A federal appeals court has overturned the death sentence of a man who was convicted of raping and beating a woman to death because the testimony of an expert witness had been wrongly excluded.
In September 2008, 29-year-old Genevieve Orange returned home from her job at the Futures Industry Association in Washington, D.C. and lay down on her couch to watch a DVD. Mark Lawlor, a leasing agent for Orange’s building, broke in with a key and began beating her.
Lawlor used a frying pan and and hammer to beat Orange. Evidence showed that Orange incurred 30 blows to her skull and 17 more wounds on her arms. Lawlor then raped Orange as she lay dead or dying on the floor.
When Orange failed to show up for work, a police officer found the door to her apartment unlocked. Orange’s body way on the floor with her head covered in blood, naked from the waist down, and with her shirt pulled up to her neck.
At Lawlor’s capital murder trial, his attorneys admitted that he killed Orange, but they asked the jury to convict him on the lesser charge of first-degree murder. Lawlor’s attorneys argued that his mind was so muddled by beer and crack cocaine that his actions could not meet the legal standard of capital murder.
At the sentencing phase of his trial, capital public defender Ed Ungvarsky said, “I ask you, I implore you, I beg of you, chose life.”
Genevieve Orange’s mother, Marilyn Orange, did not buy the argument that Lawlor was too drunk or high to appreciate his actions. She said, “He had drugs in him, he had alcohol in him… But a lot of people have drugs and alcohol in them, and they don’t kill anybody.”
Orange also noted that Lawlor never apologized for his actions. “He’s not remorseful,” she said. “It was always: ‘Poor me. I didn’t have a chance at this or that, and poor, poor me.’ ”
During the sentencing hearing, the Fairfax judge who presided over the trial limited the testimony of a defense witness from testifying about the future danger Lawlor posed in prison. Fairfax Circuit Court Judge Jonathan C. Thacher ruled that the expert must testify about Lawlor’s potential threat in all of society, not just in prison
On appeal, the Virginia Supreme Court and a federal district court ruled that Thacher’s ruling were correct. However, the Fourth Circuit Court of Appeals disagreed with the ruling.
The court reversed the ruling, citing a U.S. Supreme Court ruling from 1981 that said the “Eighth and Fourteenth Amendments require that the sentencer not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record … that the defendant proffers as a basis for a sentence less than death.”
The court noted that there was “grave doubt” that the limitation of the testimony was harmless and remanded the case to U.S. District Court in Alexandria for proceedings consistent with its opinion.
A spokesperson for the state Attorney General Mark Herring said that Herring will review the Fourth Circuit’s ruling and decide how to proceed.
Everyone agrees that expert evidence should be reliable. Judges have historically determined whether an expert is qualified to render a specialized opinion, and if so, whether the expert’s opinion is based on something more substantial than conjecture.
Some version of the Daubert standard for determining the admissibility of expert testimony now prevails in most states. That standard gives judges a greater role in deciding whether expert testimony is based on a reliable methodology.
Reliability standards have tended to be more stringent in civil cases because the insurance industry and business lobbyists have campaigned for admissibility standards that serve their interests by excluding expert testimony that might convince a jury of a corporate defendant’s liability. Reliability standards have tended to be more lax in criminal cases because prosecutors have advocated standards that serve their interests in obtaining convictions. The different approaches to reliability in civil and criminal cases make it easier for “junk science” to be admitted in criminal trials, as the President’s Council of Advisors on Science and Technology made clear in 2016.
Sometimes experts who do not testify influence the testimony of other witnesses. In those cases, the question of reliability becomes more difficult for courts to assess. Testimony that is “refreshed” by hypnosis is an example of an expert’s use of a methodology that may cause juries to hear unreliable testimony.
Hypnotically Refreshed Recollection
Charles Flores and Richard Childs were charged with murdering a 64-year-old woman who was unexpectedly at home when they burglarized her house. The murder was committed in 1998. Childs made a deal and was sentenced to 35 years in prison. He was released after serving 17 years.
Flores was found guilty in a trial and was sentenced to death. When Childs entered his guilty plea, he admitted that he killed the victim, but a jury found Flores guilty because of evidence that he participated in the robbery that ended in the victim’s death. Allowing the killer to go free after 17 years while the non-killer is sentenced to death is an outcome that causes people to wonder what is wrong with the criminal justice system.
Two witnesses testified that Flores admitted to being at the crime scene. A third witness testified that she smoked methamphetamine with Flores and Childs before telling them that there was money hidden in the victim’s home.
