Category Archives: ExpertWitness

a doctor and a child

Where Are the Dauberts Today?

The Supreme Court’s Daubert decision revolutionized the law governing the admissibility of expert witnesses. The decision imposes a duty on trial judges to decide whether expert testimony is sufficiently reliable to be admitted as evidence in court. While there remains widespread disagreement about whether Daubert is meant to open or close the door to expert testimony, the decision’s influence on American law is undeniable.

A majority of states have adopted some version of the Daubert analysis, although states often put their own spin on the role that judges should play when the assess expert witness testimony. One scholar has applauded the Daubert “revolution” for bringing “scientific enlightenment to the law.” Another has questioned whether judges are any better than juries at evaluating expert evidence. In short, opinions about Daubert are all over the map.

The Daubert Decision

The Daubert decision was the culmination of a lawsuit commenced by Joyce and Bill Daubert. Among other deformities, their newborn son was missing three fingers and a bone in his forearm. Doctors told her that she was probably exposed to something that caused her developing embryo to deform, but they could not identify the specific cause.

About ten years later, Joyce read a newspaper article about a little girl with symptoms that were similar to her son’s. The girl’s parents were suing Merrell Dow, alleging that the birth defects were caused by Bendecin. The company marketed the anti-nausea medication as a remedy for morning sickness.

In 1983, the parents of the little girl won a $750,000 verdict against Merrell Dow. Their lawyer called a reproductive epidemiologist and a pediatrician as expert witnesses. About two weeks later, Merrell Dow pulled Bendecin from the market.

The Dauberts brought their own lawsuit against Merrell Dow. They assembled a team of expert witnesses. By that time, pharmaceutical and insurance companies had launched a public relations campaign against “junk science.” The campaign disparaged juries as being too “sympathetic” to injury victims (as if human empathy is an evil trait) and contended that experts chosen by plaintiffs (but not drug companies) were “hired guns” who slanted their unscientific opinions to favor the parties who hired them.

Merrell Dow moved to dismiss the case without a trial, based on an epidemiological study that found no “reproducible or consistent association of birth defects with Bendectin exposure.” The Dauberts challenged that study. They relied on eight experts, including experts in reproductive epidemiology, developmental biology, toxicology, biostatistics, and pharmacology. The experts reanalyzed the epidemiological data and concluded that the study advanced by Merrell Dow did not rule out the possibility that Bendectin caused birth defects.

The trial judge sided with Merrell Dow. On appeal, the Ninth Circuit applied the Frye test for expert witness admissibility. The court concluded that the methods relied upon by the Dauberts’ experts were not a “generally accepted” means of proving causation and thus could not be admitted as evidence.

The Dauberts took their case to the Supreme Court. The Court rejected the Frye test. The question, the Court said, should be whether expert testimony is reliable, not whether it is based on a methodology that is generally accepted by other scientists. While acceptance is one factor that helps a judge assess reliability, making it the only factor prevents juries from hearing reliable evidence simply because it is new or novel.

The Supreme Court reversed the Ninth Circuit’s decision. It rejected the Frye standard and crafted an admissibility test that is now known as the Daubert standard. The New York Times reported that the Court raised the bar for admitting expert testimony. The Washington Post reported that the Court lowered the bar. That controversy has continued to this day.

The Aftermath of Daubert

The Ninth Circuit applied the new standard and again rejected the Dauberts’ experts. This time, the court concluded that epidemiological evidence did not prove that Bendectin exposure would double a child’s risk of being born with birth defects. If the risk is not doubled, the court decided, it was impossible to say that birth defects were probably caused by Bendectin.

Putting aside the wisdom of the decision, the Ninth Circuit’s reasoning has been widely adopted. Judges have used it to reject expert testimony in a variety of contexts that involve potentially dangerous exposures, from chemical products and pollutants to radiation from power lines and cellphones.

The Ninth Circuit judge who wrote the decision rejecting the Dauberts’ claim later became an advocate for applying the Daubert standard in a way that benefits not just corporations accused of wrongdoing, but defendants who are accused of committing crimes. The judge noted that government crime lab employees too often view their jobs as helping prosecutors, not as seeking the truth. They rely on junk science to prove guilt without regard to its unreliability.

The legal system has been slow to reject the testimony of crime lab analysts who were allowed for decades to base opinions on anecdotal evidence rather than rigorous methodologies. While change does not come easily, courts are beginning to recognize that dubious testimony about bite marks, hair comparisons, blood spatter, and other branches of forensic science cannot be considered as proof of guilt.

What Happened to the Dauberts?

Where did the Daubert decision leave the Dauberts? Joyce feels that justice was not done because she never had her day before a jury. In the absence of any better explanation for her son’s birth defect, she still blames Merrell Dow. She might be right, but the Ninth Circuit’s questionable belief that doubling a relative risk is essential to proof of causation has become widely accepted by federal judges.

On the other hand, Joyce’s son — who is now 46 and working in the field of information technology — appreciates that a case bearing his name is being used to reduce the risk of innocent defendants being convicted on the strength of junk science. While disagreement about the application of Daubert in civil cases continues to spark controversy, there is a growing recognition of its importance as a shield against overzealous prosecutors who disguise biased opinions as “expertise” in their effort to convict accused defendants.

How Do Jurors Evaluate Expert Opinions?

A study co-authored by professors of psychology and law at the University of New South Wales examined the factors that jurors are likely to consider when they decide whether an expert’s opinion is persuasive. The goal was to determine how jurors “differentiate witnesses who offer genuinely expert opinions from those who do not.”

