Amber Cramer sued Bay Area Credit Service and certain other defendants for violating the Fair Credit Reporting Act (FCRA). She relied on two expert witnesses to prove the violations. The U.S. District Court for the Eastern District of Missouri decided that, subject to certain limitations, the experts should be allowed to testify.

Facts of the Case

When Cramer reviewed her credit report, she discovered she had been the victim of identity theft. Someone using her name had incurred three medical bills. The debts appeared as delinquent on her credit report. Cramer notified the credit reporting bureaus that she disputed the debts and added a fraud alert to her credit report.

Cramer alleged that Bay Area continued to contact her on her cell phone in an effort to collect one of the debts. She notified the debt collector that she had been the victim of identity theft, but the debt collection calls persisted. Cramer sued Bay Area for violating the Fair Debt Collection Practices Act, but the expert testimony at issue in the court’s decision pertained only to the FCRA claim.

Cramer contended that Bay area violated the FCRA by failing to investigate the dispute and to delete the debt from its reports despite being notified that the alleged debt was inaccurate. To prove that Bay Area violated the FCRA, Cramer relied on the expert testimony of Stan Smith and Evan Hendricks. Bay Area moved to exclude the testimony of both witnesses.

Evan Hendricks’ Qualifications

Cramer offered Hendricks’ testimony regarding industry standards for businesses like Bay Area regarding the investigation of disputes before reporting information to consumer reporting agencies. Hendricks also proposed to testify about the ways in which Bay Area violated those standards and the consequences (including emotional distress) that result from inaccurate credit reports.

Bay Area contended that Hendricks was not qualified to testify because he had never been employed by a credit reporting agency and had never personally investigated a credit dispute. The court noted that experts do not need to work for an industry to have specialized knowledge of the industry. In fact, attorneys often prefer to work with an independent expert whose perspective has not been shaped by working within the industry.

Hendricks wrote and published a newsletter that covered various aspects of the FCRA. Her served as a privacy expert consultant for the Social Security Administration, a position that required expertise in the best practices regarding the disclosure of private information.

Hendricks has testified before Congress repeatedly about the FCRA and has given expert testimony in many cases involving FCRA violations. There was no doubt that he was qualified to testify about credit reporting violations.

The court nevertheless agreed that determining whether FCRA violations cause emotional distress requires medical expertise that Hendricks lacked. Although the court did not so rule, it would also be fair to say that ordinary people can understand that bad credit is stressful and that no expert testimony is needed to understand that mistakes on credit report might cause emotional distress.

Nor did the court allow Hendricks to testify about financial harms caused by incorrect credit reports. Hendricks had no accounting background and was not qualified to testify that Cramer suffered a financial loss because of Bay Area’s FCRA violations.

Relevance of Evan Hendricks’ Testimony

Bay Area also moved to exclude Hendricks’ testimony on the ground that Hendricks’ opinions were merely interpretations of the evidence that should be made by the jury and that expert testimony thus invades the province of the jury.

The court concluded that Hendricks should be allowed to testify about relevant industry practices for reporting and investigating consumer credit information, including his opinion that the industry generally applies a “reasonable investigation” standard when consumer credit disputes arise. The court also permitted Hendricks to explain how Bay Area’s actions concerning Cramer either comported with or departed from those industry standards.

The court noted that Hendricks would not be allowed to offer legal opinions, including “opinions on whether Bay Area’s conduct failed to conform to a particular legal standard, as this is an ultimate issue that should be decided by the jury.” He thus could not opine that Bay Area’s actions were “unreasonable, unreliable, inadequate, negligent, willful, or in any other manner violative of the FCRA.”

The court’s ruling required Hendricks to walk an imprecise line. He could testify “broadly over the entire range of the applicable law where the opinion is focused on a specific question of fact,” including facts that relate to industry standards and whether Bay Area’s policies, procedures, and actions complied with those standards. He could not, however, connect the dots by expressing the conclusion that Bay Area violated the FCRA.

Stan Smith’s Testimony

Cramer wanted to call Stan Smith as a damages expert. Smith proposed to testify about Cramer’s loss of credit expectancy, the value of the time she spent dealing with the problem that Bay Area caused, and the reduction in value of her life caused by the inaccurate credit report (also known as loss of enjoyment of life or hedonic damages).

The court disagreed that Smith was unqualified to testify about loss of credit expectancy. Smith has a Ph.D. in economics, has published articles about credit damage, and has participated in national presentations addressing the measurement of credit damages.

Bay area also faulted Smith’s methodology because Smith could not attribute a denial of credit to the false entries in Cramer’s credit report. Smith acknowledged that Cramer was not denied credit after the erroneous information appeared on her credit report.

Smith noted that there is a difference between the loss of credit and the loss of credit expectancy. He relied on Cramer’s testimony that she decided not to seek a mortgage because she feared that her application would be denied because of the untrue information on her credit report. Smith also attributed Cramer’s inability to find a better car insurance rate to her poor credit report.

The court noted that the facts surrounding Smith’s testimony regarding credit expectancy damages were technical. The court apparently found no fault with Smith’s methodology. The court decided that whether the facts supported Smith’s opinions was a question that should be resolved on summary judgment or at trial. The court therefore permitted Smith to give expert testimony about the loss of credit expectancy.

The court rejected the argument that Cramer could not recover the value of her lost time in dealing with erroneous credit reports. Smith’s testimony in that regard was therefore relevant.

The court accepted the argument that Smith could not testify about hedonic damages. The court noted precedent that allows victims of FCRA violations to recover compensation for actual damages, including both economic and non-economic losses. Courts have ruled that humiliation and emotional distress can be awarded even when the victim of an erroneous credit report had no out-of-pocket expenses.

Hedonic damages, however, have generally been awarded only in personal injury cases. Absent a physical injury, the court concluded that damages for the loss of enjoyment of life are unavailable in a FCRA lawsuit.

In addition, Smith based his analysis of hedonic damages on a “willingness to pay” model which considers consumer behavior, wage risk premiums, and a regulatory cost-benefit analysis in measuring the loss of enjoyment of life. The court agreed with several decisions that have deemed that model to be of no value in guiding the jury’s assessment of hedonic damages. The court therefore precluded Smith from testifying about those damages.

