Wright Hardware installed a 500-gallon liquid propane tank at the residence of Charles and Linda Benefiel in rural Clinton County, Indiana. The Benefiels used propane to heat their home. When the Benefiels called Wright Hardware many years later to report that had they no heat, the company sent an employee, William Taylor, to determine the cause of the problem.

Taylor discovered that the control board and gas valve were not functioning. Before replacing the parts, he shut off the gas to the furnace and disconnected the piping. After making the repairs, he reassembled the piping to the furnace and used a manometer to check the flow pressure.

Taylor also tested the regulator on the new gas value to assure that it was producing the correct pressure. Taylor soap tested the fittings and did not detect any leaks, but he performed no other leak testing.

About a week later, a propane gas leak caused an explosion, destroying the home and killing the Benefiels. Their estate brought a lawsuit against Wright Hardware, alleging that negligent repairs caused the leak.

Experts who investigated the explosion could not determine the location of the leak, although they agreed that it occurred inside the home. Too little remained of the propane system to permit the experts to determine the source of the leak or the nature of the ignition that caused the explosion. It was clear, however, that a spark or flame ignited propane gas somewhere within the home.

Trial Evidence

Indiana’s Fuel Gas Code requires a leak test of a propane piping system to be performed after a new installation or if there has been an “interruption of service.” The phrase “interruption of service” is not defined. The Benefiels’ estate argued that service was interrupted when Taylor shut off gas to the furnace and disassembled the piping.

Wright Hardware pointed out that only the gas flow to the furnace was shut off. Since gas continued to flow to the rest of the system, Wright Hardware argued that there was no interruption of service.

The estate alleged that Wright Hardware’s employee was negligent because he failed to perform leak testing. At trial, the Estate’s experts testified that Taylor needed to leak test the Benefiel gas system because shutting off the gas at the shut-off valve to the furnace constituted an interruption of service.

Wright Hardware’s expert, Todd Hetrick, testified that he contacted the International Code Council (ICC), which wrote the standards upon which the Indiana Fuel Gas Code is based. Hetrick testified that he asked whether the phrase “interruption of service” applies “only to an interruption in fuel gas supply to the point of delivery (i.e., an outage of fuel gas supply from an onsite tank or utility to a customer’s property)” or whether it encompasses “a lack of fuel gas supply to a branch or isolated section of the piping system existing within a built structure, downstream of the point of delivery.”

The ICC responded to Hetrick by email. Over objection, the judge allowed Hetrick to read to the jury a portion of the email that that defined interruption of service as “the utility has shut off the supply at the point of delivery, or an onsite fuel tank has been depleted.” The jury returned a verdict in favor of Wright Hardware and the estate appealed.

Expert’s Reliance on Hearsay

An expert is entitled to rely on inadmissible evidence when forming an opinion if experts in the field would reasonably rely on evidence of that nature. A more difficult question is whether inadmissible evidence can be conveyed to the jury through testimony of the expert who relied upon it.

The estate pointed out that Hetrick followed the procedure on the ICC’s website for obtaining a staff opinion. The same website points out that staff opinions are not official positions of the ICC. The estate objected that the staff member’s opinion was hearsay since the staff member was not present in court and subject to cross-examination.

There is no doubt that the email constituted hearsay. The appellate court noted that some hearsay information that experts reasonably rely upon can be admitted into evidence so that the jury can use it to evaluate the basis for the expert’s opinion. Information from consulting experts and “authoritative sources” might fall within the category of hearsay that can be communicated to a jury via an expert.

On the other hand, an expert cannot simply regurgitate hearsay that goes to an ultimate issue in the case if the expert accepts the hearsay at face value and does not rely on his or her own expertise to determine whether the hearsay is reliable. An expert “may not simply repeat opinions of others or announce that other experts concur with his opinion with respect to the case.”

In this case, the staff member’s opinion was not “authoritative” because the staff member’s interpretation of the code language was not the ICC’s official interpretation. Nor did Hetrik rely on his own expertise to determine whether the interpretation offered by the staff member was correct.  He simply accepted the opinion and repeated it to the jury.

In any event, Indiana altered some of the ICC standards before adopting them. An ICC staff member’s opinion as to the meaning of the ICC standards cannot be considered an authoritative explanation of Indiana’s code.

The Court of Appeals reversed the judgment and remanded the case for a new trial because the inadmissible hearsay may have influenced the verdict. A more fundamental question that the court failed to address is whether a jury should resolve the meaning of a term in the administrative code. Judges are usually regarded as experts in the law, and the legal meaning of language used in a regulation is usually a question of law for the court, not experts, to decide.

The Florida Supreme Court recently rejected a request for rehearing by the Code and Rules of Evidence Committee of The Florida Bar and Jacksonville attorneys Howard Coker and James Holland to reconsider whether it should adopt the Daubert standard for expert testimony admissibility.

Daubert in Florida

Florida is one of the states that until very recently followed the Frye standard for whether a court should allow an expert witness’ testimony into evidence.

Numerous business groups had lobbied for the change to the Daubert standard.  They argued that “junk science” was being allowed into cases under the Frye standard.

