Category Archives: ExpertWitness

Harvard Library

Expert Economists Testify in Harvard Admissions Trial

Expert economists are offering testimony in the trial of Harvard University as it defends itself against allegations that its admissions quotas discriminate against Asian Americans.

The Lawsuit

Students for Fair Admissions, or SFFA, sued Harvard University in federal district court, alleging that the university set admission criteria that discriminated against Asian American students.

SFFA is a nonprofit association whose stated mission is “to defend human and civil rights secured by law, including the right of individuals to equal protection under the law, through litigation and any other lawful means.” Its true mission, according to Alex Beam, is to end racial preferences in college admissions and employment that provide greater opportunities for nonwhite applicants.

Members of SFFA applied to Harvard and were denied admission. They claim that Asian American students must outperform students from other minority groups in order to gain admission to Harvard. SFFA alleges that Harvard uses a “personal rating” system that is biased against Asian American students.

SFFA’s complaint against Harvard referenced its history of discrimination. SFFA noted that under Harvard’s president Abbott Lawrence Lowell (1909-1933), the Harvard administration restricted the numbers of Jewish students who were admitted to Harvard. SFFA alleges that the Harvard College Admissions Program plan that is currently used in the admissions process was created for the specific purpose of discriminating against Jewish applicants.

President of Harvard University Lawrence Bacow wrote a letter to the university community stating, “The College’s admissions process does not discriminate against anybody…. I am confident the evidence presented at trial will establish that fact. The Supreme Court has twice ruled on this issue and has held up our admissions process as an exemplar of how, in seeking to achieve a diverse student body, race may enter the process as one factor among many in consideration.”

Expert Economists

Harvard retained UC Berkeley economics professor David Card to serve as its expert witness at trial. Card determined that there was no evidence that Harvard intentionally discriminates against Asian American students. Card’s research indicated that if Harvard eliminated the challenged admission practice and the consideration of race, “the resulting class would have significantly fewer students who identify as Asian-American, Hispanic, or Other.”

Card concluded that there is no verifiable racial bias inherent in the use of personal ratings. His research showed that Harvard’s personal ratings included relevant data on the applicants’ non-academic attributes that are “not captured by other factors.” Card also concluded that there are no statistical models that can reliably estimate how race affects the personal rating.

Professor Peter Arcidiacono was retained by SFFA as their expert. Arcidiacono is a labor economist and Professor of Economics at Duke University. Arcidiacono concluded that Harvard’s admission process penalizes Asian American applicants. His report stated that “race plays a significant role in admissions decisions”; “Asian Americans are the primary group hurt by preferences given in Harvard’s Admissions Office”; there is an “artificial floor for African-American admit rates”; and, moreover, his “findings are consistent with Harvard’s own internal analyses before this lawsuit.”

SFFA also retained Richard Kahlenberg, a senior fellow at The Century Foundation and an author who has written several books on affirmative action. Kahlenberg’s report concluded that Harvard has failed to fully consider any of the numerous race-neutral alternatives that could achieve the educational benefits of diversity and that there are race-neutral alternative available that could provide Harvard with the educational benefits of diversity without the use of racial preferences.


By Joseph Williams (originally posted to Flickr as Harvard) [CC BY 2.0 ], via Wikimedia Commons

Florida Computer Expert Arrested for Lying About Credentials Under Oath

Expert Testifies Police Killer May Be Linked to Extremist Group

An expert has testified that a man who is on trial for fatally shooting two Florida police officers may be tied to an extremist anti-government political group.

The Shooting

On August 18, 2017, Kissimmee Police Officer Matthew Baxter was on patrol when he approached three people to investigate a report of suspicious activity. One of the men, Everett Glenn Miller, recorded the confrontation on his phone.

In the video, Miller is seen telling Baxter, “Call your sergeant, please, sir. . . . Hey, call everybody up here. We ‘bout to put this on Facebook Live.”  Baxter is seen on video requesting Miller to, “Please come here.” Miller responded, “I’m not coming to you. You come to me.”

Baxter later called for his sergeant, Richard “Sam” Howard. A “scuffle” broke out and Baxter and Howard were shot in the head. Baxter died that night and Howard died the next day.

Deputies who arrested Miller reported that he appeared to be reaching for a gun before he was subdued. Miller was in possession of two handguns, including a revolver with six spent casings.

