The government, with its vast resources, has a distinct advantage when it brings criminal charges against all but the wealthiest defendants. Since poor defendants have the same right to a fair trial as wealthy defendants, the Supreme Court has held that the constitutional right to equal protection of the law demands that defendants not be placed at an unfair advantage simply because they are indigent.

It has long been the law that indigent defendants are entitled to appointed counsel. Without a lawyer, a defendant is deprived of a fair opportunity to present a defense. It was not until 1985, however, that the Supreme Court decided that the right to “a fair opportunity to present a defense” will sometimes include the right to use government funds to hire an expert.

States with robust public defender systems routinely authorize the hiring of experts, although budget-conscious agencies do not always approve the funding a defendant would regard as ideal. When judges are asked to authorize funding, however, defendants all too often encounter judicial reticence to use the government’s money to pay for expert witnesses.

Prosecutors, of course, might also be constrained by budgets, but they are not required to ask tight-fisted judges to approve the funding of expert witnesses. In addition, many prosecution experts work for government crime labs or law enforcement agencies, so it costs the prosecution nothing to call the experts to testify at trial.

Defendants, on the other hand, frequently struggle for approval of funding by judges who act as if they were paying for experts out of their own pockets. The Michigan Court of Appeals recently decided that a defendant was denied a fair trial because the court declined to approve funding for necessary expert witnesses. The appellate court blamed defense counsel rather than the trial judge, but the court’s circular reasoning allowed it to rectify an injustice.

Facts of the Case

Shawn Brown was convicted of manslaughter and child abuse in a Michigan court. Brown told the police that when his son started choking, he patted his son on his back, then patted him harder. When his son stopped breathing, he took his son to the hospital.

Brown’s son died. At Brown’s trial, a forensic pathologist testified that a traumatic brain injury caused his death. The pathologist couldn’t explain quite how that happened, but she viewed bleeding in the back of the child’s eye as evidence of a traumatic brain injury. Other doctors testified about visible injuries, including subdural hematomas and lung injuries, that they viewed as “consistent with” abuse and nonaccidental death.

The pathologist testified that all of the child’s injuries resulted from impact and that shaking was a potential mechanism for the injuries. She also testified that she might describe the cause of death as “Shaken-Impact Syndrome.”

After Brown was convicted, he moved for a new trial based on ineffective assistance of counsel. The court denied the motion without bothering to hold a hearing. Brown appealed and the Court of Appeals ordered the trial judge to hold a hearing. Predictably, the court held the hearing and again denied the motion. Brown then asked the Court of Appeals for relief, based in part on the trial court’s failure to approve funds for an expert witness.

Michigan Law Regarding Expert Witness Funding

Prior to 2018, Michigan courts viewed requests for expert witness funding through the lens of a statute that authorizes courts to issue subpoenas for indigent defendants in the same way that subpoenas are issued for prosecutors. In other words, service fees and witness attendance fees are paid by the state.

While the legislature clearly did not have expert witnesses in mind when it enacted the statute, courts relied on a strained reading of the statute to authorize payment of expert witness fees if the defendant could demonstrate that expert testimony would probably be helpful. Of course, it is often impossible to predict whether an expert’s testimony will be helpful until an expert has been hired, has analyzed the facts, and has arrived at an opinion.

The Michigan statute provided no authority for public funding of experts to assist defendants in trial preparation. Even if an expert’s testimony might not be helpful, an expert can provide invaluable assistance in helping defense counsel understand the prosecution’s expert evidence. Experts can explain weaknesses in methodologies that help lawyers develop effective strategies for cross-examining expert witnesses.

A 2018 decision of the Michigan Supreme Court overruled cases that relied on the statute and instead required trial courts to analyze requests for expert witness funding as an aspect of the constitutional right to a fair trial. According to the court, an indigent defendant “must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial.”

That standard does not address the equal protection problem, because wealthy defendants can hire experts based on the possibility that they might find something to assist the defense, while indigent defendants must establish a “reasonable probability” that they will do so. The court’s suggestion that the standard might allow unfair trials, provided that they are not “fundamentally” unfair, is consistent with longstanding judicial tolerance of a system that is less fair to poor defendants than it is to wealthy defendants.

The United States Supreme Court has never held that every defendant has a right to receive the best possible defense. The Court has often suggested that defendants have no right to “a perfect trial,” a sarcastic axiom that lower courts have seized upon to excuse serious denials of constitutional rights. Rather, the Court has held that indigent defendants are only entitled to a fair trial. At the same time, the Court has recognized that the right to a fair trial should not be burdened by an indigent defendant’s lack of resources to hire necessary experts.

A Better Rule

The standard Michigan adopted in 2018 tracks the prevailing federal standard. Courts continue to struggle to decide whether an expert would probably be “of assistance” to the defense and whether the absence of expert assistance could deprive the defendant of a “fundamentally” fair trial.

A simpler rule that is more consistent with a commonsense understanding of due process would permit the defense to hire an expert whenever the prosecution intends to use an expert. Lawyers, after all, are experts only in the law. If the prosecution needs an expert to present its case, defense lawyers have an equal need for experts to help them prepare to meet the prosecution’s expert testimony.

When the prosecution does not plan to call an expert, the defense should be entitled to public funding of an expert when the expert’s scientific analysis of evidence would help the lawyer understand that evidence. Courts should also fund expert testimony whenever expert testimony would be admissible. For example, courts in recent years have recognized the importance of expert testimony to expose the unreliability of eyewitness testimony and to explain how suggestive questioning causes children to fabricate allegations of sexual assault. Approval of expert witness funding in cases involving eyewitness or child testimony should be virtually automatic.

Appellate Court’s Ruling

The Michigan rule is imperfect, if only because it contributes to imperfect trials by authorizing the denial of public funding for expert witnesses who could improve a defendant’s opportunity to receive a fair trial. Still, the Court of Appeals recognized that the trial courts must apply the rule in a meaningful way.

