

No Expert Testimony Required to Prove Negligent Supervision of Massage Provider Who Sexually Assaulted a Customer

As a general rule, expert testimony is required to prove the liability of a healthcare provider for negligence. That rule is typically enforced in medical malpractice cases alleging that a doctor harmed a patient by breaching a duty of care. The injury victim must use an expert witness to establish the duty of care because ordinary jurors do not usually understand what the medical profession expects a prudent doctor to do when caring for a patient.

An exception to the rule allows medical negligence cases to proceed without an expert witness when the negligence is obvious to ordinary people. A doctor who operates on the wrong knee is a classic example. A jury does not need expert testimony to understand that a doctor should verify which knee is injured before surgery begins.

The Tennessee Supreme Court was recently asked whether the “common knowledge exception” to expert testimony should apply to a case involving negligent hiring and supervision by a spa. Under the facts of the case, the court held that no expert testimony was required to prove liability.

Facts of the Case

Lataisha Jackson went to Gould’s Day Spa & Salon in Cordova for a massage. She alleged that she was sexually assaulted by a masseur.

Jackson alleged that two other customers of Gould’s had made complaints about the masseur’s inappropriate conduct but Gould’s took no action to protect her from similar misconduct. She sued Gould’s for negligently hiring, training, supervising, and retaining the masseur who assaulted her.

Whether or not Jackson’s massage meets an ordinary understanding of “health care,” all the courts that considered the case categorized it as a “health care liability” lawsuit. Tennessee’s Health Care Liability Act applies to lawsuits against any “health care practitioner” if the practitioner must be licensed under Tennessee laws governing “professions of the healing arts.”

Tennessee law deems massage practitioners to be members of a profession of the healing arts who must be licensed. Without discussing whether licensing alone makes a massage provider a “health care practitioner,” the supreme court concluded in a footnote that Gould’s was protected by the Health Care Liability Act.

Certificate of Good Faith

The Act requires plaintiffs to file a “certificate of good faith” with a complaint that alleges the negligence of a health care practitioner. The certificate must state that the plaintiff consulted with an expert who is competent to testify under the Act and that the expert determined the existence of a good faith basis for bringing the lawsuit.

Jackson did not file the certificate because she viewed a lawsuit for negligent hiring and supervision as outside the scope of the Health Care Liability Act. The trial court decided that the Act applied to the negligence claims that Jackson alleged. The court granted summary judgment against her because she did not file a certificate stating that she had consulted with an expert.

The court of appeals, over a dissent, concluded that the standard a spa should follow after receiving a complaint about a massage provider was not within the common knowledge of jurors. The dissenting judge opined that the need to protect disrobed customers from being touched inappropriately by a masseur was not the kind of complex question that could only be answered with expert assistance.

The Common Knowledge Exception in Tennessee

Whether an expert witness was required to prove that Gould’s was negligent turned on the applicability of the common knowledge exception. The exception excuses plaintiffs from providing expert testimony when the alleged misconduct falls within the understanding of lay members of the public. If an applicable standard of care, a breach of that standard, and resulting injury would all be obvious to ordinary people, no expert testimony is required.

The common knowledge exception is widely accepted. The Tennessee Supreme Court filled two pages of its opinion with cases from other jurisdictions that recognize the exception.

While Tennessee’s Health Care Liability Act applies to negligence claims against health care providers, the court decided that consultation with an expert is only necessary in cases that require expert testimony. When the common knowledge exception applies, no certificate of good faith is required. Since the legislature supposedly required the certificate to assure courts that a health care liability claim had arguable merit, requiring the certificate would be pointless when the claim’s merit would be obvious to a lay member of the public.

Tennessee Supreme Court Decision

The court relied on Tennessee precedent in deciding whether a health care provider’s negligence is obvious. The court cited a case involving an X-ray technician who asked a patient to stand on a wobbly stool. The patient fell and was injured. Since telling a patient to stand on unsafe furniture is obviously negligent, no certificate of good faith was required.

In a case with facts that more closely parallel to Jackson’s, a patient at a mental health facility sued the facility for the negligent hiring and training of a security guard who attacked him. While providing security scarcely qualifies as health care, the court decided that the Health Care Liability Act applied to the lawsuit. It concluded, however, that whether the facility negligently breached its duty to protect patients from the assaultive conduct of security guards was a question that a jury could answer without the assistance of expert testimony.

In light of that precedent, the supreme court sensibly decided that the need for expert testimony turns on whether the allegedly negligent conduct “involved the exercise of medical judgment or skill.” When a jury will be called upon to consider whether a doctor used the skill that a reasonable doctor should possess, or made professional judgments involving medical risks and benefits that a reasonable professional would make, the plaintiff must provide expert evidence in support of the negligence claim.

Applying that rule to Jackson’s case, the court decided that expert testimony was not required. The claim that a spa knew or should have known, based on customer complaints, that a masseur might assault customers can be decided without expert evidence. Ordinary jurors have sufficient knowledge and experience to decide whether a spa negligently hired, retained, or supervised an employee who sexually assaulted a customer.

A different result might apply when the plaintiff claims that a massage provider “negligently performed the massage, used improper technique or excessive force, or erred in decision-making as a massage therapist.” In cases involving hiring or retention decisions that do not require professional expertise, however, no expert testimony is required to prove negligence.



Georgia Court Says No Conflict in Same Firm Expert Affidavit

The Georgia Court of Appeals has ruled that there is no conflict of interest in using an expert affidavit supporting a complaint written by an attorney who is also a law partner of the filing attorney.