The Frye standard only requires that the party seeking to admit expert testimony establish the general acceptance of the underlying scientific principle and the testing procedures.

In 1993, following a revision to the Federal Evidence Code, the United States Supreme Court adopted a new standard for the admission of expert testimony in Daubert v. Merrell Dow Pharmaceuticals, Inc.

Daubert is considered by some to be a stricter standard for allowing expert witness testimony than Frye. Under Daubert, a trial court judge must ensure that scientific testimony or evidence admitted is not only relevant, but also reliable.

Under Daubert, a trial court judge must consider:

• Whether the theory or technique in question can be and has been tested
• Whether it has been subjected to peer review and publication
• Its known or potential error rate
• The existence and maintenance of standards controlling its operation
• Whether it has attracted widespread acceptance within a relevant scientific community

Essentially, a trial court is required to analyze not only the relevance of the expert’s opinion, but also whether the manner in which the expert arrived at her conclusion is reliable.

Federal courts and the majority of state courts have adopted the Daubert standard. Today, thirty-six states are currently using some form of Daubert instead of Frye.

As recently as 2018, the Florida Supreme Court affirmed that Frye was the appropriate standard in Florida.  In DeLisle v. Crane Co., 258 So. 3d 1219 (2018), the court stated that “Frye, not Daubert, is the appropriate test in Florida.”

Requests for Rehearing

In May, after Florida governor Ron DeSantis appointed three new justices to fill vacancies, the Florida Supreme Court decided to move to the Daubert standard.

In In Re: Amendment to the Florida Evidence Code, No. SC19-107, the Florida Supreme Court overruled its decision in DeLisle and stated that Florida will now apply the Daubert standard to determine whether scientific evidence is admissible.

The court stated, “Daubert amendments remedy deficiencies of the Frye standard.” The court also noted that Daubert will create consistency across Florida’s state and federal courts and “promote fairness and predictability in the legal system, as well as help lessen forum shopping.”

In June, the Code and Rules of Evidence Committee of The Florida Bar committee filed a motion for rehearing. The Committee argued that the Supreme Court had made the change without going through a typical process for setting rules.

The Florida Supreme Court ruled 6-1 to reject the requests for rehearing. The court did not explain its reasoning. Justice Jorge Labrga was the lone dissenting justice.

Johannes Lopez was convicted of multiple crimes by a Georgia jury. The crimes included “street gang terrorism” as well as more traditional counts of assault and firearms offenses.

Lopez attempted to present expert evidence to counter the testimony of prosecution experts that Lopez committed gang-related crimes. The trial court excluded the testimony of the defense expert. The Georgia Court of Appeals reversed the conviction after concluding that the defense had a right to present relevant expert testimony.

Facts of the Case

The criminal charges arose out of two incidents. In the first, a Ford Explorer rear-ended a car and then drove away. The occupants of the car chased the Explorer. After obtaining the license plate number, the car occupants continued to follow the Explorer, which eventually pulled into a parking lot. The occupants testified that two people in the Explorer jumped out and shot at them. Nobody was injured. The Explorer was registered to Lopez’ mother.

About thirty minutes later, a Nissan Altima passed a Ford Explorer. Occupants of the Altima testified that shots were fired at the Altima from the Explorer. Nobody was injured.

The occupants of the Altima called 911. Responding to that call, police officers in Cobb County pulled over the Explorer. Lopez was the vehicle’s only occupant.

Lopez was armed with a handgun. Since he was a convicted felon, there was ample evidence upon which to base a firearms violation. The prosecution also charged Lopez was aggravated assault for participating in the shootings. All of those offenses, if proved, would have subjected Lopez to serious penalties, but the prosecution decided to pile on additional counts of “street gang terrorism.”

To prove that Lopez committed the Georgia crime known as “street gang terrorism,” the prosecution needed to present evidence that (1) Lopez was a member of a street gang, and (2) the crimes constituted “criminal gang activity.” Georgia defines a “street gang” as “group of three or more persons” that “engages in criminal gang activity.” The commission of specified violent crimes, as well as tagging, constitutes criminal gang activity.

Prosecution Experts

Whether an individual belongs to a “group of three or more persons” is a question of fact that may not need to be proved by expert testimony. Any time three or more people work together to commit an offense specified in the statute, they are by definition members of a street gang. Proving that the individuals decided to commit the crime together may be all the evidence that is needed to prove the crime of street gang terrorism.

Since Lopez was not in the company of two other people when the police stopped the Explorer, proof that the shootings were committed by a street gang was more problematic. The prosecution relied on several expert witnesses to prove that Lopez was part of a gang and that his conduct constituted gang activity. Those experts “discussed the culture and activities of the criminal street gang, SUR-13, as well as Lopez’s affiliation with the gang.”

The experts also testified that the crimes furthered the interests of SUR-13. Their ability to discern what motivated the crimes is suspect, as even the best experts cannot read minds.

Lopez attempted to call his own gang expert. Remarkably, the trial court refused to allow the expert to testify. After he was convicted, Lopez based his appeal on the unfairness of allowing only side in the case to present expert testimony.

