Category Archives: ExpertWitness

Closeup of a bloody knife with blood dripping

Defendant Tries to Exclude Expert Who Used Electric Knife to Carve Up Human Cadaver

The legal defense team of a woman accused of murder is attempting to exclude a forensic anthropologist from testifying, stating that prosecutors did not disclose an expert report which examined whether or not a human body could be dismembered by an electric carving knife. 

The Crime

Kimberly Kessler is accused of the May 2018 murder of her former coworker, Joleen Cummings. Forty-three-year-old Cummings, a Yulee, Florida hairstylist and mother of three, was initially reported missing by her mother after no contact or response from her daughter for over 48 hours. Since that time, various agencies including the Nassau County Sheriff’s Office and the FBI have been conducting an ongoing search for her body. 

Nausea County Walmart surveillance footage has shown Kessler purchasing an electric carving knife, along with black trash bags and ammonia, around the time of Cumming’s disappearance. At the time of her arrest, Kessler was found with a variety of scratches on both her face and hands. Cummings, last seen on May 12, 2018, is presumed to be dead, although her body has still not been found. Kessler has pleaded not guilty to first-degree murder with a trial date scheduled for December 6, 2021. 

Pre-Trial Proceedings

During the recent pre-trial hearing, Kessler became agitated and was quickly removed from the courtroom after a verbal outburst. She has demonstrated a pattern of verbal outbursts and subsequent removals from the courtroom. Kessler’s mental competence has been an ongoing question and concern during the case. Kessler reportedly does not communicate or work with her public defenders.

Kessler’s defense attorneys want the expert testimony in question, which was submitted by forensics anthropologist and Florida Gulf Coast University professor Dr. Heather Walsh-Haney, to be excluded. Kessler’s defense attorneys say that the prosecution failed to appropriately disclose the testimony. 

According to the defense motion, prosecutors hired the expert witness to explore the hypothesis that a “Black + Decker 9-inch electric carving knife would not cut through human bone at the neck and extremities due to the weakness of the knife motor and the fragility of the blade.” Walsh-Haney “perform[ed] an experiment on a human cadaver,” and created a report, “Postmortem Dismemberment Experiment Using a Human Cadaver.” The video-recorded experiment confirmed that the electric knife could dismember a corpse. 

Walsh-Haney completed the report in May 2019. However, the state did not disclose Haney as a witness or provide a copy of the report until recently. The defense team motion states that this was “less than 5 weeks before this case is set to begin a jury trial” and that this left the defense lawyers without appropriate time to “properly review and challenge” the expert report nor to employ “an expert of its own to review her methodology and conclusions.” The defense’s motion requests that the court punish the State Attorney’s Office for these failures and argues that Walsh-Haney’s expert testimony should be disallowed. 

Kessler’s case is before Judge James H. Daniel in Nassau County Circuit Court in Florida.

How Far Can Lawyers Push to Discover Evidence of Expert Witness Bias?

The potential bias of an expert witness is not usually a ground for excluding expert testimony. Bias goes to credibility and credibility is for the jury, not the trial judge, to determine. Before an expert can be excluded for bias, the bias must generally be so obvious that a judge can say as a matter of law that the witness is an unreliable source of information.

On the other hand, the bias of a witness is always a relevant issue in a trial. Lawyers generally rely on cross-examination as a tool to expose bias. However, the maxim that lawyers should not ask a question unless they know the answer should motivate lawyers to discover evidence of bias before the expert witness takes the stand.

Financial Bias

Unless an expert witness has a personal relationship with a party or a political axe to grind, an expert’s financial incentive to give favorable testimony is usually the strongest evidence of potential bias. The extent to which claims of financial bias are likely to sway a jury depends on the facts of the case.

Juries understand that expert witnesses are paid for their time. Everyone understands that being paid to testify creates a risk that the expert will slant testimony to favor the party paying the expert’s fee. That risk is captured in the German proverb, “Whose bread I eat, his song I sing.”

When each side calls a retained expert, however, the risk that experts will be viewed as hired guns tends to offset. One study suggests that the “hired gun” perception is strongest when an expert testifies frequently and earns substantial compensation from giving expert testimony.  The study also concludes that juries are most likely to view an expert as biased when they don’t understand the expert’s testimony. 

Lawyers can minimize the “hired gun effect” by assuring that the expert’s testimony is easy for the jury to comprehend. When juries think that an expert is making sense, they are less likely to dismiss expert testimony as the product of bias.

Discovery of Financial Bias

The Federal Rules of Civil Procedure require retained experts to disclose the amount of compensation they are being paid for their services “in the case.” A closer question is the extent to which a party can discover compensation paid to an expert, either by the same or a different party, in other cases.

Courts often draw a distinction between discovery of a party’s financial relationship with an expert and an expert’s income from broader employment as an expert witness. The issue has frequently arisen in cases involving independent medical examinations (IMEs) performed by doctors who are hired repeatedly by insurance companies. A jury might view a doctor’s substantial income from repeated testimony for the same insurance company as evidence that the doctor can be counted on to favor that insurance company. Allowing broad discovery of an expert’s income, however, arguably has a chilling effect on the willingness of professionals to act as experts.

Courts have attempted to balance an expert’s right to financial privacy against a party’s right to discover evidence of bias. An Arizona court, for example, concluded that it was inappropriate to use a subpoena duces tecum to obtain financial records before taking the deposition of a medical expert who performed an IME for an insurance company. The court viewed the “exhaustive” request for production of financial records, including tax returns, as unduly burdensome, at least as an “opening salvo” in discovery. The court concluded that the plaintiff’s lawyers should first pursue less intrusive avenues of discovery that might produce bias-related evidence.

A leading decision in Florida followed a similar analysis. The appellate court allowed a defense physician to be questioned about compensation paid for testimony in the plaintiff’s case. The court decided that a lawyer may also ask a defense expert who performs IMEs about the percentage of his or her income that was earned from testifying as an expert and the percentage earned from treating patients. Lawyers in Florida can ask for an approximation of the time the expert spends working as an expert witness, but cannot ask how much income the expert earns, either from all sources or from work as an expert witness. Another Florida decision gave lawyers greater latitude to inquire about historical income earned from the party in a case, as opposed to income earned from all work as an expert witness.

