Category Archives: ExpertWitness

Courtroom

Louisiana Enacts Law Authorizing Testimony by Eyewitness Identification Experts

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% 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.

court

Psychiatrist To Testify in NXIVM “Cult” Trial

The prosecution in the case against NXIVM leader Keith Raniere has filed notice that it plans to call psychiatrist Dr. Michael Welner as an expert witness at trial to help establish that NXIVM is similar to a cult.

NXIVM

NXIVM is a multi-level marketing company based in Albany, New York, that offers personal development seminars. NXIVM has been accused by former members of the organization of being a recruiting platform for a cult operating within it that was known as DOS or The Vow where women were branded into sexual slavery.

In early 2018, NXIVM founder Keith Raniere and his associate Allison Mack were arrested and indicted on charges including racketeering conspiracy, forced labor conspiracy, wire fraud conspiracy, sex trafficking conspiracy, sex trafficking, attempted sex trafficking, and conspiracy to commit identity theft.

Dr. Michael Welner’s Background

Dr. Welner is a clinical and forensic psychiatrist and Chairman of the Forensic Panel. He has acted as a lead forensic psychiatric examiner in many criminal proceedings. Dr. Welner is also known for innovations in forensic science, forensic psychiatry and justice, and protocols for prospective peer review in forensic medicine consultation.

Dr. Welner is best known for his work on cases including the Etan Patz disappearance and murder, the Elizabeth Smart kidnappers, the Xerox mass murders in Hawaii, and Andrea Yates’ trial for the murder of her five children.

Dr. Welner has also consulted for courts and examined defendants who have been involved in mass shooting and attempted mass shooting cases including Colorado’s James Holmes; NBC gunman William Tager; corrections officer George Banks, who killed 13; Tavares Calloway; and bias-hatred mass shooters Richard Baumhammers, Ronald Taylor, and Ronald Crumpley.

The Filing  

The prosecution’s filing indicates that Dr. Welner will testify about how Raniere and his associates engaged in practices that are similar to other cult-like groups. These practices include: aggressive recruiting tactics that are intended to lure recruits and foster their dependence, grooming the members’ moral and value systems to comply with the group, undermining the members’ senses of self, leveraging emotional vulnerability and trust to control the member, creating extreme power imbalances, isolating members from friends and family, and controlling the sex lives of members.

The filing states, “Dr. Welner has studied … cult-like organizations, large-group awareness trainings, the ‘human potential movement’, religious sects and chain-marketing organizations (the ‘comparative groups’), including financial and sexual exploitation and the psychological dynamics within the comparative groups. This includes the techniques of how intense attention and recruitment contributes to special relationships within which such exploitation takes place, and then to isolation through which recruits are controlled and exploitation perpetuates. As a clinical psychiatrist, Dr. Welner also has experience treating people who have left organizations like those described above.”

The prosecution also indicated that it is planning to call other expert witnesses to testify about: the psychiatric and physiological effects of social, perceptual, and occupational isolation; the behavior of victims of sex crimes including common misconceptions about victim behavior; and the psychiatric and physiological effects of lack of sleep and severe calorie restriction.

Expert’s Review of Summary Judgment Submission Does Not Justify Disregarding Expert’s Opinion

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.

Expert Has Performed Autopsy on Jeffrey Epstein

New York City’s chief medical officer has performed an autopsy on Jeffrey Epstein, but the results were inconclusive.

Jeffrey Epstein’s Apparent Suicide

On Saturday, August 10, the U.S. Federal Bureau of Prisons announced that Jeffrey Epstein was found unresponsive in his cell at the Metropolitan Correctional Center in Manhattan. The agency called Epstein’s death an apparent suicide. Epstein, 66, was being held on sex trafficking charges.

Federal prosecutors charged Epstein with sex trafficking girls who were as young as 14 and orchestrating a sex trafficking conspiracy.  The indictment noted Epstein’s connections to numerous prominent figures including President Donald Trump, Bill Clinton, and Prince Andrew.

In 2008, Epstein avoided federal criminal charges after prosecutors allowed him to plead guilty to state charges of solicitation of prostitution from a minor and serve just 13 months in jail. While Epstein was in jail, he was allowed to leave for 12 hours a day, six days a week, to go to work at his office.