Defense Expert Qualifications

The defense expert was an attorney who formerly belonged to a gang. The best “gang experts” are often former gang members who have inside knowledge of how gangs work. Prosecutors, on the other hand, tend to rely on the dubious expertise of police officers who have an outsider’s perspective on gangs.

The defense expert had the same credentials as law enforcement experts, in that he had investigated and prosecuted gang members, including SUR-13, while working in a district attorney’s office. More importantly, he had firsthand knowledge of gang tattoos, symbols, and terminology that he acquired in and out of jail as a gang member and later in the course of professional and civic duties.

The prosecution argued that the defense expert was not qualified because he had no formal training with regard to gangs. The appellate court rejected that argument because experts do not necessarily need formal training to acquire relevant expertise. Particularly when the subject of expert testimony is not based on science, an expert’s specialized knowledge can come from informal study or experience rather than a formal education.

Membership in and association with gangs is likely to give an expert more knowledge of gang practices than typical jurors will have. Former gang members who gain first-hand knowledge of gang practices usually have more knowledge than police “experts” who acquire information by attending agenda-driven seminars taught by law enforcement agents who have never been part of a gang and who have no personal knowledge of gang culture. The appellate court correctly decided that the expert was qualified.

Relevance of Defense Expert Testimony

The trial court also found that the defense expert had no relevant knowledge of SUR-13. According to the prosecution, the expert only had knowledge of a Florida gang that he joined in the 1970s.

The defense made clear that their expert had relevant knowledge. His personal experience, coupled with his work as a prosecutor and his participation in public outreach programs, qualified him as an expert on gang culture and activities. He did not need to belong to SUR-13 to understand how street gangs operate.

Remarkably, the prosecution argued that the defense expert had nothing relevant to say despite relying on an expert in street gangs who testified in general terms about their culture and activities, without offering any specific testimony about SUR-13. The appellate court did not countenance the hypocrisy of allowing an expert to testify for the prosecution while disallowing testimony on the same subject matter by an expert for the defense.

The prosecution experts all testified that Lopez’s actions were related to gang membership because they occurred in public and were triggered by hostility to the color red, a color that represented a rival gang. Those speculative conclusions about what motivated Lopez to shoot hardly constitute reliable expert testimony.

The defense expert would have countered that testimony by explaining that gang members do not usually attack unsuspecting strangers, that doing so violates the code governing gang activities, and that attacking an innocent person who is not affiliated with a rival gang diminishes a gang member’s status within the gang. He would also have explained that gang members who wanted to send a message to the public would not have taken action in the darkness at 1:30 a.m. on streets where few people were present.

The court concluded that the defense had just as much right as the prosecution to present expert testimony. Denying that right prevented Lopez from countering the prosecution’s dubious expert testimony and thus deprived Lopez of a fair trial. His conviction was therefore reversed and his case was remanded for a new trial on the street gang terrorism charges.

After suffering injuries in a bicycle accident, Michael Sode sued the driver who allegedly caused the collision. He was required to undergo a medical examination at the defendant’s request. The  examination was performed by a doctor at the Orthopedic Center of South Florida.

Sode attempted to subpoena the financial records of the Orthopedic Center. The Orthopedic Center moved for a protective order, arguing that Florida law does not permit broad discovery of financial information from expert witnesses. Sode countered that the Orthopedic Center is a corporation that employs experts and is not itself an expert witness.

The trial court granted the motion in part but allowed greater discovery than the Orthopedic Center wanted to provide. The Orthopedic Center appealed to the Florida District Court of Appeals.

Determining the Bias of Expert Witnesses

There is nothing wrong with doctors testifying as retained experts for plaintiffs or for defendants. The legal system depends on honest experts providing honest opinions, regardless of the party that hires them. And since insurance companies have a duty to defend an insured, there is nothing wrong with insurance companies hiring and paying doctors to act as expert witnesses when they provide a defense.

Defense attorneys and insurance companies regularly accuse plaintiffs’ experts of being biased because they work for money. Plaintiffs’ attorneys accuse defense experts of bias for the same reason. In some of those cases, the accusations have substance. In most, they are an attempt to deflect attention from the weakness of a client’s position.

Whether an expert is biased is for the jury to decide. How much a witness is paid to act as an expert is relevant to that decision, although jurors are generally aware that experts do not work for free. To persuade a jury that an expert witness is biased, parties often try to prove that a large share of the expert’s income comes from serving as an expert witness, and that the expert testifies only for plaintiffs or defendants, not for both sides.

Florida Limitations on Financial Discovery from Experts

In Elkins v. Syken, the Florida Supreme Court attempted to balance the need for financial discovery from experts against the expert’s interest in avoiding intrusive inspection of his or her finances. In Elkins, an injured plaintiff wanted to depose the bookkeeper for the orthopedic expert who examined the plaintiff at the request of the defendant’s insurance company.

Plaintiffs are entitled to depose experts hired by insurance companies and to question those experts about their compensation for testifying. When insurance companies hire doctors to examine plaintiffs, the doctors will frequently be asked about the extent to which they earn income by performing examinations at the request of insurers. The court recognized that earning substantial income from insurance companies may be evidence of a doctor’s bias in favor of those companies.