The Personal Injury Case

Plaintiff David Mitchell retained attorney Randall Cade Parian of Parrian Injury Law, LLC to represent him in a personal injury action. Without informing Mitchell, Parian referred the case to Brian Wesley Craig of Craig & Avery, LLC. Attorney Craig filed a personal injury action on Mitchell’s behalf in Fulton County State Court.

Mitchell contacted Parian numerous times in the two years after retaining them. Parian told Mitchell that the case was “chugging along” and never informed him that the case was actually being handled by another law firm.

The defendants in the personal injury case set a deposition for Mitchell and notified Craig, but neither Parian nor Craig notified Mitchell of the deposition. The defendants filed a motion to compel and a motion for sanction, but neither Craig nor Parian contacted Mitchell. As a result of the motions, Mitchell’s case was dismissed with prejudice.

When Mitchell learned of the dismissal, he reviewed the complaint that Craig had filed on his behalf. Mitchell saw that the allegations had little resemblance to the facts of his case, leading him to conclude that Craig had simply used a complaint his firm had filed in a different case and substituted Mitchell as the plaintiff.

The Malpractice Action

Mitchell retained attorney William Ney to represent him in a legal malpractice action against Parian and Craig. Ney filed a complaint that was supported by the affidavit of Jacob Rhein, an attorney who is licensed to practice law in Georgia. In his affidavit, Rhein indicated that he was familiar with the standard of care for Georgia attorneys and that it was his opinion that Parian and Craig had breached that standard of care. The day after Rhein executed his affidavit, he and Ney formed a law firm together, Ney Rhein, LLC.

Parian and Craig filed a motion to dismiss, arguing that because Rhein was a member of Ney’s law firm, he was not competent to provide the affidavit that was required to support a legal malpractice action. Following a hearing, the trial court granted the motion to dismiss. The court ruled that there was “an inherent conflict between Rhein making the affidavit as a witness and being a member of the law firm” that represented Mitchell.

The Appeal

Mitchell appealed the trial court’s ruling. On appeal, the Georgia Court of Appeals, First Division, looked to the language of the statutory requirement. OCGA § 9-11-9.1 provides, in relevant part, that to assert a claim for legal malpractice, the plaintiff is “required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such Claim.”

The Georgia Court of Appeals found that Rhein met the statutory requirements for an expert witness as set forth in OCGA § 24-7-702. The court further found that Rhein’s status as Ney’s law partner affected Rhein’s qualifications as an expert witness. Presiding Judge Anne Elizabeth Barnes authored the opinion with the concurrence of Judges Elizabeth Gobeil and John Pipkin III.

Attorney for the plaintiff William Ney said of the ruling, “It just confirms what the ethics rules are: That members of the same firm can provide pretrial affidavits on behalf of each other’s clients and still comply with [the statute].” Whether a member of the firm could testify at trial, as opposed to filing a pretrial affidavit attesting to the claim’s legal merit, was not a question the court needed to answer.


Lawyer Allowed to Testify as Expert Witness in Fraud Prosecution

Lawyers (some more than others) are experts in the law, but they rarely testify as expert witnesses. Legal malpractice cases, in which expert testimony is needed to establish a lawyer’s standard of care, provide one of the few opportunities for a lawyer to testify as an expert.

But lawyers in malpractice cases do not explain the law to juries. Rather, they explain the actions a prudent lawyer should take or avoid in light of prevailing professional standards.

In most cases, lawyers may not testify as experts on the law. The only expert who can explain the law to the jury is the presiding judge. The judge provides that explanation through jury instructions, not testimony.

A federal criminal case spotlights an unusual instance in which a lawyer was allowed to explain fiduciary duties imposed by state law, the breach of which was relevant to a federal prosecution for fraud. The Court of Appeals for the Third Circuit rejected an appellate challenge to the admission of that expert testimony.

Facts of the Case

Renee Tartaglione was charged with 53 crimes related to defrauding a community clinic and for failing to report income earned from the fraudulent acts. Tartaglione, described in the press as a “member of a longtime Philadelphia political dynasty,” was the president of the board of the Juniata Community Mental Health Clinic.

Prosecutors convinced a jury that Tartaglione caused the nonprofit clinic to pay exorbitant rent for buildings that she and her husband controlled. Prosecutors offered evidence that she used the rent proceeds to remodel her own home and to fund her lifestyle.

Prosecutors also presented evidence that Tartaglione was responsible for a bogus drug treatment program aimed at low income people. The crimes were charged in federal court because the clinic primarily served Medicaid recipients.

The jury convicted Taraglione after a nineteen-day trial. Noting that Taraglione had betrayed the public trust by misappropriating money from a taxpayer-funded program, the judge sentenced Taraglione to 82 months in prison. She appealed, challenging the prosecution’s use of a lawyer as an expert witness.

Expert Testimony Regarding Non-Governing Law

The prosecution called the Deputy Attorney General of Pennsylvania, Mark Pacella, as an expert witness. While a prosecutor who testifies for another prosecutor might have an inherent bias, the question of bias is usually for a jury to consider. Potential bias, by itself, does not typically disqualify expert witnesses, although on rare occasions judges have excluded experts because of their financial interest in the case or because their history of extreme bias renders their opinions unreliable.

Pacella “explained the legal and regulatory framework for Pennsylvania charitable nonprofit corporations, including the fiduciary duties imposed on board members and directors of such organizations.” Since the judge could have explained fiduciary duties in jury instructions, the question before the appellate court was whether the expert testimony violated the rule that lawyers cannot generally testify as experts in the law.

While recognizing the general rule, the court noted that an exception permits legal experts to testify about “non-governing law” if the testimony will assist the jury. The exception usually applies to the law of a foreign country.