Just one day prior, thousands of documents from a civil suit had been released, implicating Epstein of sexually abusing underage girls. Epstein had previously tried to commit suicide and had just been released from suicide watch 11 days earlier. Epstein was on suicide watch from July 23 to July 29, which required him to have extra security.  There was no immediate explanation as to why Epstein had been taken off of suicide watch. The FBI said that it was investigating and Attorney General William P. Barr said that he would conduct a special inquiry into what happened.

Barr said, “I was appalled to learn that Jeffrey Epstein was found dead early this morning from an apparent suicide while in federal custody. … Mr. Epstein’s death raises serious questions that must be answered.”

According to the jail policy, Epstein was supposed to have been checked on by two guards every 30 minutes. The New York Times reported that the guards “fell asleep, failed to check on him for about three hours and falsified records to cover up their mistake.” Epstein was also supposed to be housed with a cellmate, but his cellmate had recently been transferred. This decision was another violation of the jail’s procedures.

Epstein’s defense team declined to comment on the circumstances of his death, but released a statement saying, “We are enormously sorry to learn of today’s news. No one should die in jail.”

The Autopsy

Dr. Barbara Sampson is the chief medical examiner in New York City. Dr. Sampson released a statement saying that a city medical examiner performed an autopsy on Epstein while a private pathologist observed; however, more information is needed before a cause of death determination is made.

The private pathologist, Dr. Michael Baden, observed the autopsy at the request of Epstein’s representatives. Dr. Baden was the chief medical examiner in New York City in the late 1970s and has been an expert witness in such high-profile cases as O.J. Simpson’s 1994 murder trial.

The Medical Examiner concluded that Epstein’s death was caused by hanging and that his death was a suicide. While the Medical Examiner’s conclusion refutes unfounded conspiracy theories that have surrounded the death, the private expert who observed the autopsy has not yet made a public statement about the cause of death.

Operating room

Standard of Care Expert Opinions Held Sufficient to Defeat Summary Judgment

Doctors commit malpractice when they breach the standard they should follow when caring for a patient. The applicable standard of care is a matter of expert opinion. Reversing a summary judgment in favor of a doctor, the Georgia Court of Appeals recently emphasized that it is the job of a jury, not the trial judge, to decide whether an expert’s standard of care opinion is credible.

Allegations of Malpractice

Fritz Swint alleged that his nerves were damaged, causing a limitation of the use of his right hand, as the result of robotic and laparoscopic prostate surgery in 2009. He filed a medical malpractice lawsuit against Dr. Paul Alphonse, Jr., who performed the surgery, and Midtown Urology, P.C., which employed Dr. Alphonse, Jr.

During Swint’s surgery, the operating table was tilted at a steep angle, raising his feet above his head. While the “Trendelenburg position” is commonly used in certain surgical procedures, Swint’s body remained in the same position for more than 9 hours.

After the surgery was completed, Swint had pain in his shoulders and arms. He was diagnosed as suffering from compartment syndrome, a condition that occurs when pressure builds up in a particular “compartment” of the body. Failing to relieve the pressure can stop the flow of blood into muscles, leading to tissue or nerve damage.

The morning after the operation, Swint had surgery to relieve the pressure causing his condition. After the surgery, Swint did not regain full use of his right arm and hand. He attributed that disability to being left in the Trendelenburg position for an extended period of time.

Dr. Alphonse, Jr. moved for summary judgment, arguing that no breach of a standard of care caused Swint’s disability. The trial court granted that motion. The court’s decision was reversed by the Georgia Court of Appeals.

Urologist’s Expert Opinion

Swint relied on the expert opinions of two physicians. Dr. Michael Palese, a urologist, had experience performing robotic and laparoscopic urological surgery.  In fact, Dr. Palese established a robotic surgery program and has authored textbooks on the subject.

Dr. Palese expressed the opinion that the standard of care for a patient placed in the Trendelenburg position requires the patient to be given a “positional holiday” after four or five hours to relieve the buildup of pressure. The patient’s body should be returned to a horizontal position for a period of time until it regains equilibrium.

Dr. Palese believed that Dr. Alphonse, Jr. should have assessed the situation at the four-hour mark, should have determined that the surgery would not soon be completed, should have prepared Swint’s body for a positional holiday, and should have placed Swint in a horizontal position before the fifth hour of surgery. Dr. Palese believed that the failure to do so breached the appropriate standard of care.

