An expert witness has filed a small claims case against Drake, claiming that the rapper failed to pay his expert witness fees.

The Original Lawsuit

Drake, the Canadian rapper, singer, songwriter, actor, and producer, was involved in a legal dispute with the production company, Hebrew Hustle. 

On April 16, 2014, Hebrew Hustle and the Estate of James Oscar Smith sued Drake and Cash Money Records, claiming that Drake had infringed upon one of their songs. Hebrew Hustle claimed that Drake willfully infringed their song by using an unapproved sample of the late Jimmy Smith’s 1982 song “Jimmy Smith Rap” on his “Pound Cake/Paris Morton Music 2.”

Drake filed a countersuit. In his suit, Drake claimed that Hebrew Hustle and its founder, Stephen Hacker, had improperly used Drake’s name and likeness to promote his business by implying that he had worked with Drake. The claimed implication was in a line of text on the Hebrew Hustle website. The line at issue, which has since been deleted, read, “[Hacker] played a heavy hand with his clients in the creation of hit songs for the likes of Eminem, Jay-Z, Kanye West, Lil Wayne, Drake, Nicki Minaj, and others.”

Drake argued that Hacker and Hebrew Hustle had engaged in false endorsement and violated his right of publicity. He also claimed mental distress, claiming that the name of the company “perpetuates stereotypes regarding persons of Jewish heritage, such as [Drake].”

On May 30, 2017, the United States District Court for the Southern District of New York dismissed with prejudice all the Copyright Claims that Hebrew Hustle and the Estate of James Oscar Smith had filed against Drake.

Expert Witness Testimony

Drake retained CMG Worldwide Founder & Chairman, Mark Roesler, to testify on his behalf in his lawsuit. Roesler has been described as a “dominant force in the evolving intellectual property arena.”

Drake and Hebrew Hustle eventually settled their dispute. According to the agreement, Hebrew Hustle “agreed to compensate [Drake] on confidential financial settlement terms for the False Endorsement and Right of Publicity claims and also to the entry of this consent order.” The parties also agreed that Hebrew Hustle was prohibited from ever using Drake’s name or image on their website.

The agreement provided that:  Hebrew Hustle can no longer use Drake’s name, image, and likeness. Drake’s claims were now considered dismissed with prejudice. Each party would pay their own attorney fees and legal costs. The consent order did not prohibit Hebrew Hustle from appealing their case against Drake. In any post-appeal proceedings on copyright claims, each party’s respective legal rights are fully reserved.

Small Claims Filing

This month, Roesler filed a small claims suit against Drake. The expert claims that Drake never paid him the fee that they agreed upon for his testimony that was given at the October deposition.

Roesler claims that he was deposed in October 2018 for over 8 hours. He claims that Drake agreed to pay a $5,312 for Roesler’s services, but he has not received that amount.

Photo Credit: Drake [CC BY 2.0], musicisentropy.

Oklahoma Governor Kevin Stitt has signed into law a piece of legislation that will allow expert witnesses to testify in cases of domestic violence about the effects of violence on their victims and their children and the risks that abusers pose to the victims and children.

Oklahoma Senate Bill 958 was a bipartisan bill that was sponsored by Senator Kay Floyd [D] and Representative Kevin West [R]. The bill was intended to clarify the admissibility of certain expert testimony.

Amended Statute

The bill amends 22 O.S. 2011, Section 40.7 to read:

In an action of a court of this state, if a party offers evidence of domestic abuse, testimony of an expert witness including, but not limited to, the effects of such domestic abuse on the beliefs, behavior and perception of the person being abused shall be admissible as evidence.

The bill was passed unanimously by the House of Representatives.

Legislative Intent

The new legislation clarifies that in Oklahoma courts, if a party presents evidence of domestic violence, an expert witness may testify about the effects of violence on the abused. 

Bill co-sponsor Representative West said of the legislation, “It is not acceptable that expert testimony regarding the effects of domestic violence on children and other family members is excluded. . . . I am confident this will be a significant benefit to victims of domestic violence throughout our state, as well as a wake-up call for the abusers.”

The bill’s other sponsor, Senator Floyd, said, “Expert witnesses should be allowed to present research-based and data-driven testimony on the effects of domestic violence on children. This change is long overdue.”

Impact of Legislation

The prior version of the statute did not allow testimony that included the impact of domestic violence that was witnessed by children or allow the presentation of evidence that shows the common traits of abusers, the various types of domestic violence, generational cycles of violence or treatment options.

The updated version of the statute allows such testimony; however, it will still be subject to vigorous cross-examination. The court will remain the gatekeeper of evidence and testimony that is allowed to be presented at trial.

Rules of Evidence

In Oklahoma, the rules of civil procedure allow testimony by expert witnesses.

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise, if: 

     1. The testimony is based upon sufficient facts or data;

     2. The testimony is the product of reliable principles and methods; and

     3. The witness has applied the principles and methods reliably to the facts of the case.

12 OK Stat § 12-2702 (2014)

Oklahoma follows the Daubert test for the admissibility of expert witness testimony.  Scruggs v. Edwards, 154 P.3d 1257 (Okla. 2007). Under Daubert, the court should ask four questions to help determine the admissibility of expert testimony: “1. Can the expert’s theory or technique be, or has it been, tested; 2. Has the expert’s theory or technique been subjected to peer review and publication; 3. Is there a “known or potential rate of error … and the existence and maintenance of standards controlling the technique’s operation; and 4; Is there widespread acceptance of the theory or technique within the relevant scientific community.”

