Category Archives: ExpertWitness

United States Supreme Court Building

Supreme Court Affirms Denial of SSDI Benefits Despite Vocational Expert’s Refusal to Produce Data

When the Social Security Administration (SSA) denies an application for Social Security Disability Insurance (SSDI) benefits, the applicant is entitled to a hearing. One of the issues that an administrative judge will decide is whether jobs are available for a person with the applicant’s disability, in light of the applicant’s education, work experience, and other characteristics.

Administrative judges often rely on expert testimony about the availability of work in the economy. In Biestek v. Berryhill, the expert based her opinion on private market-survey data. The applicant asked to review that data but the expert refused to provide it.

The judge relied on the expert’s opinion despite the expert’s refusal to provide the underlying data to the applicant. The United States Supreme Court was asked to decide whether an expert’s opinion can support a denial of SSDI benefits when the expert relies upon data that she keeps secret.

Facts of the Case

Michael Biestek was a carpenter and construction worker. A combination of degenerative disc disease, Hepatitis C, and depression prevented him from working in his occupation. He applied for SSDI benefits.

The question at Biestek’s SSDI hearing was whether he was capable of transitioning to less physically demanding work. The judge needed to determine what kind of work Biestek could do and whether those jobs existed in significant numbers.

The judge used the services of Erin O’Callaghan, a vocational expert who was under contract with the SSA. Like many vocational experts, she also worked in the private sector helping people with disabilities find employment.

O’Callaghan opined that Biestek could work as a bench assembler or sorter. She testified that there are 240,000 bench assembler jobs and 120,000 sorter jobs in the national economy.

Biestek’s lawyer asked O’Callaghan about the source of those numbers. She replied that they came from her own labor market surveys. (She also relied on government sources, but those sources do not provide the specific detail about which she testified.)

Biestek’s lawyer asked O’Callaghan to produce those surveys. She refused, claiming that they contained confidential information because they were in her client files. The lawyer suggested that O’Callaghan produce the surveys after removing the clients’ names. She again refused. The judge stepped in and ruled that she was not required to produce the information.

Judge’s Ruling Appealed

The judge awarded Biestek benefits that would start after four years, when his advancing age would make it difficult for him to find employment. Biestek appealed, arguing that there was no reliable evidence that any work existed in the economy that he would be qualified to perform during the four-year period during which benefits were denied. He argued that O’Callaghan’s opinion should not be considered because it was based on data that Biestek was not allowed to review or challenge.

The District Court and the Sixth Circuit ruled against Biestek. Since the Sixth Circuit’s ruling conflicted with a decision from the Seventh Circuit, the Supreme Court agreed to resolve the conflict.

Supreme Court Decision

The SSA rules allow vocational experts to rely on publicly available sources of data and on information they privately acquire from employers or that they develop from their own experience. In a federal lawsuit, data upon which experts rely is usually discoverable, and courts deciding Daubert motions must determine whether the data is sufficient to support the expert’s opinion.

The Supreme Court decided that administrative proceedings are different. Administrative rules require decisions to be based on “substantial evidence,” although court decisions tend to regard that phrase as meaning “any evidence at all.” As the Supreme Court noted, “substantial” in this context means “more than a mere scintilla.”

Biestek did not ask the Court to adopt a procedural rule requiring production of a vocational expert’s underlying data. As the Court noted, that rule exists in court procedures that apply to federal lawsuits but no comparable rule requires production of an expert’s data in SSA proceedings. Nor did the Court seem inclined to adopt such a rule, even if it had been asked to do so.

The Court declined to rule that a vocational expert’s opinion in an SSA hearing will never constitute “substantial evidence” of available employment if the expert refuses to disclose the data upon which the opinion is based. The Court concluded that a qualified expert who answers questions credibly, who uses a widely accepted methodology, and whose testimony is not contradicted by other evidence may be deemed to have provided “substantial evidence” upon which an SSA judge may rely. It is up to the judge in each case to decide whether the evidence is substantial, even if the expert refuses to produce underlying data upon which it is based.