The question is whether plaintiffs’ lawyers are bound by the doctor’s answers, which may be evasive or untruthful. The lawyers in the Elkins case wanted to confirm the number of independent medical examinations the doctor performed, and the doctor’s earnings from those examinations, by subpoenaing financial records.

The Florida Supreme Court largely shut down that line of inquiry by holding that:

it is sufficient for a doctor to be asked to give an approximate estimate for [independent medical examinations] and total patients seen in a year. The figures given need only be an honest estimate, and do not have to be an exact number. We find no sound reason to require disclosure of exact income figures. The doctor should not be required to disclose the amounts of money he or she earns from expert witness work, or disclose their total income.

The court apparently believed that doctors who serve as experts for the insurance defense industry always give truthful and accurate estimates about the number of examinations they perform for insurers. The court also appears to have assumed that substantial earnings for giving expert testimony — the kind of income that might cause jurors to gasp in disbelief — will not cause a doctor to be biased in favor of insurance companies and against plaintiffs. The court held that it is enough for a jury to hear a doctor’s testimony about the percentage of the doctor’s practice (as the doctor best recalls it) that the doctor devotes to working for insurance companies.

The court cited no studies or other evidence to support those beliefs, which are commonly rejected by attorneys for both plaintiffs and defendants. Although most doctors place their professional integrity ahead of their income (particularly if examinations for insurers are only a small part of their practice), both research and experience suggest that bias can be a problem when experts depend on insurers for a substantial part of their income. The court, however, engaged in remarkably little reasoning when it held that information about a doctor’s income provides “little useful information” to the jury.

Rules of Civil Procedure

The court decided Sykes in 1994. In 1996, the court adopted Rule 1.280(b)(5)(A) of the Florida Rules of Civil Procedure. That rule limits discovery of experts to:

• the expert’s scope of employment in the litigation;
• the expert’s litigation experience, including the percentage of work performed for plaintiffs and defendants;
• other cases within “a reasonable time period” in which the expert has testified; and
• an “approximation” of the portion of time devoted to expert services and to other services, including the percentage of income earned from expert services.

The rule expressly forbids asking experts how much money they make in general and how much money they make from expert services. The expert can be required to produce business or financial records only under “unusual or compelling circumstances.” The Florida rule is considerably more limited than its federal counterpart.

Discovery can always be limited to avoid oppressive or burdensome production of information or to avoid public disclosure of private information. It is reasonable to set limits on the financial records a doctor is required to produce. It is less reasonable, however, to suggest that parties should be required to take an expert’s word for the percentage of a practice that is devoted to the insurance defense industry.

Application of Elkins to Corporate Employers

Sode argued that the limitations of Elkins do not apply to corporate employers of experts. He noted that nine doctors are shareholders in The Orthopedic Center and that five of those nine perform examinations for insurance companies. The doctor who examined Sode acknowledged in a deposition that he had been hired by insurance companies 120 times in the last three years and that he had earned hundreds of thousands of dollars for that work.

Sode agreed that he obtained all the information that Rule 1.280(b)(5) authorized him to receive, but contended that the rule applies to experts, not to their employers. The court held that the reasoning of Elkins— and therefore the limitations of Rule 1.280(b)(5) — should be extended to cover corporate employers of expert witnesses. Otherwise, the court concluded, the protections provided by the rule would be lost when an expert is part of a corporate practice.

Sode apparently had no particular reason to think that the doctor who examined him gave false testimony. The doctor seems to have forthrightly admitted that he earned a significant part of his income from examinations performed for insurance companies. Sode might have been able to demonstrate “unusual or compelling circumstances” if he had evidence that the doctor was misrepresenting the portion of his income that was derived from the insurance defense industry. Since he offered no such evidence, he was required to accept the answer that the witness gave without obtaining financial documents to test its veracity.

Other Florida cases have drawn a distinction when the insurance company is a party to the litigation (when it provided uninsured motorist coverage, for example) and financial information about expert witness payments is requested from the insurance company rather than the expert. Denying discovery, Florida courts have held, would thwart the truth-seeking function of the trial process. It is difficult to understand why the truth-seeking function is not equally thwarted when the same discovery cannot be obtained from an expert who is hired by a non-party insurance company. Florida courts have nevertheless decided that it is important to shield experts, but not parties, from the burden of responding to financial discovery requests.

The murder trial of a man who has been charged in the death of a Chesterton bartender will be delayed for three weeks so that DNA testing can be conducted on a strand of hair that was found at the crime scene. 

The Murder

On April 19, 2017, 23-year-old bartender Nicole Gland was found stabbed to death in her vehicle in a parking lot behind her place of work.

Christopher Dillard, 53, of Hobart was arrested in connection with Gland’s death. Dillard was a bouncer at the Upper Deck Lounge in Chesterton where Gland worked as a bartender.

Dillard was picked up by the police on the same day that Gland’s body was found. According to his charging information, Dillard allegedly told his girlfriend, “I killed that girl. I didn’t mean to.” The police have said that Dillard had indicated to his girlfriend “that the drugs had a hold of him.”