As is common in other states, the maximum sentence for a drug crime in South Carolina is tied to the quantity of drugs involved in the crime. For most drugs, quantity is measured by weight. Possessing ten pounds of marijuana is classified as a serious drug trafficking crime in South Carolina, while the penalties for possession of fewer than ten pounds are less severe.

While it might seem that the weight of a drug would be an uncontroversial fact, drug quantities are often subject to dispute. For example, marijuana weighs more at the moment it is harvested than it weighs after the plants and their buds lose water in the process of drying. Apart from questions about whether police officers have their thumbs on the scale when weighing marijuana, weight is something that can change over time.

Daniel Herrera was charged with possessing (and because of the quantity, “trafficking in”) 10 pounds, 2.78 ounces of marijuana. Had he been charged with possessing three fewer ounces, he would have been tried for a less serious crime.

South Carolina classifies drug trafficking as a violent crime, whether or not the crime involves violence. Defendants convicted of violent crimes in South Carolina must serve a larger percentage of their sentence than other offenders before they are eligible for parole.

Herrera denied that he knowingly possessed any marijuana at all. He also challenged the admissibility of the testimony about the weight of the marijuana that was given by the state’s expert witness, a police officer. The trial court allowed the testimony and Herrera was convicted. He renewed his challenge to the expert testimony on appeal.

The South Carolina Court of Appeals affirmed the conviction without giving serious attention to Herrera’s challenge to the expert testimony. The South Carolina Supreme Court accepted review of the court of appeals’ decision and reversed the conviction.

Expert Testimony

Herrera picked up a package at the post office containing six bags of suspected marijuana. The police arrested Herrera and charged him with drug trafficking. Herrera claimed he did not know that marijuana was in the package, a claim the jury rejected.

In most drug cases, prosecutors prove that the defendant possessed an illicit drug by calling a crime lab analyst who has a background in chemistry. The lab analyst will testify that one or more tests were conducted to confirm the identity of the suspected drug.

The Scientific Working Group for the Analysis of Seized Drug (SWGASD) recommends that the analysist conduct at least two tests, one of which should meet the “gold standard” for testing (such as infrared spectroscopy). When the best tests are not available, the SWGASD recommends conducting three independent tests, two of which should be in the “second best” category of drug identification tests.

According to the National Academy of Sciences, marijuana is usually identified by two of the “second best” tests — thin-layer chromatography and low-powered microscopic identification, as well as a presumptive color test. The presumptive color test is often used as a field test to support probable cause for an arrest, but the color test returns too many false positives to be reliable proof of drug identity.

While the SWGASD standards permit marijuana to be identified by its morphological characteristics, its standards require both microscopic or macroscopic examination of the suspected drug. When visual (including microscopic) examination is used to identify marijuana, SWGASD recommends that the identification be made by a botanist.

To prove that the package seized from Herrera contained marijuana and that the marijuana weighed more than ten pounds, the prosecutor relied on the testimony of Detective Jared Hunnicutt. Hunnicutt is not a botanist. The trial court decided that Hunnicutt was qualified to testify, despite having no scientific training, based on his training and experience.

Hunicutt’s training consisted of attending a single course in drug identification sponsored by a law enforcement group. His experience consisted of arresting people for suspected marijuana crimes.

Admissibility of Hunnicutt’s Expert Testimony

Remarkably, the supreme court decided that Hunnicutt’s qualifications as an “expert” presented a “close question.” The trial judge expressed discomfort in ruling that Hunnicutt had the qualifications of an expert, but ultimately acceded to the prosecutor’s questionable contention that police officers have more knowledge about the appearance of marijuana than jurors.

Like many other appellate courts, the supreme court decided the question of the officer’s qualifications in favor of the prosecution with scant attention to the foundation for Hunnicutt’s alleged expertise. Courts too often defer to a police officer’s claim that “I know marijuana when I see it” without considering SWGASD standards or National Academy of Sciences recommendations for drug identification testimony — standards that legitimate experts would understand and follow.

The court drew a line, however, when it considered Hunnicutt’s testimony about the weight of the marijuana. The prosecutor promised the trial judge that Hunnicutt would testify as an expert only as to drug identification, then broke that promise by asking Hunnicutt if he “tested” and “analyzed” the marijuana.

The judge sustained defense objections but apparently grew weary as the prosecutor continued to ask improper questions. The judge eventually allowed Hunnicutt to testify that he weighed the marijuana at the police department and that the marijuana weighed more than ten pounds.

Expert Standards for Weighing Drugs

Given the importance of weight to the charged crime, the supreme court concluded that the trial judge erred by allowing Hunnicutt to testify about the weight of the marijuana. Hunnicutt did not calibrate the scales he used to weigh the marijuana and had no personal knowledge of when or whether the department’s evidence technician had done so. A real expert would have used precise measuring instruments that had been recently calibrated to assure that the measurement of weight was accurate.

In addition, Hunnicutt weighed the drugs while they were inside the bags that held them. Packaging materials are not drugs and, with rare exceptions, the weight of packaging materials cannot be considered when measuring drug quantity.

Hunnicutt purported to account for the weight of the six baggies holding the drugs by weighing a different baggie that he found at the police department and multiplying that weight by six. It is fair to say that the supreme court was appalled by Hunnicutt’s “expert” methodology. The weight of a baggie that was “similar” in appearance to the bags that held the marijuana had no relevance to the actual weight of the marijuana minus the packages that held it.

Police officers are notoriously sloppy expert witnesses. Their unsound methodologies reflect their inherent bias in favor of the shared goals of police and prosecutors. Why the prosecution did not use a crime lab analyst or an independent expert to weigh the drugs is unclear, but its decision to rely on Hunnicutt to prove its case resulted in the reversal of Herrera’s conviction.