Rule 26.1 of the Federal Rules of Criminal Procedure allows a court to consider relevant testimony about foreign law. At least one legal scholar has bemoaned the use of legal experts to testify about domestic law that a trial judge is fully capable of understanding and explaining.

The appellate court nevertheless concluded that a “non-governing law” exception to the general rule covers “applicable legal duties, especially when those non-governing laws help explain fraudulent intent.” Pacella explained the clinic’s Articles of Incorporation and the legal distinction between a for-profit and a charitable nonprofit corporation. The court decided that the testimony did not cover governing law.

Expert Testimony Regarding Fiduciary Duties

More troubling was Pacella’s testimony about the “fiduciary duties of care and loyalty applicable to directors and officers of such organizations under Pennsylvania law.” The court decided that those duties were not “governing law” because they arose under Pennsylvania law and Tartaglione was not charged with violating Pennsylvania law. The court thought it was noteworthy that Pacella testified that Pennsylvania does not criminalize the breach of a fiduciary duty.

The court’s analysis is questionable. Since prosecutors used Pacella’s testimony to argue that a breach of state law fiduciary duties evidenced a violation of federal law, Pennsylvania law “governed” the very conduct that prosecutors deemed fraudulent.

It is difficult to understand the relevance of Pacella’s testimony if not to define legal duties that governed Tartaglione, the breach of which gave rise, at least in part, to federal charges. The court acknowledged that the testimony was offered to support the argument that Tartaglione’s breach of a governing fiduciary duty proved her intent to commit fraud.

The court cited no on-point precedent, probably because most trial judges do not allow prosecutors to call another prosecutor as an expert witness to bolster their case. The court likened Pacella’s testimony to background evidence about scientific principles, but the issue was whether a lawyer can be called as an expert to explain the law, not whether a scientist can be called as an expert to explain science. If the court is the only expert on the law, it is difficult to understand why the explanation of Pennsylvania law governing Tartaglione’s fiduciary duties should not have come from the court rather than an expert witness.

Ohio wooden Mallet

No Expert Required to Admit Lidar Results in Ohio Speeding Cases

With little analysis, state courts have routinely held that common scientific instruments used by law enforcement agencies should be presumed accurate and that their results should be admissible without expert testimony. For example, Wisconsin’s appellate courts have firmly followed the holding that “tests by recognized methods need not be proved for reliability in every case of violation. Examples, speedometer, breathalyzer, radar.”

The court presumed the accuracy of those devices without giving the matter much thought and without considering any expert evidence that they are, in fact, accurate. How to decide that a method is “recognized” is another question that the court neglected to answer.

Presuming the accuracy of a device makes life easier for prosecutors who would otherwise need to call an expert witness in each trial to explain why the device works as intended. Presumptions shift the burden to defendants to establish that the device did not produce a reliable result. Whether a system that requires each element of the offense to be proved beyond a reasonable doubt by the prosecution is undermined by presuming the accuracy of the prosecution’s evidence has been a source of contention for decades.

The presumption of accuracy sometimes overlooks doubtful assumptions made by the manufacturers of devices sold to law enforcement agencies. Breath testing devices, for example, generate results based on the assumption that the ratio of alcohol concentration in blood to alcohol concentration in breath is 2100:1. But that number is just an average. The actual ratio ranges from 1500:1 to 3000:1, depending on the person.

Since breath testing devices make the false assumption that everyone has the same blood to breath concentration of alcohol, breath testing devices produce blood alcohol results that are low for some people and high for others. The discrepancies have rarely troubled judges, who too often believe it is more important for prosecutors to present their cases quickly than to assure their convictions are based on accurate evidence.

Radar and Laser Devices

Radar and laser devices are commonly used to measure speed. A radar device shoots a radio signal at a moving vehicle and detects the signal when it bounces back to the device. The change in frequency of the signal as the vehicle moves is assumed to be proportional to the vehicle’s speed.

A laser device shoots a concentrated beam of light rather than a radio signal. It measures the time it takes for the reflected light to return to the device. By comparing multiple readings over time (usually less than a second), the device can calculate the speed at which the vehicle is moving.

Laser speed detection devices, sometimes known as Lidar, have grown increasingly popular with law enforcement agencies. While radar emits a wide beam that might capture a passing bird or a vehicle the operator did not intend to target, the narrow laser beam arguably reduces the risk of operator error.

Police officers are commonly presented in court as “expert operators” of radar and Lidar, which simply means they have been trained to use and calibrate the devices. They typically have little understanding of the scientific principles upon which the devices are based. Again, the presumption that the devices work as intended saves the prosecution from calling an expert witness to fill in the gaps in the officer’s knowledge.

Ohio Considers Admissibility of Lidar Device Results

The Ohio Supreme Court recently considered whether courts should take judicial notice of the accuracy of laser devices used to measure speed. A police officer in Brook Park stopped Joseph Rodojev for driving 15 mph over the speed limit.

The officer captured Rodojev’s speed on a Lidar device manufactured by Laser Technologies Inc. The company markets its TruSpeed products as “a laser speed device that any department can afford.”

The city prosecutor introduced the readout from the budget-saving device through the testimony of its operator. No expert testimony was introduced to establish the reliability of the device. The judge did not take judicial notice of its reliability.

The Ohio Supreme Court decided in 1958 that radar was based on valid scientific principles — in particular, the Doppler effect — and that radar results did not need to be supported by expert testimony. The state court of appeals decided that Lidar was similar to radar, notwithstanding that laser devices do not rely on the Doppler effect, and that the same result should therefore apply. Since the court’s lazy reasoning conflicted with the decision of another state appellate court, the state supreme court agreed to resolve the conflict.