Miller is charged with two counts of first-degree murder, carrying a concealed weapon, and resisting without violence in connection with the deaths.

Expert Testimony

At a pretrial hearing, an expert witness on political and anti-government extremism testified for the prosecution. The expert testified that Miller’s beliefs are consistent with those of a group that the FBI has designated as extremist.

The expert said, “his beliefs are consistent with those of the Moorish movement, a loosely-knit group of related organizations that fall under the black identity extremist (B.I.E.) designation.” The expert also testified that Miller was using a name on social media that indicated his beliefs, Malik Mohammad Ali. The expert also said that she found notes in his car and books that indicated a link to the Moorish movement.

The expert referenced a now declassified FBI intelligence assessment titled “Black identity extremists likely motivated to target law enforcement officers.” She used the report to explain why the FBI believes the extremists seek to use force or violence in response to perceived racism and injustice in American society to establish a separate black homeland in the United States.

The expert listed Miller’s following actions as showing a link to the Moorish movement: his use of the #makeamerickkamooragain in social media, requesting a book about black superiority, and notes in his car that referenced Moorish leaders.

Since political beliefs are constitutionally protected, the court might ultimately exclude the evidence as more prejudicial than probative of guilt. The court might conclude that the expert’s testimony is designed to prove guilt by association or that it is likely to inflame the jury’s passions. Political beliefs in themselves do not establish that everyone who shares those beliefs has an incentive to commit murder.

Miller’s next court hearing is scheduled for November, with a trial that could begin in early 2019.

Miller’s Background

Miller is a former Marine whose background reportedly includes intelligence analysis during Operations Noble Eagle, Enduring Freedom and Iraqi Freedom while working with the United States Special Operations Command.  While enlisted as a Marine, Miller was stationed in Tampa, North Carolina and Okinawa, Japan.

Miller’s neighbor, Cartrell Bright, commented that he was heartbroken about Miller’s arrest and that he had shown signs of mental illness.  Bright said, “He’s sick. . . . He just lost his mind or something.”

Newborn Baby

Circumcision Expert Testifies in Medical Malpractice Trial

A circumcision expert provided key testimony in the trial of a midwife who cut off part of a baby’s penis.

The Botched Circumcision

In October 2013, Certified Nurse Midwife Melissa Jones performed a circumcision on the 18-day-old son of Stacie Willis, who is known as Baby D. During the circumcision, the child’s penis was caught in a Mogen clamp and the tip of the glans was amputated. Dr. Brian Register, an OB/GYN who was the supervising physician, was called to stop the hemorrhaging. A Certified Nurse Midwife and owner of the clinic where the procedure was performed, Anne Sigouin, was also called to assist.

Sigouin advised Dr. Register to call the boy’s pediatrician, Dr. Abigail Kamishlian. Dr. Kamishlian advised Willis to take her son home and to visit and emergency room if the bleeding began again.

No one notified Willis of the amputation or that the severed glans tissue was preserved in saline solution in the clinic’s lab refrigerator.

Willis took her son to a branch of Children’s Healthcare of Atlanta, where she learned that Baby D had an incomplete circumcision and a significant laceration to his glans.

For the next five years, Baby D would undergo four major surgeries that failed to correct the amputation. Baby D is permanently disfigured with medical bills in the tens of thousands.

The Lawsuit

Willis filed suit against Melissa Jones, Anne Sigouin, Dr. Brian Register, Life Cycle Pediatrics, LLC, Life Cycle OB/GYN, LLC, Dr. Abigail Kamishlian, and Daffodil Pediatric and Family Medical Services, LLC claiming medical malpractice, negligence, gross negligence, negligent hiring, retention, training and supervision, fraud, constructive fraud, fraudulent concealment, and aggravated battery.

Expert Witness Testimony

During trial, Dr. Fred Kogen provided expert witness testimony. Dr. Kogen is a General Practitioner (G.P.) and mohel, which means he is trained to perform the Jewish ritual of circumcision. Dr. Kogen gave testimony that demonstrated to the jury the proper way to conduct a circumcision.

Dr. Kogen explained that there is nothing else on the body similar to glans tissue and if it is severed, everything should be done to save and reattach it. Dr. Kogen testified that there is only a narrow window of 12 hours during which the tissue is viable.

Dr. Kogen said, “If I had a piece of glans that was taken off, there’s no doubt in my mind I would do the best I can to save that, and I would get in touch with someone who could use it to potentially help this baby.”