An Ohio lawyer who did expert witness work on behalf of accused child pornographers is now liable for $300,000 to the women whose childhood photos he used to create fake child pornography.

The Expert Witness Work

Jack Boland of Broadview Heights, Ohio, who was formerly known as Dean Boland, once served as an expert witness on behalf of accused child pornographers. As part of his preparation for the trial, Boland took images of girls from stock photography books and digitally manipulated those photos into pornography. Specifically, he removed a doughnut from a photo and replaced it with a penis. Boland used the photos as a “before” and “after” demonstration for the jury.

He used these images as part of his testimony that innocent photographs could be manipulated and argued that the defendant may not have knowingly viewed or possessed child pornography. Boland was attempting to show that overbroad laws against child pornography could entrap a defendant who didn’t know if the images were real or fake.

Boland’s Trials

In 2007, guardians of the girls whose images Boland used sued him in federal court. He was sued under the federal law that prohibits the possession of images “created, adapted, or modified” to depict identifiable minors in explicit sexual conduct. Boland argued that he had a constitutional right to do what he did. He argued that the children hadn’t been hurt because the images were only shown in court and never electronically circulated. How the guardians got wind of the trial evidence is unclear.

The court disagreed with Boland. The girls were awarded $150,000 each in October 2011. U.S. District Judge Dan Polster wrote, “The court concludes that a constitutionally effective defense to a child pornography charge does not include the right to victimize additional minors by creating new child pornography in the course of preparing and presenting a defense.”

Boland appealed to the Sixth Circuit. The Sixth Circuit upheld the lower court’s verdict, reasoning that the $300,000 in damages under the federal child pornography law is comparable to the damage that is done by defamation. In both cases, injury to reputation and emotional well-being results.

Judge Jeffrey Sutton wrote, “When he created morphed images, he intended to help criminal defendants, not harm innocent children. . . . Yet his actions did harm children, and Congress has shown that it means business in addressing this problem by creating sizable damages awards for victims of this conduct.”

Boland avoided federal prosecution by admitting to creating and possessing child pornography and apologizing in the Cleveland Bar Journal. The fact that artificially created images do not qualify as child pornography is the more likely reason he was not prosecuted.

Bankruptcy Court Decision

In 2016, Boland filed a Chapter 7 bankruptcy. A bankruptcy judge ruled that the judgments could be discharged in bankruptcy because there was no evidence that he had intended to harm the children whose photos were used.

The bankruptcy appellate panel disagreed, ruling that Boland is still liable for the $300,000. It wrote, “In this case, the evidence from the trial unquestionably established that Boland, of all individuals, fully understood that his intentional creation, possession and use of the morphed pornographic images of the children invaded the children’s interests in their privacy and reputation.”

“As a lawyer and expert witness in the field of criminal defense in child pornography cases, Boland was aware that the use of identifiable real children in pornographic images was proscribed. . . . It similarly follows that based on his expertise, Boland was aware of the harms inherent in violating child pornography laws.”

Experts testify about a wide range of subjects, but experts in telling jokes rarely take the witness stand. A writer suing Conan O’Brien was hoping to call Elayne Boosler as an expert witness to help him prove that O’Brien stole jokes that the writer had authored. The jury will likely hear testimony from some funny people, but a judge recently disallowed the request to call Boosler, as well as a more traditional expert — a statistician — as witnesses in the trial.

Conan O’Brien Lawsuit

The lawsuit was filed by Robert “Alex” Kaseberg, a freelance comedy writer who has sold jokes to Jay Leno and other comedians. He also tells jokes on his blog and Twitter.

According to Kaseberg, some of those jokes ended up in O’Brien’s monologues. The jokes referenced in the lawsuit concerned the Washington Monument, Tom Brady, Caitlyn Jenner, and the target of every traveler’s furious joking, Delta Airlines.

The Delta joke was excluded from the lawsuit after O’Brien produced email evidence proving that his joke was created hours before it appeared on Kaseberg’s blog. Kaseberg added a fifth joke to the lawsuit but the court eventually excluded the joke because it was insufficiently similar to the one O’Brien told.

The lawsuit claims that O’Brien infringed Kaseberg’s copyright interest in the jokes by telling them without attribution and without compensating Kaseberg. In addition to O’Brien, defendants include network owner Time Warner and cable station TBS, which broadcasts the “Conan” show.

O’Brien asked the court to throw out the lawsuit, but the similarity between jokes that O’Brien told and jokes that Kaseberg blogged or tweeted is sufficiently strong to raise the inference that the jokes were stolen. O’Brien’s defense is that he (or his writing team) created the jokes independently, without knowledge of Kaseberg’s creations.

Expert Evidence

Kaseberg proffered the testimony of two expert witnesses. Rule 702 of the Federal Rules of Evidence and the Daubert decision impose limits on a party’s right to rely on expert testimony while recognizing the need to prove facts with witnesses who have specialized knowledge that jurors will usually lack.

Does joke telling require specialized knowledge? Nearly everyone tells jokes, although some joke tellers are obviously better than others. Comedians give more thought to what makes a joke funny than most people, so their insights might be include the kind of specialized knowledge that would qualify them as joke experts.

The trial will not address whether the jokes at issue are funny; the issue is whether they were stolen. Whether expert evidence would be helpful to the jury in deciding that issue was the question before the court.