The defense team in the trial of a man who has been charged with a murder and hate crime has filed a motion to bar the testimony of an expert on white supremacy.

The Crime

In May 2017,  U.S. Army Lt. Richard Collins III, a Bowie State University student, was visiting his friends at the College Park campus of the University of Maryland. It was just a few days before his graduation and he had just recently received his commission as a U.S. Army second lieutenant.

Collins was stabbed to death at around 3:00 AM while he was waiting for an Uber at a bus stop with two of his friends. Surveillance video footage shows Sean Urbanski, who is white, stabbing Collins, who is black.

Urbanski was charged with first-degree murder and for a hate crime resulting in death. If convicted, Urbanski would face up to life in prison with no chance of parole for first-degree murder and 20 years for the state hate crime resulting in death charge.

The Investigation

Following the stabbing, search warrants were executed for Urbanski’s phone, truck, apartment, and parents’ phone. An investigation by the FBI pulled together Urbanski’s online group chats, racist memes, and social media activity — including a now-deleted “Alt-Reich: Nation” Facebook Page.

While Urbanski’s defense team argued that the material was “extremely prejudicial, highly inflammatory, irrelevant, and not otherwise admissible,” Prince George’s County Circuit Court Judge Lawrence Hill Jr. ruled that all of this evidence was admissible.

White Supremacy Expert

On November 13, 2019, Urbanski’s defense attorneys William Brennan and John McKenna filed a motion arguing that Prince George’s County prosecutors waited until 30 days before Urbanski’s December 9, 2019 trial to disclose they intend to call Jessie Daniels as an expert witness “to testify about the Alt-Reich, its history, origins, ideology and members.”

Daniels is a professor at The City University of New York. According to her biography, she “has spent the last 25 years calling attention to white supremacy.” She is currently working on a book, Tweetstorm: The Rise of the ‘Alt-Right’ and the Mainstreaming of White Nationalism.

Urbanski’s defense team argued that the state’s motion to include expert testimony was “inexcusably late” — given that this trial has already been postponed four times. The attorneys wrote, “The State has no justifiable reason for withholding this notice of intention to present expert testimony for more than two years.” They claim that they will be unable to properly prepare a defense or seek their own expert witness to rebut Daniels. They also noted that the state failed to provide any of Daniels’ findings, opinions and conclusions, leaving them unable to prepare for her testimony.

They wrote, “The State’s proposed expert testimony does little more than dress up a lay, albeit highly qualified, witness as a so-called ‘expert’ in order to call the Defendant a racist.”

Judge Hill has yet to rule on this motion.

Urbanski’s trial is set to begin on December 9, 2019 and is scheduled to take ten days.

Cathy Truitt filed seven tax returns in 2009, each claiming her entitlement to a $300,000 refund. The IRS recognized that six of returns were fraudulent, but inexplicably issued the refund demanded by the seventh return.

Within a week, the IRS recognized its error and demanded that Truitt return the money. By that time, Truitt had gone on a shopping spree and had no money to return. The government therefore prosecuted her for making false claims against the government and for theft of government funds.

A jury found Truitt guilty. The question on appeal was whether the trial court wrongly excluded an expert witness who would have testified that Truitt was susceptible to brainwashing by a charismatic group. The Court of Appeals for the Seventh Circuit affirmed the conviction.

Truitt’s Tax Returns

Truitt joined the Moorish Science Temple of America in 2009. The Moorish Temple claims that it is a sovereign “ecclesiastical government.” It tells its members that neither the federal nor any state government has jurisdiction over its members, who hold a status similar to diplomatic immunity.

Moorish Temple members sign documents that purport to notify the government of their new Moorish nationality. Members also receive identity cards, license plates, and other documents that purport to establish their change of nationality. Since the Moorish Temple has no legal status as a nation, however, the documents have no legal effect.

Truitt’s problem arose not because she filed falsified income tax returns, but because she filed returns that relate to trusts and estates. Moorish Temple leaders instructed her to file the returns using numbers that purported to have religious or symbolic significance. She was also told to tithe 25{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of any refund she received to the Moorish Temple.

Truitt was advised that filing the returns would allow her to collect funds from a trust that had been established by the Moorish Temple’s founding prophet. She was told that she was entitled to the funds regardless of any “pushback” she received from the government.

Truitt filed the tax returns as instructed. She requested a refund of taxes that had been withheld from trust income in her name. In reality, there was no trust and thus no taxes had been withheld.

Truitt spent or gave away the refund after learning that the IRS wanted it back. Because Truitt stopped attending the Moorish Temple, she was excommunicated and never tithed the share that the Moorish Temple had requested.

Expert Testimony

Truitt’s defense was that she truly believed that money belonging to her resided in a trust. She contended that she had no intent to make false claims because she genuinely believed her claim was supported by the facts that she received from Moorish Temple.

In support of that defense, Truitt wanted to call Dr. Michael Fogel as an expert witness. Dr. Fogel is a forensic psychologist. Although he primarily testifies about a defendant’s mental competence, propensity for violence, or mental disorder, he is also an expert in “charismatic groups.”

Dr. Fogel defined a charismatic group as one whose members share a belief system, have a high level of social cohesiveness, are strongly influenced to comply with behavioral norms, and assign charismatic and/or divine power to the group or its leadership. He characterized charismatic groups as a “type of cultic group” and distinguished them from cults that rely on physical coercion.

Trial Court Ruling

Rule 704(b) of the Federal Rules of Evidence prohibits an expert from stating an opinion “about whether or not a defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.” That rule was adopted in response to public outrage that John Hinkley — a man was clearly mentally ill — was acquitted of trying to assassinate President Reagan.

The rule has been justly criticized, not only because it placed public sentiment about a specific trial outcome ahead of a defendant’s right to a fair trial, but because it prevents juries from hearing expert testimony that is directly relevant to innocence. The rule puts a thumb on the scale in the government’s favor in criminal prosecutions by pretending that experts in mental health have nothing relevant to say about a defendant’s mental state or condition.

Nevertheless, the rule is the rule. The trial judge therefore agreed with the government that Dr. Fogel could not testify that Truitt believed the forms she was filing were legitimate.

The court then considered whether Dr. Fogel could testify that Truitt was susceptible to indoctrination by Moorish Temple. It concluded that Rule 702 and the Daubert decision precluded that testimony. Truitt challenged that ruling on an appeal of her conviction.