The only eyewitness who placed Flores at the crime scene testified after her memory was hypnotically “refreshed.” Before being hypnotized, she could only recall seeing two men get out of a Volkswagen and enter the victim’s home at about the time the murder was committed. She couldn’t make an identification because she only glimpsed the men while peeking through the blinds shortly before sunrise.
Other neighbors saw two white men leave the Volkswagen. They described the men as having a medium build and long hair. Flores is Hispanic, obese, and had short hair at the time the crime was committed.
After being hypnotized, the neighbor who testified was suddenly able to identify Flores as being one of the men. Was her recollection hypnotically refreshed, or did the hypnosis influence her identification?
The witness was hypnotized by a police officer. She was the first and only person he ever hypnotized. Even if hypnosis might refresh a memory without changing it, there is reason to question whether a police officer who is not an experienced hypnotist is the kind of expert who can produce a reliable result.
Hypnosis Challenged as “Junk Science”
Flores was scheduled to be executed, but he received a stay so that he could challenge the reliability of memories that are refreshed through hypnosis. He may have an uphill battle, given that Texas appellate courts have twice upheld hypnosis as a forensic tool, while purporting to place safeguards on its use.
It may be time for Texas to reexamine those precedents. More than half of all states have deemed hypnosis to be “junk science” and have banned testimony that would not have been given in the absence of hypnosis. The modern trend, based on new research into how memories are formed and stored, has rejected the reliability of hypnosis as a tool for producing accurate memories.
Studies have found that hypnosis does not help people recall events more accurately. Instead, it makes people more confident of their memories, whether or not the memories are correct. In fact, studies suggest that hypnosis converts guesses and hunches into statements of absolute fact.
Studies have also demonstrated the risk that questioning under hypnosis will implant false memories. That risk is particularly concerning when the hypnotist is a law enforcement officer rather than a neutral expert.
In states that allow testimony based on hypnotically refreshed memories, it is imperative for defendants to call an expert witness who can explain to the jury why hypnosis is not a reliable means of producing accurate memories. If Flores loses his challenge, he may one day be executed because his lawyers failed to present critical expert testimony to the jury.
Carlos Jones was convicted of second degree murder for causing the death of his wife, Tabatha Smith. Jones testified that he woke up in the morning and got out of bed to check on the children. When he returned to the bedroom, his wife rolled over onto the gun he kept beneath his pillow. She said, “You and this gun” in an apparent reference to the discomfort it caused.
Jones testified that he removed the gun from beneath the pillow and assured Smith that it was not loaded. He put the gun in the back pocket of his jeans, but it fell through a hole and landed on the floor. He testified that when he picked it up, the gun fired two or three times. His wife said, “I told you.”
Jones could not say exactly how the gun fired, but testified that the shooting was accidental. He said he did not aim the gun and did not recall pulling the trigger.
When he realized that his wife had been shot, Jones rushed her to the hospital. She was still conscious at that point, but did not answer the questions posed to her by police investigators.
Jones spoke to an acquaintance at the hospital. He allegedly stated the gun had a hair trigger, that the trigger “stuck,” and that it fired multiple times.
At some later time, the police attempted to question Smith again, but she could not speak. When an investigator asked her whether Jones shot her, she lifted her hand slightly.
Smith died after fifteen days in the hospital. She was struck by two bullets, one of which damaged her jugular vein and struck the vertebrae in the back of her neck.
Carl Fullilove, who is identified in the appellate opinion only as a “forensic scientist,” testified that he tested Jones’ gun to determine whether it would misfire. Fullilove was unable to make the gun fire without pulling the trigger, even after striking it with a rawhide hammer. Fullilove opined that it was necessary to pull the trigger once per shot to make the gun fire.
Consumers of the news might recall the FBI agent whose gun fell out of his pocket while he was dancing. A video captures the gun firing accidentally as the FBI agent picked it up. That gun, however, fired only once. Jones’ problem was convincing the jury that he accidentally shot his wife twice.
The defense attempted to overcome that problem by calling Darrell Carey, a firearms instructor, as an expert witness. The trial court refused to admit him as an expert witness because his testimony was not “based on sufficient facts or data” or “based on reliable principles and methods.” The judge noted that Carey had not produced any written documentation or publication, and that “his testimony was strongly weighted or heavily weighted toward firearm shooting and not the mechanics of the firearm itself, i.e., the assembling, disassembling, [or] the methodology of how it operates.”
It isn’t clear why the judge thought that hitting the gun with a “rawhide hammer,” the methodology used by the prosecution expert, was any more reliable than Carey’s methodology. Nor is it clear why the assembling or disassembling of the gun is important in a case that did not involve taking a gun apart. The relevant question was whether the gun would fire accidentally, not how the gun operates.