The Court of Appeals excused the trial court’s initial denial of funding because defense counsel advised the court only that he need an expert to help him evaluate the pathologist’s opinion that “unexplained injuries” and the nature of the victim’s head trauma were indicative of child abuse. The court upheld the trial court’s denial of funding because defense counsel failed to make a “detailed” showing that the proposed expert would probably have been helpful to the defense.

The defense lawyer’s explanation that he needed an expert’s help to understand the technical medical opinions upon which the pathologist’s opinion was based should have been enough, in a fair world, to persuade the trial court to fund the expert. How much detail is required for a lawyer to explain “I’m not a doctor and I don’t understand the medical evidence”?

Having let the court off the hook, the Court of Appeals then asked whether the defense lawyer failed to provide effective assistance of counsel because he did not explain the need for an expert in more detail. Appellate judges are often more comfortable blaming lawyers than other judges when defendants are denied a fair trial. In the end, no matter how blame is apportioned, the question is whether the denial of funding for an expert witness renders a trial unfair.

The Court of Appeals decided that defense counsel should have consulted with an expert to obtain evidence that expert testimony would have assisted the defense. The court concluded that counsel was ineffective for failing to do so. Yet counsel testified that he needed funds to hire an expert to consult with him and that the trial court refused to provide that funding. The appellate court put the cart before the horse by blaming counsel for failing to hire an expert to persuade the trial court to allocate the funds he would need to hire the expert.

New Trial Ordered

Justice was nevertheless done, albeit belatedly. The court noted that the “prosecution presented eight medical experts most of whom presented testimony that was heavily laden with medical terminology and complex medical processes.” Counsel’s cross-examination revealed that he did not understand their testimony.

The court then cited testimony from a 2018 hearing at which Brown presented expert evidence (presumably funded by the Michigan Innocence Clinic at the University of Michigan, which handled the most recent postconviction proceedings). Dr. Mark Shuman averred that Brown’s child had likely been injured a week before he died and that his injury on the date of death caused the earlier injury to re-bleed. Dr. Shuman also averred that it was impossible to know whether the combined injuries were intentional or accidental.

Brown also relied on the expertise of Dr. Joseph Scheller. Dr. Scheller testified that Brown’s son had a chronic subdural hematoma that spontaneously re-bled, causing his death.

The Court of Appeals concluded that the two doctors could have helped Brown’s counsel prepare for trial. Their testimony would also have given the jury another way to view the evidence, a way that was consistent with Brown’s innocence. Although the court deemed counsel to be ineffective for failing to present that evidence in his original request for funding, the court did not explain how Brown could have been expected to obtain that information from two notable experts without paying them for their time.

The Court of Appeals also refused to accept the prosecution’s assertion that a “consensus” of opinion demonstrates “that there is no controversy concerning the medical validity of the existence of shaken baby syndrome or abusive head trauma.” The court concluded that the “consensus statement” is “informative” but “not dispositive.” Only in a footnote did the court call attention to evidence that the “consensus statement” is a sham designed to keep falsely convicted defendants from relying on expert testimony that debunks conventional wisdom about shaken baby syndrome — a syndrome that careful researchers now regard as nonexistent.

When Shawn Eichler was eight, he tried to do a pullup from a bar at the top of a dumpster. He instead pulled the dumpster over. The dumpster landed on top of Shawn, causing serious injuries.

Shawn sued the waste management company that supplied the dumpster to his neighbor. He alleged that his injuries were caused by the company’s negligent decision to place the dumpster on grass rather than a firm concrete surface. He also contended that the dumpster design was inherently dangerous, given that it could be tipped over by an 80-pound boy.

The case was tried to a Michigan judge. After hearing evidence for three days, the judge agreed that the design and placement of the dumpster made it inherently dangerous and the company’s negligence caused Shawn’s injuries. The dumpster company challenged the judgment on appeal, arguing that the evidence failed to establish its negligence.

Dumpster Safety Testimony

Shawn relied in part on the testimony of Steven Ziemba. For almost two decades, Ziemba worked as a safety consultant, performing accident investigations for insurance companies. His degree is in chemical engineering.

Ziemba testified that the Consumer Product Safety Commission (CPSC) has determined that “slant-side” dumpsters are unstable. Ziemba also testified that a CPSC fact sheet showed that 13 children had died due to unstable slant-side dumpsters.

The dumpsters were banned in 1978, although owners were allowed to retrofit them with bracing extensions to enhance their stability. That modification was never performed on the dumpster that tipped over and injured Shawn.

Ziemba testified that everything has a center of gravity. Shifting the center of gravity can cause a product to become unstable. The center of gravity of a rectangular bin would normally be in its center. The slant-side bin, however, had extra weight on the edge that shifted its center of gravity from the center to a point closer to the side. That design reduced the stability of the bin. Adding the 80-pound weight of a child to the side was sufficient to cause the bin to tip over.

The CPSC safety standards require bins to remain stable when they are “pulled down” with 191 pounds of force. Ziemba opined that an 80-pound boy should not be able to tip over a bin by pulling down on its edge. Ziemba examined similar bins in the community and determined that even without extensions, the bins could not easily be tipped with 75 pounds of weight when they were on concrete surfaces. Placing the bin on a soft surface, however, made it much easier to tip.

Challenge to Ziemba’s Testimony

The waste management company contended that Ziemba was not qualified to render an expert opinion. His education was in the field of chemical engineering and Ziemba had no training in the area of dumpster design. In addition, Ziemba had not recently been certified as a safety professional and had never been certified as an expert in ergonomics.

The appellate court noted, however, that Ziemba was not asked to testify as an expert. He instead provided fact testimony as a lay witness based on his own perceptions and personal knowledge. The fact that his perceptions relied on elements of scientific or technical knowledge did not preclude him from offering lay testimony, at least if the testimony was not “overly dependent” on scientific knowledge.