It’s All Up to the SSA Judge

The Court noted that an SSA judge might decide not to credit an expert’s testimony if the expert “has no good reason to keep the data private and her testimony lacks other markers of reliability.” If the judge accepts the testimony despite the expert’s refusal to provide underlying data, reviewing courts must decide case-by-case whether the expert’s testimony created “more than a mere scintilla” of evidence. Given the low bar, the reviewing court will nearly always agree that the judge’s decision is based on substantial evidence.

The Court acknowledged that “the testimony would be even better—more reliable and probative—if she had produced supporting data; that would be a best practice for the SSA and its experts.” In fact, the SSA’s Vocational Expert Handbook instructs vocational experts to have their supporting data available if the judge asks to see it, but it does not require the judge to do so.

A judge who questions an expert’s credibility might therefore reject the testimony of an expert who refuses to produce the data. Since judges pick the expert, however, it is unlikely that a judge will question the expert’s credibility. Thus, when a judge lets the expert keep her underlying data secret, an SSDI applicant will often be out of luck.

Dissenting Opinions

The majority opinion did not decide whether substantial evidence supported the denial of Biestek’s benefits. The majority explained that it was not asked to decide that question.

Justice Gorsuch, joined by Justice Ginsburg, thought that the questions were inseparable. Justice Sotomayor wrote a separate dissenting opinion that agreed with most of Justice Gorsuch’s reasoning.

While Justice Gorsuch agreed with the majority that an expert’s opinion might constitute substantial evidence in some cases, even if underlying data is not produced, he based his analysis upon precedent that deems an expert’s “conclusory” opinion to be incapable of meeting the substantial evidence standard.

Courts generally agree that experts must do more than provide a “bottom line” opinion. They must support those opinions with sufficient data and reasoning. An expert who claims to have supporting data but refuses to produce it offers little more than a conclusory, bottom-line opinion.

Justice Gorsuch thought O’Callaghan’s opinion, supported only by her secret data, was conclusory. He concluded that “an agency expert’s bottom-line conclusion, supported only by a claim of readily available evidence that she refuses to produce on request, fails to satisfy the government’s statutory burden of producing substantial evidence of available other work.”

Underlying Justice Gorsuch’s approach is the understanding that SSA denies most claims for disability benefits. The SSA has the burden of proving that substantial jobs are available. When an SSA judge hires a vocational expert and then excuses the expert from producing data that justifies her opinion, the SSA judge puts a thumb on the scale by making it impossible for the disabled applicant to challenge the expert’s opinion. That approach reduces the number of claims the SSA must pay, but it isn’t fair to the disabled applicant.

The bottom line is that, in most cases, experts should not rely on data that they are unwilling to produce. In Social Security cases, and perhaps in some other administrative cases, experts may be able to shield their data, but it will be up to the administrative judge to decide whether the expert’s opinion should carry any weight when the opinion amounts to a “bottom line” conclusion that is unsupported by any data that the expert is willing to reveal.


Conviction Reversed for Failing to Challenge CPS Worker’s Improper Expert Testimony

The New Hampshire Supreme Court recently drew a line between expert and lay testimony given by a Child Protective Services (CPS) worker. The line is one that courts have had trouble defining. Courts are not always clear about information concerning child behavior that most jurors will possess and that need not be the subject of expert testimony, and the kind of esoteric information that can only be provided by an expert witness. Nor are courts always consistent in defining the testimony that experts can give when they discuss the “typical” behaviors of child abuse victims.

The issue arose in the context of a of a prosecution for multiple counts of sexual assault. After the defendant was convicted, his postconviction attorney argued that his trial attorney was ineffective when she failed to object to the CPS worker’s testimony. The CPS worker was not called as an expert witness.

Criminal defense attorneys have a duty to provide effective representation to their clients. That duty is part of the constitutional right to counsel, which guarantees not just representation by a warm body, but effective representation by a lawyer whose performance is objectively reasonable as measured by what competent attorneys would be expected to do. The court decided that an effective attorney would have objected to the testimony and therefore granted the defendant a new trial.