In his deposition, Dr. Palese testified that the standard of care was well-known and followed in 2009 for surgeries involving the Trendelenburg position. In addition, robotic prostatectomies were common in 2009, and it had become routine for surgeons performing the procedure to give the patient a positional holiday.

Dr. Palese testified that that the compartment syndrome may have started before the four-hour mark, but opined that the damage was worsened by the failure to give Swint a positional holiday. Dr. Palese candidly acknowledged that he was not qualified to determine whether treating the compartment syndrome more quickly could have lessened the severity of Swint’s injury, because urologists do not treat compartment syndrome.

Vascular Surgeon’s Expert Opinion

In response to Dr. Alphone, Jr.’s complaint that Dr. Palese was not qualified to determine whether an alleged breach of the standard of care caused Swint’s compartment syndrome, Swint presented the affidavit of Dr. Paul Collier, a vascular surgeon. Dr. Collier treats patients who suffer from compartment syndrome.

Dr. Collier opined that Swint probably did not develop compartment syndrome until after he was in the Trendelenburg position for more than 4 hours, because his symptoms would likely have been worse if the syndrome had developed earlier. He also made a differential diagnosis that the compartment syndrome was caused by being in the Trendelenburg position after ruling out other possible causes of the syndrome.

Summary Judgment Ruling

Despite Swint’s reliance on a standard of care expert and a causation expert, both of whom were well qualified, the trial judge granted summary judgment in favor of Dr. Alphonse, Jr. The judge agreed that the evidence supported a finding that Dr. Alphonse, Jr. breached the standard of care. Citing Dr. Palese’s testimony that the compartment syndrome may have been caused before Swint had been in the Trendelenburg position for five hours, however, the judge concluded that no evidence supported a finding that Dr. Alphonse, Jr.’s breach of the standard of care caused Swint’s injury.

The judge rejected Dr. Collier’s opinion that failing to give Swint a positional holiday caused or worsened his compartment syndrome. Applying the Daubert standard, the court ruled that Dr. Collier’s opinion was not based on adequate facts or data. The judge accordingly dismissed the lawsuit.

Daubert and Medical Opinions

Swint’s case is an example of how a mechanical application of the Daubert standard is ill-suited to an analysis of medical opinions. Some judges seem to think that Daubert require proof that opinions are true with a high degree of certainty, when a civil plaintiff is only required to prove that the elements of a claim are more likely than not true.

Medical science is far from certain. While expert opinions cannot be based on speculation, the “facts and data” upon which medical experts rely do not always include rigorous scientific studies, simply because studies are not always available. Researchers cannot ethically place hundreds of text subjects in the Trendelenburg position for varying lengths of time to measure the onset of compartment syndrome.

Medical experts rely on their own experience and the experience of their colleagues when studies have not answered a medical question. Years of experience practicing medicine and handling patients with similar conditions can assure that the expert’s opinion is not based on conjecture, which is the ultimate goal of the Daubert standard. As long as an opinion has a sound basis, whether to accept the opinion is up to the jury, not the trial judge.

Appellate Ruling on Standard of Care

Dr. Palese’s testimony might been contradictory in some respects. At one point, he seemed to say that the standard of care would allow a surgeon to go as long as six hours without repositioning the body. Perhaps he meant that a surgeon who expects to finish within five hours but then discovers that the surgery will require six hours to finish need not reposition the patient.

As the appellate court noted, if an expert’s testimony is inconsistent, that inconsistency goes to the expert’s credibility. It is the jury’s function to sort out inconsistent testimony and to decide what part of an expert’s conflicting testimony, if any, is worthy of belief.

In Georgia, the “self-contradictory witness rule,” which allows a judge to discount contradictory testimony given by a party when deciding a summary judgment motion, does not apply to expert witnesses. A court may not base a summary judgment finding upon expert testimony that is unfavorable to the party who offered the testimony if the expert’s additional testimony contradicts that finding.

Because the trial court interpreted Dr. Palese’s testimony to mean that the standard of care required a positional holiday before the sixth hour of surgery, and because Dr. Palese testified that the compartment syndrome may have developed before the fifth hour of surgery, it concluded that Dr. Alphosne, Jr.’s breach of the standard of care did not cause Swint’s condition. Since the court relied on a standard of care that differed from at least part of Dr. Palese’s testimony, its ruling was mistaken.