When courts limit discovery to relatively vague information offered during depositions (such as the percentage of time the witness devotes to work as an expert), whether the witness answers those questions truthfully can be difficult to determine in the absence of financial document discovery. The Arizona court offered a partial remedy to that problem by suggesting that financial document discovery might be appropriate when an expert is evasive, uncooperative, or untruthful. How parties can determine that answers are untruthful in the absence of financial document discovery is unclear.

Other courts take a more liberal approach to discovery. The Pennsylvania Supreme Court permitted interrogatories seeking discovery of all expert income earned each year during the past three years. A Kentucky court held that doctors who testify for insurance companies can be asked about the total amount of income they earn from performing IMEs. A Tennessee court agreed with courts “that have allowed expert witnesses to be questioned about the amount of income they earn from their forensic activities.” That court upheld a judge’s order for discovery of financial documents that would be filed under seal with the trial court to permit the judge to determine whether a recalcitrant doctor’s deposition testimony about his income was truthful.

Discovering financial information that might suggest the bias of a testifying expert is easier in some states than in others. Lawyers need to have a firm grasp of relevant court decisions in the jurisdiction that hears the case before they make a plan to uncover evidence of an expert’s potential financial bias.

Using Expert Witnesses in Arbitration Proceedings

Arbitration clauses are common in commercial contracts. Some employment agreements and user agreements (the online contracts that consumers never read before clicking “I agree”) also contain arbitration clauses. 

Arbitration has been promoted as a cost-effective alternative to courtroom litigation. That may or may not be true. The filing fee to start an arbitration can be considerably larger than the fee for filing a lawsuit. Arbitrators charge a daily fee; judges are paid by the public. Court reporters charge the same fee for depositions, whether the discovery is conducted in a civil action or an arbitration.

On the other hand, the motions that extend civil litigation are usually curtailed in arbitration. Cases generally proceed more quickly in arbitration, resulting in lower attorneys’ fees for clients who pay lawyers by the hour.

Expert Witness Disclosure and Discovery in Arbitration Proceedings

Plaintiffs frequently ask an expert witness to evaluate a case before they decide whether the case is worth pursuing. For example, when a consumer purchases a product from an online vendor that injures the consumer, a lawyer might want an engineer to examine and test the product to decide whether the product’s design made it unreasonably dangerous. A lawyer may rely on that opinion when they lawyer decides to bring a product liability case.

In federal court, a consulting expert’s opinion is not usually discoverable. If the lawyer wants the expert to testify in court, however, the lawyer must disclose the expert and the expert must prepare a report that complies with federal rules. Communication between the expert and a lawyer might be shielded from discovery, but — as is true of the rule shielding the opinions of a consulting expert — courts have created a minefield of exceptions that may expose experts to broader discovery than a party anticipates.

Disclosure of experts tends to be less strict in arbitration proceedings. Arbitration agreements often limit discovery. They might do so expressly or by requiring adherence to arbitration rules that streamline discovery (such as the JAMS Comprehensive Arbitration Rules & Procedures). 

The JAMS rules require a document exchange and the identification of witnesses, including experts. They require production of “any written expert reports that may be introduced at the Arbitration Hearing” but they do not require experts to prepare reports. The rules also allow the deposition of experts by agreement or for good cause. The absence of an expert report may be good cause for taking the expert’s deposition.

When the agreement is silent, arbitrators control discovery. They generally require document exchanges, but they might not permit depositions or require experts to prepare reports. 

The limited disclosure and discovery rules in arbitration might be an advantage for parties who use expert witnesses. Lawyers may be able to speak more freely with consulting experts. Lawyers may also be more confident that documents prepared by an expert for the expert’s own use will be protected from discovery.

Admissibility of Expert Opinions

In federal court, litigants must satisfy the Daubert standard before an expert witness can testify. Federal judges interpret Daubert inconsistently, making it difficult to predict whether an expert opinion will be admitted.

State courts follow their own standards. They often modify the Daubert or Frye standards or create a hybrid rule. Litigants are challenged to assure that expert testimony fits within a state’s standard of admissibility.

Unless the arbitration agreement imposes a particular standard on the admission of expert testimony, arbitrators are likely to consider the testimony of an expert without considering admissibility of the expert’s opinion. Daubert factors that address the reliability of the expert’s methodology or the sufficiency of the facts that inform the expert’s opinion will generally determine the weight the arbitrator gives to the expert’s opinion rather than the opinion’s admissibility.

Advantages of Expert Testimony in Arbitration

In jury trials, lawyers prepare experts to explain technical language in simplified language. While experts may want to use technical jargon to enhance their credibility, they need to help jurors understand their jargon so that jurors do not become lost in the complex analysis that underlies the expert’s opinion.

Arbitrators are often chosen because they have experience deciding cases within a particular field. An arbitrator who has heard experts testify in similar cases will not necessarily need a “simplified” version of an expert’s reasoning. While jurors who do not understand an expert’s testimony cannot ask for clarification, an arbitrator is free to do so. Arbitration may therefore streamline an expert’s testimony while making it more likely that the decision-maker understands the expert’s opinion.

Pen, figures, and Calculator

What Fees Can Expert Witnesses Charge?

On occasion, expert witnesses agree to work for free. Dr. Martin Tobin, a lung and critical care specialist with more than 40 years of experience, testified that George Floyd died due to a lack of oxygen after Derek Chauvin knelt on Floyd’s neck. Tobin has been compensated for his expert testimony in several civil cases, but he did not charge prosecutors for his expert testimony in Chauvin’s criminal trial.

In some cases, expert witnesses testify as part of their employment. A mechanic who works for an auto repair business might explain why a brake failure that caused an accident was not caused by a faulty repair. In that case, the mechanic is testifying as an expert but will generally be paid only the hourly wage that the employee earns for performing work duties.

In most cases, however, expert witnesses are retained for litigation and promised a fee for their expert assistance. As a general rule, experts are free to set their own fees for acting as a consulting or testifying expert. 

Lawyers, on the other hand, rarely have unlimited budgets. They can only pay fees that their clients can afford. Lawyers are also constrained by rules of professional responsibility that might limit the amount they can pay. Expert witnesses should be aware that lawyers may pay them a reasonable fee but not an exorbitant fee.