Facts of the Case

The alleged victim testified that she was sexually assaulted by her stepfather when she was five or six. She described a series of incidents that progressed from sexual touching to penetration. The same child had allegedly been sexually abused by a different man at some earlier point.

The child testified that she had her eyes closed during some of the incidents with her stepfather and could not see what her stepfather was doing. The jury found her stepfather, Jason Wilbur, guilty of two counts of sexual assault and not guilty of two others.

In a postconviction motion, Wilbur asserted that his attorney’s representation was ineffective. The trial court denied the motion. On appeal, the New Hampshire Supreme Court agreed that Wilbur’s attorney was ineffective.

CPS Worker’s Testimony

The CPS worker closed her testimony with four statements:

“[The child] was sexually reactive, and she acted out on other children when she had an opportunity.” An unadorned description of a child’s behavior is testimony about facts, not expert testimony. Characterizing the child’s behavior as “sexually reactive,” however, went beyond descriptive testimony by interpreting the child’s behavior.

“She had a really hard time mentally just dealing with this.” If the CPS worker was simply repeating hearsay from the child, she made that statement without testifying as an expert. However, it appears that she based the statement on her observations of the child, and concluded that the behavior she observed was the result of trauma produced by sexual abuse. If she was describing the child’s mental state, she was testifying as an expert.

“It had been going on for so long that she started to identify with the perpetrators, with the people who she alleged abused her.” That statement was an explanation of the child’s behavior as opposed to fact testimony about how the child behaved.

“And those [behaviors] are typical of children that have been abused.” The final statement is one that called on the CPS worker to compare the alleged victim with actual abuse victims as opposed to testifying about facts that she observed.

Drawing the Line Between Expert and Lay Testimony

While courts have struggled to draw lines when social workers testify, they typically apply the rule that experts testify about matters that are beyond the knowledge of ordinary jurors. Some aspects of child behavior are commonly understood by lay jurors (children cry when they are sad) while other aspects of child behavior are not. For example, courts commonly allow experts to testify that child victims of sexual assault often delay reporting the crime because courts assume that lay jurors are unfamiliar with behaviors of children who have been assaulted.

The trend in courts that are protective of the constitutional right to a fair trial is to recognize that how children customarily react to sexual abuse must be the subject of expert testimony. Most parents do not abuse their children and do not know whether abused children do or don’t become “sexually reactive” or begin to “identify with their perpetrators.” Even experts disagree about how children who are actually abused will react to the abuse. Jurors rarely have a basis in their own experience for deciding whether a child’s behavior is or is not typical of an abused child’s behavior.

The CPS worker gave testimony that only an expert should have given. Perhaps she was an expert, but she did not testify as one. The trial court and the New Hampshire Supreme Court both noted that the testimony improperly crossed into the realm of expert testimony.

Comment on Child’s Veracity

The appellate court’s focus, however, was on the CPS worker’s attribution of the child’s behavior to assaults “that had been going on for so long.” The CPS worker witnessed no assault and had no personal knowledge of whether the child had been assaulted. Her testimony that the assaults had occurred signaled her belief that the child was telling the truth. It also signaled her belief that the child’s “reactive” behavior stemmed not from the earlier incident of sexual abuse, but from Wilbur’s repeated sexual assaults over time.

Social workers are not lie detectors, and it is generally improper for a lay witness to comment upon the veracity of another witness. Whether the social worker believed the child was not relevant evidence. The question was whether the jurors believed the child. Their evaluation of the child’s testimony may have been tainted by their understanding that the CPS worker thought the child was being truthful.

Although the CPS worker did not testify as an expert, the prosecutor told the jury during closing arguments that the worker was “specially trained to do this.” The jury likely viewed that statement as a representation that the CPS worker was trained to know when children are telling the truth about sexual assaults.