Statistical Evidence

Kaseberg wanted to present the testimony of David Barsky, a statistician who analyzed the “pattern” of jokes created by Kaseberg that appeared in Conan monologues to determine “whether this pattern suggested that this might be a chance occurrence.” O’Brien challenged Kaseberg’s methodology, arguing that he adopted Kaseberg’s definition of O’Brien jokes that are “similar” to his own without conducting an independent analysis of similarity.

One might argue that no expertise is required to know whether one joke is similar to another. Under those circumstances, agreeing with Kaseberg is not necessarily the same as deferring to Kaseberg.

The judge, however, adopted a skeptical stance toward “statistics created in anticipation of litigation.” The judge echoed other courts that have criticized statistical models that are prepared with litigation in mind.

It seems a bit silly to fault Kaseberg for not preparing a statistical model to analyze jokes before he was hired to do so. Why would he (or any other statistician) engage in an apparently random statistical exercise until there was a reason to do so? The fact that an expert did not devise a model for analyzing statistics until the expert was hired to do so should usually be seen as a credibility issue that a jury should consider.

The reliability of the statistical model and the data to which it was applied is a more troubling question. The court faulted the expert for making assumptions about the number of jokes that Kaseberg told each day, given that O’Brien’s expert came up with a different number. Kaseberg’s expert also based his opinion on the existence of five similar jokes while the court determined that only three similar jokes remain at issue in the case.

Errors in assumptions that drove the statistical model would affect the reliability of the analysis, but the expert did not correct those errors. However, whether they actually were errors or simply differences of opinion might be seen as an issue for the jury, not the judge, to resolve.

The largest problem with the statistician’s opinion, and the problem that doomed it, was its failure to address a meaningful issue. The statistician’s opinion about the odds of overlapping jokes occurring was not tethered to the issue the jury needed to resolve.

Two joke writers who make jokes about current events have some likelihood of telling similar jokes about the same newsworthy events. The statistician’s model could not evaluate whether two similar jokes were or were not created independently. Since independent creation is the key issue in a copyright infringement lawsuit, the statistician’s opinion about a “pattern” of similar jokes would do little to enlighten the jury. The court excluded the opinion for that reason.

Elayne Boosler

Kaseberg wanted to call comedienne Elayne Boosler as an expert in the similarity of the jokes told by Kaseberg and those told by O’Brien. In particular, she would have testified that the jokes are objectively the same because they share the same premise and punchline.

While the court agreed that Boosler is an expert at telling jokes, her ability to determine that one joke is similar to another is no greater than a typical juror’s. Comparing the content of two jokes is something an average person can do as capably as a professional joke teller.

A conclusion that requires no expert analysis is unhelpful to juries. Boosler’s opinion would have amounted to telling the jury what decision to reach. Since that is not the proper function of expert witnesses, the court disallowed Boosler’s testimony.

Chantal Thoss was convicted of felonious assault in an Ohio court. The only evidence supporting her conviction came from an expert witness. Because the expert overstepped the boundaries of acceptable expert testimony, the Ohio Court of Appeals reversed the conviction.

Trial Evidence

A police officer was dispatched to a home in response to a call concerning an injured baby. Thoss was babysitting in the home. She was distraught. She told the officer that she placed the baby on a couch and left to get a diaper. She heard a thud and the baby screamed. When she returned, she discovered the baby on the floor. He was on his back and his leg was raised and propped against the couch.

Thoss told the officer that the baby’s head snapped back and hit her shoulder when she lifted him. Later, his head began to bobble. He stopped moving and became silent. Thoss called 911 and gave the same information to the dispatcher. The officer had no reason to suspect foul play.

Paramedics soon arrived and took the baby to a hospital for treatment. The treating physician spoke to Thoss and the mother, noting that both were distressed and concerned about the baby’s condition. He saw nothing to suggest the baby had been abused.

A police detective questioned Thoss later in the evening. She provided the same information, albeit in more detail, since the detective asked her more questions than the responding officer.

The detective asked Thoss if she shook the baby and Thoss denied abusing the baby in any way. The officer was aggressive in his questioning but Thoss steadfastly denied that she had shaken the baby. She expressed her fear that she may have harmed the baby inadvertently by picking him up quickly, causing the baby’s head to snap back.

The baby was not yet rolling over or sitting up, but could kick and scoot himself in circles on the floor by using his legs. The detective wondered how the baby fell from the couch if the baby could not roll over. Thoss hypothesized that the baby slid off the leather couch while he was kicking.

The baby was flown to Mercy Hospital in Toledo to treat his intracranial bleeding. He began to have seizures the next day. At the time of trial, two years later, the child was still taking seizure medication. Nerve damage also made it difficult for the child to speak.

The baby was six months old when Thoss called 911. The baby’s mother had been disregarding instructions to bring the baby in for wellness checks after the baby was about one month old.

The detective learned from Dr. Randall Schlievert, Director of Mercy Hospital’s Child Abuse Program, that the child had prior brain bleeds. While that evidence could be indicative of earlier child abuse, the detective conducted no investigation to determine whether other individuals could have been abusing the baby.

Prosecution Expert

Dr. Schlievert testified as a prosecution witness. He described the many symptoms that doctors once identified as evidence of “shaken baby syndrome.” He testified that caregivers usually shake babies because they are frustrated that the baby is crying. He acknowledged that he had no evidence that the baby had been crying. Dr. Schlievert nevertheless attributed the baby’s injury to Thoss having shaken the baby.

Based on a 1993 study of children who fell from cribs or hospital beds, Dr. Schlivert opined that a fall from the couch would not have caused a brain injury. Dr. Schlivert identified another brain injury that was one to several weeks old, but ruled it out as a cause of the baby’s brain damage because the baby exhibited no signs of brain damage until Thoss called 911.