Appellate Ruling on Causation

The trial court also erred in rejecting Dr. Collier’s opinion that Swint’s compartment syndrome probably developed after he had been in the Trendelenburg position for more than six hours. While the trial judge concluded that Dr. Collier’s opinion was not based on “sufficient facts or data,” the opinion was based on Dr. Collier’s review of the medical records, on a differential diagnosis, and on his own experience and training. Any alleged deficiency’s in Dr. Collier’s testimony went to his credibility and to the weight a jury might assign to the testimony, not to whether the testimony, if accepted as true, was sufficient to establish causation.

In addition, Dr. Palese testified that Swint’s condition was made more severe by the failure to give him a positional holiday. The fact that Dr. Palese is a urologist who does not treat compartment syndrome did not justify the trial court’s rejection of that opinion. Dr. Palese was familiar with the kind of surgery that was performed, was familiar with why a positional holiday is necessary to prevent compartment syndrome, and had sufficient training and experience to opine that the longer a patient is kept in the Trendelenburg position, the worse his condition is likely to become.

Since the expert opinions of Drs. Palese and Collier, both separately and taken together, would allow a jury to conclude that Dr. Alphonse, Jr. breached the standard of care and that the breach harmed Swint, the trial judge erred by granting summary judgment. The expert evidence entitled Swint to have his medical malpractice claim decided by a jury.

Election Experts Testify in Virginia Voter ID Case

Court Excludes Expert Testimony Because Witness Has a Contingent Financial Interest in Litigation Outcome

Whether experts should be allowed to testify when they have a financial stake in the outcome of litigation is a question that divides courts. In an unusual case, a judge in the Western District of Virginia excluded the expert testimony of a witness who sold a litigation interest in a claim brought by his company. The sale proceeds were contingent on winning the lawsuit, a fact that (according to the court) disqualified the witness from giving expert testimony.

Facts of the Case

David Steffens co-founded Keystone Transportation Solutions and served as its CEO. He eventually tried to sell the business to Northwest Hardwoods. When that effort failed, Keystone ceased doing business.

Keystone’s former president, Thomas Mereen, went to work for Northwest Hardwoods. Keystone sued Northwest Hardwoods, alleging that it improperly gained access to Keystone’s trade secrets. The lawsuit also alleged that Northwest Hardwoods interfered with Keystone’s business interests.

Keystone sold its interest in the lawsuit to Clarendon, described in the court’s opinion only as “another business entity.” Keystone’s operating agreement with Clarendon provides that Clarendon will receive ten percent of any lawsuit recovery that Keystone receives. The remaining recovery will be split equally between Steffens and the other co-founder of Keystone.

Keystone designated Steffens as an expert witness. Among other opinions, Steffens proposed to testify that Keystone’s alleged trade secrets were valuable within the lumber transportation industry, that the information was propriety and not readily available from a review of public information, and that Keystone’s efforts to maintain its trade secrets were commercially reasonable. Steffens also opined that Northwest Hardwoods relied on Keystone’s confidential information when it committed to opening a new business unit and that its business model for operating that unit depends on Keystone’s trade secrets.

Northwest Hardwoods moved to exclude Steffens’ expert testimony. Among other reasons, Northwest Hardwoods claimed that Steffens is an unreliable witness because he has a financial interest in the outcome of the litigation.

Steffens’ Bias

The potential for bias affects the credibility of any witness, including an expert witness. Credibility is for the jury, not a judge hearing a pretrial motion, to determine. Reliability, on the other hand, is something a court can determine after deciding whether the expert has based opinions on sufficient facts and a reliable methodology.

The trial court thought that an expert’s bias might render a witness “inherently unreliable” and that the expert could therefore be excluded under Daubert. While there is precedent to support that doubtful proposition, the fuzzy line between credibility and reliability is difficult to discern when reliability is based on allegations of bias rather than the analysis that informs the expert’s opinions. After all, police officers and crime lab employees are often employed by the same government that uses them as expert witnesses in criminal trials, but their obvious potential for bias does not result in the wholesale exclusion of their testimony.