Ethical Constraints

The ABA Model Rules of Professional Conduct prohibit lawyers from offering an inducement to a witness that is prohibited by law. For example, a lawyer may not bribe a witness to testify in a particular way. The payment of fact witnesses (as opposed to reimbursing travel expenses) is often regarded as a prohibited inducement to testify.

A comment to that rule makes clear that a lawyer may “compensate an expert witness on terms permitted by law.” Since paying reasonable compensation for an expert’s work is not an unlawful inducement to testify, paying an expert’s fee typically raises no ethical issues.

The rules of professional responsibility in many states address the payment of witnesses more directly. The professional responsibility rules in many states prohibit lawyers from paying more than a “reasonable and customary fee” to expert witnesses.

Reasonable Fees

A fee that the expert has charged in other cases is usually the “customary” fee of an experienced expert. When a witness has given no previous testimony as an expert, a customary fee might be the fee that experts with similar qualifications who are of similar stature charge for their testimony. Fee surveys might provide new experts with guidance as to customary fees charged by expert witnesses in their field.

Unless it is clearly exorbitant, disciplinary boards will generally regard any fee that the expert and the lawyer agree upon at arm’s length as reasonable. The dividing line between a reasonable fee and an exorbitant fee, however, can be difficult to draw.

The issue of reasonableness usually arises when a court requires one party to pay the fee of an expert who testifies for the opposing party. For example, a federal court must require the party taking the deposition of an opposing party’s expert to pay the expert’s reasonable fee for testifying. When permitted by statute, a prevailing party may be able to recover the fees that the party paid to its expert witness.

Federal courts consider several factors when they decide whether the fees charged by an expert witness are reasonable. Those factors include: (1) the expert’s area of expertise; (2) the education and training required to provide the expert insight that is sought; (3) the prevailing rates of other comparably respected available experts; (4) the nature, quality, and complexity of the discovery responses provided; (5) the fee actually being charged to the party that retained the expert; and (6) fees traditionally charged by the expert on related matters.

When both parties employ experts, the court may compare the fees charged by the competing experts as a guide to reasonableness. However, when one expert has stronger credentials or more experience than the other, it isn’t unreasonable for the more qualified expert to charge a higher fee.

The reasonableness of an expert’s fee depends not just on the expert’s hourly rate, but also on the number of hours that the expert bills. Courts generally recognize that an expert must prepare to testify in a deposition. Courts will often agree that it is reasonable for an expert to spend two to three hours preparing for each hour spent testifying.

The time it takes to prepare an expert report is a function of the complexity of the case. When the expert is not required to do extensive research and the facts are simple, the reasonable time to prepare a report will be less than the time required to draft a report in a more complicated case. There is no rule of thumb that helps experts determine the reasonableness of a total fee. As a general rule, if the expert works efficiently and charges a customary hourly rate, the expert’s fee will be reasonable.

Hourly Rate vs. Flat Fee

Most experts charge an hourly rate. Some experts charge a flat fee. Fee agreements might also combine the two forms of payment. An expert might charge an engagement fee that locks in the expert so that the expert cannot be hired by another party. Engagement fees are a fixed sum of money, but they are often treated as retainers. 

An expert who charges an hourly rate might credit a lawyer with an advance payment for the hours covered by an engagement fee. However, experts often require an engagement fee to be nonrefundable, treating the engagement fee as the minimum fee that will be charged for the expert’s work.

Flat fees are often charged per task. For example, an expert might charge a flat rate for each day (or half day) of trial testimony or for each day (or half day) of deposition testimony, regardless of the length of time that the expert testifies. 

Some experts offer services pursuant to a hybrid fee agreement. They charge hourly rates to review documents, meet with lawyers, perform the work needed to reach an opinion, and write a report. They then charge a flat fee to testify.

Contingent Fees

Lawyers cannot pay an expert witness a fee that is contingent upon the trial’s outcome. Even if the lawyer has agreed to accept a contingent fee in a personal injury case, the lawyer cannot enter into a contingent fee agreement with an expert witness.

Courts and the authorities who regulate lawyers fear that expert witnesses will slant their testimony to favor a party if their payment is contingent upon the party obtaining a favorable verdict. Since the court system benefits from honest experts, it disallows contingent fees for the same reason that it prohibits lawyers from paying unreasonable fees. The judicial system discourages any fee arrangement that creates a strong incentive to testify falsely.

Code

Will AI Replace Expert Witnesses?

Fans of science fiction are familiar with the role that Artificial Intelligence (AI) might eventually play in our daily lives. Even in the present, machines are being programmed to simulate intelligence by learning, adapting, and making reasoned decisions that respond to new situations.

Self-driving cars create the illusion of intelligence because they use algorithms to make decisions based on constantly changing data. Doctors depend on AI to help them diagnose health conditions, a task that machines may eventually be able to perform more accurately than physicians and without their assistance. Electronic tutors help children learn by assessing whether a student is bored or struggling and by changing lessons to meet the student’s needs.

Some have suggested that lawyers and judges will eventually be replaced by AI counterparts. Legal reasoning might even by improved by removing bias and political leanings from the decision-making process. 

Jurors cannot be replaced by machines without amending federal and state constitutional guarantees of jury trials. Whether it would be wise to remove human emotion from the process of rendering a verdict probably depends on how lawyers feel about humans.

Expert Witnesses and AI

Matthew Robert Bennett and Marcin Budka have been “investigating the potential for AI to study evidence in forensic science.” Their results have been mixed. Focusing on the ability of AI to analyze footprint evidence, they found that the AI “was better at assessing footprints than general forensic scientists, but not better than specific footprint experts.”

Footwear imprints are commonly found at crime scenes. The FBI contends that “footwear impression evidence often provides an important link between the suspect and the crime scene.”

Forensic investigators gather shoeprint or footprint evidence at crime scenes. Forensic experts then offer opinions about their source. Scientists warn that prints found at crime scenes are often of low quality and that methods used to take impressions of the prints may change their characteristics. “For this reason, there will always be some uncertainty concerning whether a suspect’s shoe truly matches the crime scene print, or if the match is simply a false positive.”