The judge allowed Carey to testify about his personal observations as a lay witness. Carey testified that he was able to recreate an accidental discharge of the gun, as was shown on a video recording that was admitted into evidence. He found that by picking up the gun with a finger on the trigger, the weight of the gun against his hand could cause the gun to fire in quick succession.
Carey testified that the heavy weight of the slide caused the gun to bump against his trigger finger. He testified that one time the gun fired twice, and another time the gun fired three times, without consciously pulling the trigger.
The Mississippi Court of Appeals affirmed the trial court’s decision not to allow Carey to provide expert testimony. The court noted that Carey did not hold an engineering degree and had never published any scholarly articles, although the relevance of that observation is doubtful.
Like most states, Mississippi law specifically allows an expert to base testimony on “technical, or other specialized knowledge,” which can be acquired from experience rather than academic training. Mechanics routinely testify as experts on the vehicle engines and parts, but few mechanics have published academic articles about their knowledge. The fact that Carey was not an engineer went to his credibility, not to his qualifications as an expert.
The appellate court also agreed with the trial court that Carey was unable to testify about the mechanics of a gun. Again, his testimony might have been stronger if he had measured the amount of pressure that was required to pull the trigger, but as someone who teaches firearm operation, Carey plainly had more knowledge of how firearms fire and misfire than a lay person.
The fact that he could not testify about handgun engineering went to Carey’s credibility, but he was plainly qualified to testify about handgun operation. Since the question was whether the firing mechanism was operated intentionally or accidentally, Carey was qualified to give the jury a helpful opinion based on knowledge that most jurors would not have.
Expert vs. Lay Testimony
Finally, the appellate court noted that Carey’s testimony “was largely contingent upon his own personal observations of the handgun’s functionality, in light of Jones’s theory of defense.” The relevance of that observation is unclear.
Any expert who performs tests and testifies about the result is relying on his or her personal observations. Carey tested the gun and explained the results of the tests to the jury. That’s what experts do. It is the expert’s experience in interpreting observations, not the fact that testimony is based on observations, that distinguishes expert from lay testimony.
While the court’s analysis is far from convincing, it isn’t clear that Carey would have testified any differently if the court had allowed him to testify as an expert. Nor is it clear whether the jury would have viewed his testimony in a different light if the court had identified him as an expert rather than a lay witness. The trial court’s error might have been harmless, but that is a question the appellate court did not address.
A New York federal judge has excluded testimony from all expert witnesses for the women in the multi-district litigation that alleges that Bayer’s contraceptive Mirena causes a rare disease involving spinal fluid.
Mirena Device Controversy
The Mirena contraceptive device is a hormone-releasing intrauterine device. It is placed into the uterus by a trained healthcare provider during an office visit. It works by releasing levonorgestrel (LNG), a synthetic steroid hormone.
The plaintiffs claim that LNG causes idiopathic intracranial hypertension (IIH), or pseudotumor cerebri. This is a rare disease that causes increased cerebrospinal fluid pressure in the brain. If left untreated, IIH can cause headaches, vision problems, or blindness. IIH has been described as “the clinical syndrome of raised intercranial pressure, in the absence of space-occupying lesions or vascular lesions, without enlargement of the cerebral ventricles, for which no causative factor can be identified.”
In 2016, the Southern District of New York dismissed a multi-district litigation of approximately 1,300 plaintiffs who claimed the Mirena caused injuries to the uterus or surrounding tissues. The trial court excluded all of the plaintiffs’ expert witnesses under Daubert because of numerous problems with their testimony. The U.S. Court of Appeals for the Second Circuit affirmed the dismissal and the United States Supreme Court denied the writ of certiorari.
In the current suit, more than 800 women allege that Mirena causes idiopathic intracranial hypertension. The plaintiffs and Bayer agreed that the outcome of the suit would depend on the plaintiffs’ ability to prove general causation, or whether Mirena can cause intracranial hypertension, so the district court ordered expedited briefing on Bayer’s motions to exclude the testimony of the plaintiffs’ general causation experts.
Judge Paul Engelmayer of the U.S. District Court for the Southern District of New York excluded the testimony of all seven of the plaintiffs’ general causation experts. The court found that the expert testimony was inadmissible under the Daubert standard. The court said, “In brief, although plaintiffs’ experts in this litigation have now so opined, outside of this litigation, no medical organization, regulatory agency, article in peer-reviewed scientific literature, or other research has found that use of Mirena is a cause of IIH [idiopathic intracranial hypertension].”