The court concluded that Ziemba based his testimony on personal knowledge because he conducted tests to determine the effort required to tip over a slant-side dumpster on concrete and grass surfaces. Some of Ziemba’s testimony, however, described CPSC findings and therefore was not based on personal knowledge. Those findings may have been independently admissible as determinations made by a government agency, but the court did not address that question.

The court also held that Ziemba’s testimony would not be reversible error even if he testified as an expert. The court did not explain why that was true. The criminal case it cited in support of that holding addressed a police officer who gave lay testimony that probably should have been given by an expert. The court in that case split the baby in half, deciding that it could be “reasonably argued” that lay testimony was admissible while making the dubious conclusion that the officer was an expert in the behavior of sexual assault victims because he has interviewed many of them. How that decision supports the admission of Ziemba’s testimony is unclear.

Lessons Learned

It was obvious to the trial and appellate courts that a dumpster should not tip over when a small boy pulls on it. The unsafe design, combined with the placement of the dumpster on an unstable surface, made liability clear. The appellate court’s decision was likely influenced by its unspoken belief that expert testimony is not required to explain the obvious.

Liability in most negligence cases involving unsafe products is not so obvious. Given the gray area between expert and lay testimony, it may have been better for Shawn to have presented testimony from a safety engineer. Alternatively, it may be that Ziemba’s experience as a safety consultant qualified him to give relatively simple testimony about dumpster design, even if he had no experience in product engineering. If so, Shawn probably needed to make a better record of Ziemba’s qualifications.

Using expert rather than lay testimony overcomes the restriction placed on lay witnesses to confine their opinions to perceptions that are based on personal knowledge. While the Eichler decision did justice, the lesson to learn is that lawyers should always try to find an expert who is well qualified to testify when expert testimony would make it easier to prove or disprove liability.

The defense team for Johnson & Johnson attempted to undercut the testimony of the plaintiff’s expert witness; however, Dr. William Longo maintained his position. 

The Asbestos Controversy

Johnson & Johnson is currently on trial to determine if its baby powder, which was allegedly tainted with asbestos, caused Carolyn Weirick to develop mesothelioma.  Mesothelioma is a deadly cancer of the linings of the lungs.

Weirick is a former school counselor who reportedly used Johnson & Johnson’s baby powder and its adult Shower to Shower powder for approximately 40 year. Weirick was diagnosed with mesothelioma and her doctors have given her little chance of survival.

Weirick’s case is one of hundreds of similar cases that are pending against Johnson & Johnson across the country.  Most of the cases involve women who claim that Johnson & Johnson’s powder caused them to develop ovarian cancer.

Plaintiff Expert Witness Testimony

Weirick and her defense team hired Dr. William Longo to testify as an expert witness at trial.

According to his website, Dr. Longo is a Material Scientist/Electron Microscopist who specializes in the analysis of asbestos containing materials. In 1983, he founded Micro Analytical Laboratories, which became one of the first commercial labs in the country to provide Transmission Electron Microscopy (TEM) analysis of asbestos-containing air and dust samples.  Under Dr. Longo’s guidance, MAS has grown “into a leading laboratory in the fields of chemical analysis and materials characterization for a number of industries including: occupational health safety, environmental, engineering services, industrial hygiene, and building and construction materials.”

Dr. Longo has served as an expert witness in numerous talc powder trials involving asbestos.

Johnson & Johnson’s Attempt to Discredit Dr. Longo

Johnson & Johnson’s defense team challenged Dr. William Longo’s testimony, attempting to use his own words against him.

Johnson & Johnson attorney Warrington Parker questioned Dr. Longo regarding whether Johnson & Johnson had exceeded industry testing standards during the 1970s with its use of high-powered microscopes.

Parker pointed to the fact that Dr. Longo had previously complimented the McCrone Group for being the best materials testing lab in the country.  The McCrone Group, located in Illinois, has supplied expert witnesses for Johnson & Johnson in its recent trials and has claimed that no asbestos has been found in its baby powders.

Parker said, “You said literally it (McCrone) was the best lab in the country.”  Dr. Longo acknowledged that he had made that statement.

Parker also questioned Dr. Longo about the Food & Drug Administration’s audit of his Georgia-based MAS lab. Parker asked, “The FDA identified deficiencies, correct?” Parker asked. “They called them objectionable practices,” Longo said.

Parker asked Longo if the FDA audit identified contamination at the lab. Dr. Longo replied that the problem was simply a bureaucratic error in that forms had not been signed and that an unopened container was found.

Parker continued to question Longo, “You would agree attorneys for Johnson & Johnson asked you under oath about your lab that was found to be (FDA) un-compliant?” Dr. Longo agreed.

Continuing Trial

The trial against Johnson & Johnson is being held in Los Angeles Superior Court and is presided over by Judge Cary Nishimoto.  It is live streamed courtesy of Courtroom View Network.

Update: After spending decades assuring the public that its baby powder is not contaminated with asbestos, J&J just recalled a batch of baby powder after FDA testing found asbestos in the product.

Recent news stories alleging mistakes by “celebrity” forensic scientist Henry Lee should serve as an important lesson for criminal defense attorneys. No matter how strong the prosecution’s forensic evidence appears to be, a defense lawyer should never accept it at face value.

Lee’s reputation took a hit after DNA evidence suggested the innocence of a defendant who was convicted of a 1985 murder on the strength of Lee’s testimony. Unable to find convincing evidence to explain the crime, police detectives who investigated the New Milford, Connecticut murder decided that Everett Carr must have been killed because he interrupted a burglary.

After spinning their wheels for two years, the police turned to the old trick of coaxing statements from jailhouse snitches. The informants obliged by incriminating Shawn Henning and Ralph Birch. The police had been trying to pin the murder on the two local thieves but had no evidence that they were ever at the crime scene.