Based largely on an explanatory law review article and court decisions in other states, the Ohio Supreme Court decided that Lidar devices are reliable. Since no expert ever testified in the case, it reached that conclusion without the benefit of expert assistance. The court did a favor for prosecutors by reducing their burden in speeding cases, but like other courts, it did so with remarkably little consideration of the science underlying the devices.

The court did note that Lidar results are still subject to challenge at trial, “including challenges involving the angle at which the officer held the device in relation to the targeted vehicle, the device’s accuracy-validation algorithms, the device’s calibration and maintenance schedule, and the officer’s qualifications to use the device.” Cross-examining the officer by comparing the officer’s actual use of the device to the procedure required by the device manufacturer’s manual is often a fruitful way to beat a speeding ticket. But those challenges, the court said, go to the weight of the evidence, not to Lidar’s reliability. The bottom line is that in Ohio and many other states, no expert testimony is required to admit Lidar results into evidence.


PAM Spray Defect Case Tossed Out for Lack of Admissible Expert Evidence

The Eastern District of New York has dismissed claims against the makers of PAM cooking spray after the plaintiffs failed to present admissible expert witness testimony.

The Incident

In August 2016, Lucita Arena was in her kitchen preparing dinner when a nearby can of PAM cooking spray exploded and injured her. Lucita and her husband Jose Urena sued ConAgra Goods, Inc. and DS Containers, Inc., the makers of PAM and its container. The couple alleged design defect, failure to warn, and loss of consortium.

The type of PAM canister that exploded has four U-shaped score lines that are designed to open when the pressure inside the can rises to a particular level. The can features warnings including, “USE ONLY AS DIRECTED. FLAMMABLE. DO NOT SPRAY ON HEATED SURFACES OR NEAR OPEN FLAME … CAN MAY BURST IF LEFT ON STOVE OR NEAR HEAT SOURCE.” The canister that injured Lucita Arena was discarded by her attorney’s custodial staff after it was left in a conference room before experts had the opportunity to examine it.

The Design Expert

Plaintiffs retained Dr. Lester Hendrickson, Ph.D., as a design expert to help them prove their theory of causation. Dr. Hendrickson had a Ph.D. in metallurgical engineering and serves as a professor emeritus at Arizona State University. He has authored more than 1,000 technical reports as an expert witness. Dr. Hendrickson planned to testify that “absent the vents in this can, the circumstances under which” the plaintiff “was burned would not have occurred.”

The defendants objected to the design expert and the district court decided to exclude him. The court ruled that Dr. Hendrickson did not satisfy Daubert because he had failed to explain how the alternative design that he proposed would be safer. The court also found that Dr. Hendrickson’s opinion failed to satisfy Daubert’s criteria for reliability because he had criticized the PAM canister’s propellant, but had not proposed a safer proponent, nor tested any. Further, his proposal had never been subjected to peer review or publication. Therefore, the court found that Dr. Hendrickson had failed to show general acceptance of his design or methodology.

The defendants filed a motion for summary judgment. The defendants argued that the plaintiff’s design defect failed because they had not offered admissible evidence that the design of the PAM canister and not a manufacturing defect had caused the plaintiff’s injuries. The plaintiffs had also failed to offer admissible evidence from an expert regarding a defect or a feasible alternative design. The court agreed with the defendants.

The court also ruled that the plaintiffs’ failure to warn claim did not raise any triable questions of fact because they could not show that any inadequacy of the warnings was the proximate cause of the plaintiff’s harm. The court ruled that the plaintiff’s theory that the warnings were inadequate for failure to warn about the canister’s vent design failed because they could not show that the absence of the warning was the cause of the plaintiff’s injuries.



Missouri Appeals Court Throws Out Sanctions Against Expert Witness

The Missouri Court of Appeals Eastern District has thrown out sanctions against a plaintiff’s expert witness, ruling that he did not act unethically in negotiating a settlement with another law firm.

District Court Case

Attorney Gregory Leyh and the law firm Millsap & Singer have been litigating against each other for years. Leyh has represented hundreds of plaintiffs in lawsuits against Millsap, alleging that Millsap engaged in improper conduct in connection with its representation of banks and mortgage holders in foreclosures and collections. Leyh was also appointed class counsel on a pending class action lawsuit for similar improper conduct. Millsap has sought to sanction Leyh, decertify the class in his suit, and filed suit against him personally for malicious prosecution and abuse of process.

In 2010, Debra Woodson filed a suit against Millsap and its client Bank of America for wrongful foreclosure. Woodson’s attorney retained Leyh as an expert witness in the case. The parties entered a protective order which indicated that documents that were marked confidential were not to be disclosed or used in any current or future litigation. However, Leyh was never made aware of that order.

Leyh was given access to a confidential deposition for his role as an expert in the Woodson case. Leyh later disclosed that deposition in discovery to the case in which he was serving as class counsel.

Millsap filed a motion for contempt, arguing that Leyh’s disclosure and use of the deposition was a knowing and intentional violation of the Woodson protective order.

The parties negotiated a settlement agreement but could not come to a final agreement on all settlement terms.

Millsap filed a motion to enforce the settlement.  Following a two-day hearing, the trial court found that the parties had reached a settlement agreement, agreed to modify that agreement, and that Leyh’s refusal to execute the agreement was in bad faith. The court also found that Leyh’s assertion that his attorney had the authority to negotiate, but not settle the dispute was not credible. The court further found that Leyh’s failure to advise Millsap’s counsel about this limited authority was a violation of Rule 4-4.1 of the Missouri Supreme Court’s Rules of Professional Responsibility, which require Leyh to be truthful to opposing counsel. The court imposed a $35,000 sanction against Leyh, based on its determination that he had behaved unethically and in bad faith.