The study was motivated in part by the consistent use of questionable forensic expert evidence to prove guilt in criminal cases. In Australia as in the United States, innocent defendants are convicted when prosecutors bolster weak cases with expert opinions that are founded on unreliable science — or no science at all.

Understanding how juries might evaluate expert evidence should help lawyers as they select experts and prepare them to testify. An understanding of jury psychology may also help lawyers cross-examine experts to expose testimonial weaknesses that are most likely to matter to jurors. Experts can also benefit from the study by shaping their reports and testimony in ways that are the most persuasive to jurors.

Methodology

After examining existing scholarship in the areas of persuasion generally and jury decision-making specifically, the authors proposed “eight broad attributes that are logically relevant to the merit-based assessment of an expert opinion.” They termed those attributes the “Expert Persuasion Expectancy (ExPEx) Framework.”

The ExPEx Framework suggests that jurors consider these factors when they evaluate expert evidence:

  • Foundation for opinions — whether the field of study upon which the expert relies is sufficiently valid to support the expert’s conclusions
  • Field expertise — whether the expert has sufficient training and experience in the field of study to merit trust in the expert’s opinions
  • Specialty of expert — whether the expert’s training and experience in the field addresses the specific specialty that forms the basis for the expert’s opinions
  • Ability of expert — whether the expert states opinions accurately and reliably
  • Opinion expression — whether the expert’s opinions are stated clearly and with necessary qualifications
  • Support — whether the expert supports opinions with evidence
  • Consistency — whether the expert is consistent with other experts in the field
  • Trustworthiness — whether the expert is personally reliable as a source

The study did not examine actual jurors who consider the testimony of actual witnesses in actual trials. Rather, the authors provided different study participants with different versions of an expert report: a control version plus versions that weakened or strengthened one of the attributes identified above.

In one experiment, the control report was strong as to every attribute. Each of the remaining eight reports weakened a single attribute but made no change to the rest of the report. In a second experiment, the control report was weak while each of the other reports strengthened a single attribute.

In each experiment, roughly fifty participants reviewed the control report, another fifty reviewed a report with a weakened or strengthened attribute, another fifty reviewed a report with a different weakened or strengthened attribute, and so on. About 450 people participated in each experiment.

The reports concerned gait analysis, which purportedly allowed the expert to identify a person on a video recording by the way the person walked. The expert in the strong report was a podiatrist. The expert in one of the weak reports was a hand surgeon. Other attributes were manipulated in similar ways.

Test subjects were asked questions to measure the persuasiveness of the various reports. The questions asked participants to rate “the credibility of the witness, the value of their evidence, and the weight they would give to the opinion” on sliding scales of 1 to 100.

The three ratings were closely correlated to each other. The authors thus combined them into a single “persuasiveness” rating.

Study Results

In the first experiment, the participants regarded the control report as highly persuasive. Weakening the Support attribute made no difference in perception of the report’s strength. Weakening the other attributes had some impact on perceptions of persuasiveness, but perceptions of persuasiveness were significantly affected only by four attributes: Ability, Trustworthiness, Consistency, and Opinion.

In the second experiment, the participants regarded the control report as unconvincing. Strengthening the attributes for Ability or Consistency significantly improved perceptions of persuasiveness. Strengthening one of the other attributes of the weak report had no significant impact on how participants viewed the report.

Perhaps unsurprisingly, the study suggests that jurors are most likely to be persuaded when an expert in the relevant field who is trained and unbiased provides an empirically supported, confident opinion derived from methods that have been endorsed by other experts in the field.

Conversely, jurors are less likely to be persuaded when they consider an empirically unsupported, doubtful, contentious opinion from a novice “hired gun” who is testifying outside his or her field of expertise.

According to the authors, a “strong expert opinion was significantly undermined by a high likelihood of error, disagreement among experts, and questionable integrity. Conversely, a weak expert opinion was significantly improved by a low likelihood of error and agreement among the experts.”

Selecting and Preparing Experts

Perhaps the most surprising finding is that participants were not particularly concerned with whether an expert supported an opinion with evidence. Instead, “Ability, Consistency and Trustworthiness may be particularly influential attributes.”

Judges in a Daubert regime, of course, focus largely upon the Support attribute. Admissibility depends upon whether the evidence upon which the expert relies is supported by sufficient facts and a reliable methodology.

The study suggests that trial outcomes will be best when the evidence assures jurors that an expert is honest (Trustworthiness), that the expert is stating opinions accurately (Ability), and that the expert’s opinions are consistent with those of other experts in the field (Consistency). Witness preparation that focuses on those attributes might persuade a jury to believe an expert’s opinions.

The authors also acknowledge that decision-making is a subtle art, and that the interplay of the defined attributes might not always be obvious. For example, Confidence and Trustworthiness are both important, but other studies suggest that an expert can enhance Trustworthiness by acknowledging reasons to doubt the expert’s opinion. Since Trustworthiness is a more important attribute than Confidence, acknowledging weaknesses in an opinion might actually strengthen its persuasive value.

stock market

Experts Testify at Congressional Hearing About Blockchain Technology

A panel of experts have offered testimony at a United States Congress hearing over the benefits of blockchain technology for small businesses.

Congressional Hearing

The hearing, entitled, “Building Blocks of Change: The Benefits of Blockchain Technology for Small Businesses,” was held before The Committee on Small Business on March 4, 2020. The purpose of the hearing was to give the committee insight into “how innovators and entrepreneurs are using blockchain technology to help small businesses boost productivity, increase security, open new markets, and change the way business is done.”