Dr. Schlievert concluded that the baby’s retinal hemorrhages were consistent with shaken baby syndrome, although he admitted that he did not know when the hemorrhages occurred. He acknowledged that they might have occurred a month before Thoss called 911.

Dr. Schlievert acknowledged that whether a prior brain injury makes a baby more susceptible to a new brain injury is a question that divides physicians. Based on the absence of studies that would contradict his opinion, he thought it was unlikely that serious symptoms would develop from a minor injury even if the minor injury aggravated a preexisting injury.

Defense Expert

Dr. Marcus DeGraw, a child abuse pediatrician, testified for the defense. He agreed that the baby suffered from two distinct injuries. He concluded that the second injury occurred on the date the 911 call was made and that the first injury occurred about two weeks earlier.

Dr. DeGraw testified that as a brain injury heals, the pocket of blood between the brain and the skull causes weakness that makes the brain more susceptible to further injury. A modest impact that would not injure a healthy brain can cause severe injury to a brain that has been weakened by an earlier injury.

Dr. DeGraw testified that falling from a couch could have caused sufficient trauma to injure the baby’s brain, given the preexisting brain injury. Dr. DeGraw testified that Dr. Schlievert’s opinion gave insufficient weight to the first brain injury.

Significantly, Dr. DeGraw faulted Dr. Schlievert for overstepping the bounds of an expert witness by acting as a prosecution advocate. Dr. Schlievert knew nothing about the cause of the first injury, which was never investigated, but blamed Thoss for injuring the baby. Dr. Schlievert was not present when the injury occurred and had no way to know what Thoss did or did not do.

Appellate Court’s Review of Evidence

Appellate courts almost always defer to a jury’s assessment of competing expert testimony in a criminal prosecution. In Ohio, however, appellate courts have the power to sit as a “thirteenth juror” and to set aside verdicts and order a new trial when the finding of guilt beyond a reasonable doubt is against the manifest weight of the evidence. Although appellate courts rarely substitute their judgment for that of the jury, this was an appropriate case in which to do so.

The prosecution’s case rested entirely on the expert testimony of Dr. Schlievert. Thoss made no damaging admissions and no witness observed whether the baby was shaken or fell from the couch. Nothing in the evidence suggested that Thoss was the kind of caregiver who would respond to crying by shaking a baby. In fact, nothing in the evidence suggested that the baby was crying or that Thoss had any reason to shake the baby.

Dr. Schlievert’s opinion that a short fall from a couch would not cause brain damage was based on studies that failed to address babies who had prior traumatic brain injuries. The studies failed to provide adequate data to support Dr. Schlievert’s opinion, given uncontradicted evidence that the baby suffered from earlier brain trauma.

Dr. Shlievert acknowledged, and Dr. DeGraw confirmed, that it was impossible to determine the onset date of the baby’s retinal hemorrhage. The presence of a retinal hemorrhage therefore had no relevance to the allegation that Thoss shook the baby.

The court noted that neither the treating physician nor the first investigating officer suspected abuse, that the detective’s aggressive questioning failed to uncover evidence of abuse, and that Thoss’ prompt decision to call 911 and to go to the hospital was inconsistent with an intent to harm the baby. It was only Dr. Schlievert’s opinion that triggered a criminal prosecution, and that opinion was contradicted by an equally qualified expert who explained why the evidence made it impossible to assess blame.

While juries usually resolve conflicts in expert testimony, Dr. Schlievert’s opinion alone was simply not sufficient to overcome reasonable doubt provided of Thoss’ innocence. While the court was unwilling to stay that the prosecution failed to prove guilt beyond a reasonable doubt, the court decided that the conviction was against the manifest weight of the evidence. The court therefore reversed the conviction and granted Thoss a new trial.

Lesson Learned

The appellate court expressed dismay that after Dr. Schlievert expressed the opinion that the baby had been shaken, all investigation stopped. Ignoring the weak factual basis for Dr. Schlievert’s opinion, the police and prosecution immediately decided that Thoss was guilty and did not examine important questions, including the source of the earlier brain injury. A full investigation may have exonerated Thoss.

As Dr. DeGraw explained, the job of a medical expert is to interpret injuries, to explain how they might or could not have occurred, and to place them within a time frame. Doctors are not criminal investigators, regardless of how they are portrayed on television. The doctor’s job is not to blame a particular person for causing an injury. Dr. DeGraw and the appellate court appropriately faulted Dr. Schlievert for identifying Thoss as the person who caused by baby’s injuries.

Experts who serve the prosecution play a vital role in the criminal justice system. The reversal of Thoss’ convictions stands as a reminder that experts must also serve justice. When Dr. Schlievert went beyond his legitimate role as an expert witness, he encouraged a jury to ignore other evidence and to convict a suspect who was likely innocent. Identifying suspected child abuse is important, but fixating on the guilt of one suspect without examining evidence that is inconsistent with that fixation renders an expert an advocate for the prosecution rather than a neutral source of expert information.

In Shadrick v. Grana, the Supreme Court of Alabama contributed to a growing body of decisions that interpret state law to limit the admissibility of expert testimony in medical malpractice cases. Many of those laws, including Alabama’s, require a standard-of-care witness to practice in the same field as the allegedly negligent doctor.

The laws are championed by insurance and medical industry lobbyists who have a clear interest in protecting doctors from liability for the negligent conduct. The laws require a judge to ignore an expert’s actual qualifications and impose artificial barriers that make it more difficult for injury victims to find expert witnesses.