Missouri Court of Appeals

Leyh appealed to the Missouri Court of Appeals. On appeal, the Court of Appeals agreed with the trial court that the parties had reached a settlement agreement; however they disagreed that the parties had agreed to modify that agreement. The court also disagreed with the finding that Leyh had acted in bad faith.

The Court of Appeals also reversed the trial court’s finding that Leyh had violated Rule 4-4.1 of the Missouri Supreme Court’s Rules of Professional Responsibility. It noted that Leyh was not acting as a lawyer in this case, he was acting as an expert witness. Rule 4-4.1 only applies to lawyers when they are representing clients.

The case was decided by Judges James M. Dowd, Gary M. Gaertner, Jr., and Robin Ransom.

Lender Liability

Court Allows Expert to Testify that Advertising Was Not Misleading

The Federal Trade Commission (FTC) sued Lending Club for violating federal laws that prohibit deceptive or unfair business practices. A federal judge recently decided several motions in the case, including the FTC’s Daubert motion to exclude the testimony of Lending Club’s expert witness.

Facts of the Case

Lending Club is not itself a lender. Rather, it connects borrowers with lenders. Lending Club charges borrowers a percentage of the borrowed amount as a loan origination fee. The fee, which averages 5% on unsecured loans, is deducted from the loan and paid to Lending Club when the loan proceeds are advanced to the borrower.

From 2012 to 2018, Lending Club’s advertising claimed it charged “no hidden fees.” Loan applicants who met baseline criteria could apply for a loan. The Lending Club website would then display a loan offer page showing the loan amount, the number and amount of monthly payments, and the annual percentage rate (“APR”).

The loan offer page did not disclose an origination fee unless a consumer clicked a question mark beside the term “APR” (on the desktop version) or hovered over the term “APR” (on the mobile version). Borrowers were not required to perform those actions before completing the loan.

The FTC contended that Lending Club falsely claimed that loans included “no hidden fees” when, in fact, an origination fee is literally hidden in the loan offer and only becomes visible if a consumer happens to click or hover in the right place.

The origination fee was mentioned again on a terms page that included a federally required Truth in Lending Disclosure. The “amount financed” box includes the full amount of the loan for which the borrower applied, but the borrower must scroll down the page to learn that an origination fee would be deducted from the “amount requested,” resulting in a smaller “amount received.”

The final page asks the borrower to enter bank account information where the loan will be deposited. The page then says “Your [$ amount requested] loan is on the way.” The FTC contended that the statement was false, because the amount requested minus the origination fee was “on the way.”

The origination fee is more conspicuously explained on a separate “rates and fees” page. However, borrowers were not required to view that page before completing the loan.

In addition, nearly all Lending Club customers elect to pay their loans through an automatic bank account withdrawal each month. The FTC alleged that Lending Club had a habit of “mistakenly” taking too much money or continuing to take withdrawals after the borrower canceled the automatic withdrawal feature. The FTC alleged that consumers had contacted their banks to force Lending Club to reimburse $3.8 million. Apart from that inconvenience, if consumers failed to notice that they were overcharged, Lending Club might have simply pocketed their money.

Expert Testimony

A key dispute in the case involved the number of consumers who proceeded with the loan process because they didn’t know they would need to repay a loan origination fee that would be deducted from their loan proceeds. Lending Club argued that a more conspicuous disclosure of the origination fee would not have reduced the number of borrowers who decided to continue the application process.

Lending Club supported that claim with the expert report of Dr. Yoram Wind. Wind conducted an experiment with prospective borrowers. He showed the actual Lending Club website to a test group. He removed the “no hidden fees” statement from the website he showed to the control group.

Wind then surveyed successful applicants in each group, asking whether they received the amount of money they expected to receive. About 89% of the test group and about 94% of the control group indicated that they received the amount of money that they expected to receive.

Wind shared the results with the FTC, which indicated that Lending Club had changed its website during the years covered by the complaint and that the experiment did not take those changes into account. Wind then designed a new experiment with three test groups.

The first test group saw a “no hidden fees” offer page that omitted the origination fee disclosure that Lending Club added to a footer in June 2017. The second test group saw a “no hidden fees” offer page and the origination fee footer that appeared from June 2017 to May 2018. The third test group saw the page that was displayed to the second test group but without a “no hidden fees” statement. The court thought the evidence was inconsistent as to whether the third group saw a footer disclosing the origination fee.

In response to an FTC objection, Wind also modified the survey invitation to state that borrowers’ responses would not affect their relationship with Lending Club or their credit score.

In the new version of the study, Wind concluded that the percentage of control group applicants who misunderstood the amount they would receive was virtually identical to the first study, while the percentage of applicants in each test group who misunderstood was very similar to the test group results in the first study.

Wind also found that about 19% of participants in all test groups and the control group accepted the loan. Wind concluded that the similar results proved that the “no hidden fees” claim had no impact on the decision to complete the loan process.

Daubert Ruling

The FTC contended that Wind’s methodology was unreliable because he asked the wrong question. In the FTC’s view, asking whether borrowers received the money they expected did not address Lending Club’s misleading advertising. The real question, according to the FTC, was whether borrowers were aware of the origination fee by the time they completed the loan.