He continued, “I’ve performed 7,000 circumcisions and this has never happened to me. I’ve never had a complication like this. . . . This is something that — it’s not even a complication. It’s an injury that should never, ever occur if the technique is done properly.”

The Verdict

A Clayton County jury awarded Baby D $31 million in damages. The total includes $780,000 for past and future medical expenses, as well as $30 million in past, present and future pain and suffering. The jury consisted of seven women and five men.

Missouri Passes Daubert Bill, Governor May Veto

Missouri Appellate Court Rejects Claim that Medical Testimony Regarding Causation and Damages Was Speculative

A jury in Jefferson County, Missouri returned a verdict of $1.5 million for an accident victim who was injured while riding on a manually operated amusement device known as a Spaceball. The Missouri Court of Appeals rejected several challenges to the verdict. The most substantial challenge was to the admission of expert medical testimony on behalf of the victim.

Facts of the Case

Adam Payne attended a fundraising event for a youth football organization. The event took place at a recreational facility owned by Fiesta Corporation. Fiesta also owned a ride on which Payne was injured.

The ride, known as the “Spaceball human gyroscopic ride,” is a single-seat ride that spins sideways while rotating the rider in a circle. A harness secures the rider to the seat. The harness is locked in place with a cotter pin. An operator manually turns a control wheel that sets and keeps the ride in motion.

Fiesta claimed that it trained members of the youth football organization to operate the ride, but that they failed to appear for the event. Payne alleged that Fiesta did not train anyone. In any event, it was undisputed that the Spaceball ride was in operation throughout the event, that Fiesta employees were aware that patrons were using the Spaceball ride, and that the employees did nothing to supervise or prohibit its use in the absence of trained operators.

Payne relied on two bystanders to help him into the Spaceball harness. He testified that he assumed, but was not told, that the bystanders were trained to operate the ride. The bystanders did not secure the harness properly. Payne fell and sustained a neck fracture that resulted in a degenerative disk disease.

The jury determined that Fiesta was negligent in providing the Spaceball ride without assuring that its use was supervised by a trained operator. The jury returned a verdict for Payne of $1.5 million for future pain and suffering, about twice the amount that Payne’s lawyer asked the jury to award.

Expert Testimony

Dr. Armond Levy, a neurosurgeon, testified by video deposition. Dr. Levy took over Payne’s treatment from another physician after that physician left his practice. Dr. Levy relied upon the prior physician’s treatment notes when he treated Payne.

The first physician’s notes reflected that a joint between two neck vertebrae was injured in Payne’s fall. The physician considered surgery but wanted to try more conservative treatment first, including physical therapy, stabilization with a cervical collar, rest, and medication.

A year after the fall, when Payne first saw Dr. Levy, he complained of continuing pain. Dr. Levy testified that the pain resulted from an injury that was caused by Levy’s fall while riding the Spaceball.

Since conservative treatment did not alleviate Payne’s pain, Dr. Levy recommended an aggressive surgical approach. He ruled out less invasive surgery and concluded that a cervical fusion would be the only effective means of lessening Payne’s ongoing suffering. Payne had not decided by the time of trial whether to have the surgery.

Dr. Levy also opined that, while Payne’s fracture had healed by the time of trial, Payne suffered damage to a nerve root in the cervical spine. The fact that nerve root injections provide temporary pain relief supported that conclusion.

Admissibility of Testimony

Fiesta objected the admissibility of Dr. Levy’s video deposition. Fiesta argued that Dr. Levy’s opinions about causation and the likelihood of future pain and suffering were speculative. Fiesta contended that Dr. Levy noted but did not rule out a “preexisting degenerative and scoliotic deformity of his neck” as the source of Payne’s suffering after the Spaceball accident.

The appellate court initially noted that injuries can have more than one cause. Under Missouri law, if negligence contributes to the injury, an independent or intervening cause of the injury does not shield the negligent party from liability.

Moreover, while Dr. Levy recommended fusion surgery, he did not testify that Payne would eventually be required to undergo the surgery. Under Missouri law, a medical opinion that an injury has increased the likely need for surgery in the future is relevant evidence. Juries are entitled to consider that likelihood when they assess damages.