Lee’s Questionable Testimony

The prosecutor, who now admits that the evidence was “shaky,” bolstered the prosecution’s case by calling Henry Lee as an expert witness. To explain why no blood was found on Henning or Birch after such a bloody murder, Lee opined that they must have wiped themselves with a towel found in the bathroom. According to Lee, testing confirmed that stains on the towel were “consistent with blood.”

Later testing established that the stains were not caused by blood. More importantly, there is no record that Lee ever tested the towel. Although Lee now claims he performed a field test (the results of which would not have produced admissible evidence) rather than a test in the crime lab, Lee’s testimony did not hint at that distinction.

A unanimous decision by the Connecticut Supreme Court overturned the convictions of Henning and Birch. The court faulted Lee for failing to engage in due diligence when he testified that there was blood on the towel in the absence of any lab test that confirmed the existence of blood. When an expert testifies about facts, it is an expert’s duty to confirm those facts before swearing that they are true.

Reputations Do Not Shield Experts

Two innocent men might have been spared decades in prison if their attorneys had hired their own expert witness. Independent testing of the towel by defense experts would have revealed that there was no blood on the towel. Lawyers should always confirm that the anticipated testimony of prosecution experts is accurate.

Henry Lee has given important testimony in well-publicized cases involving O.J. Simpson, Scott Peterson, and JonBenet Ramsey. Yet the Daily Beast reports that Lee “has allegedly hidden evidence or given incorrect testimony in at least three other cases, potentially sending the wrong men to prison and allowing guilty ones to walk free.”

Other highly regarded forensic experts have also given unreliable testimony. Despite its reputation as an “elite” unit of forensic scientists, an investigation of the FBI crime lab discovered that expert analysts “gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period.”

Scandals have rocked crime labs in more than a dozen states. Forensic experts have been accused not just of negligence, but of stealing evidence, falsifying credentials, tampering with forensic tests, concealing their error rates, and lying about the standards that are deemed acceptable in their field of forensic science.

Never Take Expert Testimony for Granted

Criminal defense lawyers might be tempted to assume that the prosecution’s forensic evidence is unassailable. A fingerprint match, for example, is commonly viewed as powerful evidence of guilt. Yet fingerprint analysis is based on unproven assumptions that a defense expert can call to the jury’s attention.

While cross-examining an honest prosecution expert might expose those assumptions, experts who are employed by the government too often see it as their duty to be an advocate for the government’s theory of guilt. An expert might respond to cross-examination by doubling down on the expert’s testimony that the science upon which the expert relies is foolproof. Defense lawyers should always be prepared to call expert witnesses who can expose the uncertainties associated with fingerprint evidence.

Even DNA evidence, commonly regarded as the gold standard of forensic science, can be challenged. While a defense expert might not be in a position to say that two DNA profiles are different, an expert can explain how mishandled evidence and misinterpreted test results can undermine confidence in a crime lab expert’s testimony.

The bottom line is that no expert, no matter how celebrated the expert might be, is infallible. When funding is available, every prosecution expert should be matched with a defense expert. Calling an expert witness will often expose reasonable doubt and prevent an unjust conviction.

Brenda Tinkham and her son, T.M., sued Janssen Pharmaceuticals and related companies for failing to warn of the risk of gynecomastia associated with the drug Risperdal. Gynecomastia is characterized by the growth of female breast tissue in males.

The Tinkhams filed suit in a Philadelphia County trial court. Many similar lawsuits have been filed against Janssen, including more than 5,000 that have been coordinated in Philadelphia’s Complex Litigation Center.

Texas doctors prescribed Risperdal when T.M. was seven years old after diagnosing attention deficit hyperactivity disorder (ADHD) and oppositional defiant disorder (ODD). The Food and Drug Administration (FDA) had approved Risperdal to treat adult schizophrenia. The FDA had not approved Risperdal for use in children or for the treatment of either ADHD or ODD.

The case went to trial, but the trial judge, applying Texas law, decided that much of the testimony of the Tinkham’s causation expert was inadmissible. The judge then dismissed the case for failure to prove causation. The Tinkhams appealed to the Pennsylvania Superior Court.

Expert Testimony Regarding Duty to Warn

The Tinkhams relied on the testimony of two expert witnesses. Dr. David Kessler, a former FDA commissioner and the former dean of Yale Medical School, testified that Janssen had a duty to warn patients of the risk that Risperdal could cause gynecomastia and that Janssen breached that duty.

Dr. Kessler reviewed the known risks that were associated with Risperdal in 2004, when it was prescribed to T.M. Risperdal had long been known to elevate prolactin levels associated with gynecomastia and other endocrine disorders. Janssen had acknowledged in an application to the FDA in 1996 that doctors were prescribing Risperdal to children for off-label uses (i.e., uses not approved by the FDA), including the treatment of ADHD.

The FDA denied Janssen’s application for approval of Risperdal to treat ADHD, noting the absence of substantial evidence that the drug was safe for pediatric use. Dr. Kessler testified that, despite the FDA’s refusal to approve Risperdal to treat ADHD in children, Janssen actively marketed Risperdal to doctors for that purpose.

Janssen’s warning label between 2002 and 2006 claimed that the effects of elevated prolactin levels were “unknown in most persons.” The label was updated in 2006 to state that hyperprolactinemia (an elevated level of the hormone that produces breast milk) was a “rare” side effect. In 2007, Janssen updated the label to acknowledge that Risperdal causes gynecomastia in 2.3{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of patients. Dr. Kessler testified that the actual percentage of patients who develop the condition is significantly higher.

Based on studies, including some of Janssen’s internal studies and its internal emails, Dr. Kessler testified that Janssen was aware of the risk that Risperdal could cause gynecomastia by 2001. He opined that Janssen had an obligation at that time to warn patients of the risk. He also testified that Janssen manipulated study data to reduce the apparent risk and that it funded the publication of a misleading article regarding the study.