The court decided that the principles Wind used to design his survey, including assuring an adequate sample size and random assignment to test or control groups, were scientifically valid. In addition, one of the test groups saw the “No Hidden Fees” advertisement described in the complaint, so the test results were relevant.

The question that Wind asked — whether applicants received the loan payout they expected — provided insight into whether applicants were aware of the origination fee. Whether that was the best question to ask could be explored on cross-examination. Surveys do not need to be perfect to be admissible. In that regard, the court provided a more forgiving interpretation of Daubert than the interpretation used by judges who insist that only a perfect methodology can be reliable.

The court also regarded the FTC’s remaining challenges as bearing on the weight that the evidence should receive rather than its admissibility. Whether the question that Wind asked was improperly leading, whether he should not have disclosed that Lending Club was sponsoring the survey, whether he should have screened out applicants who learned of the origination fee from other sources, and whether Wind waited too long to survey applicants were not questions that exposed a blatant bias in the test results, as the FTC claimed.

Lessons Learned

Whether an arguable deficiency in a research methodology goes to admissibility or weight is a question that different courts, confronted with the same facts, will answer in different ways. Sometimes the same judge will answer the question in different ways in different cases, depending on which party the judge favors. Unless the methodology is obviously error-free or egregiously flawed, decisions about admissibility depend more on the judge’s philosophy than on any clear rule of law.

The judge in this case may have been influenced by the fact that she will be the ultimate factfinder. The trial will be to the court, not to a jury. Caselaw allows judges to be less vigilant about their “gatekeeping” role in bench trials because judges are assumed to be less likely than juries to be influenced by expert evidence that might be less than rigorous. Whether or not that assumption has merit, it is worth remembering that judges are less likely to grant Daubert motions when no jury will hear the evidence, if only because admitting the evidence and discounting it after a trial provides a shield against appellate reversal.


Juries May Not Base Guilty Verdicts on Unreasonable Disregard of Expert Testimony

The Indiana Supreme Court began its opinion in Payne v. State with the observation that the “criminal legal system rests on the assumption that humans are rational agents of free will with the ability to exercise conscious choice in their everyday actions.” Whether that assumption is accurate is hotly debated by philosophers and neuroscientists. There is much about the mind and the concept of self that we do not understand, but judges are comforted by long-held assumptions that, if abandoned, would undermine the foundations of criminal punishment.

Putting aside the debate about free will, it is commonly understood that some people, at least, are compelled by irrational beliefs to behave unlawfully. Those people are sometimes said to be insane, although many states have abandoned that term.

The criminal justice system is premised on the belief that serious punishment should be reserved for people who choose to commit a crime despite their knowledge that it is wrong to do so. Modern legal thought generally shields defendants from criminal punishment when, at the time they engage in unlawful conduct, they are suffering from a mental disease or defect that deprives them of the ability to control their actions or to understand that their actions are wrong.

The tests for legal responsibility (or “insanity” in those states that still use the term) vary from state to state. In Indiana, an accused is not legally responsible for conduct that would otherwise be criminal “if, as a result of mental disease or defect, he was unable to appreciate the wrongfulness of the conduct at the time of the offense.”

Expert Testimony and Proof of Responsibility

Mental illness is typically proved by expert testimony. When a defense is based on the accused’s mental disease or defect, both the prosecution and the defense typically call an expert witness to opine whether the accused meets the relevant legal standard.

In some cases, however, mental illness and its impact on the defendant’s perception of reality is so obvious that all the experts agree that the legal standard is met. Those cases often result in a civil commitment based on the need to protect society from a dangerous person.

In Payne v. State, all the experts agreed that Payne was unable to appreciate the wrongfulness of his conduct, but the prosecution nevertheless took the case to trial and obtained a conviction. The question before the Indiana Supreme Court was whether jurors are free to disregard the unanimous view of expert witnesses when they decide whether a defendant is responsible for a criminal act.

Facts of the Case

Jesse Payne was arrested for burning down two covered bridges in 2002 and 2005 and for attempting to burn a third bridge. A judge determined that Payne was incompetent to stand trial, presumably because his mental illness rendered him incapable of understanding the proceedings or assisting in his defense. In 2016, the court decided that Payne had regained competence and the prosecution resumed.

Payne defended the charge on the ground that, when the crimes occurred, he was incapable of appreciating the wrongfulness of his conduct. Indiana persists in referring to that defense as an “insanity defense.”

Pursuant to Indiana law, the court appointed three neutral experts — two psychiatrists and a psychologist — to evaluate Payne and to determine his mental status at the time the alleged crimes were committed. All three experts agreed that Payne “suffered from paranoid schizophrenia and delusional disorder, rendering him unable to distinguish right from wrong” in 2002 and 2005.

Notwithstanding the unanimous opinions of the experts, and not satisfied with the fact that Payne had lost his freedom for eleven years before being declared competent to stand trial, the prosecution took Payne to trial. The prosecution argued that Payne’s demeanor proved that he knew he was doing something wrong. The jury evidently agreed with that argument and found Payne guilty. The Indiana Court of Appeals concluded that the jury was entitled to give the demeanor evidence greater weight than the unanimous expert opinions and affirmed his conviction.

Indiana Precedent

Appellate courts rarely second-guess a jury verdict. It is the jury’s function, not the court’s, to weigh the evidence. Juries are entitled to disbelieve witnesses, including expert witnesses.

But juries must still base their decisions on evidence, not on a sense of outrage that a crime might go unpunished if they vote to acquit a defendant who does not have the ability to understand the difference between right and wrong. The unwillingness of juries to let bad acts go unpunished makes the “insanity defense” a defense of last resort. Yet there are times when the evidence compels a finding that the defendant was not legally responsible for his actions, even if the jury chooses not to believe the obvious.