The court examined the whole of Dr. Levy’s testimony to determine its admissibility. While Dr. Levy expressed uncertainty during some of his testimony about the relationship between the preexisting injury and the injury caused by the fall, he also testified to a reasonable degree of medical certainty that the fracture and the nerve root damage were caused by the fall.

Fiesta’s objection to the admissibility of the entire deposition, if granted, would have prevented the jury from hearing admissible testimony. Rather than focusing its objections on specific answers to specific questions, Fiesta’s tactic of objecting to the deposition in its entirety was misguided.

Theories Supported by Evidence Are Not Speculative

Fiesta also complained that Dr. Levy could not explain with certainty why Payne continued to suffer after the fracture healed. Dr. Levy testified that nerve root damage was a “theory” that explained ongoing pain, albeit one that was supported by medical evidence.

The appellate court concluded that Dr. Levy was not required to explain the precise mechanics of the injury. He was only required to testify that the fall caused Payne’s continuing pain. That testimony was supported by the facts, including the absence of neck pain prior the fall, the efficacy of nerve root injections at relieving pain, and Dr. Levy’s review of X-rays, CT scans, and MRI scans. Dr. Levy’s opinion as to causation and the likelihood of continuing pain was therefore admissible.

The court’s decision is consistent with the general rule that medical testimony need not conclusively establish a mechanism of injury. Medical science is fraught with uncertainty, but plaintiffs in civil cases need only prove causation and damages to a standard of probability, not certainty. The fact that a doctor does not understand the precise cause of pain does not prevent a doctor from opining, based on medical judgment, that the pain is probably caused by a specific event.

Blood analysis

Blood Spatter Expert Admits Conclusions Incorrect

The expert whose testimony was key in a 1985 murder conviction now says that he believes some of his conclusions were incorrect.

Murder Conviction of Joe Bryan

Joe Bryan was convicted of killing his wife Mickey in 1985, but has always maintained his innocence.  At the time of his arrest, Bryan had no criminal record. In the days surrounding his wife’s murder, Bryan had been 120 miles away at a principals’ convention. According to the state’s theory, Bryan had left his hotel in the middle of the night, drove home and shot his wife, then returned to his hotel and his convention the following morning.

During both of Bryan’s trials, police Detective Robert Thorman’s testimony was key in helping to explain why no blood was found inside Bryan’s car. Thorman testified that the tiny flecks of blood on a flashlight that was found in Bryan’s trunk were “back spatter,” a pattern that indicated a close range shooting. Thorman’s testimony tied the flashlight to the crime scene, when he opined that the killer had likely held the flashlight in one hand while firing a pistol with the other.

Thorman was a police detective from Harker Heights, Texas, who had only had 40 hours of training in bloodstain-pattern analysis when he was called to consult on Bryan’s case.

Innocence Investigation

In May, Bryan’s case was the subject of an investigation by ProPublica and the New York Times Magazine that questioned the accuracy of the bloodstain-pattern analysis that was used to convict him.

Last month, the Texas Forensic Science Commission announced that the blood-spatter analysis that was used to convict Bryan was “not accurate or scientifically supported.” The commission is an organization that investigates complaints about the misuse of forensic testimony and evidence and criminal cases.

The commission asked bloodstain-pattern analyst Celestina Rossi to re-examine the case. Rossi was critical of Thorman’s interpretation of the crime scene and the flashlight. Rossi determined that the dark-brown flecks that were found on the flashlight did not “radiate back in a radiating pattern” as they would have in “a back-spatter event.” Therefore, she concluded that the bloodstains were inconsistent with a close range shooting.

Rossi said, “Thorman’s testimony was egregiously wrong. . . . If any juror relied on any party of his testimony to render a verdict, Mr. Bryan deserves a new trial.” Thorman’s “expert” testimony is another example of how police officers who dabble as “experts” often see themselves as advocates who seek convictions rather than neutral experts who seek the truth.

Affidavit Recanting Testimony

Bryan’s defense team filed a motion for a new trial. At a hearing on the motion, Bryan’s attorney Jessi Freud presented an affidavit for Robert Thorman recanting his testimony.

Thorman’s affidavit stated, “Some of the techniques and methodology were incorrect. Therefore, some of my testimony was not correct.” Thorman stated, “In no way did I lie in my report or testimony. . . . I was doing what I thought was correct as a result of my training at the time.” Thorman’s affidavit did not specify which portions of his testimony were erroneous.