Training an AI to Be an Expert

Footprint experts may be able to determine a suspect’s height, weight, and gender from the size of his or her footprints. However, Bennet and Budke determined that podiatrists have a 50{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} success rate when they determine gender based on footprints — the same success rate that guessing would produce. 

Bennet and Budke trained an AI to perform the same task. The AI arrived at a correct conclusion about gender 90{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the time.

Shoeprint experts rely on experience and databases to identify the make of a suspect’s shoe. Bennet and Budke concluded that true experts are rarely mistaken in their identification. Unfortunately, there are few true footwear experts in the UK, where Bennet and Budke conducted their study.

Forensic investigators and police detectives make use of the UK’s extensive database of footwear and shoeprints. They are much less successful than experts at identifying footwear from shoeprints. Bennet and Budke tried to determine whether an AI could do a better job.

They trained a second AI to identify the make and model of footwear from black and white photographs of shoeprint impressions. They ran several trials with casual database users and discovered that their success rate varied from 22{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} to 83{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4}. When they ran the same trials with their AI, the success rate varied from 60{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} to 91{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4}. 

The AI was better than database users who were not among the UK’s elite footwear experts, but still had a significant error rate. Actual footwear experts performing the same trial were nearly always right. The lesson learned is that AI isn’t yet ready to supplant human experts, at least when it comes to footwear identification — and that detectives who fancy themselves to be experts are not remotely qualified to render accurate opinions.

AI in Court

Perhaps R2D2 will one day be allowed to testify as an expert witness. At present, courts don’t need to grapple with the ability of an AI to swear an oath. As filtered through human witnesses, however, evidence created by an AI can influence the outcome of trials.

ExpertPages recently discussed the perils of relying on ShotSpotter, a form of AI that uses algorithms to deduce the location of loud noises that it identifies (not always correctly) as gunshots. Even if the accuracy of ShotSpotter were a given, the ability of humans to tweak the results that algorithms produce raises questions about the reliability of ShotSpotter. Investigations by journalists have “identified a number of serious flaws in using ShotSpotter as evidentiary support for prosecutors.”

Apart from the potential unreliability of human witnesses who present the conclusions drawn by AI, the accuracy of an AI’s conclusions depends on the reliability of the algorithm that teaches the AI to “think.” The creators of AI generally claim a proprietary interest in the algorithms, refusing to open them for inspection by an opposing party. That makes “trust us” the common fallback position of human witnesses who explain how an AI reached its conclusions.

In cases that depend on evidence generated by an AI, opposing parties may need to hire an AI expert. The expert will likely have a background in computer science or information technology but might need to work with a second expert who has specialized knowledge of biomechanics, e-commerce, or a variety of other disciplines, such as footwear recognition or acoustics. While the goal of AI is to improve the human condition by allowing computers to arrive at faster and more accurate conclusions than humans, the present reality is that human experts are often needed to testify about the flaws in AI decision-making.

Late Disclosure of Underlying Data Does Not Bar Damages Expert from Testifying

Plaintiffs in wrongful death cases routinely ask expert witnesses to compute the loss of the victim’s anticipated contributions to a family. The experts generally rely on past earnings as part of their analysis. Whether the belated disclosure of that data renders an expert’s opinions unreliable or otherwise requires exclusion of the expert’s opinion was the issue in a recent federal case in the District of Nevada.

Facts of the Case

Nickles and Dimes, Inc., a company that owns and operates amusement arcades in shopping malls, employed Charles Wyman as a route manager. Wyman was electrocuted while servicing a “claw” game machine in Las Vegas. The machine was manufactured by and purchased from Smart Industries Corporation. 

Unbeknownst to Wyman, the claw machine was electrically charged because a power wire and a grounding wire inside the machine were reversed. Wyman was in contact with the electrified machine for about ten minutes before a firefighter unplugged it. Wyman died without recovering consciousness.

Wyman’s estate, several of his surviving family members, and the company that insured Nickles and Dimes filed lawsuits against Smart and other entities for wrongful death. All of the lawsuits were eventually removed to federal court and consolidated. 

Some claims have been settled or dismissed. The remaining liability question is whether the claw machine left the factory in a defective condition. The disputed damages issue relates to lost financial support arising from Wyman’s death.

Expert Report

Terrence Clauretie prepared a preliminary expert report on behalf of the Wyman family members. His report calculated the financial support Wyman would have contributed to his family if he had not died. That report was disclosed within the time set by the court’s scheduling order.

Years after the preliminary report was filed, Smart moved to strike Clauretie as an expert witness. Smart complained that the expert report was incomplete when it was filed because Clauretie did not produce income records in support of the report. Smart also complained that the family members did not provide income records in discovery and that the income information Clauretie reviewed was so vaguely described that Smart could not “discern with certainty” the information he received. 

The family members responded that the preliminary report made clear that it was based on incomplete information and that additional information would be provided later. The preliminary report stated that the final calculation was unlikely to differ significantly from the preliminary calculation. 

After discovery closed, Clauretie received tax information from 2011 to 2013 and prepared a supplemental report that included a final estimate of loss. The final estimate did not differ from the preliminary estimate. 

Smart’s Objections

Smart premised its motion to strike on the argument that a preliminary report does not contain a “complete statement” of all the expert’s opinions as required by Rule 26(a)(2)(B). It also argued that Clauretie’s preliminary report did not include all facts and data he considered or exhibits that would be used to support his opinions.

Smart also objected that Clauretie based his report on statistical data regarding average households rather than Wylie’s actual income. That methodology, in Smart’s review, is unreliable and rendered his opinion speculative.

Smart conceded that Clauretie may have reviewed tax information before he prepared his preliminary opinion but complained that it did not know what information he reviewed. Smart asked the court to strike Clauretie as an expert witness because it could not conduct meaningful discovery of the facts that supported his final opinion.

Reliability Is a “Flexible Concept”

The district court reviewed Clauretie’s opinions for relevance and reliability. Clauretie’s calculation of lost financial support was obviously relevant to an award of damages in a wrongful death case. 

Unlike judges who view themselves as the ultimate authority on reliability, the court recognized that its job was not to determine whether the expert’s opinions are sound but whether the expert used a sound methodology to arrive at those opinions.