Blockchain technology utilizes a distributed, decentralized, digital ledger or database that allows multiple parties to engage in secure transactions with each other without the use of an intermediary. Blockchain technology is most commonly associated with cryptocurrency such as bitcoin. However, it has many potential uses, including: monitoring goods in global supply chain, use in retail reward loyalty programs, serving as digital identification, digital voting, and transfers of items like real estate or motor vehicle titles.

Expert Witnesses

The experts who were called to testify before the Committee included: Shane McRann Bigelow, Dawn Dickson, Marvin Ammori, and Jim Harper.

Shane McRann Bigelow is the CEO of Ownum, LLC, a blockchain tech company focused on unlocking business growth and making government more efficient. Bigelow offered testimony on behalf of the Chamber of Digital Commerce. Bigelow testified that his company hoped to use blockchain technology to “Help the poorest in our country, who are also disproportionately minorities, to gain better access to their vital records in a secure way by encouraging federal and state governments to allow for the digitization of not only their vital records, but the process to acquire them.” He emphasized, “Additionally, we will help improve public safety through more accurate data, particularly in the vehicle title arena.”

Dawn Dickson is the CEO of PopCom, a company that uses blockchain technology in “high-IQ automated retail technology” or smart vending machines. Dickson testified, “Blockchain is not a silver bullet. But it can solve problems that small businesses face.” She gave the example that her company believes that the most “secure way to check and confirm a customer’s identity, while ensuring that their personal data remains secure, is to have the customer verify their information securely on their mobile device and store that data on blockchain.”

Marvin Ammori is the General Counsel of Protocol Labs, a research, development, and deployment institution for improving Internet technology. Ammori testified on behalf of the Blockchain Association, a trade association for organizations who are interested in responsibly building and investing in the next generation of digital services. Ammori testified that blockchain technology benefit businesses in many industries, including health care, supply chain, law, and enabling investment and competition in internet infrastructure services such as cloud storage.

Ammori also testified that, “The tax treatment is very complicated” and “doing your taxes for crypto is the worst nightmare.” He explained that doing taxes involving crypto is currently a nightmare and that the system should be reformed before mass adoption. He gave the example, “If you wanted to spend Bitcoin on a coffee this morning, you’d have to keep track of what you paid for the Bitcoin and how much it was worth the moment you spent it, and pay the capital gain or loss on every single transaction.” Ammori also argued for clearer crypto guidelines from both the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CTFC).

Jim Harper is a visiting fellow at the American Enterprise Institute. Harper identified “three advantages of blockchain I can identify for small business: First, simple efficiencies may produce lower costs for small businesses. Second, blockchains may allow for diversified and open market structures that support more niches and specialties. Finally, blockchains may reduce the competitive advantage that large businesses have in the world of data.”

 

A judge

Colorado Supreme Court to Weigh in on Experts in Domestic Violence Cases

The Colorado Supreme Court has decided to hear a case to determine whether to permit expert witness testimony in domestic violence trials by experts who are not familiar with the details of the case.

The Domestic Dispute

In the summer of 2013, Kerry Lee Cooper and his partner, L.K., got into an argument over where to place an electric fan. L.K. testified that Cooper shoved her face into the fan’s blades, cutting her, and she retaliated by hitting him. L.K. claims that Cooper then punched her, grabbed her by the jaw, and beat her with a tire iron.

Cooper claimed that L.K. had been the aggressor. According to Cooper, L.K. asked him to reposition the fan. When she was unhappy with the way he had placed it, he threw the fan on the end of the bed. He claims that L.K. hit him with the flashlight and bit his hand when he tried to take the flashlight away from her. Cooper only admitted to pushing L.K. in the forehead.

Cooper’s daughter, who lived nearby, heard screaming and called the police.

The Domestic Violence Expert

At Cooper’s trial, the prosecutors brought in an expert witness to testify about the “characteristics of domestic violence relationships” and the “power and control wheel,” a tool that was developed with the intent to “explain the ways that an abusive partner can use power and control to manipulate a relationship.”

Cooper’s attorneys objected to the testimony, but the court allowed its admission. A jury convicted Cooper of third degree assault and harassment, but acquitted Cooper of related menacing and cruelty to animal charges — Cooper’s dog had entered the room during the incident.

Colorado Court of Appeals

Cooper appealed his conviction. On appeal, the Colorado Court of Appeals considered whether the district court erred by admitting a subject matter expert witness who had no familiarity with the facts of the case.

The Colorado Court of Appeals ruled that the trial court had erred by admitting the expert witness. Writing for the court, Judge Michael H. Berger stated that “No evidence presented to the jury proved or even suggested that prior to the charged incident Cooper had assaulted, or physically or nonphysically abused, L.K.” Berger also noted that there was no indication of a cycle of violence or control over L.K.; however, “the expert was permitted to give extensive testimony about how domestic abusers exercise such control”.

In essence, the expert testimony had no factual foundation that made it relevant to the case. Berger wrote that the expert’s testimony “may well have caused the jury to infer that there was a prior history of domestic violence.” The court reversed Cooper’s conviction and ordered a new trial.

Colorado Supreme Court

The prosecution petitioned the Colorado Supreme Court for a Writ of Certiorari.