In its 156-page ruling excluding the experts, the court examined the factual background of the Mirena product; LNG; IIH; risk factors and characteristics; the state of scientific research regarding the causes of IIH; and whether contraceptive devices that use LNG, like Mirena, can cause IIH. The court spent over 100 pages of the opinion examining each expert’s background, methodology and theories, and reviewed the extent to which each experts’ theories used the Bradford Hill criteria, or “the metrics that epidemiologists use to distinguish a causal connection from a mere association.”
Judge Engelmayer noted that several of the plaintiffs’ experts failed to adequately explain their conclusion that Mirena causes intracranial hypertension. He suggested that the failure of the experts to explain the weight that they gave to each of the Bradford-Hill factors was one of the reasons that he doubted the objectivity and reliability of their opinions.
Did Shannon Lopez commit suicide or was she murdered? A Utah jury convicted her husband of homicide. The Utah Supreme Court reversed the conviction, in part, because the jury may have been influenced by improper expert testimony assessing Shannon as a low risk for suicide.
Facts of the Case
Komasquin and Shannon Lopez were both familiar with guns. Komasquin served in the military and worked in law enforcement, while Shannon was a recreational shooter. They kept multiple guns in their home and one in their car.
On the night of her death, Shannon consumed toxic levels of methamphetamine. She picked up Komasquin at work. Komasquin then began driving. Komasquin told the police that they argued about Shannon’s drug use and financial problems as they drove home.
Komasquin allegedly told the police that Shannon claimed she had packed a bag and planned to take the kids to her father’s home. Komasquin testified that he was the one who threatened to leave.
As they were driving, Shannon was shot in the head. Komasquin tried to turn the car around but crashed into another car. The position of her body and of a gun that the police found in the car was disputed.
At various times in the months before she died, Shannon threated to kill herself. She did so in a conversation with her son and in a text message to Komasquin. One threat specifically referenced an intent to shoot herself.
A medical examiner, a blood splatter analyst, and a gunshot residue analyst all testified for the prosecution. None of those expert witnesses could rule out suicide as the cause of death.
Testimony of Suicide Experts
Faced with inconclusive evidence of Komasquin’s guilt, the prosecution bolstered its case with the testimony of a clinical psychologist. Dr. Craig Byran specializes in the treatment of suicidal patients. He assesses suicide risk by using the Fluid Vulnerability Theory of Suicide (FVTS).
The FVTS model assumes that certain factors (including genetic and demographic factors) create a baseline risk of suicide, and posits that certain triggering events create an acute risk that an individual will commit suicide, but only if that individual has an elevated baseline risk.
Over a defense challenge, the court allowed Bryan to testify that Shannon’s behavior prior to her death was inconsistent with the behavior of people who commit suicide. The court did not allow Bryan to testify that his opinions were definitive or based on scientific certainty.
The defense countered with expert testimony that Shannon’s death was a “classic suicide.” Komasquin appealed his conviction on the ground that Bryan’s testimony was inadmissible.
Reliability of FVTS Assessment
Utah judges must determine whether an expert is qualified to render an opinion, whether the proposed expert testimony would be helpful to the jury, and whether the expert’s opinion is based on a reliable application of reliable principles or methods to sufficient facts or data. The reliability of principles or methods can be established by their general acceptance within a relevant scientific community or by other evidence of reliability.
Apparently lacking empirical evidence that the FVTS is reliable, the prosecution attempted to prove that the FVTS has been generally accepted by psychologists as a reliable means of predicting the risk of suicide. The prosecution pointed to Bryan’s testimony that psychologists rely on the FVTS when treating patients, and that identification of risk plus treatment has been shown to reduce suicidal behaviors.
That testimony did little to establish that the FVTS reliably assesses risk. Treating a population with suicide reduction therapies is likely to reduce suicidal behaviors among those who receive the treatment, but that tells us nothing about whether untreated individuals who are identified as low risk go on to commit suicide. Nor does it tell us whether an individual who has ingested toxic levels of methamphetamine might be more inclined to commit an impulsive suicide than a sober individual, regardless of other risk factors.
If people who commit suicide would always have been assessed as “high risk” while people who do not commit suicide would always be assessed as “low risk,” the FVTS might be a valid tool for predicting future behavior. However, the prosecution pointed to no studies establishing that people who are assessed as low risk never commit suicide.
Nor did Bryan discuss peer-reviewed studies or other evidence establishing that the relevant scientific community has accepted the FVTS for any purpose other than deciding whether to treat someone by using suicide prevention strategies. As the state supreme court recognized, the relevant question in this trial was whether the FVTS correctly assesses that a deceased individual committed suicide. Proving that FVTS “is generally accepted to establish a suicide risk in living patients is not the same thing as demonstrating that it is generally accepted to gauge whether a decedent died by his or her own hand.”