The court also recognized that reliability is “a flexible concept.” The court recognized that experts are not required to use a perfect methodology, or even the best methodology. Experts have discretion to choose among various reliable methodologies. Whether that choice affects the reliability of their opinions is for the jury to decide.

The district defined its gatekeeping role as screening out “nonsense opinions.” It is not the court’s job to reject impeachable opinions. Unless the expert “lacks good grounds” for an opinion, it is opposing counsel’s job to expose weaknesses in the expert’s analysis through cross-examination, and it is the jury’s job to decide whether to accept or reject the opinion. 

Reliability of Clauretie’s Opinions

The court rejected the argument that Clauretie failed to identify the facts upon which he based his opinion. The preliminary report identified the substantial information upon which it was based, including Clauretie’s review of tax returns from 2014 and 2015.

The court also rejected Smart’s claim that it never received those tax returns. The returns were attached to a disclosure that the plaintiffs filed but later withdrew after Smart objected that it was filed after the discovery deadline expired. The court did not allow Smart to pretend that it never received the tax returns. Since discovery was later reopened, Smart could have asked to depose Clauretie concerning his reliance on those tax returns. 

The preliminary report indicated that earlier tax returns were not likely to change Clauretie’s opinion significantly. After Clauretie received the 2011 to 2013 tax returns, he prepared a brief supplemental report and confirmed that the additional data did not change his calculation. Nothing in that sequence of events, including the belated disclosure of the 2014 and 2015 tax returns, rendered Clauretie’s opinion unreliable.

Late Disclosure

The court also considered whether the belated filing of Clauretie’s supplemental report justified striking him as an expert witness. Rule 26 requires expert reports to be filed within the time designated by the court. While Rule 26(e) permits supplemental reports, that rule does not create a loophole that permits experts to file incomplete reports before the disclosure deadline.

Rule 37 generally requires the exclusion at trial of opinions and data not included in the report that Rule 26 requires.  The court recognized that the rule nevertheless permits relief from its “harsh requirements” when a failure to disclose was substantially justified or harmless. In addition, the rule authorizes the court to impose sanctions that are less harsh than the exclusion of evidence.

Different judges apply Rule 37 in different ways. Judges who take a mechanistic approach require strict adherence to deadlines and believe that courts should rarely decline to exclude expert evidence when the rule is violated. Judges who believe that cases should usually be decided on their merits by juries, not by judges as a sanction for rules violations, are more inclined to exercise their discretion to avoid harsh results.

The court agreed that the plaintiffs offered no satisfactory explanation for their late production of either set of tax returns. While the belated disclosure might not have been entirely harmless, if only because the delayed resolution of a case is theoretically harmful to the administration of justice, the court decided that “the public policy favoring disposition of cases on their merits and the availability of less drastic sanctions” weighed against striking Clauretie as an expert witness.

While Smart did not benefit from timely production of the tax returns, it did receive the preliminary expert report on time. That report incorporated a number of exhibits and explained how Clauretie arrived at his opinions. Smart had the tax returns before discovery was reopened. It manufactured its own prejudice by failing to take Cluaretie’s deposition so it could question him about the tax returns. Nor did Smart move to compel disclosure of the tax returns.

The court noted that Smart was not required to take Clauretie’s deposition or to move to compel disclosure of documents that Rule 26 requires to be produced. At the same time, Smart was not in a position to argue that it was harmed when it knew of Clauretie’s opinions, had his report, and had the opportunity to depose him. Smart could not claim to have been surprised by Clauretie’s opinions since they did not change from the time the preliminary report was filed. Since Smart received the tax returns before a trial date had even been set, the exclusion of Clauretie’s testimony would be an unduly harsh sanction.

The court decided that a lesser sanction than exclusion was appropriate. It allowed Smart to take Clauretie’s deposition and required the Wymans to pay all expenses associated with it. It also required the Wymans to pay attorneys’ fees associated with the motion to strike.

Lessons Learned

The district court judge wisely avoided a knee-jerk response to belated discovery disclosures. The judge’s ruling was tailored to the lack of harm associated with the late disclosure. 

Lawyers should understand that some judges are more concerned with enforcing their scheduling orders than with producing just results. Experts and the lawyers who hire them should always do their utmost to either (1) produce reports and data relied upon to support opinions by the date set in the court’s scheduling order, or (2) move for an extension of time to produce that data with a showing of good cause for the delay. Violating a rule and hoping that the judge will not impose a harsh sanction is never a good strategy.

Zoom Meeting

The Psychological Impact of Remote Testimony on Expert Witnesses

The latest pandemic surge is causing a new round of trial delays and courthouse closures in some parts of the country. Lawyers can only guess when the “new normal” will arrive. Defining a post-pandemic “normal” may be just as challenging as working during a pandemic.

Remote deposition testimony has become common. It took time for lawyers and court reporters to work the kinks out of remote deposition technology and procedures, but most lawyers have adjusted to the change. Whether remote depositions should continue after the pandemic is a subject of debate. Positions may change from case to case, depending on whether a remote deposition is likely to be helpful or harmful to the lawyer’s client.

Courts have routinely conducted hearings remotely, although permitting a trial witness to testify from a remote location is less common. The federal rule permits remote trial testimony in civil cases “for good cause in compelling circumstances and with appropriate safeguards.” Whether the pandemic constitutes good cause or compelling circumstances is a question that courts decide on a case-by-case basis.

Procedural rules in arbitration tend to be more relaxed than court rules. While the rules that govern arbitration proceedings differ, the most common sets of rules vest the arbitrator with considerable discretion to take testimony remotely. 

Impact on Expert Witnesses

Lawyers view remote testimony in terms of strategy. They might not give much thought to the psychological impact of remote testimony upon a testifying expert. A report by the Berkeley Research Group examines “the possible psychological impact of different ‘hearing’ environments” upon participants in arbitration proceedings, including expert witnesses. BRG is a global consulting firm that provides services to clients in a variety of industries.

The report is based on interviews with participants in arbitration hearings that used remote technology. After spending a few months overcoming glitches in that technology, participants generally developed a favorable impression of remote hearings.