The motion is before Judge Doug Shaver who will make a recommendation to the Court of Criminal Appeals as to whether Joe Bryan should get a new trial.

Arizona Legal System Concept

Forensic Scientists, Medical Examiner, Print Expert Testify in Trial for Murder of Slain Couple

A group of expert witnesses has testified in the ongoing murder trial of Derrick Barnett, who is accused of killing an Arizona couple in May 2017.

The Killing

On May 2, 2017, the husband of a friend of Nora Dimuria went to her home to do a welfare check when she failed to show up for work. When the man arrived at her home, a contractor was pulling up to the home at the same time. The two approached the home and found a broken window and open back door.

Upon entering the home, the men found a dead dog in the kitchen and Nora’s body in the bathroom next to the kitchen. The two left the house and called 911.

The responding deputies found Michael Dimuria’s body under two throw rugs outside the guest house. They found bullet casings near both bodies and bullet holes in several walls and in a window.

Neighbors who were interviewed reported that they hurt gunshots in the night, but had not been concerned because target shooters are common in the area.

The Arrest

The Coconino County Sheriff’s Office received a tip about Derrick Barnett’s possible involvement with the killing.

Barnett was indicted on August 3, 2017 on two counts of first degree murder, one count of first degree burglary, one count of theft, three counts of misconduct involving weapons, one count of cruelty to animals, one count of theft as a means of transportation, and one count of felony criminal damage. He pled not guilty to all charges.

Trial Testimony

At trial, numerous expert witnesses provided key testimony.

Brandon Nabozny, a specialist in forensic photography, crime scene, latent prints, and forensic chemistry, was called to provide detailed analysis of the evidence that was collected at the Dimuria home following the murders. Nabozny testified about the tools that were found in the home, including hammers, a chisel, and bolt cutters. He also identified fragments found as broken glass and fragments from firearms. Nabozny identified a glass candy jar and wrappers that were used to detect DNA presence.

Dr. Larry Czarnecki, Coconino County Medical Examiner, testified about the causes of death for Michael and Nora and their dog T.C. Czarnecki has been a medical examiner for 13 years. He testified that he typically performs exams away from the scene of the crime, but had to come to the Dimuria home because the suspect was still at large. Czarnecki testified that the dog had been shot at the top of the head and a bullet was lodged in the front of the neck. He said that it was likely a .22-.25 caliber bullet. Czarnecki said that Michael had suffered three gunshot wounds to the head, which were the ultimate cause of death. Czarnecki testified that Nora also died from gunshot wounds.

Kristen Dick, a forensic scientist with the AZDPS Northern Regional Crime Lab testified that she assisted with the crime scene. Dick testified that Barnett’s DNA matched all 23 locations taken from the Jeep Liberty steering wheel and gear shift. Barnett’s DNA was also found on a water bottle found in the jeep and a plastic spoon found on his campsite.

Starr Douglas, a latent print expert with the Arizona DPS testified that she examined over 16 items and made positive identifications on four of them. One item, a 9mm handgun, had Barnett’s fingerprints on it.

Buccal DNA

DNA Experts Provide Key Testimony in Rape Trial

Two DNA experts provided key testimony in the trial of Samuel Lee Lowry, a Pennsylvania man on trial for the rape of an unconscious person.

The Incident

In November 2014, a 26-year-old woman awoke in her apartment to find a naked man on top on her. The victim says that when she realized the person in her bed was not her boyfriend, she screamed and told him to get off of her and get out. She then grabbed her shotgun and pointed it at him.

The victim testified that the man turned on the light and got dressed and was looking for his shoes. When the man turned on the light, the victim recognized him by his nickname, “Duke,” from seeing him in her neighborhood. The victim said that months before, the man had knocked on her door and asked to sleep on her couch when it was raining and she had allowed him.

Lowry, 36, is accused of entering a woman’s apartment when she was sleeping, removing his clothing, climbing into her bed and attempting to have sex with her. Lowry was charged with burglary, rape of an unconscious person, sexual assault, indecent assault of an unconscious person, criminal trespass, and aggravated indecent assault.

Trial Testimony

At trial, Lowry chose not to take the stand in his own defense. Instead, two DNA experts provided key testimony at trial.