Steffens’ situation is somewhat different in that he had a direct financial interest in the outcome of the litigation. The court considered a Fourth Circuit decision holding that assignments of interests in lawsuits are against public policy in Maryland because they promote the interests of the entity to which they are assigned rather than the interests of the injured party and thus promote unnecessary litigation.

Apart from the fact that Keystone brought its case in West Virginia rather than Maryland, the Fourth Circuit precedent is not easily squared with the facts of the Keystone case. The founders of Keystone will share 90% of the proceeds if their interests are vindicated in court. Had they not sold the litigation interest they would have received 100%.

This case is plainly not an example of “lawsuit-mining” that the Fourth Circuit claimed to deplore. Rather, it seems to be an example of business owners exercising reasonable judgment to raise the capital they need to fund litigation that will protect their interests. It is difficult to see how that harms public policy.

Experts and Contingent Fees

An afterthought in the Fourth Circuit decision referred to a proposal to hire experts on a contingent fee basis, which it viewed as threatening “the very integrity of the judicial process which depends on the truthfulness of witnesses.” The concern seems overblown, as it is unclear why a contingent fee is more threatening to judicial integrity than the common practice of a corporation paying its own employees or independent contractors huge fees to testify on the employer’s behalf.

Substantial payments always have the risk of instilling bias, whether or not the payments are contingent. The potential for compensation to affect an expert witness’ opinions is one that juries evaluate every time an expert testifies. Juries understand that experts need to be paid and they are capable of deciding whether compensation affects an expert’s credibility.

While most states prohibit employing an expert on a contingent fee basis, that rule governs the conduct of lawyers, not experts. Recognizing that distinction, the Seventh Circuit has wisely decided that the existence of a contingent fee agreement goes to the expert’s credibility, which can only be determined by a jury. Attorney disciplinary rules have nothing to do with an expert’s reliability.

Steffens’ contract with Clarendon had little to do with the rules of professional responsibility. Steffens’ agreement to share in the proceeds was not contingent on whether he testified as an expert witness. Steffens was an owner of the business that brought the lawsuit. Business owners always have a financial interest in the outcome of litigation affecting their business, but that does not preclude them from testifying as experts in that litigation.

Court’s Ruling

While Steffens was not earning a contingent fee for testifying, the court deemed Steffens’ contingent financial interest in the litigation’s outcome to be analogous to a contingent fee. For reasons that are not clearly explained, the court deemed it important that Keystone is no longer operating. Whether or not the business continued in operation, Steffens was likely to benefit from the lawsuit’s favorable outcome, with or without a contingent agreement to share in the proceeds of the lawsuit. The court’s conclusion that selling a litigation interest is the same as a contingent fee for testifying is not persuasive.

The court nonetheless deemed the Fourth Circuit’s questionable precedent regarding contingent fees for expert witnesses to be controlling. It excluded Steffens’ expert testimony on that basis. The court went on to exclude his testimony on more defensible grounds, including the fact that some of his proffered opinions were beyond the scope off his expertise and others reflect his subjective beliefs without the support of a reasoned methodology.

Steffens will be allowed to testify as a fact witness. The court noted that some of the narrative in his expert report would be admissible as lay testimony. To the extent that Steffens gives that testimony, however, he will not be allowed to bolster his opinions by portraying them as expert opinions.

Texas flag and gavel

Expert Witness List Released in Texas Police Murder Trial

The expert witness list has been publicly released in the murder trial of a former Dallas Police Officer who shot and killed a man in his own apartment after mistaking him for an intruder.

The Killing

On September 16, 2018, Amber Guyger, 30, was off-duty but in her police uniform when she shot and killed Botham Jean, 26, as he sat and watched football in his apartment. Guyger said that she mistook his apartment for hers and thought that he was an intruder.

Guyger was fired from the Dallas Police Department and was charged with murder. If convicted, she faces five years to life in prison.

Guyger’s trial is scheduled to begin on September 23 of this year in a Texas state district court that is presided over by District Judge Tammy Kemp.

Jean’s death received coverage by the international news media. Guyger’s attorneys now say that she cannot get a fair trial in Dallas because of the inflammatory and prejudicial nature of the media coverage. Judge Kemp has signed a gag order that prevents defense attorneys and prosecutors from commenting publicly on the case while she is deciding whether to move the trial.