Expert witnesses, in particular, had a positive response to remote hearings. Testifying from the expert’s home or office places experts at ease. The experts believed that the familiar setting allowed them to consider questions more thoughtfully, free from the distractions that are inevitable in a crowded conference room or courtroom.

The report also highlights the perceived benefit of “the additional virtual barrier between the expert witness providing evidence and those tasked with cross-examination.” The report suggests that attempts “to place pressure on and unnerve” expert witnesses were less effective when the lawyer could not confront the witness in a face-to-face setting. It’s difficult to badger a witness from afar.

Experts who testify in person may feel bullied by aggressive cross-examination tactics. While remote testimony may be a disadvantage for lawyers who want to rattle experts during cross-examination, it is fair to ask whether intimidation is a tactic that promotes just results. A witness might be more likely to give thoughtful and reasoned answers when aggressive cross-examination tactics are offset by distance.

On the other hand, comfort cuts both ways. When a cross-examining lawyer cannot intimidate a witness, a better tactic may be to lull the witness into a false sense of security. Remote testimony can seem like a one-on-one conversation between the witness and the lawyer. Witnesses may be tempted to say too much, forgetting the standard admonition to answer only the question that was asked and not to volunteer information.

Preparing the Expert for Remote Testimony 

Experts also noted that in-person depositions are usually accompanied by in-person meetings with the lawyer who prepares them to testify. Experts found that meeting in person results in more thorough preparation. A mock cross-examination is more likely to build confidence when it is conducted in person. Preparing in person also contributes to strong communication and reduces the risk that the expert and the lawyer who retained the expert will not be on the same page when the expert testifies. 

The report suggests that experts and lawyers both benefit from meeting in person to prepare the expert’s testimony. Even when a hearing or deposition is conducted remotely, it may be sensible to meet in person when the time comes to prepare the expert to testify.

Psychologists have identified “Zoom fatigue” as a potential drawback of remote proceedings. Staring at a screen is less engaging than watching witnesses testify in person. An arbitrator’s mind might start to wander after hours of watching an expert give less-than-scintillating testimony about technical issues. Lawyers should keep “zoom fatigue” in mind by breaking up lengthy hearing testimony into a series of shorter answers to help keep the judge or arbitrator engaged.

Impact on Outcomes

Study participants were divided in their opinion about the impact of remote testimony on hearing outcomes. Some believed that the hearing environment has an impact on the decision-making process. Most participants believed that the professionalism of judges, lawyers, and expert witnesses overcomes the disadvantages of remote testimony.

Expert witnesses did not view remote testimony as changing the nature of their testimony or the way that testimony would be perceived. Experts believed they had adapted to remote testimony with ease.

The key takeaway from the BRG report is that expert witnesses benefit from in-person preparation even when they testify remotely. Lawyers may have a better outcome when they meet with an expert witness in person to prepare the expert’s testimony.

Patent law

USPTO Cannot Shift Expert Witness Fees

The U.S. Court of Appeals for the Federal Circuit has issued a precedential decision denying the U.S. Patent and Trademark Office’s request to shift expert witness fees.

The Underlying Dispute

Gilbert Hyatt is an individual who has filed and litigated many U.S. patents. In 1995 alone, Hyatt filed hundreds of lengthy and complex patent applications. Four of the many patent applications that Hyatt filed in 1995 included 1:05-CV-2310-RCL, 1:09-CV1864-RCL, 1:09-CV-1869-RCL, and 1:09-CV-1872-RCL.

After adverse results at the U.S. Patent and Trademark Office (PTO) regarding the four patents at issue, Hyatt sued the PTO under 35 U.S.C. § 145, which allows a patent applicant to challenge a PTO decision in district court. The PTO filed a motion to dismiss Hyatt’s suit, arguing that his patent should be unenforceable because of the unreasonable and unexplained delay in prosecuting his patent, which was an abuse of the patent system. The district court rejected the PTO’s arguments and ordered it to issue a patent covering some of Hyatt’s claims. The PTO appealed.

While the appeal was pending in the U.S. Court of Appeals for the Federal Circuit, Hyatt filed a motion to recover his attorney’s fees under the Equal Access to Justice Act. The district court granted this motion in part because Hyatt had won his case in district court. The U.S. Court of Appeals for the Federal Circuit vacated and remanded this decision, ruling that the PTO had met its initial burden of proving its case, therefore, Hyatt was not the prevailing party and not entitled to attorney’s fees.

The PTO simultaneously filed a motion to recover its expert witness fees under 35 U.S.C. § 145, which states that “[a]ll the expenses of the proceeding shall be paid by the applicant.” The district court noted that there was no precedent dealing with the American Rule presumption against fee-shifting and denied the award of expert witness fees. The PTO appealed.

The U.S. Court of Appeals for the Federal Circuit

The court immediately vacated the district court’s award of attorney’s fees to Hyatt because, after it had remanded the case, he could not be considered a prevailing party. It then examined whether 35 U.S.C. § 145’s language that “[a]ll the expenses of the proceedings shall be paid by the applicant” requires that the applicant pay the expert witness fees of the PTO. 

The court noted that the U.S. Supreme Court has upheld the “American Rule,” which requires that litigants pay their own fees “unless a statute or contract provides otherwise.” For a law to overcome the presumption set by the American Rule, “Congress must provide a sufficiently ‘specific and explicit’ indication of its intent to overcome the American Rule’s presumption against fee shifting.”

The court then interpreted the language of § 145 and determined that it was not sufficiently specific to overcome the presumption against fee-shifting. It affirmed the decision of the district court.

Expert Witness typography

Court Requires Dual-Hat Expert to Produce Materials He Created as a Consulting Expert

Some lawsuits repeatedly showcase the nuances of the federal rules governing expert testimony. The multi-district litigation involving C.R. Bard’s mesh products has produced multiple rulings that offer guidance to lawyers who rely on expert testimony in federal court. The latest ruling sheds light on the circumstances under which dual-hat experts must disclose the materials they prepare when they form opinions.

Facts of the Case

Steven Johns is one of thousands of plaintiffs who sued C.R. Bard after suffering injuries allegedly caused by defects in the company’s polypropylene hernia mesh products. Those lawsuits have been joined in multidistrict litigation. Johns’ lawsuit is the first “bellwether” case that will be tried. Last year, an ExpertPages blog discussed the court’s decision to admit the testimony of Johns’ causation expert.