Authorities said that Dillard also admitted to the crime during an interrogation by the Chesterton police. However, Dillard’s alleged confession was subsequently tossed out by the Indiana appellate court because the Chesterton police ignored Dillard’s repeated requests to speak to an attorney.

Dillard pleaded not guilty and has been held in Porter County Jail while he awaits his trial.

The DNA Evidence

Investigators recovered one strand of hair from Gland’s vehicle that prosecutors want to have DNA-tested. The hair was found on the rear passenger door window trim of the vehicle in which Gland was found stabbed to death.

An analyst with the Indiana State Police laboratory has determined that the strand of hair “has sufficient root material for DNA testing”; however “the potential genetic material from the hair strand will be completely consumed” by the test.

The district attorney’s office wants to conduct DNA testing on the hair, which will destroy it.  Because the testing will destroy the evidence, Dillard’s defense team wants its own expert to be present for the testing. Obtaining the results of the test will take about six weeks.

New Trial Date

Dillard’s defense team requested that the trial date be pushed back because of the amount of time that the DNA test will take. Chief Deputy Prosecutor Armando Salinas objected to the requested delay.

Dillard’s public defender, Russell Brown, said that the delay was also necessary because he just received additional evidence in the case this week. Brown received this case last month after Dillard’s former public defenders, Bob Harper and then Bryan Truitt, had to step aside.

Porter Superior Court Judge Jeffrey Clymer told Brown, “The reason, in part, the evidence hasn’t been tested is because of your expert. … Your expert and the state have to communicate.  There has to be a trial.” However, Judge Clymer granted the request for a new trial date.

Dillard’s new trial date is set to begin on October 21, 2019.  It was previously set to begin on September 30. The trial is anticipated to take three weeks.

Dillard just recently made a motion to be released from jail while he was awaiting trial because he has exceeded the six-month limit that he could remain jailed without going to trial. However, his public defender, Russell Brown, acknowledged, that his client “admits this delay is chargeable to him.”

During a groundbreaking seven-week trial, the State of Oklahoma offered evidence that Johnson & Johnson fueled the state’s opioid crisis by engaging in a marketing strategy that encouraged addiction to pain medication. The state advanced the novel theory that aggressive marketing of an addictive drug caused a public nuisance.

Two other companies, Purdue Pharma and Teva Pharmaceuticals, settled with Oklahoma. J&J has a long history of taking cases to trial when it is accused of wrongdoing, even when its corporate misconduct has been well documented.

Whether that litigation strategy will result in a favorable ruling in Oklahoma should soon be known. The suit against J&J (and its parent, Janssen Pharmaceuticals) is now in the hands of an Oklahoma judge. [Update: The trial judge ruled in favor of Oklahoma and granted judgment against J&J in the amount of $572 million.]

Trial Testimony

The trial depended on the testimony of both fact and expert witnesses. Fact witnesses focused on J&J’s sales representatives, who allegedly sold opioids to doctors even after the doctors were disciplined for overprescribing narcotics. J&J argued that sales reps are not required to learn whether doctors are overprescribing drugs. The company’s lawyers emphasized that their drugs are legal, highly regulated, and necessary for patients who would otherwise live with severe pain.

The case largely turns on expert testimony, as Oklahoma has not attempted to show that specific doctors were duped into prescribing opioids to patients who became addicted. Rather, Oklahoma endeavored to prove that the industry as a whole engaged in a pattern of marketing opioids aggressively while advising doctors that the risk of addiction was minimal.

To advance its proof, Oklahoma called Dr. Jason Beaman as an expert witness. Dr. Beaman chairs the Department of Psychiatry and Behavioral Sciences at Oklahoma State University in Tulsa.

Dr. Beaman expressed the opinion that doctors in the state were influenced by free meals and deceptive marketing efforts by drug companies to induce them to overprescribe opioid medications. He also discussed the impact of the opioid epidemic on public health in Oklahoma and the state’s need for funding to abate the addiction crisis.

Dr. Andrew Kolodny

Part of J&J’s defense focused on setting itself apart from Purdue Pharma, the manufacturer of OxyContin. Many states and individuals have sued Purdue and its principal owners, the Sackler family, for marketing practices that allegedly contributed to the opioid crisis.

While there is strong evidence that Purdue encouraged doctors to overprescribe OxyContin and that Purdue underplayed the drug’s addictive potential, J&J contended that the same is not true of its opioids. The company’s attorneys argued that its fentanyl patch (Duragesic) and its opioid-based pill (Nucynta) represent a very small percentage of opioids prescribed in Oklahoma and therefore could not have been a significant cause of the public nuisance of addiction in that state.

Dr. Andrew Kolodny, testifying as an expert for the state, pointed out that J&J manufactured the raw ingredients for opioids and sold them to other drug companies, including Purdue. J&J owns Tasmanian Alkaloids, a grower and supplier of the poppies from which opioids are made. J&J might therefore have a vested interest in downplaying the risks of opioids, even if its own opioid medications were not widely prescribed in Oklahoma.