The Colorado Supreme Court granted the petition, agreeing only to determine the issues of (1) Whether the court of appeals erred in concluding that blind expert testimony on domestic violence was inadmissible because the charged act was the first act of domestic violence in the relationship; (2) Whether the court of appeals erred in concluding that blind expert testimony on domestic violence must be limited to those facets of a subject that are specifically tied to the particular facts of the case; and (3) Whether the court of appeals erred in finding that the admission of the expert testimony was not harmless.

 

Only an Expert Can Testify that a Patented Invention Was Obvious

One defense to a patent infringement lawsuit is that the patent should not have been granted because the patented invention is based on an obvious modification of existing ideas. The issue in HVLPO2, LLC v. Oxygen Frog, LLC was whether a lay witness could testify about the obviousness of an invention. The Court of Appeals for the Federal Circuit ruled that expert testimony is often required to establish obviousness.

Facts of the Case

The two patents at issue involved a device that manages the flow of oxygen gas mixtures to torches used by glass artists. There was no question that Oxygen Frog infringed two patents held by HVLP02. The only question at trial was whether the device used a method for controlling the flow of oxygen that would have been obvious to a person with ordinary skill in the field in light of existing ideas and technology.

To establish that the technology underlying the patents was a matter of public knowledge before the patents were issued, Oxygen Frog pointed to a blog post on a glass blowing internet forum that described an oxygen system. That system was similar to the patented device, but it involved a single circuit while the patented device used two circuits, one to provide power to oxygen generators and the second to provide power to an air compressor.

Oxygen Frog also pointed to a video that was posted online by Tyler Piedbes, a glass blowing artist. Oxygen Frog deposed Piedbes and played most of the deposition for the jury. Oxygen Frog did not offer Piedbes as an expert witness.

Piedbes was asked whether he thought adding a second circuit to the oxygen system described online was an obvious modification. HVLPO2 objected that Piedbes was not offering admissible lay testimony because an opinion about obviousness could only be provided by an expert witness. The trial judge overruled the objection and Piedbes answered “yes.”

The court instructed the jury that Piedbes could offer an opinion as to whether the modification “would occur to him from his perspective” and whether the modification was obvious. The court also instructed the jury that it was to make its own determination of obviousness.

The jury decided the obviousness question in favor of Oxygen Frog. HVLPO2 appealed. It contended on appeal that Piedbes’ testimony was inadmissible because he did not testify as an expert.

Appellate Opinion

Obviousness is not analyzed from the perspective of an ordinary person. Rather, the question is whether the patented invention modified an existing invention or technology in a way that would have been obvious to a person of ordinary skill in the relevant field (“a person of skill in the art,” in the language of patent law).

The Court of Appeals noted that it “is often helpful to have a technical expert explain, for example, the scope of the prior art or motivations for combining various components.” That explanation cannot typically be provided by a lay witness, because explanations of facts that are beyond the knowledge of ordinary jurors can only be made by expert witnesses. A person who is not an expert in the relevant “art” cannot usually assist the jury’s determination of obviousness.

Priebes might have been an expert, but he did not testify as an expert. He was not disclosed as an expert witness and did not prepare an expert report. The appellate court rejected the argument that Priebes was entitled to provide lay testimony about obvious modifications of oxygen system that had been described online. That testimony was “the province of qualified experts, not lay witnesses.”

Oxygen Frog argued that Priebes’ testimony, even if inadmissible, did not harm HVLPO2. Of course, Oxygen Frog only called Priebes as a witness because it hoped his testimony would influence the outcome. The Court of Appeals noted that the jury may have relied entirely on Priebes’ testimony when it decided the question of obviousness.

The trial court’s limiting instruction did not cure the error because it expressly allowed the jury to consider Priebes’ inadmissible opinion. In addition, HVLPO2 could not make a Daubert challenge to test the reliability of Priebes’ testimony since Priebes was not designated as an expert. Under those circumstances, the failure to designate Priebes as an expert could not be dismissed as harmless error. HVLP02 was therefore entitled to a new trial.

 

Ethical Issues in the Legal System

Improper Expert Testimony About CSAAS Results in New Trial for NJ Defendant

Prosecutors who charge defendants with sex offenses involving minors sometimes base their prosecutions solely on the alleged victim’s testimony. Fearing that a jury will doubt that testimony, prosecutors often bolster their cases with expert witnesses.

In some cases, expert testimony is uncontroversial. A physician who examines a child and discovers wounds that were likely caused by sexual contact may contribute valuable testimony to the prosecution’s case. Defense experts who highlight other potential causes of the wounds also provide important evidence for the jury’s consideration.

Psychologists are frequently asked to explain why a minor might delay reporting a sexual assault. Delayed disclosure might be evidence of fabrication, but peer-reviewed literature suggests that children might delay disclosure of sexual victimization for a variety of reasons. Courts routinely permit qualified experts to explain those reasons in cases where an alleged victim did not immediately report the sexual contact.

More problematic is testimony about how a minor might react to a sexual assault. While the testimony might be admissible if it’s supported by evidence beyond the expert’s anecdotal observations, an expert must take care not to vouch for the victim’s story. In other words, a neutral expert should not say or imply that a complaining witness must be telling the truth about an alleged sexual assault because she behaved in the way the expert would expect a sexual assault victim to behave.

Responses to sexual assaults, like responses to other stressors, vary widely. When experts attempt to testify that delayed reporting or specific behaviors are evidence of a sexual assault, they cross a line that comes dangerously close to vouching for the child’s story. Juries understand such testimony to mean that the expert believes the child. But experts are not lie detectors, and whether the expert believes the child is not relevant evidence. Whether the jury believes the child is the ultimate question.