Johns contends that the company’s Ventralight ST mesh device is defective. The mesh was implanted in Johns to repair a hernia. Johns had a gap in the layer of connective tissue called the fascia. The mesh implant was intended to close that gap.

One side of the Ventralight ST mesh is coated. The side with “ST coating” is placed against an organ, such as the patient’s bowels. The uncoated polypropyIene side is placed over the gap in the fascia. 

The coating is intended to delay resorption of the mesh into the organ. The plaintiffs allege that the mesh resorbs too quickly, exposing organs to damage caused by the bare polypropylene. Johns alleges that after his hernia repair, he developed adhesions in a fatty structure associated with the bowel called the omentum. Johns attributes the adhesions to the defective mesh.

Competing Expert Testimony

Bard intends to present the expert testimony of Stephen Badylak, who examined photomicrographs of slides from Bard’s clinical animal study on the Ventralight ST. Bard wants Badylak to testify that the ST coating remained on the mesh device 28 days after it is implanted. The testimony is arguably important because the plaintiffs contend that the coating was generally gone within a week.

The plaintiffs had hired Tamas Nagy to conduct a similar analysis. Nagy reviewed slides from the animal study, took photomicrographs of the slides, reviewed them using a score sheet (as did Badylak), and made notes of his findings. After consulting with Nagy, the plaintiffs represented that Nagy would not offer any expert opinions.

Nagy did not prepare an expert report. On that basis, the defendants moved to strike him as an expert. The parties disputed whether the plaintiffs properly redesignated Nagy as a consulting rather than a testifying expert. The court took no immediate action on the motion to strike Nagy.

In a second supplemental expert report, Badylak advanced his opinion about the presence of ST coating after 28 days of implantation. The plaintiffs challenged the admissibility of Badylak’s opinion. The court determined that Badylak’s methodology was sufficiently reliable to permit his testimony.

The court also allowed the plaintiffs to call Nagy as a rebuttal expert to challenge Badylak’s conclusion that coating remained after 28 days. Based on that ruling, the court denied the motion to strike Nagy as an expert.

Nagy re-reviewed the slides and prepared a rebuttal expert report. When Bard deposed him, he failed to produce materials related to his initial review of the slides, including his photomicrographs, notes, and score sheets. Bard then paused the deposition and moved to compel production of those materials.

Motion to Compel

The court began with the proposition that an opposing party is entitled to production of all materials “considered” by an expert before or while forming an expert opinion, whether or not the expert relies on those materials in the expert’s report. An expert “considers” materials when the expert receives, reads, reviews, or authors those materials, provided that their subject matter relates to the opinions that the expert expresses. The party resisting disclosure bears the burden of showing that the expert did not consider the materials.

Nagy testified that he re-reviewed the photomicrographs before he produced his rebuttal report. He therefore “considered” them in connection with the opinions he formed. There seems to be little dispute that Nagy’s photomicrographs were discoverable.

Nagy authored his notes and score sheets. Since those documents relate to the general subject matter of the opinions Nagy expressed in his rebuttal report, the court began by asking whether the plaintiffs met their burden of showing that Nagy did not consider them in reaching the opinions he expressed.

Nagy testified that he did not need to re-score the score sheets when he formed his rebuttal opinion. The court did not regard Nagy’s testimony as a denial that he considered the original score sheets when he formed the opinions expressed in his rebuttal report. In any event, an expert’s denial that he considered certain data or facts does not control the dispute because the defendants are not required to believe an expert’s testimony. 

The court also rejected the plaintiffs’ assertion that Nagy made the notes and score sheets during his initial review for an unrelated purpose — to examine the degree of inflammatory response in the tissue. Nagy’s rebuttal report discussed inflammatory response as evidence that the ST coating was or was not present on the mesh, suggesting that his first and second review did not address entirely different subjects. Ambiguity about the scope of the first analysis made the notes and score sheets discoverable.

Work Product Objections

The plaintiffs also resisted production of the notes and score sheets on the ground that they are not discoverable “facts and data.” The plaintiffs argued that the notes and score sheets contain Nagy’s interpretation of and commentary about the slides he reviewed and are thus work product that is protected from discovery. 

The court declined to make an expert’s thought processes “categorically undiscoverable.” Nagy testified that the notes represented his visual observations of the slides. Since “visual observation” was the testing process that Nagy employed, the court did not see how else Nagy could capture the presence or absence of the characteristics he observed. The notes and score sheets were therefore discoverable “facts and data.” 

To the extent that the attorney work-product privilege protects communications between an expert and an attorney, it does not extend to an expert’s own development of the opinions he expressed. The attorney work-product privilege protects an attorney’s mental impressions, not those of an expert. Since no attorney’s mental impressions or legal theories were reflected in the score sheets or notes, they were not entitled to work-product protection.

Dual Hat Expert

Perhaps the most meaningful challenge to the production of Nagy’s notes and score sheets was rooted in the notion that Nagy was a consulting expert when he created those materials and only became a testifying expert when it became necessary to rebut Badylak’s report. A non-testifying, consulting expert is generally immune from discovery. Redesignation as a testifying expert does not cause a loss of immunity as to materials that were considered “uniquely” in the expert’s role as a consultant.

The court concluded that the plaintiffs failed to carry their burden of demonstrating that Nagy prepared his original notes and score sheets “uniquely” in his role as a consulting expert. The court did not believe that Nagy could “draw a line in the sand” between information he considered in a consulting context and information he considered when he formed his rebuttal opinions. Given the similarity of the subject matter that Nagy was asked to draw conclusions about as a consultant and later as a testifying witness, and given that his conclusions in each instance were based on a review of the same slides, the court thought it likely that Nagy’s score sheets and notes were not “unique” to the work he performed as a consulting expert. 

Gavel and Stethoscope on Reflective Table

Civil Commitments in North Carolina May Require Expert Witnesses to Act as Lawyers

State laws typically allow the civil commitment of an individual who is dangerous to himself or others because of a mental disease. The procedures that must be followed to secure a commitment order vary from state to state.