Sufficiency of Data
Finally, the court noted that data used in the FVTS is gathered in clinical practice by interviewing the patient. Bryan had no opportunity to interview Shannon before she died. Nor did he explain how he could accurately assess risk factors like “mood” or “positive outlook” without interviewing Shannon.
As the court pointed out in a shocking footnote, Bryan didn’t interview anyone. He based his opinion solely on information that had been carefully selected by the prosecution to support the conclusion that prosecutors wanted Bryan to reach. That methodology falls well short of basing opinions on reliable and sufficient data.
Given the prosecution’s failure to prove that Bryan’s opinions were based on reliable methods, the supreme court had no difficulty concluding that the evidence was inadmissible. And given that other evidence of whether Shannon committed suicide was ambiguous, the court concluded that Bryan’s inadmissible opinions may have influenced the guilty verdict. The court therefore ordered a new trial.
Risk Assessment Tools and the Helpfulness of Expert Testimony
The court could just as easily have applied a “helpfulness” analysis to arrive at the same result. Unless people who are assessed as low risk on the FVTS never go on to commit suicide, FVTS results cannot help the jury determine whether a death was caused by suicide or murder. If some low risk people commit suicide, the FVTS is not a helpful means of separating murder from suicide as a cause of death.
By their nature, risk assessment tools only tell us about relative risks within a population of people. They tell us nothing about how a single individual within that population will behave. For that reason, risk assessment tools might be useful for treatment purposes but are rarely reliable evidence of how a particular individual behaved or will behave in the future.
Expert economists are offering testimony in the trial of Harvard University as it defends itself against allegations that its admissions quotas discriminate against Asian Americans.
Students for Fair Admissions, or SFFA, sued Harvard University in federal district court, alleging that the university set admission criteria that discriminated against Asian American students.
SFFA is a nonprofit association whose stated mission is “to defend human and civil rights secured by law, including the right of individuals to equal protection under the law, through litigation and any other lawful means.” Its true mission, according to Alex Beam, is to end racial preferences in college admissions and employment that provide greater opportunities for nonwhite applicants.
Members of SFFA applied to Harvard and were denied admission. They claim that Asian American students must outperform students from other minority groups in order to gain admission to Harvard. SFFA alleges that Harvard uses a “personal rating” system that is biased against Asian American students.
SFFA’s complaint against Harvard referenced its history of discrimination. SFFA noted that under Harvard’s president Abbott Lawrence Lowell (1909-1933), the Harvard administration restricted the numbers of Jewish students who were admitted to Harvard. SFFA alleges that the Harvard College Admissions Program plan that is currently used in the admissions process was created for the specific purpose of discriminating against Jewish applicants.
President of Harvard University Lawrence Bacow wrote a letter to the university community stating, “The College’s admissions process does not discriminate against anybody…. I am confident the evidence presented at trial will establish that fact. The Supreme Court has twice ruled on this issue and has held up our admissions process as an exemplar of how, in seeking to achieve a diverse student body, race may enter the process as one factor among many in consideration.”
Harvard retained UC Berkeley economics professor David Card to serve as its expert witness at trial. Card determined that there was no evidence that Harvard intentionally discriminates against Asian American students. Card’s research indicated that if Harvard eliminated the challenged admission practice and the consideration of race, “the resulting class would have significantly fewer students who identify as Asian-American, Hispanic, or Other.”
Card concluded that there is no verifiable racial bias inherent in the use of personal ratings. His research showed that Harvard’s personal ratings included relevant data on the applicants’ non-academic attributes that are “not captured by other factors.” Card also concluded that there are no statistical models that can reliably estimate how race affects the personal rating.
Professor Peter Arcidiacono was retained by SFFA as their expert. Arcidiacono is a labor economist and Professor of Economics at Duke University. Arcidiacono concluded that Harvard’s admission process penalizes Asian American applicants. His report stated that “race plays a significant role in admissions decisions”; “Asian Americans are the primary group hurt by preferences given in Harvard’s Admissions Office”; there is an “artificial floor for African-American admit rates”; and, moreover, his “findings are consistent with Harvard’s own internal analyses before this lawsuit.”
SFFA also retained Richard Kahlenberg, a senior fellow at The Century Foundation and an author who has written several books on affirmative action. Kahlenberg’s report concluded that Harvard has failed to fully consider any of the numerous race-neutral alternatives that could achieve the educational benefits of diversity and that there are race-neutral alternative available that could provide Harvard with the educational benefits of diversity without the use of racial preferences.