The physicians who prescribed Risperdal to T.M. testified that Janssen actively marketed Risperdal for the treatment of ADHD. One psychiatrist testified that he accepted an all-expenses-paid trip from Janssen to a seminar at which Risperdal was marketed for the purpose. The doctors also testified that they would not have prescribed Risperdal if they had known that gynecomastia was not a rare side effect.

Expert Testimony Regarding Causation

Dr. Mark Solomon, a plastic surgeon with expertise in gynecomastia and diseases of the breast, testified that T.M. suffered from gynecomastia. He also testified that Risperdal was the cause of T.M.’s gynecomastia. He based that opinion on studies showing that Risperdal can cause the condition, a review of T.M.’s medical records, and photographs taken in 2007 showing that T.M. had begun to develop breasts.

Janssen argued that under Texas law, general causation (the ability of a drug to cause an adverse condition) can only be proved by two epidemiological studies showing that taking a drug doubled the risk of developing the plaintiff’s condition in test subjects who are similar to the plaintiff. Janssen contended that Dr. Solomon did not rely on studies showing a doubled risk.

Janssen also discounted the photographic evidence because T.M. stopped taking Risperdal in 2008 and was not diagnosed with gynecomastia until 2010. The trial court agreed with Janssen and dismissed the lawsuit for failure to prove causation.

The question on appeal was whether Texas or Pennsylvania law governing proof of causation should have been applied. As a general rule, when a negligent act is committed in one state and a negligence lawsuit is commenced in a different state, a court will apply the substantive law of the state in which the negligent act occurred. The court nevertheless applies the procedural law of the state in which the lawsuit is heard.

Pennsylvania Law

Unlike Texas, Pennsylvania courts do not require two epidemiological studies that show a doubling of risk in patients similar to the plaintiff. The Pennsylvania court noted that if the risk of developing a condition is 1.5 times greater in patients who take a drug than in patients who don’t, that elevated risk might make it more probable than not that the drug causes the condition. The “more probable than not” standard of proof can be satisfied even in the absence of studies that prove a doubling of risk.

The Tinkhams argued that Texas law does not require epidemiological studies to establish general causation, but merely sets standards for those studies when they are relied upon. The appellate court noted precedent in support of that position but decided the case on different grounds.

The Admissibility and Sufficiency of Expert Testimony is Procedural

Is the sufficiency of expert evidence to establish causation a matter of substantive or procedural law? The Superior Court decided that plaintiffs have a substantive duty to prove causation, but the admissibility and adequacy of proof of causation are procedural issues.

The court held that Pennsylvania law governs whether an issue is substantive or procedural. The admissibility of expert evidence is, under Pennsylvania law, a procedural matter.

Pennsylvania (unlike Texas) follows the Frye standard for the admissibility of expert testimony. Pennsylvania generally allows juries to decide whether experts have given reliable testimony, provided that they use methodologies that are generally accepted in their field of expertise. Dr. Solomon’s testimony satisfied the Frye standard.

The court recognized that even if a judge admits expert evidence, Texas law allows the judge to review expert evidence at the end of the case to determine whether it would support a verdict in the plaintiff’s favor. Janssen characterized that review as substantive rather than procedural.

The Superior Court disagreed. In Pennsylvania, whether the evidence is sufficient to prove causation is a procedural inquiry. That holding is consistent with the general principle that the law of the state in which the trial is held determines whether a party has introduced sufficient evidence to support a verdict in its favor.

The substantive law of Texas holds drug companies liable for failing to warn patients about known side effects. When warnings have been approved by the FDA, the substantive law of Texas creates a presumption that the warnings are adequate. That presumption can be overcome by evidence that the drug company withheld relevant evidence from the FDA about side effects at issue in the case, or that the company promoted the drug for an off-label use. The evidence was sufficient to prove that both of those were true.

The substantive law of Texas also requires proof that a defective warning caused harm to the plaintiff. The court’s procedural review established that the expert and nonexpert evidence was sufficient to permit a jury to find that the improper warning caused T.M.’s gynecomastia. The trial court therefore erred by dismissing the case.

Rodolfo Prieto was thrown from a wheelchair while being transported in an ambulance from a dialysis center to his assisted living facility. He died a few months later. Bianca Prieto sued the dialysis center, Total Renal Care, for negligence. She alleged that Total Renal Care had a duty to follow Rodolfo’s doctor’s orders, which required Rodolfo to be transported by stretcher.

The lawsuit was filed in federal court in the Southern District of Florida. Bianca and Total Renal Care each moved to exclude testimony of the other party’s expert witnesses. Both parties also moved for summary judgment. The District Court judge denied all motions.

Facts of the Case

Rodolfo was 76 at the time of his death. His leg had been amputated in 2015. His treating nephrologist ordered that Rodolfo be transported to and from dialysis treatment on a stretcher.

In January 2016, American Services Company transported Rodolfo to Total Renal Care on a stretcher. He left the center in a wheelchair. American Services Company left him in the wheelchair during his transportation to his assisted living facility. During that drive, the transportation van came to an abrupt stop, throwing Rodolfo from the wheelchair.

Bianca contended that Total Renal Care had a duty to ensure that Rodolfo was transported to and from their dialysis treatment center via a stretcher. She further contended that the van’s abrupt stop would not have caused Rodolfo’s death if he had been in a stretcher rather than a wheelchair.

Total Renal Care argued that American Services Company was to blame because the company failed to secure Rodolfo to the wheelchair. According to Total Renal Care, the transportation company’s negligence was a superseding cause of Rodolfo’s injuries.

Defendant’s Expert

Bianca filed a Daubert motion to exclude the testimony of Charles Benedict, an accident reconstruction expert. In Benedict’s opinion, Rodolfo would have sustained the same or worse injuries if he had been transported in a stretcher rather than a wheelchair. Benedict concluded that Rodolfo’s injuries were caused by the driver’s failure to secure him to his wheelchair with a seatbelt.

