Category Archives: ExpertWitness

The FTC Is Searching for Expert Witness

Expert witnesses are in short supply at the Federal Trade Commission after Carl Shapiro, an economist who teaches at the University of California – Berkeley, declined to participate in the FTC’s antitrust suit against Facebook.

Facebook Litigation

In December 2020, the FTC sued Facebook for engaging in anticompetitive practices. The FTC alleged that Facebook has maintained a monopoly position in the social networking industry by acquiring competitors, including Instagram and WhatsApp. The FTC also contended that Facebook imposed anticompetitive conditions on software developers.

Facebook has acquired a number of smaller companies that play varying roles in the social media industry, including Kustomer (customer service chatbots), Snaptu (smartphone apps), Beluga (messaging apps), Face.com (facial recognition), and Onavo (mobile analytics). The acquisitions have typically been folded into Facebook. Beluga’s messaging app, for example, became Facebook Messenger.

The FTC alleged that Facebook’s “course of conduct harms competition, leaves consumers with few choices for personal social networking, and deprives advertisers of the benefits of competition.” The FTC wanted Facebook to sell Instagram and WhatsApp, to stop imposing anticompetitive conditions on software developers, and to seek prior approval from the FTC before acquiring new companies.

The case has not gone well for the FTC. In late June, the judge dismissed the FTC’s complaint after finding that the FTC did not allege sufficient facts to demonstrate that Facebook was actually a monopoly. The court also dismissed a companion suit by state attorneys general because the states waited too long to file it.

The court gave the FTC an opportunity to amend its complaint to allege more facts that would demonstrate a violation of antitrust laws. The FTC requested an extension of time to prepare and file its amended complaint, apparently in response to its loss of Shapiro’s services.

Missing Expert

The FTC may be able to draft an amended complaint without expert assistance, but the agency has traditionally relied upon economists to make a case against alleged monopolists. It hired Shapiro in 2019, paying his economic consulting firm more than $5 million.

Politico reports that the FTC paid Shapiro almost twice as much as it paid for other expert services during the past two years “at a time the agency has told Congress it is strapped for cash.” That might not be surprising. With a value of more than $1 trillion, Facebook can afford to fund an aggressive antitrust defense. The FTC will need to spend some money if it has any hope of proving its case.

Shapiro did not respond to Politico’s inquiries about the reasons for his departure. Politico notes that Shapiro has criticized new FTC Chair Lina Khan’s “aggressive approach to antitrust enforcement.” The social value of breaking up large companies is controversial, with many economists arguing that businesses should not be punished for their success. An economic system that depends on competition, after all, should recognize that the best competitors may drive less innovative competitors out of the marketplace.

On the other hand, tactics that intentionally stifle competition, such as buying direct competitors and shutting them down to maintain market dominance, are harmful to consumers. A disagreement about where to draw the line in antitrust enforcement may narrow the field of economists who are willing to act as expert witnesses for the FTC.

Paying for Experts

The FTC confirmed Shapiro’s departure and its need for a new expert:

“The FTC does not comment on internal deliberations over any particular expert engagement,” spokesperson Lindsay Kryzak told POLITICO. “But the agency routinely reviews its expert support needs, including to ensure that the agency is making the best use of limited public funds while carrying out its law enforcement obligations.”

A 2019 audit found that the FTC pays about $750 per hour for experts. The audit recommended that the FTC use its in-house economists as experts in most cases. However, a former staffer told Politico that the FTC doesn’t have the computing power or infrastructure to take on the massive data analysis required in large antitrust cases.

Politico determined that the FTC spent $21.3 million for expert witness services during the fiscal year that ended on September 30, 2020. In the current fiscal year, the FTC has spent $25 million. The amounts paid vary between a few thousand dollars and several million, depending on the work required. The $5.7 million that the FTC paid to Shapiro’s firm is nearly twice the amount the FTC paid for expert witness services in any other case.