Facts of the Case

William Shadrick was treated in an emergency room for chest pain. An ER physician diagnosed a heart attack, then consulted by telephone with a cardiologist and an internist. The internist, Dr. Wilfreda Grana, admitted Shadrick to the hospital.

Dr. Grana thought that Shadrick did not have the kind of heart attack that requires immediate invasive care. However, Dr. Grana allegedly concluded that Shadrick was in cardiogenic shock and needed an emergency heart catheterization, a procedure that Dr. Grana was not qualified to perform.

Dr. Grana telephoned the cardiologist. Dr. Grana claimed he asked the cardiologist to see Shadrick before Dr. Grana went home for the evening.

The cardiologist denied that Dr. Grana told him that he should see Shadrick that evening, that Shadrick was in cardiogenic shock, or that Shadrick needed a heart catheterization. The cardiologist testified that Dr. Grana’s assessment suggested that Shadrick was suffering from pneumonia and sepsis, neither of which required intervention by a cardiologist.

The cardiologist did not see Shadrick that day. When Dr. Grana saw Shadrick the next morning, Shadrick’s condition had worsened. In the early afternoon, Shadrick was transferred to intensive care and the cardiologist was summoned to the hospital. Before the cardiologist arrived, however, Shadrick went into cardiac arrest. The cardiologist eventually performed a heart catheterization but Shadrick suffered brain death before further surgery could be undertaken.

The heart catheterization revealed heart blockages. If the catheterization had been performed earlier, the blockages could have been detected and bypassed, likely saving Shadrick’s life.

Shadrick’s estate sued the cardiologist and Dr. Grana. The cardiologist settled. Dr. Grana moved for summary judgment.

Expert Dispute

Shadrick’s estate relied on the testimony of Dr. James Bower, a board-certified cardiologist, to establish the standard of care that should have been followed by Dr. Grana and by the cardiologist who failed to assess Shadrick. Since the cardiologist settled, Dr. Bower’s testimony was relevant only to Dr. Grana.

Alabama law requires an expert opinion concerning the standard of care a physician should follow to be provided by a “similarly situated” physician. When the defendant physician is a specialist, the expert must be board-certified in the same specialty and must have practiced that specialty within the last year. Dr. Grana was a board-certified internist and therefore met Alabama’s definition of a specialist.

The trial court agreed with Dr. Grana that Dr. Bower was not an internist and therefore was not a “similarly situated” physician. The court therefore struck Dr. Bower’s testimony. In the absence of any other expert standard-of-care testimony, the court granted summary judgment in favor of Dr. Grana. Shadrick’s estate appealed.

Appellate Opinion

As an initial matter, the court considered whether an expert opinion was necessary or whether the breach of the standard of care was too obvious to require expert support. The court noted the absence of any dispute that Dr. Grana gave the cardiologist substantial diagnostic information, including the results of an echocardiogram that suggested Shadrick’s heart was not pumping adequately.

Whether the standard of care also required Dr. Grana to express an opinion that Shadrick was in cardiogenic shock and needed an emergency heart catheterization, or to ask the cardiologist to see Shadrick that day, were not questions a jury could decide without hearing expert testimony. Accordingly, the appellate court asked whether Dr. Bower was qualified to give that testimony.

The appellate court agreed with the trial court that Dr. Bower could not testify about the standard of care that applied to Dr. Grana because Dr. Bower was not a board-certified internist. Whether Dr. Bower was aware of the appropriate standard of care an internist should follow when treating a patient who had a heart attack was not relevant to the court’s cookie-cutter analysis. The actual ability of an expert witness to provide relevant and useful information to an Alabama jury is supplanted by the artificial requirement that the expert must be board-certified in the same specialty.

Given the trend of state legislatures to shield physicians from the consequences of malpractice, it is often necessary for lawyers to hire multiple experts when they bring medical malpractice claims against multiple physicians. Lawyers must do so even if a single expert is perfectly capable of articulating the standard of care that applies to each defendant doctor. That necessity drives up the cost of bringing malpractice lawsuits and discourages lawyers from bringing them, which is exactly the result that lobbyist-friendly state legislatures hoped to achieve by enacting laws that limit expert testimony in malpractice litigation.

Amari Broughton-Fleming suffered a brachial plexus injury during birth. The brachial plexus is a bundle of nerves that travel from the neck through the shoulder and branch into the arm. Brachial plexus injuries are sometimes caused during childbirth when a baby’s neck is stretched while pulling the baby through the birth canal.

Amari’s mother sued Dr. Peter Wong in a Delaware state court, alleging that he was negligent when he delivered her baby and that his negligence caused Amari’s brachial plexus injury. Amari’s mother relied on an expert witness to establish the appropriate standard of care and Dr. Wong’s breach of that standard. She relied on a second expert to establish that Dr. Wong’s negligence harmed Amari.

Dr. Wong moved to exclude the testimony of both experts, contending that the testimony failed to satisfy the Daubert standard and that it allowed the jury to presume negligence from the fact of the injury alone. The trial court rejected that motion. The case went to trial and a jury returned a verdict of $3 million in favor of Amari’s mother.

Dr. Wong appealed, challenging the admission of the experts’ testimony. The Delaware Supreme Court affirmed the verdict.

Facts of the Case

During birth, Amari’s head was lodged beneath his mother’s pubic bone, a condition known as shoulder dystocia. Amari’s mother contended that Dr. Wong used too much lateral traction to free the head during delivery, causing a permanent injury of the brachial plexus on Amari’s right side.

Dr. Wong denied that he used any lateral traction at all. He claimed that the injury was caused by the mother pushing the baby during delivery.