The Daubert decision requires a trial judge to decide whether an expert is qualified to render the proffered opinion, whether the expert’s testimony would be helpful to the jury, and whether the expert’s opinion is reliable. Reliability is measured by whether the expert formed the opinion by applying a sound methodology to sufficient facts.

In some cases, at least, the Eleventh Circuit tests reliability by examining “1) whether the expert’s theory can be and has been tested; 2) whether the theory has been subjected to peer review and publication; 3) the known or potential rate of error of the particular scientific technique; and 4) whether the technique is generally accepted in the scientific community.”

Bianca contended that Benedict’s opinion was unreliable because it was not based on testing or on any peer-reviewed methodology that was subject to a known error rate. Bianca also challenged Benedict’s qualifications to render the opinion.

The court noted that an expert only needs to be “minimally qualified” and that the qualification standard is “not stringent.” Benedict’s education and experience were sufficient to meet that forgiving standard. The court also concluded that his testimony could help the jury decide the core issue: whether Rodolfo’s injuries were caused by Total Renal Care or by American Service Company.

Benedict considered Rodolfo’s medical records, reviewed deposition transcripts, and “used technical data to make comparisons.” Based on that information, Benedict concluded that the driver failed to restrain Rodolfo properly when the driver picked him up in a wheelchair and that the driver’s failure caused Rodolfo’s injuries. Benedict’s opinion was based on adequate facts

Although the court did not say so, the kind of opinion that Benedict ventured is probably not the sort of science-based opinion that must depend upon an accepted and tested theory with a known error rate. Rather than engaging in the microscopic examination of methodology that some judges favor, the court simply noted that “nothing suggests that the process by which Mr. Benedict formed his opinions is unreliable.” The court therefore denied the motion to exclude his testimony.

Plaintiff’s Expert

Bianca attached the affidavit of Erika Hall, an Adult Nurse Practitioner, to her complaint. The affidavit opined that Rodolfo would not have been injured if Total Renal Care had sent him home the same way he arrived — in “a properly restrained stretcher” rather than a wheelchair. 

Total Renal Care moved to strike Hall as an expert witness because she was not timely disclosed as an expert, as required by the court’s scheduling order. Hall was disclosed on Biana’s witness list and was belatedly designated as an expert witness.

Total Renal Care took Hall’s deposition and cross-examined her about her opinion testimony. Total Renal Care received her expert affidavit when it was served with the complaint. Concluding that Hall’s status as an expert witness was no surprise to Total Renal Care, the court decided that excluding her testimony would be an unjust response to a harmless violation of the scheduling order.

The American Institute of CPAs (AICPA) has issued a new forensic accounting standard that is expected to give CPAs a credibility boost when they serve as expert witnesses at trials.

Role of the AICPA

The American Institute of CPAs (AICPA) is the world’s largest member association for the accounting profession. The organization was founded in 1887 and today has a membership of over 429,000+ members in 122 countries and territories.

The Forensic and Valuation Services (FVS) Executive Committee supports the AICPA by providing its members with information, advocacy, and leadership to enable them to perform valuable forensic and valuation services in the highest professional manner.

The AICPA Council has designated the FVS Executive Committee as a body to establish professional standards for its members. These standards are known as the Statements on Standards for Forensic Services (SSFSs). Members of the AICPA should be prepared to justify any departures from the SSFSs.

New Standard

The AICPA recently released its Statement on Standards for Forensic Services No. 1 (SSFS 1) to clarify the definitions of “litigation” and “investigation” for accounting purposes, detail key considerations for client and provider relationships, and establish boundaries on the services members can provide.

According to SSFS 1,

• “Investigation” is a service performed in response to concerns of wrongdoing in which the member is engaged to perform procedures to collect, analyze, evaluate or interpret certain evidential matter to assist the stakeholders (for example, client, board of directors, independent auditor or regulator) in reaching a conclusion on the merits of the concerns.
• “Litigation” is an actual or potential legal or regulatory proceeding before a trier of fact or a regulatory body as an expert witness, consultant, neutral, mediator or arbitrator in connection with the resolution of disputes between parties. The term litigation as used herein is not limited to formal litigation but is inclusive of disputes and all forms of alternative dispute resolution.

Annette Stalker, chair of the AICPA’s Forensic and Valuation Services Executive Committee,  stated, “These new forensic standards are the first time we are codifying best practices for litigation and investigation consulting work. . . . Forensic accounting is a diverse practice, and this standard is unique because it is applied based on why a service is provided — litigation or investigation — rather than what skill set is employed.”

SSFS 1 applies to all AICPA members, AICPA member firms and employees of AICPA member firms. The new standards take effect for new engagements accepted on or after January 1, 2020, with early adoption permitted.

Effect of the New Standard

According to Dave Duffus, a partner in the global forensic and litigation services practice at Top 15 Firm Baker Tilly, who also chairs the AICPA’s Economic Damages Task Force and sits on the AICPA’s Forensic and Litigation Services Committee, there are two big changes that the standard requires. First, “when we as CPAs are retained as expert witnesses, there are specific prohibitions in terms of doing that work under a contingent fee arrangement. That was not a specific callout before under the consulting standards, although I think tacitly most CPAs would recognize that it would not be appropriate to do expert work under a contingent fee arrangement.”

Duffus continued, “the second thing is it very explicitly states that we should not be rendering opinions about whether fraud has or hasn’t been committed. That’s a role for the trier of fact in a case, so we can present evidence that may be related to indicia of fraud but ultimately it’s up to a trier of fact to make that decision as to whether fraud has actually occurred.”

A South Carolina man’s conviction for criminal sexual conduct with a minor has been reversed by the South Carolina Court of Appeals because the court found that the child’s therapist improperly vouched for the alleged victim’s testimony by testifying as both a lay witness and an expert witness.