Expert Witness List

While the attorneys for each side cannot speak about the case, the state’s expert witness list has become a public record. This list offers some insight into the type of information that the prosecutors have and the evidence that they plan to present at trial.

The state’s expert witness list contains 25 names. The expert witnesses include forensic video analysts, cell phone data experts, and crime scene reconstruction experts.

Former Judge David Finn examined the list and said that the presence of a forensic video analyst means that the prosecution likely has video evidence that they would like to play for the jury. He said, “That would indicate to me that the prosecution has a video or videos that they want to play for the jury. … And they want an expert to come in and say, ‘This is the real deal. It hasn’t been altered.’”

The state’s expert witness list names a company called Cellebrite as a potential expert. Cellebrite is a company that is known for unlocking cell phone data. Finn explained that law enforcement agencies frequently use Cellebrite because they are experts in this area.

The state expert list also includes crime scene reconstruction experts who often testify in officer-involved shootings.

Former judge Finn opined that this trial will likely be a battle of experts. He said, “In a jury trial like this where there are only two witnesses and one of them is deceased, you’re gonna rely on experts to reconstruct the crime scene.” 

Finn explained that “The state’s gonna have crime scene reconstruction experts that are gonna say one thing”  — the defense team “will have experts to say, ‘Not so fast. There’s another side to this coin.’ So you’re gonna have the jury giving conflicting information as experts.”

North Caroline sign

Experts Differ in State Court Challenge to NC Redistricting

Expert witnesses have finished tangling, at least for the moment, in the North Carolina redistricting dispute. After a narrow majority of the Supreme Court refused to impose constitutional barriers to partisan redistricting, federal challenges to political gerrymandering in North Carolina became impossible to pursue.

Challengers are now basing their claims on the state constitution, a strategy that put an end to partisan gerrymandering in Pennsylvania. The U.S. Supreme Court noted that state courts applying state laws and constitutions have the power to address political gerrymandering, even if federal courts do not.

On the other hand, the Supreme Court has long recognized that redistricting schemes may not disenfranchise nonwhite voters. Evidence that a map-drawing expert may have done just that could lead to a renewed federal challenge to North Carolina’s redistricting, even if the state challenge does not succeed.

Constitutional Challenges to Gerrymandering

In a 5-4 decision reflecting the ideological division of the Supreme Court, the majority ruled that partisan gerrymandering — drawing congressional districts in a way that favors one political party, diminishing the voting power of voters for the opposing party — is not a constitutional violation that federal courts are capable of remedying. “That’s politics” is a shortened version of the majority’s decision.

The fact that Republican legislators in North Carolina drew districts during the 2010 redistricting to favor Republicans is readily (even proudly) acknowledged by some Republican state legislators. Democrats did the same thing when they drew maps during the 1990 and 2000 redistricting. Courts struck down many of the maps drawn by Democrats and did the same to the Republican map. In those cases, the maps were invalidated as racial gerrymandering.

The Republican-controlled legislature redrew the maps again in 2016, supposedly to eliminate racial gerrymandering. Candidates from the Republican and Democratic parties received almost an equal number of votes in the 2018 congressional elections, but Republicans were elected to Congress in 10 of the state’s 13 districts. Gerrymandering is the only reasonable explanation for that result.

The North Carolina Democratic Party and Common Cause are now challenging partisan redistricting in state court. They argue that the free speech and association protections of the state constitution are violated by a redistricting process that deliberately gives disproportionate representation to one political party.

Expert Testimony

Several experts have testified in the state court trial. The 2016 maps were drawn by recently deceased mapmaker Thomas Hofeller. Expert witness Wesley Pegden, using mathematical algorithms, drew millions of maps of districts that were contiguous and roughly equal in population — the standards required by state law. He testified that none of those maps, drawn at random, gave Republicans the same advantage as Hofeller’s maps.

Pedgen, an associate professor in Carnegie Mellon University’s department of mathematical sciences, concluded that the maps were deliberately drawn to favor Republicans. A court in Pennsylvania accepted his methodology and conclusions when it struck down a partisan gerrymander in that state.

Other expert witnesses, including Christopher Cooper, a professor at Western Carolina University, arrived at the same result. After he was given access to Hoffler’s files, Cooper discovered that lines had been carefully drawn to move Democratic Party voters into districts that were safely held by Republican representatives. He concluded that Hofeller deliberately attempted to dilute the voting power of Democrats.