The prosecution retained Julia Garofalo as an expert. Garofalo is a forensic scientist and DNA expert who works at a state police crime lab in Greensburg, Pennsylvania. Garofalo analyzed the victim’s rape kit results for DNA. She testified that Lowry’s DNA was present on some of the samples taken from the woman’s neck and other areas. Garofalo testified that the crime lab received buccal swabs, which are samples from inside the cheeks of the woman, her boyfriend, and Lowry. Lowry’s DNA was most prevalent on the woman’s neck, which matched her story that she had awoken to Lowry on top of her, licking her neck.

The defense hired Dr. James Girard, a professor of chemistry at American University in Washington, D.C.  Defense counsel called Dr. Girard via Skype to explain an analysis of Garofalo’s report.

The Verdict

A jury of seven men and five women convicted Lowry on the charges of rape of an unconscious person, sexual assault and indecent assault of an unconscious person. The jury acquitted Lowry of the burglary charge.

Lowry’s sentencing hearing will be held at a later date. Sentencing guidelines call for Lowry to serve 8.5 to 20 years in prison. Lowry has two other felony cases pending against him in other courts. His other cases involve aggravated assault of a police officer and escape and a burglary and car theft.

Assistant district attorney Jonathan Miller said, “The district attorney’s office and the commonwealth are pleased with the jury’s verdict in this case … (they) returned a verdict that gave justice to the female adult victim for the crimes perpetrated against her.”

Water Treatment

Experts Testify in Flint Water Crisis Prosecutions

Twelve people died and at least 87 others were sickened by the outbreak of a disease in Flint, Michigan during 2014 and 2015. Many doctors diagnosed their patients with Legionnaire’s disease, a noncontagious condition with symptoms similar to pneumonia.

Legionnaire’s disease is caused by bacteria that live in water. Most people acquire the disease by inhaling water droplets that contain the bacteria. Some experts are attributing the disease outbreak in Flint to the city’s water supply. Other experts disagree.

Criminal prosecutions are underway against state officials responsible for municipal water quality. Prosecutors allege that the officials failed to alert the public about a Legionnaires’ outbreak in Flint and that they conducted a grossly negligent investigation of the outbreak.

Expert witnesses for both the prosecution and defense are playing a key role in preliminary examinations that are held to determine whether the evidence is sufficiently strong to justify a criminal trial. Additional experts may testify if the cases proceed to trial.

Legionnaire’s Disease in Flint

The outbreak began soon after Flint changed its water source from Lake Huron to the Flint River, a switch that produced discolored and foul-smelling tap water. Scientists concluded that the city’s water supply was contaminated by lead and other heavy metals, but that finding would not necessarily explain an outbreak of Legionnaire’s disease.

Scientists eventually focused on chlorine, which cities often add to water supplies to keep bacteria from reproducing. They discovered that Flint’s chlorine level dropped, and that Legionnaire’s disease increased, after the city changed its water supply.

Lead and heavy metals in the new water supply may have interacted with the chlorine that the city added to the river water, reducing the amount that was available to kill bacteria. The city was also faulted for failing to add corrosion-control chemicals to the water, which may have allowed lead to leach from older pipes. However, other experts contend that chlorine levels do not adequately explain the disease outbreak.

After Flint switched back to its original water source, new reports of Legionnaire’s disease returned to their normal levels. That outcome tended to confirm that the disease outbreak was caused by the new source of Flint’s water.

A report by the Michigan Department of Health and Human Services nevertheless suggests that most of the patients with the disease may have been exposed to it at McLaren Flint Hospital. The hospital responded by accusing the state of using a self-serving and unsound methodology to shift blame from state officials to the hospital.

Criminal Charges Filed

Notwithstanding the confusion about the exact cause of the Legionnaire’s disease in Flint, criminal charges were lodged against more than a dozen state officials, including the state’s Health Director and its chief Medical Officer.

The most significant charges are negligent manslaughter. Two manslaughter charges were filed against Nick Lyon, the director of the Michigan Department of Health and Human Services. Manslaughter charges were also filed against two officials of the Michigan Department of Environmental Quality (DEQ).

The manslaughter charges relate to men in Flint who allegedly died from Legionnaire’s disease. Those officials and others were also charged with willful neglect of duty and misconduct in public office.

Expert Testimony in Manslaughter Prosecution

Lyon sought dismissal of the manslaughter charges during preliminary proceedings. Expert witnesses for the prosecution and for Lyons presented competing opinions about the cause of the victims’ deaths.