Child Sexual Assault Accommodation Syndrome

A recent case in New Jersey addressed an expert’s testimony about Child Sexual Assault Accommodation Syndrome (CSAAS). The syndrome is the controversial brainchild of Roland Summit, who theorized that sexually abused children behave in certain ways that include making a delayed disclosure of a sexual assault, followed by a retraction of the disclosure.

Some prosecutors misused CSAAS as a diagnostic tool. Whenever children behaved in a certain way (such as demonstrations of “secretiveness” and “helplessness”), prosecutors argued that their behavior corroborated their sexual assault accusations. Unfortunately, since abuse victims (like children who have not been abused) behave in a variety of ways, almost any behavior can be portrayed as corroborative evidence of abuse, rendering the alleged corroboration meaningless. Prosecutors also used CSAAS to argue that any subsequent retraction of an accusation must have been false because abuse victims can be expected to retract their accusations.

Even Summit admitted that CSAAS is not a diagnostic tool. He cautioned against misuse of his theory as evidence that a child’s accusation is truthful. Unfortunately, his statements fell on deaf prosecutorial ears.

A 2008 study noted that the CSAAS “theory has had a tremendous impact on the field of [child sexual assault] forensic evaluations, despite its dearth of empirical support.” While that study found support for the finding that some assault victims delay reporting, it found very little evidence that victims are likely to recant accurate reports of sexual assaults.

New Jersey v. Librado

Aurelio Librado lived with his partner, their three children, her two children by a different relationship, and his brother’s family. Two or three dozen people came to Librado’s home for a party that celebrated his nephew’s first communion. The nephew’s godmother attended the party with her 15-year-old daughter, L.A.

L.A. testified that Librado forced her to leave the party, brought her to the basement, touched her breasts, and made unsuccessful attempts to have vaginal and anal intercourse with her.  When he let her go, she went to the bathroom and found a substance she believed to be semen on a tissue she used to clean herself.

One of Librado’s stepsons saw L.A. crying. When he asked her why, she said “your stepfather sexually violated me.” The stepson did not believe L.A. and did not repeat the accusation to anyone until the police questioned him a year later. L.A. testified that she did not tell her mother what happened because she was embarrassed and did not want Librado’s children to grow up without a father.

In the following months, L.A.’s mother noted changes in L.A.’s personality. She eventually began to cut herself. When her mother threatened to make her see a psychiatrist, L.A. stated that she had been sexually violated. She refused to discuss details or to identify her assailant.

L.A.’s parents contacted the police, who noted L.A.’s acts of self-harm and had her hospitalized. L.A. persisted in refusing to identify the person who sexually assaulted her. A month later, L.A. told her godmother where and when the assault had occurred. A month after that, L.A. identified Librado during an interview by a child interviewer specialist employed by the prosecutor’s office.

Dr. Brett A. Biller testified about delayed disclosure and CSAAS. Several witnesses testified about L.A.’s attendance at the party, her post-party behavior, and her hearsay accusations. Librado’s stepson testified about the statement that L.A. made to him at the party. A jury convicted Librado of several sex offenses.

Expert Testimony Regarding Delayed Disclosure

Under New Jersey law, an expert may testify about the reasons children delay disclosing a sexual assault if that testimony would assist the jury. New Jersey courts have concluded that the testimony only assists the jury if the alleged victim cannot provide a rational explanation for delaying disclosure.

In this case, L.A. explained that she did not disclose the assault because she was embarrassed and did not want to harm Librado’s family. That explanation was easy for a jury to understand. Explaining why other children in other circumstances might delay disclosure provided no additional assistance to the jury. Accordingly, expert testimony as to delayed disclosure should not have been admitted.

Expert Testimony Regarding CSAAS

Dr. Biller testified that CSAAS was designed by “advocates for children,” a claim that only renders the syndrome more suspect. Unbiased experts are advocates for the truth. The jury, however, was likely impressed by the suggestion that an expert who was trying to protect children came up with a way to do so.

Dr. Biller also testified that “CSAAS helps to explain how children’s behavior might lead someone to believe they were not victims, when in fact they were.“ Dr. Biller explained in great detail and depth the various behaviors that might mislead an adult into thinking no abuse occurred.

Apart from being ungrounded in actual science, none of that testimony had the slightest relevance to the case. J.A. never claimed she was not a victim. She simply didn’t want to talk about it. Nor did she engage in any behaviors (apart from silence) that might have misled adults into thinking that no abuse occurred. Rather, her personality changes and self-harming behaviors cried out for an explanation.

New Jersey has previously ruled CSAAS testimony inadmissible except when necessary to explain delayed disclosure. Since it was not necessary for that purpose in this case, the jury should never have heard from Dr. Biller. And since Dr. Biller’s testimony (as well as inadmissible hearsay) may have affected the verdict, Librado’s conviction was reversed and the case was remanded for a new trial.

Former FBI Director Excluded as Expert Witness

A federal judge has excluded the testimony offered by a former FBI Director in the case of the high-profile Volkswagen diesel emissions scandal.

Volkswagen Diesel Emissions Scandal

Volkswagen installed emissions software on more than 500,000 diesel cars in the United States and about 10.5 million more globally that allowed them to sense when a car is going through an emissions test. When the cars are in test mode, they are fully compliant with the maximum emissions levels that are set by The Environmental Protection Agency (EPA). But when the cars are driving normally, the cars switch to a different mode that changes fuel pressure, injection timing, exhaust-gas recirculation, and the amount of urea fluid that is sprayed into the exhaust. The “normal driving” mode delivers higher mileage and power; however, it also emits nitrogen-oxide (NOx) at levels that are up to 40 times higher than the federally-allowed limit.