An expert has testified that a man who is on trial for fatally shooting two Florida police officers may be tied to an extremist anti-government political group.
On August 18, 2017, Kissimmee Police Officer Matthew Baxter was on patrol when he approached three people to investigate a report of suspicious activity. One of the men, Everett Glenn Miller, recorded the confrontation on his phone.
In the video, Miller is seen telling Baxter, “Call your sergeant, please, sir. . . . Hey, call everybody up here. We ‘bout to put this on Facebook Live.” Baxter is seen on video requesting Miller to, “Please come here.” Miller responded, “I’m not coming to you. You come to me.”
Baxter later called for his sergeant, Richard “Sam” Howard. A “scuffle” broke out and Baxter and Howard were shot in the head. Baxter died that night and Howard died the next day.
Deputies who arrested Miller reported that he appeared to be reaching for a gun before he was subdued. Miller was in possession of two handguns, including a revolver with six spent casings.
Miller is charged with two counts of first-degree murder, carrying a concealed weapon, and resisting without violence in connection with the deaths.
At a pretrial hearing, an expert witness on political and anti-government extremism testified for the prosecution. The expert testified that Miller’s beliefs are consistent with those of a group that the FBI has designated as extremist.
The expert said, “his beliefs are consistent with those of the Moorish movement, a loosely-knit group of related organizations that fall under the black identity extremist (B.I.E.) designation.” The expert also testified that Miller was using a name on social media that indicated his beliefs, Malik Mohammad Ali. The expert also said that she found notes in his car and books that indicated a link to the Moorish movement.
The expert referenced a now declassified FBI intelligence assessment titled “Black identity extremists likely motivated to target law enforcement officers.” She used the report to explain why the FBI believes the extremists seek to use force or violence in response to perceived racism and injustice in American society to establish a separate black homeland in the United States.
The expert listed Miller’s following actions as showing a link to the Moorish movement: his use of the #makeamerickkamooragain in social media, requesting a book about black superiority, and notes in his car that referenced Moorish leaders.
Since political beliefs are constitutionally protected, the court might ultimately exclude the evidence as more prejudicial than probative of guilt. The court might conclude that the expert’s testimony is designed to prove guilt by association or that it is likely to inflame the jury’s passions. Political beliefs in themselves do not establish that everyone who shares those beliefs has an incentive to commit murder.
Miller’s next court hearing is scheduled for November, with a trial that could begin in early 2019.
Miller is a former Marine whose background reportedly includes intelligence analysis during Operations Noble Eagle, Enduring Freedom and Iraqi Freedom while working with the United States Special Operations Command. While enlisted as a Marine, Miller was stationed in Tampa, North Carolina and Okinawa, Japan.
Miller’s neighbor, Cartrell Bright, commented that he was heartbroken about Miller’s arrest and that he had shown signs of mental illness. Bright said, “He’s sick. . . . He just lost his mind or something.”
A circumcision expert provided key testimony in the trial of a midwife who cut off part of a baby’s penis.
The Botched Circumcision
In October 2013, Certified Nurse Midwife Melissa Jones performed a circumcision on the 18-day-old son of Stacie Willis, who is known as Baby D. During the circumcision, the child’s penis was caught in a Mogen clamp and the tip of the glans was amputated. Dr. Brian Register, an OB/GYN who was the supervising physician, was called to stop the hemorrhaging. A Certified Nurse Midwife and owner of the clinic where the procedure was performed, Anne Sigouin, was also called to assist.
Sigouin advised Dr. Register to call the boy’s pediatrician, Dr. Abigail Kamishlian. Dr. Kamishlian advised Willis to take her son home and to visit and emergency room if the bleeding began again.
No one notified Willis of the amputation or that the severed glans tissue was preserved in saline solution in the clinic’s lab refrigerator.
Willis took her son to a branch of Children’s Healthcare of Atlanta, where she learned that Baby D had an incomplete circumcision and a significant laceration to his glans.
For the next five years, Baby D would undergo four major surgeries that failed to correct the amputation. Baby D is permanently disfigured with medical bills in the tens of thousands.
Willis filed suit against Melissa Jones, Anne Sigouin, Dr. Brian Register, Life Cycle Pediatrics, LLC, Life Cycle OB/GYN, LLC, Dr. Abigail Kamishlian, and Daffodil Pediatric and Family Medical Services, LLC claiming medical malpractice, negligence, gross negligence, negligent hiring, retention, training and supervision, fraud, constructive fraud, fraudulent concealment, and aggravated battery.