Prosecutors used a number of experts to establish that the Legionnaires’ outbreak was caused by the change of Flint’s water supply to the Flint River. Prosecutors contended that the state (in a decision made by Lyon) required Flint to use the new water supply as a cost-saving measure.

The prosecution relied on the testimony of Dr. Joel Kahn, a nationally known cardiologist from Metro Detroit, to establish that the two alleged manslaughter victims died from Legionnaire’s disease. The defense challenged whether Dr. Kahn was qualified to give that testimony since his expertise is in cardiology rather than epidemiology or infectious diseases.

Dr. Jeffrey Band, an epidemiologist and infectious disease specialist at Beaumont Hospital in Royal Oak, testified that the two men did not die from Legionnaires’ disease. He acknowledged that one of the men acquired Legionnaire’s disease but maintained that the disease was treated promptly and effectively. He opined that the man died from an unrelated heart condition.

Dr. Kahn, however, testified that Legionnaire’s disease was the triggering cause of the man’s death. Dr. Kahn also opined that the other man died of Legionnaire’s disease and pneumonia “rather rapidly” after exposure to the disease. Dr. Kahn testified that Legionnaire’s disease was the only cause of that man’s death.

The judge presiding over the preliminary examination recently decided that the evidence was sufficient to permit the case to proceed to trial. Questions about the qualifications of experts are likely to arise again in pretrial Daubert motions. Additional medical experts may be needed to satisfy the prosecution’s burden of proving causation.

Expert Testimony in Misconduct Prosecutions

Proceedings are also underway in criminal charges of misconduct in public office filed against DEQ officials Stephen Busch, Michael Prysby, Patrick Cook, and Shekter Smith. Smith and Cook are also facing manslaughter charges.

The prosecution alleges that the officials neglected their responsibility to oversee Flint’s water source switch and to warn the public about water quality issues. The failure to implement anti-corrosion controls allegedly resulted in high levels of lead that were hidden from the public.

During a preliminary hearing, U.S. Environmental Protection Agency water expert Miguel Del Toral testified that the DEQ knew that Flint was not treating its water with anti-corrosion controls but took no action to assure the safety of the water supply. He also testified that Flint’s water treatment was not meeting federal standards and faulted the state for mandating the change of the city’s water supply without assuring that corrosion controls would be implemented.

Del Toral testified that he found high lead levels in the water in one Flint home after Busch told the homeowner that the problem was caused by her lead pipes, not by the city’s water supply. Del Toral discovered that the home had plastic pipes and could not have contributed to lead contamination. According to Del Toral, Busch’s response was misleading and underplayed the significance of the problem.

The preliminary hearing against the four defendants is scheduled to resume in September.

Delaware

Delaware Supreme Court Rules that Trial Judge Misinterpreted Expert Testimony Precedent

The Delaware Supreme Court has ruled that a trial court improperly excluded expert testimony and has revived medical negligence claims against a doctor and a women’s health clinic.

The Lawsuit

In October 2013, Amanda Norman had a laparoscopy performed by Dr. Christine Maynard at the All About Women health clinic. In this diagnostic procedure, a doctor examines a woman’s reproductive organs. According to court documents, there were no reports of complications, but Norman experienced pain immediately following the procedure.

Norman went to the emergency room for treatment and found that her bladder had been ruptured. The rupture was attributed to the diagnostic laparoscopy.

Norman filed a medical negligence suit against Dr. Maynard and All About Women. Maynard and All About Women have denied the allegations of negligence and said that a ruptured bladder is a known complication of that procedure.

Medical Expert Testimony

Norman retained Dr. Jeffrey Soffer, M.D. as a medical expert to testify on how Dr. Maynard breached the standard of care. Dr. Soffer is a board certified obstetrician and gynecologist who serves as an attending physician at the Department of Obstetrics and Gynecology at Overlook Hospital in Summit, New Jersey. Dr. Soffer has performed hundreds of laparoscopies throughout his career.

Dr. Soffer opined that Dr. Maynard provided substandard care during Norman’s procedure. He said, “it is incumbent on the operating surgeon to be always aware of the exact anatomic position of adjacent structures in order to avoid inadvertent injury. The bladder . . . [would have been] in plain view.” Dr. Soffer said that a ruptured bladder “represents careless and sloppy surgical technique.”