The supreme court noted that flaws in an expert’s opinion about the defendant’s mental status, combined with evidence of a defendant’s demeanor at the time the crime was committed, might reasonably permit the jury to find a defendant guilty. The primary Indiana precedent involved a defendant who had carefully planned a crime for weeks and then took steps to conceal evidence of the crime to avoid apprehension. Those facts, the court thought, could convince a jury that the defendant understood that it was wrong to commit the crime, given inconsistencies in the experts’ opinions.

Of course, failing to understand that conduct is wrong is not inconsistent with making a plan to engage in that conduct. A person might be driven by schizophrenia and paranoia to plan a crime without appreciating that the criminal conduct is morally wrong.

Concealing evidence might be seen as proof that the defendant knew the conduct could lead to punishment, but a desire to avoid consequences is not the same as appreciating that conduct is morally wrong. “Demeanor evidence” may therefore be an ambiguous ground upon which to base a rejection of uncontradicted expert testimony.

Expert Opinions and Demeanor Evidence in Payne’s Case

Regardless of the merit of Indiana precedent, the supreme court deemed it to be inapplicable. The court recognized that experts are “central to a determination of insanity.” The experts agreed that Payne’s history of paranoid schizophrenia and delusional disorder was longstanding and well documented. There was no evidence that Payne had been faking the condition before, during, or after he committed the acts of arson.

When expert opinions are in conflict or when there is reason to discount them, juries are free to choose among conflicting opinions or to reject them all. While “conflicting diagnoses, inadequate document review, deficient psychiatric evaluations” and similar flaws in the expert opinions might allow a jury to disregard those opinions, none of those flaws were present in Payne’s case. Nothing in the expert testimony gave the jury any factual basis for concluding that Payne did not meet the Indiana definition of insanity.

Nor did the prosecution’s reliance on “demeanor evidence” justify a verdict that disregarded the unanimous expert opinions. Dr. Jeffrey Huttinger explained that Payne’s demeanor, though “superficially normal to a casual observer,” was consistent with schizophrenia when his actions were “driven by some type of delusion.”

The prosecution relied on evidence that Payne set the fires late at night, a choice made — in the prosecution’s view — to avoid detection. The prosecution also argued that Payne lied when he told the police that fuel in his car was for camping and that he used convenience store receipts in an attempt to establish a false alibi. The prosecution suggested that the jury could view its evidence as establishing a consciousness of guilt.

The supreme court recognized that the jury was required to consider the totality of the evidence. The prosecution’s demeanor evidence was ambiguous. People who are paranoid and delusional might well operate in secrecy and tell lies. In fact, that conduct might be a product of their mental illness.

In the supreme court’s view, the prosecution’s demeanor evidence did not outweigh the unanimous opinion of three mental health experts that Payne was incapable of appreciating the wrongfulness of his conduct. Given the weight to which the expert opinions were entitled, the probative value of the prosecution’s demeanor evidence “effectively dissolves.” The court therefore concluded that “not guilty by reason of insanity” was the only verdict a reasonable jury could return.

The supreme court observed that its judgment is not a “get out of jail free” card. Indiana law requires a civil commitment proceeding to follow an acquittal on the ground of insanity. If Payne still suffers from a mental illness which makes him a danger to society — and he might not, given the prosecution’s argument that treatment restored his competence to stand trial — he will be subject to civil commitment until he no longer poses a danger.

Lessons Learned

The culture wars that divide America include a battle over expert opinions. Some people reject all expert opinions, whether they pertain to global warming or the dangers of coronavirus, as “elitist.” Those people believe that expert opinions are entitled to no greater deference than the opinions of people who have no expertise at all. That battle, coupled with the insurance industry’s relentless effort to portray all experts as “hired guns,” has tended to make juries less open to the opinions of experts who are more knowledgeable than lay jurors.

Judges routinely take cases away from civil juries because they believe that no reasonable jury could disbelieve the evidence presented by defense experts. The willingness to disregard the judgment of jurors in civil cases, where only money is at stake, should equally protect defendants in criminal cases, where freedom is at stake. When jurors refuse to believe unassailable expert opinions about a defendant’s mental health, it is the judiciary’s duty to set aside the jury’s unreasonable verdict and to acquit the defendant.

Tennessee Prohibits Reliance on an Involuntary Expert to Establish Standard of Care

Brenda Pringle had an operation to remove pelvic cysts. Her recovery did not go well. Additional surgeries were required before she could return to work.

Pringle made a complaint against her surgeon, Dr. Christy South, to the Kentucky Board of Medical Licensure. The Board contracted with Dr. Elvis Donaldson to review the complaint. He apparently made a determination that Dr. South did not follow an appropriate standard of care.

Pringle then sued Dr. South for medical malpractice. Pringle disclosed her expert witnesses. All but one were treating physicians. None of the treating physicians offered an opinion that Dr. South breached the applicable standard of care.

Pringle identified Dr. Donaldson as an expert witness but did not retain him to testify. Dr. South subpoenaed Dr. Donaldson to testify in a discovery deposition. The Board moved to quash the subpoena, arguing that its contracted doctors should not be required to repeat the opinions they give to the Board in unrelated court proceedings.

The trial court granted the motion to quash long after the deadline for disclosing experts had passed. Dr. South then moved for summary judgment, arguing that in the absence of expert testimony, Pringle could not prove that Dr. South breached the standard of care.

The trial court agreed and granted judgment in Dr. South’s favor. Pringle appealed.