When the allegedly dangerous person is brought into the mental health system by a police officer, states typically require a government attorney to represent the interest of the state is seeking a commitment. The person who might be committed has the right to a lawyer and may be entitled to a public defender.

The procedure in North Carolina is unusual. While North Carolina provides a lawyer to the subject of the commitment proceeding, it only requires the state to be represented by counsel when the proceeding is held at a state facility, such as a state-owned mental health hospital. 

North Carolina law gives the attorney general discretion to assign or not to assign a lawyer to commitment proceedings held in private facilities. That quirk in the law effectively forces expert witnesses to make legal decisions about what testimony they should give rather than responding to questions asked by a lawyer.

A recent appellate decision asked whether the subject of a commitment receives a fair hearing when the expert witness rather than a lawyer is the person who, as a practical matter, represents the state. The North Carolina Court of Appeals decided that the procedure is fair.

Facts of the Case

Police officers brought Q.J. to the emergency department of the Duke University Medical Center. The officers advised hospital staff that Q.J. was “having thoughts of harming his mother,” had threatened to slit her throat in the past and was threatening suicide.

Dr. Naveen Sharma signed a Petition for Involuntary Commitment of Q.J. The petition represented that Duke University Medical Center was familiar with Q.J., that he had a history of schizoaffective disorder, that he wasn’t taking his medications, and that he had been hospitalized many times in the past under similar circumstances. 

Dr. Sharma expressed the opinion that Q.J. needed treatment to prevent further deterioration of his mental condition. Dr. Sharma believed that he would become dangerous without treatment. Dr. Sharma’s petition alleged that Q.J. was unable to care for himself adequately in the community and required inpatient hospitalization for stability and safety.

Based on the petition, a magistrate found that Q.J. was mentally ill and a danger to himself or others. The magistrate authorized a temporary inpatient commitment pending a full hearing. That hearing was held about three weeks later.

Q.J.’s Commitment Hearing

Q.J. was represented by counsel at the commitment hearing. No representative appeared on behalf of the state. Q.J.’s counsel objected to the failure of either the District Attorney’s office or the Attorney General’s office to represent the state. In their absence, a mental health expert from Duke Medical Center was the only individual representing the interests of the state.

Dr. Kristen Shirley testified in support of the commitment petition. She had never evaluated Q.J. Dr. Shirley is not a lawyer. The judge overruled Q.J.’s objection to proceeding with a doctor representing the state in an adversarial proceeding.

The judge began by asking Dr. Shirley to “tell me what it is you want me to know about this matter.” Dr. Shirley testified about the results of Q.J.’s two mental health evaluations following his detention. She opined that Q.J. responded well to medication but has limited insight into his mental health status and was likely to stop taking medication if he was released to the community. 

Dr. Shirley testified that Q.J. posed a high risk of decompensating if he were released. In her opinion, decompensation might cause him to become suicidal or homicidal. Dr. Shirley testified that a community treatment team recommended hospitalization to stabilize Q.J.’s condition, including treatment with a long-acting injectable medication. Dr. Shirley recommended a 30-day commitment.

Q.J.’s attorney cross-examined Dr. Shirley. In the absence of any lawyer representing the state, the judge conducted his own redirect examination. The judge found that Q.J. was mentally ill and that the mental illness made him dangerous to himself and others. The judge ordered a 30-day civil commitment.

Expert Witness as Representative of the State

Q.J. appealed. The most significant issue on appeal was whether, in an adversarial system of justice that depends on two opposing parties being represented by counsel, a civil commitment proceeding can proceed when the only advocate for the state is a testifying expert witness, not a lawyer.

When a lawyer represents the state, the lawyer asks questions and the expert witness answers them. The judge’s role is limited to ruling on objections. Under those circumstances, the judge can remain impartial.

With no lawyer representing the state, the judge left it to Dr. Shirley to decide what testimony to give. When the judge invited her to “tell me what you want me to know,” the judge put the expert in the position of making legal judgments about the evidence that the judge should hear. The expert likely had some awareness of the evidence that is required to meet the legal standard for a commitment, but she was trained to make medical judgments, not legal judgments about the relevance of particular facts.

Q.J. complained that placing the expert in the dual role of lawyer and witness raised questions about the judge’s impartiality. The court got the ball rolling by asking Dr. Shirley to tell him what she wanted him to know, arguably asking the kind of question that a lawyer for the state would have asked. 

More troubling were the questions that the judge asked on redirect in an apparent attempt to rehabilitate Dr. Shirley’s testimony. On cross-examination, Dr. Shirley admitted that Q.J. had not actually engaged in violent behavior before the police took him into custody, that he made no threats and expressed no suicidal thoughts while he was being evaluated, and that he had no history of harming others. When, on redirect, the judge asked Dr. Shirley if her testimony was that Q.J. was a danger to himself and whether he was a danger to others, the judge was asking the kind of rehabilitative questions that a lawyer for the state would be expected to ask.

The appellate court concluded that North Carolina law does not require the state to be represented by counsel when commitment hearings are held at a private hospital. The court further concluded that there is no constitutional barrier to having an expert witness present all the testimony required to support a commitment without having a lawyer elicit that testimony. 

Perhaps because it was unwilling to upset the apple cart of North Carolina’s unusual procedure, the court concluded that the judge always remained impartial. While it is true that judges are entitled to question witnesses to clarify testimony if they do so without becoming an advocate for a party, the judge’s redirect examination was exactly the kind of questioning one would expect from an advocate, not from an impartial judge.

Policy Issues

North Carolina’s commitment procedure places expert witnesses in a difficult position. It is usually improper for a witness to give narrative testimony rather than responding to specific questions. Narrative testimony makes it difficult for opposing counsel to object since no question has been posed to which an objection can be lodged. Narrative testimony also makes it more likely that a witness will stray from the facts that are relevant to the proceeding.

Appellate judges are extraordinarily reluctant to find that trial judges were anything other than impartial. While the record makes clear that the judge acted as an advocate for the state by asking questions to rehabilitate the testimony of the expert witness, the appellate court refused to equate advocacy with partiality. As long as North Carolina continues to leave the presentation of evidence at commitment proceedings to expert witnesses rather than lawyers, the fairness of commitment proceedings — and unfairness to expert witnesses — will continue to be an issue.