Appellate Court’s Analysis

Applying Rule 702, the court asked whether Dr. Fogel was qualified to render an opinion, whether his methodology was reasonable, and whether his testimony would have assisted the jury. The appellate court concluded that, notwithstanding his expertise in group dynamics, Dr. Fogel was unqualified to render an opinion because he had no relevant experience with charismatic groups.

The court acknowledged that generalists may have adequate knowledge and training to render specialized opinions. The court nevertheless concluded that Dr. Fogel’s experience with other kinds of group dynamics did not qualify him to “answer specific questions about the religious themes at play in this case.” The court did not explain why “religious themes” are so different from “other kinds of group dynamics” that Dr. Fogel’s general experience would not allow him to render an opinion about the influence that a group like Moorish Temple might have had on a person like Truitt.

A more formidable obstacle to Dr. Fogel’s testimony concerned his methodology. After the court rejected Dr. Fogel’s testimony as to Truitt’s belief in the legitimacy of her request for a refund, Dr. Fogel reformulated his opinions. He proposed to testify that (1) the Moorish Temple is a charismatic group, and (2) charismatic groups can cause people to lose their moral compass and to do things they otherwise would not do.

The appellate court concluded that Dr. Fogel failed to rely on an adequate methodology to determine whether Moorish Temple was a charismatic group. Dr. Fogel based his opinion that Moorish Temple is a charismatic group on the information he received from Truitt, who had a vested interest in convincing Dr. Fogel that she had been brainwashed. Whether the information that Truitt supplied was truthful, however, was a question for the jury to answer, as questions of witness credibility are exclusively within the jury’s domain.

The court nevertheless concluded that an opinion based on whether a group had a shared belief system required more data than the opinion of a single group member. Dr. Fogel attempted to talk to two other group members who apparently rebuffed his requests, but stopped his data-gathering effort at that point.

Dr. Fogel relied on the work of Dr. Marc Galanter to inform his understanding of charismatic groups. But Dr. Galanter circulates written surveys and conducts interviews with a large number of group members before he identifies a group as charismatic. The court characterized Dr. Fogel’s methodology as a “watered down” version of Dr. Galanter’s methodology.

Lessons Learned

The deficiencies in Dr. Fogel’s qualifications and methodology might have been overcome with a different expert. While the court’s conclusion that Dr. Fogel was unqualified to testify about charismatic groups was suspect, given that he had the requisite professional background to learn about and understand relevant research into cults, the question of qualifications could have been avoided by engaging an expert who had significant experience with charismatic groups.

More importantly, when an expert relies on another expert’s methodology, it is important for that methodology to be followed with care. It may have been difficult for Dr. Fogel to conduct a survey and extensive interviews given the time pressures that are inherent in criminal cases, but the risk of “watering down” a methodology is that a judge will regard the expert’s data as insufficient to support the expert’s opinions.

Finally, if the trial court concluded that Rule 704(b) permitted an expert to testify that Truitt was susceptible to influence by a religious cult, perhaps the defense should have confined Dr. Fogel’s proposed testimony to that simple issue. Truitt was certainly entitled to testify that she was influenced by the leaders of Moorish Temple. Dr. Fogel only needed to interview (and perhaps administer tests to) Truitt in order to decide that she was susceptible to influence by people she respected as religious leaders. Had Dr. Fogel’s proposed testimony been tailored more narrowly, perhaps it would have been admissible.

Jeffrey Klingenberg fell as he was stepping from a roof onto a ladder. He sued Vulcan Ladder for manufacturing, and GP International for selling, a defective ladder. He also sued for breach of warranty, alleging that a label stating the ladder had a “working load” of 300 pounds created an express warranty.

A jury rejected the product liability claim but returned a verdict in Klingenberg’s favor on the warranty claim. The jury awarded him about $2.4 million in damages.

On appeal, the defendants argued that Klingenberg’s expert was unqualified and that his methodology was unreliable. The Court of Appeals for the Eighth Circuit rejected those arguments and affirmed the judgment. 

Expert Testimony

Stephen Fournier testified as an expert for Klingenberg. Fournier is a Licensed Professional Engineer. He opined that the ladder was defective and that the defect caused Klingenberg to slip. The defense expert contended that Klingenberg slipped on snow and that the ladder was not defective.

Both experts agreed that the ladder met standards set by the American National Standards Institute (ANSI). Fournier testified that the ANSI sets minimum standards, that products can be unsafe even if they meet those standards, and that no ANSI standard covered the defect at issue.

After evidence was concluded but before the case was submitted to the jury, the defendants moved for judgment as a matter of law. They contended that Fournier’s testimony should be stricken because he was not qualified to render the opinions he expressed. They also challenged the reliability of Fournier’s methodology.

The trial court rejected the challenges. The court therefore denied the motion for judgment, which was premised on the failure to prove causation in the absence of Fournier’s testimony. The defendants appealed.

Expert’s Qualifications

The Court of Appeals easily determined that Fournier was qualified to testify as an expert in ladder safety. Fournier is a civil engineer who is OSHA-certified in fall protection. He has investigated more than 1,000 construction accidents, including 200 that involved ladders. He had been qualified as an expert in more than 20 previous cases regarding ladder safety.

The defendants claimed that Fournier was unqualified because he had never designed an articulating ladder and had never served on an ANSI committee. The Federal Rules of Evidence, however, simply require an expert to be qualified by knowledge, skill, training, experience, or education. Since Fournier easily met that qualification standard, the argument that he lacked additional qualifications did not bar the admissibility of his testimony.

The argument that an expert might be even more qualified by adding additional experience to a resumé goes to the weight the jury should give the expert’s testimony. Since that argument does not support a conclusion that an expert should not testify, the Court of Appeals agreed with the trial judge’s decision not to strike Fournier’s testimony on the basis of his qualifications.

Expert’s Methodology

The federal rules require an expert’s testimony to be based on sufficient facts, a reliable methodology, and a reliable application of the methodology to the facts. If those standards are met, it is the jury’s function to determine whether the expert’s opinions are worthy of belief.

The defendants argued that Fournier’s methodology was unreliable because he did not test his theories on the damaged ladder or on a similar model. The court noted that physical testing is not required in every case. The question is whether the expert used a reliable methodology, not whether some other methodology might have been used instead.