Dr. Maynard and All About Women filed a motion to exclude Dr. Soffer’s opinions because they lacked the reliability to pass the standard set by Daubert v. Merrell Dow Pharmaceuticals, Inc. and Delaware case law. The Superior Court agreed, noting that Norman failed to meet her burden because she did not present evidence that Dr. Soffer’s opinion was “based on information reasonably relied upon by experts in the field.”

Delaware Supreme Court Ruling

Delaware case law that was developed based upon Daubert states that an expert qualifies if:

  1. The witness is qualified as an expert by knowledge, skill, experience,
    training or education
  2. The evidence is relevant
  3. The expert’s opinion is based upon information reasonably relied upon by experts in
    the particular field
  4. The expert will assist the trier of fact to understand the evidence or to determine a fact in issue
  5. The expert testimony will not create unfair prejudice or confuse or mislead
    the jury

The Superior Court concluded that the third factor, “the expert’s opinion is based upon information reasonably relied upon by experts in the particular field,” requires an expert’s opinion to be based on medical literature or other peer reviewed publication. That conclusion is inconsistent with the general consensus that standard of care opinions may be based on an expert’s experience rather than studies that may never have been conducted.

The Delaware Supreme Court reversed the Superior Court’s ruling. The court noted that an expert may qualify by skill, experience, knowledge, training, or education and that a medical negligence expert must be “familiar with the degree of skill ordinarily employed in the field of medicine on which her or she will testify” to give a standard of care opinion.

The Delaware Supreme Court stated that Dr. Soffer’s testimony, when considered as a whole, was sufficient to establish the standards of care, Dr. Maynard’s deviations from those standards, and the injury that those deviations cased to Norman. This decision returned the case to Superior Court for further proceedings.

Gun

Expert Witness Testifies that Officer Used Excessive Force in Teen’s Death

An expert in use of police force has testified that a former Balch Springs officer used excessive force when he shot and killed a 15-year-old teen.

The Shooting

On April 29, 2017, police officers responded to a house party in Balch Springs, Texas, that was attended by high school aged teens. Officer Roy Oliver said that he was inside the house when he heard gunshots fired outside the residence.

When Oliver got outside, he saw his partner, Officer Tyler Gross, pointing his gun at a car and ordering it to stop. Oliver said that he thought that Gross was in danger and that he saw the car moving toward him. Oliver said that he saw the silhouette of the person in the passenger seat of the vehicle move and that he thought his partner had found the shooter or information about the gunfire.

Officer Oliver opened fire on the car. Oliver would later testify, “(The car) came forward towards my partner and I had to make a decision this car is about to hit my partner, there are threats inside this car… I had no other option but to use lethal force. … A car is a deadly weapon.” Oliver’s partner testified that he did not fear for his life and felt no need to shoot.

Oliver’s shots struck 15-year-old Jordan Edwards in the head and killed him. Jordan had been sitting in the front passenger seat. His two brothers and two friends were also in the vehicle.

Oliver was fired and charged with murder and four counts of aggravated assault by a public servant as a result of the incident.

Expert Witness Testimony

At trial, the prosecution called FBI Supervisory Agent Dr. Philip Hayden to testify as its use of force expert. Hayden has worked as as a Supervisory Special Agent for the FBI since the early 1970s. Hayden is a well-known expert witness who specializes in police use of force, arrest procedures, and tactical training.

Hayden testified that Oliver used excessive force in shooting Edwards. Hayden said, “There’s no way at that point in time when the window was broken that he could say, ‘I looked over and saw that he was in danger…There was no threat to Officer Gross at any time. He says so.”

Hayden also testified that Oliver’s shooting into a moving car could have turned out much worse.  Prosecutor Mike Snipes asked Hayden, “It could have not only shot Jordan Edwards, but he could have shot Maximus Edwards, Von Edwards, Maxwell Edwards and the driver of the car, Vidal Allen?” Hayden responded, “I think it’s only by the grace of God that he didn’t get hit.”

Hayden also told jurors that he didn’t see why Oliver felt he had to fire his gun at all. He said, “I believe there’s enough data here to say what happened is Officer Oliver did not have a reasonable belief to use deadly force, and he should not have used deadly force.”

Update

The jury found Oliver guilty of murder. The jury acquitted Oliver of two counts of aggravated assault for shooting into a car filled with teens. The verdict is one of the few that juries have returned against a white police officer who shot and killed an unarmed black victim.