Exclusion of Expert Testimony

Hofeller’s daughter made his files available to the challengers after his death. While the Republican legislators claimed that the files were not the daughter’s to give, the court ruled that at least some of the data in the files could be admitted as evidence.

The challengers contend that Hofeller secretly and improperly used racial data to help him draw the maps that the legislature enacted, a practice that has long been forbidden. The Republican legislators contend that Hofeller drew maps of his own as a hobby and that he did not use racial data in drawing the maps he presented to the legislature.

After reviewing the files, expert witnesses for the challengers concluded that Hofeller relied on racial data to complete the maps before the legislature created rules that prohibited him from considering race. To counter that testimony, the Republican legislators called political scientist Douglas Johnson as an expert witness.

Johnson testified that Hofeller’s “personal maps” were dissimilar to the maps the legislature actually approved. On cross-examination, however, Johnson admitted that his analysis failed to consider eleven districts on the “personal maps” with boundaries nearly identical to those of districts approved by the legislature.

Johnson also admitted that his analysis relied on unweighted population calculations that should have been weighted. That error compounded the unreliability of his statistical analysis.

The Republican leader of the North Carolina Senate had claimed that Hofeller’s “personal maps” more closely resembled maps that Common Cause proposed as fair in 2017 than maps that the legislature enacted. Johnson admitted that he provided that opinion to the senate leader and that he probably owed the senate leader an apology for doing so.

Applying a Daubert analysis, the court concluded that Johnson did not base his opinion on reliable data or a reliable methodology. Johnson essentially cherry-picked data to support the conclusion he wanted to reach. The court therefore decided it would not consider Johnson’s unreliable conclusions.

Trial Concludes

Another expert for the Republican legislators, Thomas Brunell, testified that partisan gerrymandering is an accepted outcome of the political process. He opined that the map adopted by the legislature was not outside the norms of redistricting.

Having heard all the expert evidence, the three-judge panel will likely render a decision in the coming months. The dispute is unlikely to end quickly, however, as the party that loses is almost certain to appeal.

Baby powder

JNJ Expert Testifies No Link Between Talc and Ovarian Cancer

A New Jersey federal court judge will determine the fate of almost 12,000 lawsuits that claim that Johnson & Johnson’s talc-containing baby powder causes women to develop ovarian cancer and mesothelioma. 

The Lawsuits

Plaintiffs from all around the United States have filed lawsuits against Johnson & Johnson, alleging that the talc that is contained in the company’s baby powder causes cancer.  The plaintiffs believe that the powder contains carcinogenic asbestos and/or asbestiform fibers, which led them to develop cancer.

Johnson & Johnson denied all claims.  The company argued that the plaintiffs could not show that its baby powder causes cancer.

Some of the lawsuits have been litigated with varying results.  Juries have awarded several verdicts to cancer victims in the tens of millions of dollars, with a $4.7 billion award last year.

More than 12,600 of the remaining lawsuits were combined into a multidistrict litigation that is currently being litigated in New Jersey federal court before U.S. District Court Judge Freda Wolfson.

The Daubert Hearings

Johnson & Johnson made a motion to exclude 11 of the plaintiff’s experts, arguing that their methodologies on general causation were unreliable.

Counsel for Johnson & Johnson wrote, “Plaintiffs’ experts’ general causation opinions are methodologically unsound and should be excluded under Daubert, because they misapply scientific principles, engage in unsupported leaps of logic, and distort epidemiology in a results-oriented manner that transforms an important tool for advancing public health into an unprincipled weapon for litigation. … In a nutshell, this is science for the courtroom, not science for the laboratory.”

Judge Wolfson ordered a Daubert hearing to determine if the experts should be allowed to testify.

In the Daubert hearing, the district court heard testimony from Johnson & Johnson’s expert witness, Dr. Benjamin Neel, who is the director of the Laura and Issaac Perlmutter Cancer Center and a Professor of Medicine at New York University. Dr. Neel is a prolific author, having written more than 234 peer-reviewed articles. His work has been cited more than 45,000 times in scientific research articles.

Dr. Neel’s testimony was centered on cellular biology. Dr. Neel stated that he believed that there was a lack of current evidence to suggest that application of talc powder in the genital region would cause inflammation that would lead to ovarian cancer.