Fournier based his opinion on a variety of facts, including information provided by Klingenberg about how the accident happened, photos of the accident scene, and his examination of the damaged ladder and of competitors’ ladders. He concluded that installing retaining straps, as competitors did, would have made the ladder safer.

Fournier based his opinion on general engineering principles and on his experience in ladder investigations. That experience included the investigation of a competitor’s ladder that failed when its retaining strap was removed. The failure was similar to the failure of the ladder from which Klingenberg fell.

Given Fournier’s knowledge and experience, he did not need to test the ladder to determine that the addition of retaining straps would have made the ladder safer. Because Fournier applied a reliable methodology to sufficient facts in a reliable way, his testimony was admissible. 

Sufficiency of Evidence

The jury rejected the claim that the ladder’s design was defective, possibly because it was not satisfied that a reasonable alternative design was available in the year the ladder was purchased. The jury agreed, however, that a label stating the ladder was rated for a “working load” of 300 pounds created an express warranty and that the warranty was breached. Since the warranty claim did not depend on the availability of an alternative design, the verdicts were not inconsistent.

The label stated both that the ladder had a 300-pound working load and that the ladder was manufactured to ANSI standards. The defendants argued that they only warranted that the ladder supports a 300-pound load as required by ANSI standards. Because Fournier agreed that the ladder met ANSI standards, the defendants argued that Fournier admitted that the warranty was not breached.

The appellate court rejected that argument. The language about ANSI standards and the working load language appear on different parts of the label. The jury was entitled to view the statements as two separate warranties, not as a single warranty that somehow merged the two statements.

Fournier testified that the 300-pound working load label meant that the ladder is designed to hold a 300-pound person safely in any of its configurations. While the jury could consider evidence that the ladder passed certain ANSI tests, the label did not simply warrant that the ladder satisfied ANSI standards. Expert testimony permitted the jury to conclude that the defendants warranted that the ladder could be used safely by a person with a 300-pound load.

Evidence that the ladder met a minimum safety standard did not foreclose the possibility that the ladder’s condition did not satisfy the warranty. Since Fournier testified that the ladder was not safe, the jury was entitled to conclude that the warranty was breached. The court therefore affirmed the judgment in Klingenberg’s favor.

About ten years ago, a Texas jury sentenced George Powell to 28 years in prison for an aggravated robbery. Texas allows defendants to elect whether the judge or jury will determine the sentence in noncapital cases. Powell’s conviction was affirmed on appeal.

Powell’s conviction was based in part on a video of the convenience store robbery. The robber was wearing sunglasses and a baseball cap. A store clerk told the police that the robber was five-foot-six but testified at trial that the robber was five-foot-ten.

As ExpertPages explained in 2017, a retired police officer named Michael Knox testified that he used photogrammetry to determine that the robber in the video was more than six feet tall. Powell is six-foot-three.

After his conviction was affirmed, Powell sought habeas corpus relief. Part of his challenge was based on the dubious expert testimony upon which his conviction rested.

Post-Conviction Expert Testimony

At a post-conviction hearing, Knox testified at length about his undergraduate education and his law enforcement training in accident reconstruction. At the time of his trial testimony, however, Knox had no degree and no formal education in video analysis.

Knox also testified about the procedures he followed to estimate the robber’s height from the videotape. He regarded those procedures as being established by the science of photogrammetry.

In response, Powell called Grant Fredericks as an expert witness. Fredericks is a certified forensic video analyst who has taught courses for a number of law enforcement agencies, including the FBI National Academy.

Fredericks testified that a trained video analyst can use principles of photogrammetry to arrive at valid conclusions. He submitted a report to the Texas Forensic Science Commission in which he concluded that Knox’s methodology had reduced photogrammetry to “junk science.” The Commission agreed with that assessment.

After the trial, Knox responded to the Commission’s inquiry by “revising” his estimate of the robber’s height to at least five-foot-ten, conveniently matching the store clerk’s revised estimate. Knox claimed that it was impossible to determine the robber’s maximum height.

Fredericks testified that he did not understand the basis for Knox’s revised opinion. Fredericks explained in detail why Knox’s methodology was unreliable. In particular, he criticized Knox’s failure to understand the difficulty of determining height from a compressed video image.

Based on his own methodology, Fredericks determined that the robber was no taller than five-foot-nine. In addition, Fredericks scanned a picture of Powell in a prison jump suit, inserted it into a frame of the video showing the robber, and concluded by comparing the two men that they could not possibly be the same person. Other witnesses criticized that methodology because Powell was not standing in an identical posture in both photos and his weight (although presumably not his height) might have changed during his imprisonment.

Knox used PhotoModeler software with which Fredericks is unfamiliar. Fredericks suggested to the Forensic Science Commission that it hire Dan Mills to do a peer review of Knox’s work because Mills has experience with the software that Knox used.

Mills concluded that Knox’s revised analysis (following the conviction) was better than his first analysis (upon which the conviction was based). He also concluded that both Knox’s opinion and Frederick’s opinion were highly subjective.

Actual Innocence

A habeas challenge under Texas law can be based on proof of actual innocence. The court was not convinced that the difference in expert opinions conclusively proved that Powell was not the robber.

The court found that Knox was a credible witness, notwithstanding that the Forensic Science Commission questioned his methodology. The court found that Fredericks was also a credible witness. Since the two experts used different methodologies, the court concluded that their differing findings were not necessarily contradictory.

In essence, the court thought that the subjectivity involved in both methodologies created a range of possible results and that Knox’s first and second opinions, as well as Frederick’s opinion, all fell within that subjective range. One might question how methodologies that are so subjective could possibly meet the Daubert standard, but that was not the question before the court.

One might also wonder how an opinion that the offender was at least six-foot-one, an opinion that the offender was at least five-foot-ten, and an opinion that the offender was no taller than five-foot-nine are not contradictory opinions, regardless of the methodology that was used. Ultimately, given the subjective nature of the opinions, the court likely believed that nobody can say with any certainty how tall the robber was.

No expert testimony established that the robber was as tall as Powell. Still, since the expert testimony could not conclusively establish that the robber in the video was not Powell, the court concluded that Powell failed to prove his actual innocence.