As a result of these findings, Volkswagen was sued by the Environmental Protection Agency, the Federal Trade Commission, and the Department of Justice. Volkswagen was also liable civilly to the customers who had purchased the vehicles with the emissions software installed.

Expert Witness Louis Freeh

In 2016, Volkswagen was in talks to hire former FBI Director Louis Freeh to run its diesel emissions litigation. Freeh’s resume includes stints as a special agent in the FBI, Assistant U.S. Attorney, and United States District Judge for the Southern District of New York. President Bill Clinton appointed Freeh as the 5th Director of the Federal Bureau of Investigation, where he served from 1993 to 2001. He now serves as a lawyer and consultant in the private sector.

Freeh requested a guaranteed $15 million over three years, plus 10% of the “savings the company and its subsidiaries yield and/or the costs saved by settlements.” In the end, VW passed over Freeh for the role.

Freeh, who is founder and chairman of consulting firm Freeh Group International Solutions and senior managing partner of the affiliated law firm Freeh Sporkin & Sullivan, is now working for the other side. Freeh was retained as an expert witness for the plaintiffs who opted out of VW’s 2016 civil settlement and chose to sue the company instead.

The Knight Law Group retained Freeh as a plaintiff’s expert witness in the case In Re: Volkswagen “Clean Diesel” Marketing, Sales Practices, and Products Liability Litigation. The Knight Group paid Freeh $50,000 to write a 21-page report and agreed to pay $1,850 per hour for any future work. In his report, Freeh concluded that Volkswagen had gotten off too cheaply in the government’s criminal case against it, which settled for $2.8 billion in 2017. In Freeh’s opinion, the proper fine should have been in the range of $34 billion to $68 billion.

Volkswagen’s defense team filed a motion to disqualify. In its motion, the team argued, “Mr. Freeh’s conflict of interest and receipt of confidential information disqualify him from serving as an expert adverse to defendants.” The motion argued that Freeh had “engaged in extensive privileged and confidential discussions with Volkswagen’s senior-most executives and counsel about the same diesel matters underlying this lawsuit, including discussing key documents and legal strategy.”

While the motion to disqualify was still pending, U.S. District Judge Charles Breyer of the Northern District of California, held a Daubert hearing on the relevance of Freeh’s opinion. Judge Breyer ruled that the admission of Freeh’s opinion could bog down the trial and would require testimony from the judge who oversaw the criminal case and federal prosecutors. Judge Breyer said that plaintiffs’ counsel could not point to a single case where that type of testimony would be admissible.

Judge Breyer’s ruling effectively mooted the pending motion to disqualify Freeh based on information that was shared with him when he was in the running for the role to run the company’s previous litigation.

Failure to Produce Expert Medical Witness Dooms Lawsuit Alleging Harm from Mislabeled Pills

David Sutton alleged in a lawsuit that he took acetaminophen that had been manufactured by Advance Pharmaceutical. He claimed that the product had been mislabeled as baby aspirin. He intended to take baby aspirin and contended that he experienced severe health problems as the result of taking acetaminophen.

Advance Pharmaceutical packages over-the-counter medications for distribution to wholesalers. It contended that the medications are intended for sale to hospitals, nursing homes, and pharmacies, and are not packaged for sale to the public. Advance Pharmaceutical admitted that it recalled baby aspirin in 2013 after a pharmacist noticed that a bottle of baby aspirin actually contained acetaminophen.

Sutton represented himself in the lawsuit. He appealed an order that dismissed the suit after he failed to pay a monetary sanction. The Michigan Court of Appeals concluded that the sanction was improper and ordered the trial court to reinstate the lawsuit.

The trial court again dismissed the lawsuit, this time because Sutton refused to sign forms authorizing the release of medical records so that Advance Pharmaceutical could determine whether he was taking other medications that might have caused his symptoms. Sutton again appealed and the court of appeals again reversed the dismissal.

Since Sutton had not produced a treating physician as a witness, the court of appeals concluded that he did not waive physician-patient privilege. The trial court therefore erred in holding that Advance Pharmaceutical had the right to view his medical records.

On remand, the trial court granted summary judgment to Advance Pharmaceutical, effectively dismissing the lawsuit a third time. Sutton brought a third appeal. A key issue on appeal was whether Sutton could prevail in his lawsuit without using an expert witness. The court of appeals agreed with the trial court that he could not.

Proof of Causation

Sutton alleged that he experienced a variety of symptoms from taking acetaminophen when he believed he was taking baby aspirin. His proof that Advance Pharmaceutical caused his harm was hampered by his inability to produce the allegedly mislabeled bottle.

Sutton testified that he destroyed the bottles that contained the pills as well as the pills he did not take. The appellate opinion does not explain how Sutton hoped to prove that the pills he took were manufactured by Advance Pharmaceutical or that the pill bottle (assuming it came from Advance Pharmaceutical) was mislabeled.

The trial court determined that Sutton’s documentary evidence was unverified by a records custodian. The appellate opinion does not make the nature of the records clear, but the court agreed that the records failed to prove he suffered harm caused by the ingestion of acetaminophen.

Lack of Expert Evidence

Sutton admitted that he never saw a doctor for treatment of the symptoms that he attributed to taking mislabeled acetaminophen. Failing to see a doctor allowed him to invoke physician-patient privilege as to his medical records, but it doomed his efforts to prove causation.