Outside experts told Politico that the largest expenditure of funds usually occurs later in the case, when experts are required to write reports. The FTC typically pays $1 million to $2 million for expert reports in complex cases. The Facebook litigation, however, is far from typical. One expert explained that the Facebook case involves “mind bogglingly large quantities of data.”

The new expert may be able to use the data that Shapiro already furnished to the FTC. To defend his or her opinions in court, however, the expert will need to conduct a fresh analysis of that date. That will likely require significant funding.

As a former FTC staffer explained to POLITICO, politicians and the public have complained that tech firms like Facebook are “too big,” although their reasons for making those complaints sometimes have little to do with economics. The staffer laments that the same people complain that the FTC spends too much money on expert witnesses. Noting that critics can’t have it both ways, the former staffer argued that Congress needs to give the FTC adequate resources if it wants the agency to tackle economic behemoths like Facebook.

Georgia Court Reinstates Malpractice Verdict Despite Expert’s Equivocal Testimony About a Nationwide Standard of Care

Connie Lockhart was treated in a hospital emergency room in Cherokee County, Georgia. An emergency room physician, Dr. Glenn Bloom, mistakenly placed a catheter in her femoral artery rather than a femoral vein. The accumulation of medications administered through the catheter destroyed the tissue in her leg, resulting in its amputation.

Lockhart sued Dr. Bloom for medical negligence. Lockhart relied on the expert testimony of Dr. Eric Gluck to establish a breach of the standard of care for inserting a femoral catheter. Dr. Gluck had been board certified in critical care medicine for 27 years and had extensive experience placing central venous catheters in the femoral region.

Dr. Gluck is not an emergency room physician. He testified that he runs the ICU at the Chicago hospital where he is employed. He also testified that he is chair of a critical care committee that sets hospital policy for critical care departments, including the emergency department. He had personal, recent experience placing femoral catheters in an ICU but not in an emergency room.

Dr. Gluck testified that emergency room physicians, critical care physicians, and general practice physicians all follow the same standard of care for placing a femoral catheter. The standard of care requires the physician to identify the correct vein in which to insert the catheter and to follow an accepted procedure for its insertion. After it is inserted, the standard of care requires the physician to use one of four methods to confirm that it was inserted in the correct location.

Dr. Bloom acknowledged that he mistakenly inserted the catheter into the femoral artery but contended that he had no need to confirm its placement in the correct location because he did not suspect that it was placed incorrectly. The standard presumably requires doctors to double-check their work precisely because they might not suspect that they erred. Dr. Gluck expressed the opinion that Dr. Bloom breached the standard of care by failing to confirm the catheter’s placement in its intended location.

On cross-examination, Dr. Gluck admitted that he did not know whether emergency physicians are taught to verify the placement of a catheter. He knew that physicians in the Chicago hospital where he worked were required to verify the catheter’s placement, but he did not know whether that was a nationwide standard. On redirect, Dr. Gluck testified that he was confident that confirming the placement of catheters is a standard that applies regardless of geographical location.

Directed Verdict

After the presentation of evidence concluded, Dr. Bloom moved for a directed verdict on the ground that Dr. Gluck was not qualified to articulate the standard of care that applies to Georgia emergency room physicians who place femoral catheters. The trial court concluded that Dr. Gluck’s testimony was “equivocal” as to whether a nationwide standard of care existed. The court concluded that Dr. Gluck was not able to testify about the specific standard of care that applies to emergency room physicians in Georgia, a state in which he never practiced medicine.

The court ruled that Dr. Gluck’s testimony did not establish a standard of care and that Lockhart therefore failed to prove a breach of that standard. The court thus directed a verdict in favor of Dr. Bloom despite the obvious harm he caused to his patient.