New Scientific Evidence

A Texas statute also permits a conviction to be vacated when new scientific evidence, unavailable at the time of the trial because of a change in scientific knowledge, excludes the defendant as the person who committed the crime. For example, if new techniques for analyzing DNA were not available at the time of trial and the new analysis points to the defendant’s innocence, Texas law will give the defendant a new trial based on the progress of science.

The court concluded that Powell’s new evidence was available at the time of the trial. The court noted that Powell could have retained Fredericks as an expert witness to testify at his trial, so the evidence was not new.

If Powell had retained his own expert, he might have been acquitted. While the failure to do so might support a claim of ineffective assistance of counsel, it did not satisfy the Texas standard for vacating a conviction based on newly available scientific evidence.

Powell attempted to shoehorn Knox’s change of opinion into the statute by arguing that his new opinion was based on an advanced understanding of the appropriate scientific method. The court concluded that Knox based his revised opinion on different data (he chose different measurement points when he prepared his second opinion) and that a change of data is not the same as a change in science.

Outcome

It should be apparent to even a casual observer that Powell’s conviction rested in large part on a questionable expert opinion. The case illustrates the need for defense counsel to counter expert evidence with the defendant’s own expert in every case.

Fortunately for Powell, the trial court recognized other ways in which Powell’s trial was unfair. The prosecution relied on a jailhouse snitch but withheld information from the defense that created substantial doubt about the credibility of that witness.

Nor did the prosecution disclose the promises it made to the snitch in order to induce his testimony. When the snitch testified that no such promises had been made, the prosecutor did nothing to correct his perjured testimony, in violation of Powell’s right to due process of law.

The trial court recommended that Powell receive a new trial. On the basis of that recommendation, the Texas Court of Criminal Appeals granted Powell’s habeas corpus petition.

In a just world, the Bell County’s District Attorney would concede that the evidence falls well short of proof beyond a reasonable doubt that Powell committed the crime and would drop the charges. Unfortunately, the DA has refused to acknowledge that his prosecutors engaged in misconduct to convict Powell and has promised to move forward with a new trial.

The firing and discrediting of a Hennepin County, Minnesota nurse who examined sexual assault victims and was a prosecution expert witness has prompted the independent review of all of the criminal cases in which she was involved.

Hennepin County Medical Center (HCMC) Nurse Jarvis

Kristi J. Jarvis was a Hennepin County Medical Center (HCMC) nurse. Jarvis was hired by HCMC in 2014. The following year, she was promoted to “program coordinator” for the Hennepin Assault Response Team (HART), which was then known as Sexual Assault Resource Service, or, SARS.The HART organization is staffed 24 hours a day and investigates allegations of sexual assault, human trafficking and sexual exploitation involving adults and children.

Jarvis served as the forensic program coordinator from late 2017 until her firing. During her tenure at HCMC and HART, Jarvis examined sexual assault victims and was listed as an expert witness for the prosecution.

Jarvis’ Firing for Lying About Educational Background

On May 8, 2019, Jarvis was fired for falsely reporting in documents that she had a bachelor’s of science in nursing. Her personnel file obtained by the Minnesota Star Tribune also showed that Jarvis “ inappropriately took $4,050 in personal checks from participants who attended a class she taught, was disciplined in 2017 for altering official HCMC documents and contributed to a work environment rife with dysfunction.”

According to her termination letter, Jarvis was fired for claiming on official documents related to the International Association of Forensic Nursing’s approval process for sexual assault nurse examiner (SANE) classes that she had a bachelor’s of science in nursing.

Hennepin Healthcare, the umbrella organization for HCMC, contended that Jarvis had the credentials to perform her job duties. It said in a written statement, “The reason for termination was ‘failure to comply with Hennepin Health System’s Code of Conduct.”

HCMC documents reveal that Jarvis self-reported conducting more than 400 forensic exams in her career and wrote that she has provided “expert witness consultation and testimony for numerous county attorney’s offices” and defense attorneys.

Jarvis’ Defense

Jarvis’ attorney, Christa Groshek, said in a written statement, “Ms. Jarvis denies any allegations that she misrepresented her title or credentials. … A subordinate in her office misstated her title.”

Jarvis was first licensed as a nurse in Minnesota in 2006, and is actively licensed with an expiration date of February 2020, according to the Minnesota Board of Nursing. A bachelor’s degree in nursing is not required for licensure as a nurse.

Jarvis is a registered nurse, has a bachelor’s of science in criminology and criminal justice, a master’s certificate in forensic nursing and is certified as a sexual assault nurse examiner (SANE), Groshek said. The absence of a nursing degree, however, might cause juries to question an expert’s qualifications to render opinions as a nurse examiner.

The Aftermath

Jarvis worked on cases in Hennepin and Ramsey counties while at HCMC. Public defenders in Hennepin and Ramsey counties could not immediately say how many of their past or pending cases involve Jarvis as an examiner or witness.

“We’ll find out which cases she’s been pivotally involved in and see what can be done,” said Jim Fleming, chief Ramsey County public defender. “This certainly is going to perk interest.”

Fleming stated that Jarvis’ involvement in a case wouldn’t necessarily result in an automatic challenge, adding that many other variables have to be considered.

Chief Hennepin County Public Defender Mary Moriarty said, “Every case is unique. … We’re looking at each one individually to make sure our clients’ rights were protected.”

Experts, unlike fact witnesses, are sometimes allowed to testify about inadmissible hearsay if they relied on the hearsay to form an opinion. Whether or not they mention the hearsay in their testimony, the federal (and most state) rules of evidence prohibit experts from giving opinions that are based on hearsay unless experts in the field reasonably rely on hearsay of the same nature when they form opinions.

The relationship between the hearsay rule and the admissibility of expert testimony can cause considerable confusion. An appellate court in Iowa recently explained that expert testimony about a standard of care was erroneously admitted because the expert opinion was based on hearsay.

The hearsay consisted of data that the expert collected in a survey. While the expert might have been entitled to rely on the hearsay, the party who offered the evidence offered no proof that standard of care experts reasonably rely on similar hearsay when they form opinions.

Facts of the Case

Edward Franzen sued his dentist, Dr. Alan Kruger, for malpractice. Franzen was experiencing pain from an abscessed tooth. His dentist had retired so he made an appointment with Dr. Kruger, whose office was close to Franzen’s farm.