Sutton could rely on his own testimony to establish that he took pills he believed to be baby aspirin. He could also rely on his own testimony about the symptoms he experienced after taking the pills. But his own testimony was insufficient to prove that the pills caused those symptoms.

The court of appeals determined that neither Sutton nor his roommate, who would have confirmed that Sutton took the pills, could prove causation. Expert evidence was therefore needed to prove that acetaminophen caused the symptoms Sutton experienced.

The court of appeals concluded that Sutton could testify as a lay witness about his own actions, but his opinion about the cause of the cause of his injuries was speculative. Only a medical expert could give admissible testimony to connect the symptoms Sutton experienced to the acetaminophen he allegedly swallowed.

The decision stands as a reminder that in most cases alleging a physical injury caused by ingestion of a drug, expert medical testimony is needed to prove that the drug caused the injury. Ordinary jurors do not typically understand the potential side effects of taking a common over-the-counter medication. Without an expert witness to educate them, the jury has no basis to determine causation. Plaintiffs who proceed without an expert witness face the risk of a judgment that dismisses their case without a trial.

Gavel and scales

Incomplete Expert Report Leads to New Trial

Different states take different approaches to the potential liability of homeowners when someone slips and falls on ice that accumulates on a sidewalk outside the home. In New Jersey, commercial property owners have a duty to keep sidewalks that abut their property safe. Residential homeowners, on the other hand, only have a duty to avoid creating an unsafe condition on a sidewalk.

The underlying issue in McBride v. Fair-Willoughby was whether a homeowner was liable for allowing water to run onto the sidewalk from a downspout. Expert witnesses disagreed about the feasibility of using a drainage system that would have avoided the runoff. The issue on appeal from a verdict in the homeowner’s favor was whether the defense expert improperly testified about his observations of neighboring houses when he had not mentioned those observations in his expert report.

Facts of the Case

April McBride and Stephanie Fair-Willoughby lived on the same street in Jersey City. On a Sunday morning in January, McBride decided to take advantage of a break in the rain to walk her dog. The sidewalk looked wet but she had no trouble walking. When she reached Fair-Willoughby’s home, she slipped on a patch of ice and fell, breaking her ankle.

McBride called her husband, who walked to her location to assist her. He observed that the entire sidewalk was wet and that the condition of the sidewalk in front of Fair-Willoughby’s house seemed no different. After making a closer inspection, however, he realized that that portion of the sidewalk was covered with black ice, a transparent sheet of ice that blends with the surface it covers.

Expert Testimony

Michael Natoli, a professional engineer, testified as a liability expert for McBride. In his opinion, melting water from the roof accumulated in Fair-Willoughby’s gutters, then traveled through a downspout to her driveway. Because of the driveway’s pitch, the water then flowed across the sidewalk.

Natoli contended that ice on the sidewalk was formed from the water that exited the downspout. Natoli suggested a couple of methods that a homeowner can use to prevent water from a downspout from flowing onto a sidewalk.

Fair-Willoughby’s only witness was also a professional engineer. David Behnken wrote a report two years after the accident occurred. He testified that Natoli’s suggestions for avoiding the problem of water drainage were not practical because Fair-Willoughby’s lot was too small.

At trial, Behnken was asked whether there was “anything improper” about the construction of the downspout on Fair-Willoughby’s property. He testified that there was not. He then added that the neighbors on both sides of Fair-Willoughby’s house had “the exact same conditions.”

Behnke’s expert report made no mention of inspecting neighboring properties or comparing Fair-Willoughby’s downspouts to those of her neighbors. Behnke based the opinions he expressed in his expert report on photographs of the accident scene. The report did not suggest that he personally inspected neighboring homes.

McBride objected that Behnken was testifying about facts that he had not mentioned in his expert report. The trial judge overruled the objection. The trial judge concluded that Behnke was merely testifying to “his observation” and that he “isn’t tied to the corners” of his report. The jury returned a verdict for Fair-Willoughby and McBride appealed.

Deviations from Expert Reports in New Jersey

Under New Jersey law, a trial judge may exclude expert testimony that comes as a surprise to the opposing party if the testimony would be prejudicial. There was no dispute that McBride was surprised by Behnke’s reference to neighboring houses.

Experts in New Jersey are typically confined to testifying only about opinions that have been disclosed in an expert report, but are generally allowed to testify about logical predicates for, and conclusions drawn from, statements made in the report.

Appellate Opinion

The trial judge’s ruling assumed that it was fair for Behnke to discuss neighboring houses because that testimony was related to his opinion that the way Fair-Willoughby’s downspout was situated was “the proper way to do it.” The appellate court concluded that the trial judge misunderstood Behnke’s testimony. Behnke’s opinion that there was nothing improper about the construction of the downspout did not establish that it is “proper” to situate a downspout to pour water onto a sloped driveway and allowing it to flow onto a sidewalk.

More importantly, Behnke’s testimony about other houses was not a logical predicate for his opinion about Fair-Willoughby’s house. Since Behnke made no mention of examining those houses, McBride had no reason to believe that he would testify about them. McBride was prejudiced by the surprise testimony because she had no opportunity to inspect the neighbors’ homes so she could verify that the testimony was accurate.

Finally, the appellate court noted that Behnke’s testimony about what other homeowners did had no relevance. He essentially invited the jury to conclude that Fair-Willoughby was not negligent because her neighbors had similar drainage systems. The question was whether Fair-Willoughby was negligent. “Everybody does it that way” was not a defense. The potential negligence of other homeowners does not absolve a negligent homeowner of liability.