Dr. Kolodny, the co-director of Opioid Policy Research for the Brandeis University Heller School for Social Policy and Management in Massachusetts, also testified that J&J downplayed the risk of opioids when selling them to doctors. He described J&J as acting “hand-in-hand” with Purdue to engage in an “unbranded campaign to increase prescribing of opioids as a class of drug that affected all opioids.”

J&J’s Attack on Dr. Colony

J&J accused Dr. Kolodny of bias, a common complaint that lawyers make about experts who testify against their clients. Their own experts, of course, are never biased.

J&J moved to strike Dr. Kolodny’s testimony, arguing that he was “a de facto member of the State’s legal team.” That assertion was based in part on the argument that Oklahoma gave Dr. Kolodny access to 90 million internal documents of J&J that the state obtained in discovery.

There is nothing improper about allowing an expert to review relevant discovery. Experts are required to ground their opinion in adequate supporting facts. If Dr. Kolodny had expressed opinions that were not founded on facts he gleaned from those documents, J&J presumably would have argued that his opinions lacked a factual basis. The judge understandably denied J&J’s motion.

J&J relentlessly attacked Dr. Kolodny’s credibility, pointing out that Dr. Kolodny has worked nearly full-time as Oklahoma’s expert witness for several months in preparing for the trial. He testified that he has earned a six-figure fee for doing so.

In a case that seeks billions of dollars in abatement costs, however, it is unsurprising that Oklahoma would invest significant funds in a key expert witness. And experts, after all, are entitled to be paid for their work. J&J is hardly in a position to complain about paying experts, since it has not only used expert witnesses to defend against lawsuits for dangerous products, it has quietly funded experts to produce studies that purport to show the products are not dangerous.

Dr. Kolodny’s credibility is for the judge to decide. J&J’s attempt to disparage Dr. Kolodny as a “paid expert” might have swayed a jury, but the judge ruled that juries are unavailable in Oklahoma nuisance abatement trials. Judges understand that plaintiffs and defendants routinely use paid experts to prove their cases. It is ultimately up to a fact-finder (in this case, the judge) to decide whether an expert is credible.

The Queen of Soul passed away almost a year ago, but a drama is ongoing as the courts determine how she intended to dispose of her estate.

The Conflicting Wills

When Aretha Franklin passed away in August 2018, her family believed that she hadn’t left a will.  However, in May 2019, her family found three handwritten wills that gave conflicting direction on how to dispose of her estate. Two wills were found in a locked cabinet and the other was found in a spiral notebook that was stuffed underneath a couch cushion.

Each of the three documents states that her assets should be divided equally between her three younger sons and outlines instructions for the care of her eldest son, Clarence, who has special needs. Two of the wills were dated 2010 and one will was dated March 2014. All of the pages of the wills appear to be signed.

The purported wills are handwritten pages that were filled with scratched-out phrases and notes in the margins. They were not notarized or signed; however, this is not necessarily a problem because Franklin died in Michigan, which allows for “holographic” or handwritten wills. Handwritten wills are valid as long as they are signed and dated and the material portions of the document are in the testator’s handwriting. See MCL 700.2502(2). 

David Bennett, who was Franklin’s attorney for more than 40 years, filed the wills in probate court in Oakland County, Michigan. Bennett told the judge that he was unsure if the will was valid. Franklin’s estate released a statement saying the two of her sons objected to the wills.

In the will that was supposedly written in 2014, Franklin named her son Teddy the executor of her estate. Teddy’s name was then crossed out and Kecalf’s name was written in. Kecalf’s name was followed by the name of Franklin’s niece, Sabrina Owens. Owens’ name was also crossed out.

Probate Hearing

At a probate court hearing, it was revealed that the estate has already distributed $350,000 to Franklin’s four sons and $178,000 was stolen from the singer via bank fraud months before her August 2018 death.

Attorneys for Franklin’s heirs argued over the estate, leading Judge Jennifer Callaghan to place the estate administration under court supervision. While Franklin’s niece Sabrina Owens will remain the personal representative for the estate, the court will now have a hands-on role in decisions such as the sale of any property.

Handwriting Expert

Franklin’s son Kecalf Franklin hired forensic document specialist and handwriting expert Erich Speckin to examine the wills. Spreckin testified that it would take him about three hours to analyze the documents with equipment including a microscope and electrostatic device.

Speckin’s role is to affirm to the court that the will was written by Franklin in 2014 and that it has not been altered since. The other parties involved in Franklin’s estate (her sons Teddy and Clarence and her niece Sabrina) will also have the right to hire their own handwriting experts if they choose.

Psychologists who study perception and memory have long understood that eyewitness identifications of criminal suspects are notoriously unreliable. Unfortunately, jurors do not understand the scientific basis for mistaken eyewitness identifications unless they are educated by expert witnesses.

In the past, prosecution-friendly judges were inclined to disallow expert testimony with the dismissive observation that jurors already know that people sometimes make mistakes. That attitude prevented juries from hearing testimony that would have explained why mistakes are more likely under some circumstances than others.  As a consequence, defendants were denied fair trials. Many were wrongly convicted on the strength of mistaken identifications.