Nationwide Standard of Care

Courts define a standard of care as the care, skill, and treatment that, under the circumstances, is recognized as appropriate by reasonably prudent healthcare providers who practice in the same or a similar field of medicine. During much of the nation’s legal history, plaintiffs in medical malpractice cases were required to prove the standard of care that applied in the community where the treatment was provided. Courts were concerned that doctors in rural communities should not be held to the same standards as big city doctors because they had no opportunity to learn of “modern” practice trends that were implemented in remote urban locations.

The “locality rule” began to change as communication and transportation barriers disappeared. Many courts allowed expert testimony about the standard of care in similar communities within a region when physicians had the opportunity to gain experience and keep abreast of medical developments by visiting those communities.

By the late twentieth century, it was clear to most courts that doctors everywhere have the same opportunity, and thus the same responsibility, to educate themselves about best medical practices. Medical journals are available nationwide. Travel to continuing education programs in larger communities was no longer burdensome. With the advent of the internet, webinars bring continuing education programs to physicians in remote parts of the country.

Most courts now agree that it isn’t unfair to expect all physicians within a specialty to be familiar with standards that are widely regarded as necessary to protect patients from harm. For the most part, courts accept that nationwide standards of care, rather than local standards that vary from community to community, are necessary to assure that patients receive care that is consistent with medical advances known to average physicians in the United States who practice in a particular specialty.

Some jurisdictions cling to the “locality” or “similar community” rule. Those jurisdictions seem more interested in protecting physicians from liability for their failure to learn about current standards of care than in protecting patients from negligent care.

Appellate Analysis

The Georgia Supreme Court agreed that Dr. Gluck’s testimony was inconsistent. During his direct and redirect testimony, Dr. Gluck described a nationwide standard of care that applies to all physicians who place femoral catheters. On cross-examination, he admitted that he does not know if that standard of care is taught in all emergency room residency programs. He explained that his knowledge was based on his own experience in establishing a hospital-wide standard of care in Chicago.

Proving the existence of a nationwide standard doesn’t necessarily require proof that every medical school in the nation teaches that standard. No single expert is familiar with the teaching practices in every medical school. By virtue of their own experience attending conferences and meeting with other physicians who practice in a specialty, experts are often capable of forming an opinion that a nationwide standard of care has emerged.

Dr. Gluck’s testimony nevertheless created some uncertainty as to whether he was describing a national standard or a standard that applied only in the Chicago hospital where he worked. However, the supreme court noted that Dr. Gluck’s testimony was admitted into evidence without objection. Dr. Bloom did not make a Daubert challenge to Dr. Gluck’s qualifications or to the facts and methodology that informed his opinion. Instead, Dr. Bloom laid in the weeds and first raised his objection in a motion for a directed verdict after Dr. Gluck’s opinion was already in evidence.

In Georgia, a directed verdict should be granted only if there is no evidence that would support a verdict in the party’s favor. Dr. Gluck testified that a nationwide standard of care existed. If he contradicted that testimony, it was up to the jury to decide which of Dr. Gluck’s contradictory statements to believe. When the trial court decided that Dr. Gluck’s testimony was “equivocal,” the court was commenting upon the expert’s credibility, not upon the existence of evidence that would support the verdict.

The credibility of an expert witness is always for the jury to decide. The trial court erred by disregarding expert testimony that supported the verdict. The supreme court accordingly reversed the judgment.

Lessons Learned

Lawyers can learn two lessons from the Lockhart decision. First, when an expert witness needs to establish a standard of care, lawyers should prepare the witness to explain why the expert believes that the standard has been adopted nationwide. Reference to medical textbooks, journal articles, or seminars with a nationwide audience may support the belief that a nationwide standard of care exists.

Second, lawyers who want to challenge an expert’s opinion should not wait until the evidence is closed to bring that challenge. Making a Daubert motion before trial or objecting during the trial may result in exclusion of the evidence. While lawyers, as a tactical matter, might not want to alert opposing counsel to deficient testimony while counsel may still be able to correct it, laying in the weeds may allow a jury to base a verdict on testimony that could have been excluded if a timely objection had been made.