Expert Witness Testimony
During trial, Dr. Fred Kogen provided expert witness testimony. Dr. Kogen is a General Practitioner (G.P.) and mohel, which means he is trained to perform the Jewish ritual of circumcision. Dr. Kogen gave testimony that demonstrated to the jury the proper way to conduct a circumcision.
Dr. Kogen explained that there is nothing else on the body similar to glans tissue and if it is severed, everything should be done to save and reattach it. Dr. Kogen testified that there is only a narrow window of 12 hours during which the tissue is viable.
Dr. Kogen said, “If I had a piece of glans that was taken off, there’s no doubt in my mind I would do the best I can to save that, and I would get in touch with someone who could use it to potentially help this baby.”
He continued, “I’ve performed 7,000 circumcisions and this has never happened to me. I’ve never had a complication like this. . . . This is something that — it’s not even a complication. It’s an injury that should never, ever occur if the technique is done properly.”
A Clayton County jury awarded Baby D $31 million in damages. The total includes $780,000 for past and future medical expenses, as well as $30 million in past, present and future pain and suffering. The jury consisted of seven women and five men.
A jury in Jefferson County, Missouri returned a verdict of $1.5 million for an accident victim who was injured while riding on a manually operated amusement device known as a Spaceball. The Missouri Court of Appeals rejected several challenges to the verdict. The most substantial challenge was to the admission of expert medical testimony on behalf of the victim.
Facts of the Case
Adam Payne attended a fundraising event for a youth football organization. The event took place at a recreational facility owned by Fiesta Corporation. Fiesta also owned a ride on which Payne was injured.
The ride, known as the “Spaceball human gyroscopic ride,” is a single-seat ride that spins sideways while rotating the rider in a circle. A harness secures the rider to the seat. The harness is locked in place with a cotter pin. An operator manually turns a control wheel that sets and keeps the ride in motion.
Fiesta claimed that it trained members of the youth football organization to operate the ride, but that they failed to appear for the event. Payne alleged that Fiesta did not train anyone. In any event, it was undisputed that the Spaceball ride was in operation throughout the event, that Fiesta employees were aware that patrons were using the Spaceball ride, and that the employees did nothing to supervise or prohibit its use in the absence of trained operators.
Payne relied on two bystanders to help him into the Spaceball harness. He testified that he assumed, but was not told, that the bystanders were trained to operate the ride. The bystanders did not secure the harness properly. Payne fell and sustained a neck fracture that resulted in a degenerative disk disease.
The jury determined that Fiesta was negligent in providing the Spaceball ride without assuring that its use was supervised by a trained operator. The jury returned a verdict for Payne of $1.5 million for future pain and suffering, about twice the amount that Payne’s lawyer asked the jury to award.
Dr. Armond Levy, a neurosurgeon, testified by video deposition. Dr. Levy took over Payne’s treatment from another physician after that physician left his practice. Dr. Levy relied upon the prior physician’s treatment notes when he treated Payne.
The first physician’s notes reflected that a joint between two neck vertebrae was injured in Payne’s fall. The physician considered surgery but wanted to try more conservative treatment first, including physical therapy, stabilization with a cervical collar, rest, and medication.
A year after the fall, when Payne first saw Dr. Levy, he complained of continuing pain. Dr. Levy testified that the pain resulted from an injury that was caused by Levy’s fall while riding the Spaceball.
Since conservative treatment did not alleviate Payne’s pain, Dr. Levy recommended an aggressive surgical approach. He ruled out less invasive surgery and concluded that a cervical fusion would be the only effective means of lessening Payne’s ongoing suffering. Payne had not decided by the time of trial whether to have the surgery.
Dr. Levy also opined that, while Payne’s fracture had healed by the time of trial, Payne suffered damage to a nerve root in the cervical spine. The fact that nerve root injections provide temporary pain relief supported that conclusion.
Admissibility of Testimony
Fiesta objected the admissibility of Dr. Levy’s video deposition. Fiesta argued that Dr. Levy’s opinions about causation and the likelihood of future pain and suffering were speculative. Fiesta contended that Dr. Levy noted but did not rule out a “preexisting degenerative and scoliotic deformity of his neck” as the source of Payne’s suffering after the Spaceball accident.
The appellate court initially noted that injuries can have more than one cause. Under Missouri law, if negligence contributes to the injury, an independent or intervening cause of the injury does not shield the negligent party from liability.
Moreover, while Dr. Levy recommended fusion surgery, he did not testify that Payne would eventually be required to undergo the surgery. Under Missouri law, a medical opinion that an injury has increased the likely need for surgery in the future is relevant evidence. Juries are entitled to consider that likelihood when they assess damages.