A small percentage of innocent defendants who were wrongly convicted have managed to prove their innocence through DNA testing. Unfortunately, most crimes do not create DNA evidence and most wrongly convicted defendants therefore remain behind bars. Even when DNA is available to be tested, formidable barriers make it difficult for innocent defendants to gain their release from prison.

According to the New England Innocence Project, eyewitness misidentification contributed to 71{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of wrongful convictions overturned because of post-conviction DNA evidence. Recognizing the number of cases in which eyewitnesses identify the wrong defendant, courts have slowly reversed the trend of barring the testimony of eyewitness identification experts.

Louisiana is a state where judges routinely prevented eyewitness identification experts from giving relevant evidence on behalf of the accused. Recognizing the injustice caused by those rulings, the Louisiana legislature unanimously voted in favor of a bill that would allow eyewitness identification experts to testify in criminal cases. Gov. John Bel Edwards signed the bill into law in June.

Louisiana Exonerations

Louisiana has earned a well-deserved reputation as a state in which defendants do not always receive a fair trial. Louisiana has the second-highest rate of exonerations per capita, ranking behind Illinois, the per capita leader in exonerations.

The eyewitness identification bill gained traction after Wilbert Jones was released from prison after spending more than 45 years behind bars for a rape he did not commit. His conviction was based on the victim’s shaky identification from a photo array.

The prosecutor assured the jury that Williams’ face was “burned in the mind” of the victim. The jury never heard expert evidence that there is no correlation between the certainty of the witness and the accuracy of an eyewitness identification. Nor did the jury hear about all the factors that influence mistaken identifications.

Eyewitness Identification Evidence

For years, psychologists have studied how perception and memory affect the ability of a witness to identify the perpetrator of a crime. Identifications are more reliable when the witness knows the criminal (assuming the witness is being honest), because recognition of a known person is more likely to result in a reliable identification than an attempt to identify a stranger. Even when a witness identifies someone the witness knows, however, misidentifications can be caused by poor lighting, distance between the witness and the person being identified, and a preconceived notion that the person identified is likely to commit crimes.

In 2014, the National Research Council (NRC) released a comprehensive review of the science underlying eyewitness identifications. Key findings included:

• The confidence with which an eyewitness makes an identification is not a reliable measure of its accuracy
• Exposing the witness to a picture of a suspect (whether in a photograph or a newspaper sketch) before an identification is made increases the likelihood that the witness will remember the picture, not the person the witness saw
• In-court identifications are influenced by the fact that the accused individual is sitting next to the defense attorney
• Suggestive identification procedures, such as telling the witness that the criminal is in a lineup, contribute to false identifications by encouraging the witness to suppress doubts and pick someone with similar features
• When a weapon is used to commit a crime, witnesses focus on the weapon, not the criminal, impairing their ability to form a reliable memory of the criminal’s appearance
• High levels of stress and fear affect the ability to form a reliable memory of the criminal’s appearance
• Identifications of a person of a different race are less likely to be accurate than identifications of a person of the same race
• Longer observations of the criminal correlate with higher rates of accurate identifications
• Longer times between the observation of the criminal and the identification correlate with lower rates of accurate identifications

While some of those findings might be intuitive, others are not. According to the NRC report, “many scientifically established aspects of eyewitness memory are counter-intuitive and may defy expectations.” Hence the need for expert witnesses.

The Importance of Eyewitness Identification Experts

The NRC report made several recommendations to minimize the risk that innocent defendants would be convicted because of mistaken eyewitness identifications. One recommendation is to use expert testimony whenever an eyewitness identification is contested.

The report states:

Contrary to the suggestion of some courts, the committee recommends that judges have the discretion to allow expert testimony on relevant precepts of eyewitness memory and identifications. Expert witnesses can explain scientific research in detail, capture the nuances of the research, and focus their testimony on the most relevant research. Expert witnesses can convey current information based on the state of the research at the time of a trial.

The recent legislation in Louisiana implements that suggestion. The risk, of course, is that judges who are lost in the past will not understand the importance of eyewitness identification experts and will continue to exclude them. Defense attorneys must rely on the NRC report and continuing research by psychologists to educate judges and, if necessary, appellate courts about the importance of expert testimony when eyewitness identification is an issue in the case.

A Postal Service employee needed, and was given, a parking spot that allowed him to load and unload his wheelchair from his van. Remarkably, the Postal Service took away that spot and failed to replace it with one that was suitable for a wheelchair.

The Rehabilitation Act is a federal law that protects federal employees from disability discrimination. Like the Americans with Disabilities Act, the law requires federal employers (and certain other employers that receive federal funds) to accommodate employees who have disabilities.

The postal employee, Tony Sansone, persuaded a jury that the Postal Service violated the Rehabilitation Act. An accessible parking spot is a reasonable accommodation for an employee in a wheelchair. The fact that Sansone had such a spot before it was taken from him was compelling evidence that the accommodation could have been provided without causing undue hardship to the Postal Service.

The jury found in favor of Sansone and awarded damages. The Postal Service appealed, arguing that jury instructions concerning the Postal Service’s expert witness were incorrect. The Court of Appeals for the Seventh Circuit agreed in an opinion that remanded the case for a new trial on compensatory damages.