Dr. Kruger took x-rays of Franzen’s teeth. After discovering that one of Franzen’s molars was cracked, Dr. Kruger recommended extracting the tooth. Franzen consented to the extraction.

Dr. Kruger used an extraction procedure known as the resection method. The method requires the dentist to break the tooth into three pieces.

Dr. Kruger attached a surgical bur to his drill to perform the procedure. When the bur spins, it acts as a rotary cutting device.

The bur came loose from the drill during the procedure. Franzen felt it hit the back of his throat. He gagged and coughed but could not cough up the bur. After the extraction was completed, Dr. Kruger advised Franzen to have his lungs checked in case the bur had fallen into his windpipe.

After taking x-rays and a CT scan, doctors confirmed that the bur was trapped in a lower lobe of a lung. Surgeons later removed the lobe but could not find the bur, which had migrated to a different part of the lung. Surgeons were ultimately able to extract it using a bronchoscope.

As a result of the surgeries, Franzen has a lower than normal lung capacity. He runs out of breath more quickly than he did before the surgery, which makes it more difficult for him to complete his work. His singing in the church choir was impaired by his inability to draw sufficient breath to hold a note.

Franzen sued Dr. Kruger on the obvious theory that careful dentists do not send sharp objects spinning down the throats of their patients. A jury agreed and awarded him $400,000 in damages, including $320,000 in future damages.

Expert Testimony

A dental malpractice lawsuit in Iowa, like medical malpractice lawsuits around the country, requires an injury victim to prove that the injury was caused by the provider’s breach of the appropriate standard of patient care. That standard and whether it was breached must, in most cases, be proved by expert testimony.

Franzen relied on the expert testimony of Dr. Cheri Lewis. Dr. Lewis is a general dentist who practices in Beverly Hills.

The trial court rejected the claim that Dr. Lewis was unqualified to render an opinion because she practices general dentistry rather than oral surgery. Dr. Kruger is a general dentist, not an oral surgeon. Dr. Lewis was qualified to describe the standard of care that applies to general dentists who extract teeth.

Dr. Lewis opined that the injury was most likely caused by Dr. Kruger’s failure to secure the bur in his drill before he started the extraction. A reasonably prudent dentist would, in her opinion, secure the bur. She considered the failure to do so to be a breach of the appropriate standard of care.

Dr. Lewis also testified that prudent dentists use a bite block and a throat pack during extractions. A bite block (also known as a mouth prop) is a wedge-shaped device that dentists use to keep a patient’s mouth open during a procedure. A throat pack is essentially a piece of gauze that is stuffed into the back of the throat to prevent material from traveling down the patient’s windpipe.

Dr. Lewis testified that a bite block and a throat pack would have shielded Franzen’s throat from unexpected debris. In her opinion, the failure to use them during Franzen’s surgery breached the appropriate standard of care.

Hearsay Objection to Expert Testimony

Before testifying, Dr. Lewis conducted a survey of directors of oral surgery programs around the country. She asked whether the use of a bite block and throat pack were part of the protocol they taught for tooth extractions. She conducted the survey to confirm that the standard routinely followed in California was also a national standard.

About a third of the directors responded to the survey. The consensus among those who responded was that bite blocks and throat packs are part of the accepted protocol for tooth extractions.

Dr. Kruger objected that Dr. Lewis’ opinion was based on hearsay to the extent that she relied on the survey. The defense complained that it could not cross-examine the survey participants. The trial court overruled the objection.

Appellate Court’s Hearsay Analysis

The question before the appellate court was whether an expert can testify about inadmissible hearsay. Iowa follows the general rule that an expert “may base an opinion on facts and data in the case that the expert has been made aware of,” including inadmissible evidence if “experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.”

Would dental experts reasonably rely on survey data in determining a standard of care? Dentists who attend professional training seminars routinely rely on instructors to define a standard of care. Rather than attending a seminar, contacting instructors directly to learn about a standard of care might be something that reasonable dentists would do. Whether standard of care experts reasonably rely on data that they generate from their own surveys is less clear.

Unfortunately for Franzen, Dr. Lewis did not testify that experts in the field of dentistry reasonably rely on the expertise of instructors nationwide to inform their opinions about appropriate standards of care. Nor did she testify that dentistry experts reasonably rely on survey data to help them form standard of care opinions. In the absence of that foundation, the Iowa Court of Appeals concluded that her testimony was inadmissible.

The appellate court noted that the foundation cannot be laid with testimony that other experts agree with the testifying expert. What other experts believe is hearsay unless experts in the field would reasonably rely upon the opinions of other experts in forming an opinion. It might be self-evident that experts routinely gain information from other experts, but the appellate court nevertheless required the foundational question to be asked and answered.

Nor did it matter that the survey answers were not admitted into evidence. If Dr. Lewis based her opinion on inadmissible hearsay, the opinion itself was inadmissible unless the hearsay consisted of the kinds of facts or data that experts in her field reasonably rely upon in forming an opinion.

Lessons Learned

It might not have been necessary to offer any testimony about the bite block and throat pack. Dr. Lewis was apparently confident that all dentists in all states have a duty to assure that a surgical bur is correctly attached to a drill. Her testimony that a failure to secure the bur caused Franzen’s injury was probably enough to win the case.

Perhaps the additional theories of negligence were advanced from an abundance of caution. In hindsight, it might have been possible to advance those theories by laying a better foundation for Dr. Lewis’ opinion or by using a different expert.

Assuming that Dr. Lewis used a sound survey method (a question the court recognized but did not answer), the court acknowledged that survey data might be a useful way for an expert to confirm the appropriate standard of care. Relying on a consensus of opinion might be better evidence than relying on a single doctor’s opinion. To render an admissible opinion, however, Dr. Lewis needed to establish that she relied on survey data that other dental experts would reasonably rely upon to form a standard of care opinion.

Franzen might have prevailed at the trial and made the victory bulletproof on appeal by laying an appropriate foundation for the expert testimony. Whether experts in a standard of care reasonably rely on their own survey data, however, is unclear. As an alternative, since Dr. Lewis’ concern was that the California standard of care might not have been a national standard of care, Franzen might have been better served by an expert from Iowa by a nonlocal expert who could testify from personal knowledge that the nationwide standard of care is to use a bite block and a throat pack during a tooth extraction.