The Alleged Crime

In 2015, training specialists from the Julie Valentine Center visited Mitchell Road Elementary School in Greenville, South Carolina to discuss safety and “inappropriate touching” with students. Approximately two weeks later, the alleged victim reported to her teacher that she had been sexually abused. The alleged victim was eight years old at the time.

Investigator David Picone of the Greenville County Sheriff’s Department spoke with the alleged victim, her mother, and her teacher about the disclosure. The alleged victim told Investigator Picone that she was abused by her sister’s boyfriend, Ontario Stefon Patrick Makins.

The alleged victim said that the abuse began when she was five years old. Investigator Picone followed the sheriff’s department procedure for referring children under the age of twelve to the Julie Valentine Center for a forensic interview.

Investigator Picone interviewed Makins and informed him of the allegations of sexual abuse, which he denied. Christine Carlberg of the Julie Valentine Center conducted a forensic interview with the alleged victim. After watching the forensic interview, Investigator Picone determined probable cause existed to arrest Makins.

Makins was charged with criminal sexual conduct with a minor, first degree; lewd act upon a minor; and criminal sexual conduct with a minor, third degree.

The Trial

At Makins’s trial, the alleged victim testified that on more than one occasion, Makins asked her to perform oral sex, touched her inappropriately, and showed her a sexually-oriented website on his cell phone. The alleged victim admitted she lied to the police when she reported Makins threatened to kill her if she disclosed the abuse. 

During trial, the circuit court allowed the alleged victim’s therapist, Kristin Rich, to testify as both an expert in child sexual abuse trauma and as a fact witness regarding the allegations of sexual abuse. Makins’s counsel objected, but the circuit court overruled the objection.

The jury found Makins “not guilty” on the first degree criminal sexual conduct and lewd act indictments, but found him guilty of third degree criminal sexual conduct with a minor. The circuit court sentenced Makins to ten years in prison.

The Appeal

Makins appealed his conviction, claiming that the circuit court erred in refusing to allow him to cross-examine the alleged victim about her prior allegations of sexual abuse and by allowing a therapist to essentially vouch for the alleged victim’s credibility by testifying both as a fact witness regarding the allegations of abuse and an expert witness on child sexual abuse trauma.

The South Carolina Court of Appeals agreed with Makins. In its opinion, it wrote, “We find Rich’s opinion testimony addressing the various manifestations of child sexual abuse, followed immediately by her affirmative response that she treated Victim, implied she believed Victim was telling the truth with respect to her allegations of sexual abuse. If Rich believed Victim had not been telling the truth, Rich would not have needed to treat her. As the circuit court warned, Rich’s testimony implied she was treating Victim for sexual trauma because Victim had suffered such trauma.”

The court reversed Makins’s conviction and remanded the case for a new trial.

Experts who are licensed in a profession sometimes face professional discipline for breaching professional standards. When accusations are unproven, courts are unlikely to admit evidence of the alleged transgression to impeach the expert. When the expert is disciplined, however, whether disciplinary findings may be raised in cross-examination of the expert presents a more difficult question.

The Indiana Supreme Court confronted that question in Turnstall v. Manning. The court determined that discipline affecting the status of a professional’s license may be admissible evidence, while the reasons for the discipline might not be.

Facts of the Case

Dawn Manning was rear-ended by Levetta Turnstall while Manning was stopped at a stop sign. Manning went to an emergency room and was given a neck brace. Her neck pain did not resolve, despite twice-weekly visits to a chiropractor.

Manning’s family doctor took X-rays and administered an MRI that revealed no abnormalities. A spine specialist suggested the possibility of injections for pain relief, but Manning did not want to engage in treatment that might last the rest of her life.

Manning was evaluated by Dr. Stephen Paschall, who testified at trial as her medical expert. Manning explained to Dr. Paschall that she suffered from constant back pain and regular back spasms. Dr. Paschall concluded that Manning suffered from a cervical spine injury that significantly limited the full range of her head motion. He also testified that the injury was permanent.

During a deposition, Dr. Paschall testified that his medical license had been placed on probation at some point in the past. Dr. Paschall refused to discuss the underlying facts that caused the discipline.

Turnstall asked the court to compel Dr. Paschall to answer the questions. The court determined that Dr. Paschall was placed on probation because he had been convicted of two misdemeanors, failed to disclose the charges or convictions to the licensing authority, and failed to keep adequate records of the drugs he dispensed.

The court ruled that the discipline was not relevant because Dr. Paschall no longer had a probationary license at the time of the trial. The court therefore disallowed testimony about the discipline or the reasons for which it was imposed.

The jury ruled in favor of Manning and awarded her $1.3 million in damages. Turstall appealed and the verdict was affirmed. The Indiana Supreme Court agreed to review the Court of Appeals’ decision to determine whether experts can be impeached with evidence of professional discipline.

Impeachment Evidence

Past misconduct may or may not bear on credibility. For example, different states have adopted different rules about the use of prior criminal convictions to impeach the credibility of a witness. Some states allow evidence of the number of convictions but not the nature of the convictions. Some states allow the jury to hear about past convictions but only if they are relevant to the witness’ character for truthfulness (such as a fraud or perjury conviction). Some states disallow evidence of criminal convictions under nearly all circumstances. Others regard older convictions as inadmissible.

An expert’s past professional discipline might be seen as akin to a criminal conviction. Like a criminal punishment, professional discipline punishes a violation of rules. Just as states have differing standards for impeachment by evidence of convictions, they also differ in their approaches to impeaching experts with evidence of misconduct. The Indiana Supreme Court noted that the admissibility of evidence of professional discipline to impeach an expert had not been definitively determined in Indiana.

Evidence of Probationary License Held Admissible

The court’s analysis begins with the words: “Expert testimony is a valuable litigation tool.” The court also recognized the prevailing rule that if an expert’s opinion is based on a reliable methodology and adequate facts, it is up to the jury to decide whether the expert is credible.