Appellate Analysis

The Kentucky Court of Appeals affirmed the trial court’s decision. Kentucky follows the general rule that the standard of care in all but the most obvious cases of medical malpractice must be proved by the testimony of an expert. Summary judgment was therefore appropriate unless the trial court erred by refusing to allow Dr. Donaldson’s compelled testimony.

Pringle argued that she was entitled to present Dr. Donaldson’s investigation, findings, and conclusions as memorialized in a report that Dr. Donaldson prepared for the Board. While acknowledging that no Tennessee precedent existed, the Court of Appeals relied on an unpublished decision for the proposition that relevant fact testimony can be compelled by issuing a subpoena, but relevant expert testimony “is not the property of litigants.”

In some contexts, that rule has obvious merit. Expert witnesses should be entitled to pick and choose the persons for whom they work. The leading expert in a field might be deluged with subpoenas to compel testimony if he or she could be forced to give expert opinions.

In addition, unlike fact witnesses, expert witnesses are entitled to be paid for their time. Retained experts can bill for their time and have a contractual right to be paid. An expert who is forced to provide an opinion without being retained might end up testifying for free.

This issue is most likely to arise when the plaintiff visits a physician who opines that the treating physician committed malpractice but is unwilling to say so in court. That happens regularly, given the reluctance of physicians to testify against each other. Forcing that physician to testify as an involuntary expert is not something that most courts are prepared to do.

Accordingly, the appellate court created a blanket rule that a party to a medical malpractice action cannot compel involuntary expert evidence from a physician. Parties must instead retain their own expert witnesses.

Lessons Learned

One might think that a report prepared by a medical expert retained by a state agency for a public purpose would be admissible evidence if it either identified malpractice or exonerated the investigated doctor. Unlike retained experts, who are often disparaged as “hired guns,” Dr. Donaldson was a neutral expert. He formed his opinions at the request of the public, not for an interested party. His opinions might therefore be seen as public property, unlike the opinions of privately retained experts that are, in the view of the court, the property of the party who retains them.

Once an expert’s report prepared for a state agency becomes a public record, there are good reasons to believe a party should be entitled to compel the expert’s testimony. The physician has already chosen to express an expert opinion and has, in fact, done so. The expert has been paid for that work. While the expert would certainly be entitled to additional compensation for testifying in a deposition or in court, the policy considerations that weigh against forcing an involuntary expert to testify have less merit when applied to experts who were retained to provide opinions to a public agency. Depriving litigants of valuable evidence that is already a matter of public record does not seem to promote justice.

Notwithstanding the unique circumstances presented here, lawyers should be guided by the court’s blanket rule. It is unwise to rely on the expectation that an expert witness can be compelled to testify. The better practice is to retain an expert.

Whether the retained expert would be entitled to rely on the report written by the Board’s expert to inform the retained expert’s opinion is a separate question. The answer in most states will likely depend on whether physicians routinely rely on the opinions of other physicians when they form their own expert opinions.


Expert CV Checklist

Tara Reade’s Expert Witness Credentials Questioned

Tara Reade, the former Senate staffer who has accused Democratic presidential candidate Joe Biden of sexual harassment and assault, is under scrutiny for misrepresenting her qualifications under oath when appearing as an expert witness in domestic violence cases.

Joe Biden Accusation

Tara Reade, 56, has accused 2020 presidential candidate Joe Biden of sexually harassing and assaulting her while she worked in his office in 1993. Since first coming forward with her allegations, Reade’s recounting of the 1993 events has changed and numerous news publications have begun to investigate her allegations.

PBS NewsHour interviewed 74 former Biden staffers to get a “broader picture of his behavior toward women over the course of his career, how they see the new allegation, and whether there was evidence of a larger pattern.” None of the 74 people said that they had experienced sexual harassment, assault, or misconduct by Biden. All of those interviewed said that they had never heard any previous accusations of Biden engaging in sexual misconduct.

In conducting its investigation, CNN interviewed Reade and learned more about her background. Reade told CNN that she had earned a bachelor of arts degree from Seattle, Washington-based Antioch University under a “protected program,” where the former president of the school ensured that her identity was protected while she was attending classes. Reade also claimed that she was a visiting professor at the university, on and off for a period of five years.

When CNN fact-checked Reade’s story, Karen Hamilton, an Antioch University spokesperson confirmed that Reade had “attended but did not graduate from Antioch University.” Hamilton also stated that Reade, “was never a faculty member. She did provide several hours of administrative work.” Antioch University also told CNN that it had never had a “protected program.”

Expert Witness on Domestic Violence

Misrepresenting her past is especially problematic, as Reade has previously served as an expert witness in domestic violence cases.

On December 12, 2018, Reade appeared as an expert witness in California state superior court in Salinas. The Monterey County District Attorney’s Office called Reade as an expert witness on the dynamics of domestic violence. As part of her qualifications, Reade listed a bachelor’s degree from Antioch University. Reade also listed a role as an “ongoing online visiting professor” at Antioch for five years.

According to Roland Soltesz, the lawyer of the woman who was charged for attempted murder in the case where Reade testified as an expert, Reade was “beloved” by local prosecutors. Patrick McKenna, executive director of a legal group that handles appeals for indigent defendants in the Salinas area, said that Reade had  testified as an expert witness over 20 times.

At the time of the trial, Soltesz and another lawyer had challenged Reade’s credentials as an expert, arguing that Reade’s experience “was largely in advocacy work.” The trial court judge rejected the argument, ruling that Reade had the proper educational background and experience to testify as an expert. Cases in which Reade testified might now be reopened, given that the educational background that allegedly qualified Reade as an expert was falsified.