Desirae Glatfelter confronted her boyfriend about her suspicion that he was having an affair. When he denied the accusation, Glatfelter became irate. Her boyfriend grabbed her in a “bear hug,” purportedly to calm her down. In the words of the court, he also “administered a French kiss.” Glatfelter objected to the “administration” of the kiss by biting off a part of his tongue.

When officers arrived at the scene, Glatfelter told them that her boyfriend had squeezed her violently and had forced his tongue into her mouth. She became irate again when the officers chose not to arrest her boyfriend for assaulting her but instead arrested her for defending herself.

Glatfelter was charged with mayhem. At her trial, Glatfelter’s boyfriend admitted that he placed Glatfelter in a bear hug and that Glatfelter was not calm when he pushed his tongue into her mouth.

He testified that he thought it was fine to calm his girlfriend down with a French kiss because he had done it before. He also admitted that he had dislocated her shoulder several months earlier, an act of domestic abuse that resulted in his arrest.

Glatfelter asked to present testimony from an expert in domestic violence. The court denied that request because she had not given timely notice of her intent to call the expert. The jury acquitted Glatfelter of mayhem but found her guilty of the lesser offense of aggravated assault.

Ineffective Assistance Claim

Glatfelter’s postconviction lawyer argued that her trial lawyer was ineffective, in part because he failed to give timely notice of his intent to call an expert witness. Every criminal defendant is entitled both to the assistance of counsel and to have that counsel perform in an objectively reasonable way.

Michigan’s Rules of Criminal Procedure require each party to give the opposing party notice in advance of trial of the witnesses they intend to call, including expert witnesses. Since reasonable attorneys follow the rules, the Michigan Court of Appeals concluded that Glatfelter’s attorney failed to perform reasonably when she neglected to notify opposing counsel of her intent to call an expert witness.

In addition, Glatfelter wanted to use the expert as a rebuttal witness. Michigan law gives trial judges the discretion to admit the testimony of undisclosed rebuttal witnesses when it would be in the interest of justice to do so. Since the trial judge apparently gave no thought to whether exclusion of the expert’s testimony would thwart the interests of justice, the judge abused his discretion.

Defense counsel’s deficient performance only requires a new trial if the defendant was prejudiced. By the same token, a judge’s abuse of discretion in keeping evidence from the jury will only result in a new trial if the evidence might have changed the outcome. The court of appeals therefore had to decide whether the expert would have provided relevant and important testimony.

Relevance of Domestic Abuse Expert’s Testimony

Rebuttal evidence is relevant if it responds to evidence introduced by the opposing party. Expert evidence may be introduced as rebuttal evidence.

After the prosecution rested its case, Glatfelter’s counsel wanted to call an expert witness to testify about the impact of domestic violence on victims. Counsel argued that the need for the expert testimony only became apparent during the course of the trial.

The trial court disagreed, ruling that the proposed testimony overlapped the testimony of an expert Glatfelter had earlier identified. Since the first expert was excluded because the notice identifying the expert was untimely, the court also excluded testimony from the second expert.

At a post-trial hearing, the second expert testified that some domestic violence victims respond to abuse with force or violence, even if the violence might not be warranted, because they perceive the abuse as posing an imminent threat to their safety. The trial judge ruled that the expert’s testimony would not have been helpful to the jury because the expert did not testify that Glatfelter acted in self-defense.

The appellate court agreed with the trial judge that trial counsel knew of the state’s evidence prior to trial and therefore should have given timely notice of her intent to call an expert witness. The appellate court disagreed, however, that the expert testimony would not have been helpful to the jury.

While the appellate opinion did not summarize or analyze the expert testimony in any detail, the court concluded that the domestic abuse expert would have enabled counsel to argue that domestic abuse victims sometimes behave counterintuitively. Presumably, the expert’s opinion would have allowed the jury to understand why Glatfelter reasonably believed that a passionate kiss was threatening even if Glatfelter’s boyfriend posed no actual threat. The expert testimony was therefore relevant and its exclusion deprived Glatfelter of a fair trial.

An expert for Exxon Mobil Corporation has opined that the authorities’ claims that the company hid the financial risks of climate change are “a tad circular.”

The Securities Fraud Trial

New York Attorney General Letitia James filed a complaint against Exxon Mobil Corporation, alleging that Exxon intentionally misled investors about the way it planned for the expected future impact of climate change on its business. According to the complaint, investors lost between $476 million and $1.6 billion when the alleged scheme was exposed.

New York also claims that former Exxon Chief Executive Officer Rex Tillerson spearheaded a plan to dupe investors into thinking it was applying a high “proxy cost” for carbon to its investment decisions, while secretly using a lower figure to evaluate projects, including those in the Alberta oil sands.

Irving, Texas-based Exxon responded there weren’t any losses from the alleged scheme because there was no deception. Tillerson testified the allegations regarding a plan to dupe investors were false.

Expert Witness Testimony

The state retained Eli Bartov, an accounting professor at New York University, and Peter Boukouzis, an assistant professor of business management at the University of Saint Katherine in San Marcos, California, to testify on its behalf.

Bartov testified that Exxon had inflated its stock by lying to concerned investors starting in 2014. Boukouzis testified about the resulting stock drops tied to the news events.

Exxon Mobil Corporation hired Allen Ferrell, a Harvard Law School professor who is also a senior consultant at Compass Lexecon, to testify on its behalf. Ferrell was the last witness to testify in the three-week trial in Manhattan.

Ferrell refuted Bartov’s testimony by saying that Bartov’s study of Exxon’s share-price movements hadn’t controlled for fluctuations in the energy industry.  Ferrell said that Boukouzis wrongfully cited two news-related stock movements that don’t qualify as statistically significant.

The News Events Used in Damage Calculations

Ferrell also argued that New York’s claim that investors lost as much as $1.6 billion after authorities accused the company of hiding the financial risks of climate change was “a tad circular.”

Ferrell said that it was somewhat convenient for an authority to cite news about its own fraud investigation as the cause of a company’s losses. He stated, “You don’t shoot the arrow and then draw a bulls-eye around it.”

The complaint outlines three news events that allegedly resulted in Exxon’s stock dropping:

• Two events that relate to climate probes in 2016 by the California attorney general and the U.S. Securities and Exchange Commission.
• New York’s June 2017 claim that it uncovered evidence of a “sham.”