The court decided that, absent the improper testimony, the jury verdict could have gone either way. Since the improper testimony may have influenced the verdict, McBride was entitled to a new trial.

Lessons Learned

The McBride case illustrates the importance of disclosing all facts in an expert report that form the basis of an expert’s opinion. Of course, the appellate court concluded that the omitted facts were not relevant. Disclosing them might have prompted a pretrial ruling that the expert could not testify about those facts. Still, it is better to resolve evidentiary issues before trial than to face a second trial after a verdict is reversed on appeal.

Experts should always take care to discuss the facts thoroughly in their reports. If lawyers intend to ask experts about facts that are not included in a report, they should make that decision before the report is submitted so that the expert has an opportunity to revise the report by including those facts.

North Carolina

Appellate Court in NC Malpractice Case Rejects Challenges Based on Expert Testimony

The North Carolina Court of Appeals was asked to decide whether expert testimony justified an “intervening cause” jury instruction when two procedures by different surgeons may have negligently caused a patient’s harm. The court was also asked to decide whether a defense expert gave improper standard of care testimony. The appellate court in Hampton v. Hearn rejected both challenges and affirmed a defense verdict.

Facts of the Case

Delacy Miles had an angioplasty and stent placement. The procedure unblocked a vein that was likely blocked because of catheter placements related to her dialysis. Dr. Andrew Hearn performed the surgery.

Dr. Hearn placed the stent in the innominate vein. Part of the stent protruded into the superior vena cava, the main blood vessel that enters the heart from the right side.

Three days later, Miles needed a permacath placement to create new access for her dialysis treatments. Dr. Gregory Schnier passed a catheter through the superior vena cava. He was unaware that Dr. Hearn had placed a stent at the junction of the innominate vein and the superior vena cava.

The procedure pushed the stent into the chamber of Miles’ heart known as the right ventricle. Miles began to experience a rapid heartbeat (tachycardia) during the procedure. Doctors discovered the broken stent in her right ventricle and transferred her to a different hospital, where a fractured piece of the stent was removed from her heart.

Miles was hospitalized for about a week as she recovered from the surgery. About a week after her discharge, she was hospitalized for a few more days to treat bleeding from the dialysis site. She then entered a nursing home, where she died from unrelated causes.

Miles’ estate sued Dr. Hearn and other parties for medical malpractice. Dr. Hearn was the only defendant at the time of trial.

Expert Testimony

Miles’ estate called Dr. Michael Dahn as its standard of care expert. Dr. Dahn testified that Dr. Hearn breached the standard of care by allowing the stent to protrude too far into the superior vena cava. He agreed that it is acceptable for a stent to extend into the superior vena cava, but considered it problematic for the stent to be positioned more than one or two millimeters into that blood vessel.

Dr. Dahn testified that Dr. Hearns’ stent placement breached the standard of care that applies to the procedure. Dr. Dahn also testified that the stent was sheared in half during the catheter insertion, causing the broken stent to enter Miles’ heart. In Dr. Dahn’s opinion, that harm was caused by Dr. Hearns’ breach of the standard of care.

Two standard of care witnesses, Dr. Steve Powell and Dr. Ray Workman, testified for Dr. Hearn. They both testified that Dr. Hearns followed an appropriate standard of care. The depositions of two other defense experts, one of whom testified as to causation, were also offered as evidence.

Intervening Negligence

A key issue in the case was whether Dr. Schnier was negligent and whether his intervening negligence absolved Dr. Hearn of blame. Two defense experts opined that Dr. Hearn could not have foreseen that part of the stent would sheer off if another doctor passed a catheter through the superior vena cava.

While Dr. Dahn testified that another doctor’s decision to pass a catheter through the superior vena cava was foreseeable, he also testified that Dr. Schnier breached the standard of care by failing to determine the position of the stent before passing a catheter through the vein.

Based on that expert testimony, the court instructed the jury that it should not find Dr. Hearn negligent if the harm was solely caused by a subsequent, intervening act of negligence. The appellate court found no error in giving that instruction.

Causation Expert Testimony

Miles’ estate objected to the expert testimony of Dr. Michael Rinaldi. Although Dr. Rinaldi was designated as a causation expert, he was not designated as a standard of care expert. The estate contended that he gave impermissible testimony about the standard of care when he was asked if there was “anything unusual” about the stent placement. Dr. Rinaldi responded that the stent was placed pursuant to a “normal procedure” that he had followed himself.

The appellate court did not decide whether the testimony was erroneously admitted — it clearly was, since Dr. Rinaldi gave an opinion about the method of stent placement normally used by surgeons like himself — but concluded that any error was cured by the court’s instruction. Before playing the video of Dr. Rinaldi’s testimony, the judge instructed the jury that Dr. Rinaldi was not providing an opinion about the standard of care.

Why the judge did not simply excise the objectionable testimony from the video is unclear. Perhaps the judge was not asked to do so. That would have been a more effective means of assuring a fair verdict than reliance on a presumption that juries follow the instructions provided by the court. The presumption is contrary to human experience, but appellate courts invoke it routinely.

Satisfied that the jurors dutifully disregarded the improper standard of care testimony, the court of appeals affirmed the verdict in favor of Dr. Hearn. This was ultimately a case of experts who disagreed. Given the court’s rulings, the jury was entitled to credit the defense experts.