Amari’s family members who were present during the delivery testified that they saw Dr. Wong pulling on the baby’s head. Dr. Wong and medical staff who assisted in the delivery denied that Dr. Wong pulled on the baby’s head.

There was no dispute that Amari suffers from a permanent brachial plexus injury. Amari had two corrective surgeries, but his right arm is shorter than his left arm, impairing his ability to play sports and ride a bicycle, among other activities.

Standard of Care Testimony

Dr. Marc Engelbert testified as to Dr. Wong’s breach of the standard of care. Dr. Engelbert testified that applying excessive lateral traction breaches the standard of care for responding to the complication of shoulder dystocia. Dr. Engelbert reasoned that using excessive force during delivery was the only reasonable explanation for the brachial plexus injury.

Dr. Engelbert based his opinion on his thirty years of experience as an obstetrician and gynecologist. The supreme court noted that medical experts are entitled to rely on their own experience when forming expert opinions. Dr. Engelbert also testified that he relied on multiple medical sources to support his conclusion that only excessive force will cause a permanent brachial plexus injury.

Dr. Wong countered with a monograph published by the American Congress of Obstetricians and Gynecologists (ACOG) to support his view that a mother who pushes during labor can cause a brachial plexus injury when shoulder dystocia complicates the delivery. Dr. Engelbert rejected that alternative explanation for the injury because the monograph did not adequately explore the difference between a temporary injury, which might be caused by labor alone, and a permanent injury, which can only be caused by the use of force when delivering the baby.

The supreme court rejected the claim that Dr. Wong was asking the jury to presume negligence from the fact of the injury (a principle known as res ipsa loquitur that juries may rely upon only under limited circumstances). The court noted that Dr. Wong ruled out the only other potential cause of the injury and that Dr. Wong’s denial of using any force was contradicted by witnesses to the birth. Ruling out other potential causes for an injury not transform an expert’s opinion into an impermissible theory of res ipsa loquitur liability.

Since there was evidentiary support for Dr. Engelbert’s opinion that Dr. Wong used excessive force, including Dr. Engelbert’s own experience as confirmed by other medical sources, Dr. Engelbert’s opinion satisfied the Daubert standard. The opinion was based on sufficient facts and reasoning to allow a jury to regard it as reliable. Deciding whether to accept or reject the testimony was therefore the function of the jury, not the court.

Causation and Harm Expert

Dr. Scott Hal Kozin performed two surgeries in an unsuccessful attempt to correct the brachial plexus injury that impaired Amari’s ability to move his arm. He testified about the harm that Amari suffered and will continue to suffer because of the injury. Dr. Kozin also testified about the cause of the injury.

Dr. Kozin testified that Amari’s torn nerves were caused by the application of excessive lateral traction during birth. He based that opinion on twenty years of experience performing surgeries to correct birth injuries involving damaged nerves.

The supreme court rejected Dr. Wong’s argument that Dr. Kozin’s testimony was based on insufficient facts. Dr. Kozin observed two torn nerves during the surgery that would never regenerate or recover. In Dr. Kozin’s experience, the damage he saw could only be caused by the use of excessive lateral traction during birth. The court concluded that Dr. Kozin’s opinion was grounded in an adequate factual basis, consisting of his own observations and his medical experience with similar injuries.

Dr. Wong complained that Dr. Kozin did not address the ACOG monograph that arguably conflicted with his opinion as to causation. The supreme court noted that the admissibility of his opinion was not conditioned upon refuting potentially conflicting opinions. Dr. Wong had the opportunity to cross-examine Dr. Kozin. It was up to the jury to decide whether Dr. Kozin’s opinion was reliable in light of the ACOG monograph.

Finally, Dr. Wong complained that Dr. Kozin did not rely on any medical literature to support his opinion. The supreme court repeated that medical experts are entitled to form opinions based on their own experience. They are not required to cite supporting medical literature. Their failure to do so can be explored on cross-examination and a jury can determine whether their experience is a sufficiently reliable basis upon which to form an opinion. Since Dr. Kozin’s testimony was admissible, the trial court did not err by allowing the jury to hear it.

On the twenty-first day of trial, a jury found John Jonchuck guilty of murdering his daughter Phoebe. There was never any doubt that Jonchuck dropped his 5-year-old daughter from a bridge into Tampa Bay. A St. Petersburg police officer saw him do it.

The question for jurors was whether Jonchuck was legally responsible for his actions. The prosecution and defense relied on expert witnesses to help the jury answer that question.

Florida’s Insanity Defense

Florida statutes still use the phrase “insanity defense” to describe a claim that a defendant’s mental condition at the time a crime was committed prevented him from being legally responsible for his actions. Florida continues to follow the M’Naghten rule, which shields a defendant from legal responsibility for a crime only if the defendant did not know what he was doing or did not know that what he was doing was wrong.

To make it even more difficult for defendants to prevail, Florida requires the defendant to prove insanity by clear and convincing evidence. Until 2000, when a defendant raised the insanity defense, the burden was on the prosecution to prove that the defendant knew what he was doing and appreciated the wrongfulness of his conduct.

Few defendants are able to avoid criminal responsibility under the M’Naghten rule, particularly in states that place the burden on the defense to establish the defendant’s state of mind. Even in states that follow a different definition of insanity, it is rarely raised as a defense because juries nearly always want to hold defendants accountable when they clearly committed a crime, regardless of their mental health status.

As neuroscientists ask whether “free will” (the intellectual underpinning of criminal punishment) even exists, there is ample room for expert witnesses to give competing testimony about a defendant’s ability to appreciate or control wrongful behavior. Those differences of opinion were on display in the Jonchuck trial.