The day before Dr. Neel testified, plaintiff’s expert Dr. Ghassam M. Saed testified that talc application to cells for 72 hours can result in a global change in a specific DNA sequence.  Defense counsel Susan M. Sharko of Drinker Biddle & Reath asked Dr. Neel whether Dr. Saed’s opinion was correct.  Dr. Neel stated, “That is completely inconsonant with everything we know about modern molecular biology.” Dr. Neel testified that Dr. Saed’s opinions had no relevance to ovarian cancer, that he had “flawed methodologies,” and that his conclusions “do not comport with modern pathogenesis.”

Plaintiffs’ attorney John M. Restaino of The Sanders Law Firm cross-examined Dr. Neel. Restaino asked Dr. Neel what causes cancer. Dr. Neel replied that cancer can be caused by inherited predisposition, abnormal errors in genomic replication, and environmental agents. However, Dr. Neel also emphasized that “There is no evidence of epidemiological studies alone that say perineal talc application causes cancer.”

Oat fields

Toxicity Experts Debate the Risk of Glyphosate Found in Children’s Cereal

The Environmental Working Group, a non-profit organization dedicated to protecting human health and the environment, recently published the results of a study that revealed that the herbicide Roundup was detected in all 21 of the oat-based cereals and snack products that it tested.  All but four of these products contained levels of glyphosate that are higher that what EWS scientists consider protective for children’s health with a sufficient margin of safety.

Environmental Working Group Study

EWG’s recent study confirms the tests that they conducted in July and October of last year. The prior tests found that levels of glyphosate were consistently above EWG’s children’s health benchmark of 160 parts per billion (ppb).

Glyphosate is one of the active ingredients in Bayer-Monsanto’s weed killer, Roundup, and similar herbicides. Glyphosate regulates plant growth and speeds up crop ripening in broadleaf plants and grasses. People can be exposed to glyphosate by breathing it in, eating food that was treated with it, or absorbing it through their skin.

Some popular food products that were found to have high levels of glyphosate include:

  • Honey Nut Cheerios Medley Crunch – 833 ppb
  • Cheerios Toasted Whole Grain Oat Cereal – 729 ppb
  • Nature Valley Crunchy granola bars, Maple Brown Sugar – 566 ppb
  • Nature Valley Granola Cups, Almond Butter – 529 ppb
  • Chocolate Peanut Butter Cheerios – 400 ppb
  • Nature Valley Baked Oat Bites – 389 ppb
  • Nature Valley Crunchy granola bars, Oats and Honey – 320 ppb
  • Nature Valley Crunchy granola bars, Peanut Butter – 312 ppb
  • Nature Valley Granola Cups, Peanut Butter Chocolate – 297 ppb
  • Cheerios Oat Crunch Cinnamon – 283 ppb
  • Nature Valley Fruit & Nut Chewy Trail Mix Granola Bars, Dark Chocolate Cherry – 275 ppb
  • Nature Valley Granola Protein Oats n Dark Chocolate – 261 ppb

The Expert Debate

In 2015, an agency within the World Health Organization, the International Agency for Research on Cancer, found that glyphosate is a possible carcinogen. In 2017, the Agency for Toxic Substances and Disease Registry, part of the U.S. Department of Health and Human Services, released a study that confirmed and strengthened the cancer agency’s research.

In California, the chemical is a Group 2A carcinogen, which means that there is sufficient evidence that it causes cancer in animals used in experiments and is probably carcinogenic to humans.  “[Glyphosate] is known to the state of California to cause cancer,” said Sam Delson, the deputy director for external and legislative affairs at the Office of Environmental Health and Hazard.

Not all experts agree that glyphosate is a carcinogen. The Environmental Protection Agency, the agency that creates the legal limits on pesticide residues, has stated that glyphosate does not pose a public health risk. In April, EPA scientists concluded that there is “no risk to human health from current uses of glyphosate” and “no evidence that glyphosate causes cancer.”

Environmental experts complain that the EPA disregarded mounting evidence associating glyphosate with cancer risk. In addition, the scientific journal, Environmental Sciences Europe, found that the conclusions reached by EPA and the International Agency for Research on Cancer differed because the EPA relied mainly on studies conducted in-house by Monsanto or contracted by EPA with an outside lab.