Defense Expert’s Opinion About Life Expectancy Was Properly Excluded in Washington Wrongful Death Case

Doy Coogan operated an excavation business. During his lifetime, he repaired several cars, as well as industrial equipment that the business used. To make the car and equipment repairs, Coogan purchased brakes, clutches, and other asbestos-containing parts from local NAPA stores.

Coogan was diagnosed with mesothelioma, a disease that has only known cause: asbestos exposure. The cancer metastasized and Coogan’s condition deteriorated. After enduring severe pain as his organs progressively shut down, he died at the age of 67.

Coogan’s estate and his wife sued NAPA for wrongful death. The lawsuit was based on evidence that NAPA auto parts were the only source of Coogan’s asbestos exposure. After a 12-week trial, the jury found in favor of Coogan’s estate and awarded $81.5 million in damages. The verdict included $20 million for Coogan’s wife to compensate her for loss of consortium. The trial court denied a motion to overturn that verdict.

The Washington Court of Appeals remanded the case for a new trial on damages. The court ruled that NAPA should have been allowed to introduce expert testimony regarding Coogan’s life expectancy if he had not been exposed to asbestos. It also concluded that the verdict was excessive because it “shocked the conscience.”

The Washington Supreme Court ruled that the state Constitution places greater weight on the jury’s role in awarding damages than the court of appeals recognized. The supreme court concluded that the verdict was not unjust simply because it was substantial. In the absence of “some malign influence or egregious impropriety” that might have affected the jury’s verdict, the court of appeals had no basis for concluding that the verdict was the product of passion or prejudice. In Washington, the size of the verdict alone is not cause for substituting the court’s view of appropriate damages for the jury’s opinion.

Expert Testimony Regarding Life Expectancy

The court of appeals also concluded that the trial court erred by excluding the testimony proffered by one of NAPA’s expert witnesses. The appellate court’s remand for a new trial was based on the exclusion of that expert testimony.

The damages claim, including the loss of consortium claim, was premised on actuarial tables showing that a 67-year-old man has an average life expectancy of 15 years. NAPA wanted to introduce the expert testimony of Dr. Gary Schuster that Coogan had a shorter life expectancy. Dr. Schuster is a specialist in internal medicine.

Dr. Schuster would have testified that Coogan had advanced cirrhosis of the liver due to a history of heavy alcohol use. In Dr. Schuster’s opinion, Coogan’s life expectancy was only 5 years.

The trial court excluded Dr. Schuster’s proposed testimony, finding it to be of “minimal probative value.” The court of appeals concluded that even if the probative value of Dr. Schuster’s opinion was minimal, it was admissible because it was probative of a central issue in the case: Coogan’s life expectancy.

Speculative Opinion Testimony

The Washington Supreme Court concluded that the trial court properly exercised its discretion in excluding Dr. Schuster’s testimony as “overly speculative.” Dr. Schuster based his opinion that Coogan suffered from cirrhosis (a stage 3 level of liver disease) on the fact that Coogan had ascites, or fluid buildup, around his liver and spleen. Dr. Schuster believed that ascites is indicative of cirrhosis because, in its absence, a patient is only at stage 2.

Schuster assumed that liver disease caused the fluid buildup. Coogan’s physicians, on the other hand, attributed the ascites to his mesothelioma. Dr. Schuster admitted that Coogan’s cancer was “a significant source” of the fluid buildup. He also admitted that there is no way to separate ascites caused by mesothelioma from ascites caused by liver disease. He acknowledged that whether liver disease caused zero percent or twelve percent or any specific percentage of the ascites was impossible to determine.

While Dr. Schuster opined that if Coogan’s enlarged spleen and large portal veins were indicative of cirrhosis, he admitted that those symptoms alone, in the absence of ascites, would not support a diagnosis of cirrhosis. Since he did not know the cause of the ascites, he could only speculate that the other symptoms supported a diagnosis of cirrhosis.