The court held that discipline and the reasons for it may be relevant to an expert’s credibility if the discipline limits professional licensure. The devil is in the details — in this case, the standard that separates cases in which discipline is relevant from those in which it is not.

The court held that evidence of Dr. Paschall’s licensure probation was relevant to his credibility because placing the license on probation affected Dr. Paschall’s “professional qualifications.”  The court did not explain why a limitation on a license that does not exist at the time services are provided or testimony is given should affect an expert’s qualifications to render an opinion. Nor did the court decide whether discipline that does not affect license status, such as a censure or caution, would also be relevant.

The court seemed to suggest a blanket rule that professional discipline affecting the status of a professional license is relevant. The next question is whether the relevance is outweighed by the prejudicial impact it might have on a party’s case.

The court noted that Dr. Paschall was placed on probation shortly after he first examined Manning, although the probation ended before he testified. The court determined that the evidence was not unduly prejudicial under those circumstances. Perhaps the passage of a longer time between the imposition of discipline and the expert’s professional services would reduce the probative value of the discipline, changing the balance of relevance and prejudice.

Reasons for Probationary License Held Inadmissible

The court held, without explaining why, that the reasons for a licensing authority’s actions may be admissible. In this case, however, the reasons for placing Dr. Paschall on probation could not be admitted.

Only convictions for specified crimes may be used to impeach a witness in Indiana. Dr. Paschall was not convicted of any of those crimes, so the convictions could not be used to impeach him.

The failure to disclose the convictions was arguably fraudulent conduct that affected Dr. Paschall’s credibility. Indiana law, however, does not permit specific instances of misconduct to be used to attack “character for truthfulness” unless another witness has given an opinion about the witness’ character. Since no witness vouched for Dr. Paschall’s truthfulness, evidence of misconduct was not admissible to attack his credibility.

Judgment Affirmed

The trial court erred by disallowing testimony that Dr. Paschall was given a probationary license after he examined Manning. The court concluded, however, that the error did not have a significant effect on the verdict.

The insurance company attorney attacked Dr. Paschall’s credibility in other ways. Dr. Paschall admitted that he failed part of a board certification exam twice before passing it, that he had been hired by Manning’s attorney in the past, and that he did not review all medical records that the insurance company lawyer deemed relevant to Manning’s condition. The majority concluded that impeaching Dr. Paschall with evidence that he was once placed on probation would have added little to that attack.

The insurance company attorney also present two expert witnesses who disagreed with Dr. Paschall, including a forensics biomechanical engineer and a neurosurgeon. If the jury found in Manning’s favor in the face of all that conflicting evidence, it would likely have done so even if it knew about Dr. Paschall’s professional discipline.

Finally, the jury heard testimony from other witnesses about the impact of the injuries on Manning’s life. The jury thus had a basis for awarding substantial damages apart from Dr. Paschall’s testimony.

A dissenting judge concluded that the impeachment evidence might have affected the verdict. That judge would have remanded the case for a new trial. The case serves as a reminder that counsel should be prepared to address any sanctions that a licensing body has imposed upon an expert and should consider those sanctions when deciding whether the expert is appropriate for the case.

A Virginia district court judge has approved the use of funds for a defendant to hire a digital forensics expert to examine the cell phone and GPS data that is being used by the prosecutors in connection with his trial for murder. 

The Killing 

On February 13, 2018, Orange County authorities responded to Wendell’s Place Laundromat on Route 20 in Locust Grove, Virginia. There had been reports that a male was on the floor with a gunshot wound to the head. A 24-year-old man, Alisair Smith of Unionville, Virginia, was found lying on his stomach on the floor, along with three spent cartridges and a loaded cartridge.

While still on the scene, the lead investigator was notified that Michael Alan Humphries II, 37, had turned himself in at the local jail, saying that he had “shot a guy.”  Humphries reportedly told police that he suspected his wife was having an affair with the victim. The victim formerly served in the U.S. Army and was the father of a young daughter.

Video footage from the laundromat showed a man walking into the Laundromat, shooting the victim with a long rifle and then exiting the business. According to court records, there is also video footage that shows the defendant “going through the victim’s laundry in the dryer prior to the shooting.” 

Humphries was charged with first-degree murder and use of a firearm in commission of a felony in connection with Smith’s death. At his arraignment, Humphries pleaded not guilty.

Humphries’ Defense Pretrial Motions

Humphries was originally represented by court-appointed attorney Adam Rhea. However, four months ago, Humphries claimed ineffective assistance of counsel. He wrote a letter accusing Rhea of not putting in enough time to properly represent him in court and requesting a new lawyer. The district court granted Humphries’ request and court-appointed attorney David Randle has been representing Humphries since that date.

At a hearing in advance of Humphries’ trial, his attorney David Randle requested court funding to hire a digital forensics expert for Humphries’ defense. Randle argued in his motion that the commonwealth plans to present evidence using data related to Humphries’ movements leading up to the alleged homicide.

Judge Dale Durrer granted the motion and allocated up to $6,000 for a defense expert to analyze the cell and GPS data from Digital Forensics Corp. of Raleigh, North Carolina.

Case by the Commonwealth 

The Orange County Commonwealth has subpoenaed more than two dozen witnesses to testify at Humphries’ trial. These witnesses include: members of law enforcement, forensic scientists, Laundromat employees and family members of the defendant and victim. According to court records, other evidence will include audio interviews, surveillance footage, body cam footage and crime scene and autopsy photographs.

Attorney for the Orange County Commonwealth, Diana Wheeler stated that there may be some dispute at trial with the prosecution’s use of “certain photos from the crime scene.”

Humphries’ trial is scheduled to begin on September 27, 2019. Judge Durrer set a hearing for September 26 to consider any outstanding issues.