Defense Experts

Scot Machlus, a forensic psychologist, interviewed Jonchuck two years before the trial to determine his competency. He also reviewed Jonchuck’s extensive history of mental health treatment, including commitments to a psychiatric hospital.

Johchuck had a history of hearing auditory hallucinations, often believing that he was receiving instructions from God. Jonchuck slept with his Bible to keep evil spirits away. He believed Phoebe was possessed.

Based on that history and his own interviews, Machlus testified that he diagnosed Jonchuck with bipolar disorder with psychotic features. He also concluded that Jonchuck was unaware of the wrongfulness of his behavior and was out of touch with reality.

Forensic psychologist Randy Otto, an associate chair of the Department of Mental Health Law & Policy at the University of South Florida, also testified for the defense. He interviewed Jonchuck multiple times, administered psychological tests, and reviewed evidence of Jonchuck’s mental health history.

Otto testified that Jonchuck suffered from a schizoaffective disorder and a personality disorder. He believed that Jonchuck suffered from paranoid and grandiose delusions. He did not believe that Jonchuck was faking symptoms of those disorders.

The third defense expert was Dr. Michael Maher, a certified forensic psychiatrist. He considered the evaluation of Jonchuck to be complicated because of Jonchuck’s history of mental health treatment, his difficult family history, and the length of time he has been taking prescribed medications.

Dr. Maher expressed confidence that Jonchuck suffered from a mental illness. He diagnosed Jonchuck’s condition as schizophrenia, schizo-affective disorder, and bipolar disorder with psychotic episodes. He noted that different professionals might interpret symptoms in different ways and arrive at a different diagnosis, but he agreed with the other experts that Jonchuck had a severe mental illness, however it might be labeled.

Dr. Maher testified that when Jonchuck dropped Phoebe, Johchuck met Florida’s definition of insanity because he was not aware of the nature and consequences of his actions. Dr. Maher concluded that Jonchuck’s “basic understanding of life and death were distorted by his delusions.”

Prosecution Experts

Peter Bursten, a psychologist, was a key prosecution witness. Bursten acknowledged that Jonchuck is mentally ill, but testified that Jonchuck knew what he was doing when he dropped his daughter from the bridge and knew that it was wrong. Bursten based that opinion, in part, on Jonchuck’s statement to a police officer, while he was still holding Phoebe, that “You have no free will.” While Bursten thought the statement was proof that Jonchuck was in his right mind, it certainly sounds like the kind of utterance that a deranged mind would produce, particularly a mind that considered itself to be controlled by an outside force.

Dr. Emily Lazarou, a psychiatrist, was a more controversial expert. Dr. Lazarou testified that Jonchuck was faking his symptoms of mental illness, thus putting him at odds with Bursten. She agreed with Bursten, however, that Jonchuck knew what he was doing when he dropped Phoebe from the bridge.

Dr. Lazarou testified that Jonchuck changed the way he discussed his delusions (from “my lawyer is God” to “I am God”). According to Lazarou, delusions are fixed. (Defense experts disagreed with that proposition.) Her perception that the delusion changed convinced her that Jonchuck is not delusional at all.

Dr. Lazarou also testified that Jonchuck couldn’t have bipolar disorder because he had been prescribed stimulants to treat attention deficit/hyperactivity disorder. A defense expert challenged that assertion.

Dr. Lazarou is a “go-to” prosecution witness because she reliably testifies that defendants do not meet the state’s standard for insanity. Defense attorneys sought to exclude her testimony on the ground that she is biased, that she allows sympathy for victims to influence her testimony, and that her methodology for evaluating mental diseases or defects is unreliable.

The defense contended that Dr. Lazarou formed her opinions without conducting necessary testing. Defense attorneys argued that Dr. Lazarou admitted her unfamiliarity with professional standards governing forensic assessments. She also admitted her unfamiliarity with ethical standards governing psychiatrists.

Dr. Lazarou expressed her belief that Florida law does not sufficiently take victim impact into account and that she always keeps “the rights of victims” in mind when she conducts an evaluation. Understandably, the defense contended that her improper and unprofessional consideration of sympathy for victims (she admitted that she never feels sympathy for the accused) skews her opinions. The defense wanted the court to exclude her testimony because she is an advocate for the prosecution, not an unbiased expert.

Dr. Lazarou’s characterization of Jonchuck as “a dangerous, cold-blooded psychopath” is an example of her tendency to couch opinions in the language of an advocate rather than the neutral language of a professional. A forensic psychiatrist who reviewed Dr. Lazarou’s work on behalf of the defense concluded that she was “coercive, judgmental, and leading” in her questioning of Jonchuck.

Florida does not follow the Daubert rule, so judges generally allow an expert to give opinions if the expert is qualified to do so and the subject matter of the expert’s testimony is in a generally accepted field of science. The trial judge allowed Dr. Lazarou to testify, saying: “What you’re suggesting is that she’s a horrible psychiatrist. That’s for a jury to determine.”

Guilty Verdict

Jury deliberations are private, so we don’t know what the jury thought about Dr. Lazarou. It could have rejected her testimony entirely while basing guilt on the more credible expert testimony of Peter Bursten.

Jonchuck’s case is a textbook example of how difficult it is to prevail using an insanity defense. Jonchuck was clearly delusional. He dropped his daughter because he believed he was compelled to do so by an outside force. Three reputable experts provided convincing testimony that Jonchuck did not know he was doing anything wrong, while two prosecution experts (one of whom was controversial) disagreed. It is likely the horror of the crime that convinced the jury to reject the insanity defense and to find Jonchuck guilty.