At Coogan’s age, a diagnosis of stage 2 liver disease would not have shorted his life expectancy. Dr. Schuster’s opinion that Coogan had only a 5-year life expectancy was dependent upon his assumption that Coogan had reached stage 3. While it is true that Coogan might have had cirrhosis, an expert opinion has little probative value when it is based on facts that might be true. It did not become more probative simply because it was rendered by an expert. Experts must base opinions on facts that are true or that the jury could reasonably believe to be true, not on speculation about facts that cannot be established.

The supreme court also concluded that the trial court was entitled to exclude Dr. Schuster’s opinion on the ground that it was more prejudicial than probative. Evidence that Coogan was a hard drinker might affect a jury’s view of Coogan for reasons that relate to his character. The evidence was only relevant to life expectancy. To the extent that Coogan’s character was an issue in the case, it wasn’t an issue that could be proved by a doctor’s speculative testimony about the condition of his liver.

Expert Testimony Properly Excluded

The supreme court concluded that the court of appeals erred by substituting its judgment for the trial court’s reasoned decision. While the court of appeals decided that prejudice could have been avoided by barring any reference to Coogan’s alcohol consumption, the trial court’s disagreement with that assessment was not unreasonable. It is difficult to believe that some jurors, at least, would not associate cirrhosis with heavy drinking.

In any event, it does not matter that the court of appeals would have admitted the evidence because admissibility must be decided by the trial court. The only question for the reviewing court is whether the trial court’s decision to bar the evidence was reasonable. The supreme court concluded that the decision was reasonable and that it should therefore have been affirmed.

Court to Evaluate Validity of Forensic Ballistics

A Virginia court will evaluate the validity of forensic ballistic and firearm examination.

The Crime

On February 17, 2018, 74-year-old Mary Jackson and her pregnant granddaughter, 33-year-old Tiffany Byers, were found shot to death at home. The body of Byers’ husband, 45-year-old Aaron Byers, was later found in a shallow grave on a property owned by 37-year-old Paul Brock.

Justin Collins, who was Mary Jackson’s grandson and Tiffany Byers’ brother, testified that he was at the property at the time of his grandmother’s and sister’s shooting. Collins said that he heard a gunshot and did not see the shooter, but heard his sister say, “Paul, you shot me.” Collins later identified a photo of Paul Brock as a person that he recognized as previously visiting his home.

Brock was charged with three counts of capital murder, fetal homicide, tampering with physical evidence, and being a first-degree felony offender in connection with the deaths. Brock would later admit to killing Aaron Byers, but said it was done in self-defense. Brock claims that he had nothing to do with the deaths of Mary Jackson and Tiffany Byers.

The Forensic Examination

A forensic examiner took apart and examined the bullets that were used to kill Mary Jackson, Tiffany Byers, and Aaron Byers. She examined the pieces under a microscope and determined “that the lands and grooves on each individual bullet were of similar agreement, which is what they call it to determine if they were fired from the same gun … all the bullets from all the bodies came from the same weapon.”

The Commonwealth wanted to present this evidence, but Brock’s defense team objected. The court held a Daubert hearing to determine whether the evidence should be admitted.

**The Daubert Hearing**

Gregory Klees, an examiner with the Bureau of Alcohol Tobacco Firearms and Explosives, testified as an expert witness for the Commonwealth. Klees testified that the firearms testing was valid and that the theories and techniques of ballistics examination have been subject to review for over 100 years. When asked whether he knew of any jurisdictions that did not allow firearms examination testimony, Klees responded, “Except for some individual court cases, I don’t know of any standard or federal courts that have excluded it all together.”