The state plans to use these three events to calculate the alleged losses. Exxon’s stock did dip on the days of the three news events. The state’s calculation of losses would become crucial if it wins the trial.

In it memorandum, New York wrote, “The evidence will show that when the deception uncovered by the state’s investigation and related investigations was revealed, Exxon Mobil’s stock price fell, injuring investors who must now be made whole.“

The case is being heard by New York Justice Barry Ostrager, who will decide the case without a jury.

A recent decision of the Court of Appeals for the Third Circuit addressed the importance of using forensic experts when a litigant is suspected of destroying electronic evidence. The practice of deleting emails will often entitle the opposing party to a remedy.

In most cases, the remedy will be an instruction that allows the jury to infer that a party deleted emails because their content would have helped the opposing party prove its case. The strength of that inference, however, may depend on testimony provided by an expert witness.

Nature of the Lawsuit

GN Netcom, Inc. manufactures telephone headsets that are primarily used for hands-free conversations in the customer service industry. GN dominates the headset market in Europe. GN sued a competitor, Plantronics Inc., which dominates the headset market in North America, for antitrust violations.

GN claimed that Plantronics engaged in unlawful anticompetitive conduct by offering rebates and other benefits to distributors who agreed not to purchase headsets from manufacturers other than Plantronics. The agreement also conditioned the benefits upon an agreement not to market competitors’ headsets on resellers’ websites.

GN sent Plantronics a letter alleging a violation of antitrust law and demanding compensation. Plantronics initiated a “litigation hold” that directed employees to preserve all corporate documents relevant to the claim. Plantronics updated the hold after GN initiated a lawsuit. Plantronics also trained employees to obey the hold.

Deletion of Emails

Notwithstanding the litigation hold, Plantronics’ Senior Vice President of Sales directed employees to delete certain emails, including those that referred to GN or its products. In particular, the VP ended three emails referring to competition with an instruction to delete the email chain and to delete certain emails that he flagged as “inappropriate.” The VP also deleted over 40{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of his own emails that were sent during a relevant time period.

The VP told employees to stop putting information about competition in writing. Managers also instructed employees to refer to competitors by code names. GN was code named “zebra.” The CEO also expressed his concern that there might be “damning statements” in staff emails.

When Plantronics’ general counsel learned of the VP’s action, she directed his attention to the litigation hold, tried to obtain backup copies of the emails so that they could be preserved, and engaged a forensic expert to try to recover the deleted emails. Ignoring its lawyer’s efforts, Plantronics declined to pay the forensic effort to complete his work and destroyed the backup tapes of the deleted emails.

The forensic expert’s preliminary report estimated that tens of thousands of unrecoverable emails had been deleted and that several thousand of those were probably responsive to GN’s discovery requests. Plantronics’ outside lawyer blatantly told the court that Plantronics received no report from the forensic expert, despite referring to the expert’s preliminary report in his billings.

Spoliation Remedy

GN moved the court for a default judgment on the ground of spoliation (a legal term that refers to the destruction of evidence). Motions to deny parties the benefit of a trial are rarely granted. The district court opted to give a jury instruction that allowed the jury to assume that the destroyed emails would have helped GN prove its case.

GN then asked the court for permission to present evidence of the spoliation at trial, including the testimony of its expert witness. Fearing that the issue of spoliation would overshadow the merits of the antitrust dispute, the judge declined to allow the expert to testify. The judge instead instructed the jury that certain facts about the spoliation were true and could be considered in reaching a verdict.

After a six-day trial, the jury found that GN failed to prove any of its claims. GN appealed, arguing that it should have received a default judgment and that the judge erred by denying its expert testimony. The court of appeals rejected the claim that GN was entitled to a default judgment but agreed that it should have been permitted to present expert testimony.

Expert Witness Testimony

GN proposed to call a forensic expert, Dan Gallivan, to testify about the deleted emails. The preliminary report by Plantronics’ expert concluded that Plantronics deleted 952 to 2,354 unrecoverable emails that were responsive to GN’s discovery request (plus tens of thousands that were not). Gallivan estimated that ten to fifteen thousand deleted and unrecoverable emails were relevant to the litigation.

The Court of Appeals concluded that Gallivan’s testimony would have been relevant to the underlying claims. Since the jury was entitled to view spoliation of evidence as a material fact, the extent of that spoliation was also a material fact. The jury was not required to draw an adverse inference from the destruction of evidence, so the extent of that destruction was a relevant consideration in deciding whether the inference was appropriate.

The trial court did not fault Gallivan’s reasoning or methodology. His testimony was not excluded on Daubert grounds. Rather, the court did not want the spoliation evidence to overshadow substantive evidence of the alleged antitrust violation. The appellate court construed that analysis as being grounded in Rule 403 of the Federal Rules of Evidence.

Appellate Decision

The trial court did not explicitly balance the probative value of Gallivan’s testimony against the potential prejudice that might be caused by confusing the jury or wasting time. Even if the trial court implicitly conducted the appropriate balancing test under Rule 403, the appellate court decided that the exclusion of Gallivan’s testimony was an abuse of discretion.

In addition to explaining why his estimate was more reliable than the preliminary estimate produced by Plantonics’ expert, Gallivan’s testimony might have shed light on the extent to which Plantronics concealed evidence. If hundreds or thousands of deleted emails were pressuring distributors not to purchase GN’s products, the antitrust case would be stronger than if fewer emails did so.

The most relevant stipulation that the court read to the jury — “It may be that several hundred or even up to 15,000 potentially relevant responsive relevant emails were deleted or destroyed” — was not an adequate substitute for the expert’s live testimony. The appellate court concluded that the vague stipulation “left the jury to consider estimates that were not even in the same ballpark” with no basis for deciding whether Plantronics deleted only several hundred emails or something closer to 15,000 emails.

Finally, the Court of Appeals concluded that requiring GN to rely on a stipulation rather than live expert testimony was prejudicial. “The difference from several hundred to 15,000 could easily have been the difference between applying the adverse inference and not.” Gallivan’s testimony supported GN’s theory that Plantronics engaged in a “massive coverup” and was therefore critical to its proof. The court accordingly granted GN a new trial.