Facts of the Case

Sansone developed multiple sclerosis during his employment by the Postal Service. He was given a parking spot near the loading dock that provided sufficient room for him to deploy his wheelchair ramp. That accommodation allowed him to perform his job duties. Making it possible for disabled employees to work is exactly the goal that Congress hoped to achieve by prohibiting disability discrimination.

Sansone continued to use the parking spot for the next twelve years. A new manager  told Sansone to stop parking in that spot. She claimed it was unsafe to park there, a claim that was belied by Sansone’s long history of parking in the spot without a problem.

The manager told Sansone to park in a visitor’s disabled parking spot in front of the building. Most of those spots would not have allowed him to deploy his ramp and the few that might have worked were usually taken by members of the public, for whom they were intended.

The manager also told Sansone he could use her spot at the back of the building, but her spot did not provide sufficient room for the ramp. Even if he used it, he would need to travel in his wheelchair along a busy truck route in the dark. That option would have been considerably less safe than continuing to park in the spot that he had used uneventfully for years.

Dealing with the recalcitrant manager proved to be stressful. Sansone tried to work with a Postal Service disability coordinator, who only promised to try to identify a reasonable accommodation. Sansone eventually received a form letter asking him to identify the nature of his disability and to provide medical documentation.

Sansone was frustrated with the Postal Service’s bureaucratic response because the Postal Service was well aware that he suffered from MS and that he had been confined to a wheelchair for more than a decade. Whether the Postal Service needed “documentation” under those circumstances was a question that the jury answered in Sansone’s favor.

Sansone’s direct supervisor told him to keep parking in his original spot until the issue was resolved. The plant manager, however, noticed that Sansone’s van was parked near the loading dock and sent Sansone an email threatening to have his van towed. Sansone had a panic attack, fearing that he would be stranded at work without transportation. He took some time off. After his condition worsened, he eventually applied for an was granted a disability retirement.

A jury found that the Postal Service failed to accommodate Sansone’s disability. It awarded Sansone $300,000 in compensatory damages and more than $800,000 for lost pay from the date he took a disability retirement until the date he had planned to retire. The Postal Service appealed.

Expert Witness Testimony

Sansone’s compensatory damages were largely based on evidence that Sansone suffered from emotional distress caused by the failure to accommodate his disability. To challenge that evidence, the Postal Service relied on the expert testimony of Diana Goldstein.

Goldstein acknowledged on cross-examination that she read a brief filed by the Postal Service in support of a summary judgment motion that the court denied. She denied, however, that her view of the evidence was based on the statement of material facts that the Postal Service included in the brief. Rather, she testified that she gleaned the facts from a meeting with Sansone and a review of his medical records, although she reviewed the summary judgment brief to give “context” to those facts.

The court expressed surprise that Goldstein did not review the deposition of the plant manager (she testified that it wasn’t relevant to her assessment of Sansone’s emotional distress) but did review a lawyer’s argument filed in support of an unsuccessful motion. The court admonished the Postal Service’s lawyer for giving the brief to Goldstein for her review.

Expert Witness Jury Instruction

The court later instructed the jury that a summary judgment motion is based on the contention that all the relevant facts are undisputed. The court explained that it denied that motion because it determined that the facts were disputed and that the disputed facts should be decided by a jury.

The court also told the jury that it was inappropriate for the Postal Service to give its expert a statement of facts and legal argument that the court had rejected, and that its inappropriate conduct was compounded by its failure to give the expert the successful argument filed by Sansone’s lawyers. The court deemed it even more inappropriate to fail to give the expert a copy of the court’s decision that rejected the Postal Service’s view of the allegedly undisputed facts.

The court’s instruction also faulted Sansone’s counsel for not raising the issue prior to trial. The court told the jury it could consider its instruction in its evaluation of Goldstein’s testimony, and repeated the standard instruction that the jury was entitled to give her testimony whatever weight it deserved.

Appellate Ruling

The Court of Appeals disagreed with the trial judge that the Postal Service lawyers violated Rule 703 of the Federal Rules of Evidence by giving Goldstein a copy of their summary judgment submission. That rule governs the information upon which experts may base opinions, not the information that may be given to them.

The summary judgment brief was not admissible evidence, and if experts do not generally rely on summary judgment briefs in forming opinions (the court assumed that they do not), it would have been error to admit expert testimony that was based on the brief. But Goldstein testified that she did not rely on the brief for her view of the facts. To the extent that reviewing the brief filed by one side but not the other is indicative of bias, cross-examination is the means to expose that bias.

Experts are generally allowed to testify even when they are biased, provided they base their opinions on a reliable methodology and adequate facts. While some overzealous judges view their “gatekeeping” role as a license to exclude expert testimony if they think the expert is biased, the Seventh Circuit has repeatedly explained that whether bias renders an expert opinion unworthy of belief is for the jury to determine.

Since the court all but instructed the jury that it should not believe Goldstein, the court’s instruction deprived the Postal Service of a fair trial on the issue of compensatory damages. That error did not affect the jury’s finding of liability or its determination of lost pay. The Court of Appeals therefore affirmed those parts of the jury verdict but remanded for a new trial on the issue of compensatory damages.