Brock’s defense team called Dr. Jeff Salyards, a Principal Analyst with Compass Scientific Consulting and former Chief Scientist for the US Army Criminal Investigation Laboratory as an expert witness. Dr. Salyards noted his concern with the validity of the peer-review process used by ballistic examiners. Dr. Salyards testified that until recently, the firearms examination field did not use blind review studies. Dr. Salyards also stated that the average industry error rate of less than 2 percent could be attributable to the way that studies surrounding the forensic science had been set up.

At the conclusion of the hearing, Whitley County Circuit Court Judge Dan Ballou ordered both sides to submit briefs on their arguments. The case is scheduled for one additional status hearing prior to Brock’s jury trial, which is scheduled to begin on September 8, 2021.

Opioid Manufacturers Challenge Addiction Expert’s Testimony

The attorneys for the manufacturers of opioids have challenged the credibility of an addiction expert who testified that their client’s misleading marketing materials helped to cause the opioid epidemic that has plagued thousands of families in Long Island since the late 1990s.

The Case

The lawsuit at issue was filed in New York State Supreme Court. It alleges that drug manufacturers and distributors created a public nuisance by misleading physicians and patients with marketing that minimized the dangers and addiction risks of opioids.

State and county officials have stated that they hope to hold the drug manufacturers and distributors responsible for the death and suffering caused by the opioid epidemic and to recover hundreds of millions of dollars for treatment, recovery, and prevention.

The drug manufacturers and distributors have denied responsibility. They claim that they followed all regulations and are being blamed for the actions of health regulators who encouraged opioid use and the doctors who overprescribed them.

The case is before Supreme Court Justice Jerry Garguilo — In re Opioid Litigation— New York Supreme Court, Suffolk County, No. 400000-2017. It will be the first case of its kind to go before jurors in the United States. This case puts the entire opioid supply chain on trial. In similar cases, only a small number of the companies that were actually sued were taken to court. Most parties reached settlements in those cases before the trials began. Hundreds of witnesses are expected to be called over the course of the trial.

Expert Witness Dr. Anna Lembke

The state and the counties retained Dr. Anna Lembke to testify as an addiction expert. Dr. Lembke is a professor of psychiatry at Stanford University and a physician who treats patients who are struggling with substance abuse.

Dr. Lembke testified that the drug manufacturers and distributors’ marketing materials helped to fuel the opioid epidemic. She stated that defendants Teva Pharmaceuticals, Endo Pharmaceuticals, and Allegan Finance, used misleading promotional materials to convince health care providers that their opioid medications were safe.

Cross-Examination

Attorneys from the drug companies attempted to discredit Dr. Lembke. Under cross-examination from Teva Pharmaceuticals attorney Harvey Bartle, Dr. Lembke admitted that she had been paid hundreds of thousands of dollars to appear as an expert witness for plaintiffs who have been suing opioid makers in recent years.

Bartle played a video of Dr. Lembke at a 2015 Stanford panel on opioids. During this panel, Dr. Lembke also stated that opioid prescriptions surged in the 1980s because of a “groundswell” among doctors who feared that they were not doing enough to alleviate pain. Dr. Lembke also stated that this increase in opioid prescriptions “came from a really good place” and “really needed to happen.” Dr. Lembke responded that Bartle had mischaracterized her testimony.

Under cross-examination from Jim Heirschlein, attorney for Endo Pharmaceuticals, Dr. Lembke admitted that she did not know how many physicians in Nassau and Suffolk Counties or New York State had been influenced by pharmaceutical marketing messages or how many prescriptions had been written in the states since the 1990s, when the opioid epidemic began.

Improper Testimony of Human Trafficking Expert Deemed Not Prejudicial in Utah

The phrase “human trafficking” conjures images of buying or kidnapping children or young women from impoverished countries and selling them as slaves in developed countries. Those images do not necessarily produce an accurate understanding of “human trafficking” as governments have chosen to define it. While trafficking in the sense of buying and selling humans is prevalent in some parts of the world, it is uncommon for victims from other countries to be trafficked into the United States.