The court examined the whole of Dr. Levy’s testimony to determine its admissibility. While Dr. Levy expressed uncertainty during some of his testimony about the relationship between the preexisting injury and the injury caused by the fall, he also testified to a reasonable degree of medical certainty that the fracture and the nerve root damage were caused by the fall.
Fiesta’s objection to the admissibility of the entire deposition, if granted, would have prevented the jury from hearing admissible testimony. Rather than focusing its objections on specific answers to specific questions, Fiesta’s tactic of objecting to the deposition in its entirety was misguided.
Theories Supported by Evidence Are Not Speculative
Fiesta also complained that Dr. Levy could not explain with certainty why Payne continued to suffer after the fracture healed. Dr. Levy testified that nerve root damage was a “theory” that explained ongoing pain, albeit one that was supported by medical evidence.
The appellate court concluded that Dr. Levy was not required to explain the precise mechanics of the injury. He was only required to testify that the fall caused Payne’s continuing pain. That testimony was supported by the facts, including the absence of neck pain prior the fall, the efficacy of nerve root injections at relieving pain, and Dr. Levy’s review of X-rays, CT scans, and MRI scans. Dr. Levy’s opinion as to causation and the likelihood of continuing pain was therefore admissible.
The court’s decision is consistent with the general rule that medical testimony need not conclusively establish a mechanism of injury. Medical science is fraught with uncertainty, but plaintiffs in civil cases need only prove causation and damages to a standard of probability, not certainty. The fact that a doctor does not understand the precise cause of pain does not prevent a doctor from opining, based on medical judgment, that the pain is probably caused by a specific event.
The expert whose testimony was key in a 1985 murder conviction now says that he believes some of his conclusions were incorrect.
Murder Conviction of Joe Bryan
Joe Bryan was convicted of killing his wife Mickey in 1985, but has always maintained his innocence. At the time of his arrest, Bryan had no criminal record. In the days surrounding his wife’s murder, Bryan had been 120 miles away at a principals’ convention. According to the state’s theory, Bryan had left his hotel in the middle of the night, drove home and shot his wife, then returned to his hotel and his convention the following morning.
During both of Bryan’s trials, police Detective Robert Thorman’s testimony was key in helping to explain why no blood was found inside Bryan’s car. Thorman testified that the tiny flecks of blood on a flashlight that was found in Bryan’s trunk were “back spatter,” a pattern that indicated a close range shooting. Thorman’s testimony tied the flashlight to the crime scene, when he opined that the killer had likely held the flashlight in one hand while firing a pistol with the other.
Thorman was a police detective from Harker Heights, Texas, who had only had 40 hours of training in bloodstain-pattern analysis when he was called to consult on Bryan’s case.
In May, Bryan’s case was the subject of an investigation by ProPublica and the New York Times Magazine that questioned the accuracy of the bloodstain-pattern analysis that was used to convict him.
Last month, the Texas Forensic Science Commission announced that the blood-spatter analysis that was used to convict Bryan was “not accurate or scientifically supported.” The commission is an organization that investigates complaints about the misuse of forensic testimony and evidence and criminal cases.
The commission asked bloodstain-pattern analyst Celestina Rossi to re-examine the case. Rossi was critical of Thorman’s interpretation of the crime scene and the flashlight. Rossi determined that the dark-brown flecks that were found on the flashlight did not “radiate back in a radiating pattern” as they would have in “a back-spatter event.” Therefore, she concluded that the bloodstains were inconsistent with a close range shooting.
Rossi said, “Thorman’s testimony was egregiously wrong. . . . If any juror relied on any party of his testimony to render a verdict, Mr. Bryan deserves a new trial.” Thorman’s “expert” testimony is another example of how police officers who dabble as “experts” often see themselves as advocates who seek convictions rather than neutral experts who seek the truth.
Affidavit Recanting Testimony
Bryan’s defense team filed a motion for a new trial. At a hearing on the motion, Bryan’s attorney Jessi Freud presented an affidavit for Robert Thorman recanting his testimony.
Thorman’s affidavit stated, “Some of the techniques and methodology were incorrect. Therefore, some of my testimony was not correct.” Thorman stated, “In no way did I lie in my report or testimony. . . . I was doing what I thought was correct as a result of my training at the time.” Thorman’s affidavit did not specify which portions of his testimony were erroneous.
The motion is before Judge Doug Shaver who will make a recommendation to the Court of Criminal Appeals as to whether Joe Bryan should get a new trial.