A more common use of the term “human trafficking” in American law is presented in a recent appellate decision in Utah. The case involved a fairly routine charge against an adult who managed and directed the prostitution of a minor. Since that is not what “human trafficking” brings to mind, the prosecution called an expert witness to explain why the crime fit within Utah’s definition of human trafficking.

Facts of the Case

The 22-year-old daughter of Joseph Moore met a 16-year-old girl identified in the appellate decision as “Mindy.” Moore’s daughter told Mindy that they could each make $200 to $300 each time they teamed up for a sexual encounter with men they would meet through a website. Mindy agreed because she wanted money to support her drug habit.

Moore’s daughter introduced Mindy to Moore, who offered to help them provide services to men. He signed papers so that Mindy could obtain a piercing. He helped Mindy and his daughter create online profiles, drove them to their appointments, and remained in the car to provide security. In exchange, he received about 40{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of their earnings.

Although Moore offered to be a “partner” with his daughter and Mindy, at some point Mindy felt that he was acting more like “the boss” than a partner. Moore decided which appointments they would accept and which they would not.

After a few months, authorities became aware of the enterprise. Moore was arrested and charged with one count of human trafficking of a child, one count of aggravated exploitation of a child prostitute, and one count of exploiting prostitution.

Expert Testimony

The prosecution called an expert witness “to educate the jury on human trafficking” and to dispel some “common misconceptions” about the subject. The appellate opinion notes only that the witness is a professor. The professor’s field of study is not identified.

The professor testified that human trafficking occurs when a person “recruits, obtains, harbors, transports . . . or entices” others through force or fraud “for the purpose of their sex or labor.” She further testified that children who engage “in sexual economies,” including prostitution and pornography, are considered “sex trafficked” because children “cannot consent to their own abuse.”

The professor testified that human trafficking “is not just an international phenomenon” and that it occurs in Utah and throughout the United States. She testified that a victim does not have to be kidnapped to be trafficked but can “be trafficked out of their own home” and even by a parent. She testified that those who are trafficked are not always “locked up in basements” or “hidden from sight,” and that while some will report the trafficking almost immediately, others may stay in “abusive conditions” for years and even decades. She stated that a trafficker “might break a person’s will to leave” by debilitating or “literally” exhausting that person.

The professor testified about recruitment methods and the different ways sex trafficking is advertised. She also testified that trafficking is a lucrative business because a trafficker can “sell a person over and over again.” She claimed that child trafficking is especially lucrative in part because of the “huge demand” for young girls known as “cherry girls” who “just had their first period.”

Throughout her testimony, the professor characterized people who have been trafficked as “survivors” and occasionally as “victims.” She acknowledged that she knew nothing about Mindy or the facts of the case. She pointed to no evidence that Mindy was a “cherry girl.” She offered no conclusion as to whether Moore had trafficked Mindy or whether Mindy was a “survivor” of human trafficking.

In essence, the professor gave the jury her own opinion about the meaning of the term “human trafficking.” The obvious question is whether an expert’s personal definition of a legal term used to define a crime is relevant to anything in a criminal trial.

Trial Court Ruling Regarding Testimony

Remarkably, Moore’s lawyer did not object to the expert testimony. After the professor testified, the trial court observed that the professor “essentially provide[d] a lecture to the jury on human trafficking,” and that some of her testimony, including the “comments about children being virgins,” were disconnected from the actual facts.

The trial judge asked the lawyers to submit briefs regarding the admissibility of the expert’s testimony. The prosecution responded with a brief. The defense lawyer filed nothing.

The judge ultimately instructed the jury that “Some portions of the expert testimony may not apply to the evidence you heard. You may choose not to consider any portions of the expert testimony about human trafficking that are not applicable to the evidence presented.”

The jury found Moore guilty. He appealed, arguing that his lawyer’s failure to challenge the expert’s testimony amounted to a failure to render effective assistance of counsel to Moore.