While courts are not uniform in their condemnation of social worker testimony that vouches for the credibility of children, the trend is to recognize that even expert witnesses should not be allowed to imply that a child is telling the truth by testifying that the child’s behavior is common to the behavior of sexual assault victims. It is one thing to offer evidence about why children might delay reporting, give inconsistent versions of events, or recant accusations when that testimony is offered to rebut a claim that the alleged victim is lying. It is another thing to claim the ability to discern from a child’s behavior that a child was sexually assaulted. New Hampshire joined with other courts in holding that even an expert witness may not give testimony that implies the expert’s belief that the defendant is guilty.

The lesson for defense attorneys to learn is that social workers in child sexual assault cases often cross a line by testifying as experts. Attorneys need to be vigilant to object to that testimony when the witness has not been proffered as an expert.

Even when the prosecution calls an expert witness to testify, defense attorneys should object to any testimony that suggests the expert’s belief in the defendant’s guilt, including claims that the child behaved in a way that the expert presumes an abuse victim might behave. Defense attorneys should also consider retaining their own experts to counter testimony given by expert witnesses called by the prosecution.

Car jack

Court Rejects Challenge to Expert Opinion About Defective Jack Stand

Christian Klorczyk was changing the oil on a car in his family garage when the car fell from its jack stand. The accident ended Christian’s life. His parents and Christian’s estate sued a number of defendants for manufacturing and selling a defective jack stand.

The Klorczyk estate relied on an expert witness to prove the jack stand was defective. The defendants made a predictable Daubert challenge to the admissibility of the expert’s opinion. A federal judge in the District of Connecticut denied the challenge.

The jack stand was manufactured by Wei Fu. It was sold to Sears by MVP (HK) Industries. Shinn Fu Corporation is the parent company of Wei Fu and MVP. Its American affiliate is Shinn Fu Company of America (SFA). The Klorczyk estate sued all of those companies, although the court dismissed Shinn Fu Corporation because it (unlike its American affiliate) played no role in manufacturing, marketing, or selling the jack stand.

Facts of the Case

The defendants contend that Christian used a floor jack to raise the car and then crawled under it without supporting the car with a jack stand. Christian’s parents contend that Christian used a jack stand to support the car after using a floor jack to raise it.

The evidence was undisputed that Christian purchased a jack stand set from Sears about two months before the accident and that nobody had used it before. When Christian’s father entered the garage, he discovered that the car had crushed his son. He observed one jack stand from the set of four resting on its side. That jack stand was on the passenger side of the car, while the other three jack stands in the set were on the driver’s side.

Christian’s father saw that the floor jack was standing upright next to the car with its lifting arm fully depressed and its lifting handle removed. His father had taught Christian to leave the floor jack in that position after placing the car on a jack stand.

In addition to the testimony of Christian’s father and a first responder who arrived at the scene, the Klorczyk estate relied on an expert witness who reconstructed the accident. The defendants moved to exclude the testimony of the estate’s expert.

Expert Report

Frederick Heath prepared an expert report for the Klorczyks. He concluded that the jack stand experienced a phenomenon known as “false engagement.” While the teeth of a ratchet bar on a jack stand should fit snugly into the body of the pawl, sometimes a tooth edge rests against the pawl tip, creating the appearance that it is fully engaged. That “false engagement” makes the jack stand insecure.

If the ratchet bar is not fully engaged, bumping into the jack stand could cause the ratchet bar to slide down into the base, causing the car to fall. Heath concluded that false engagement explained the accident.

James Sprague provided an expert opinion for the defendants. Based on scrape marks on the car’s side, he concluded that Christian crawled under the car while it was still raised by the floor jack. The Klorczyks contended that scrapes on the car’s side were caused by winter driving.

Heath prepared a rebuttal report. He concluded that it would take 400 pounds of force to move the floor jack after it raised a car, and that no such force was present in the garage at the time of the accident. He also disagreed with Sprague’s claim that the jack stand could not have held the car sufficiently high to allow Christian to crawl beneath the car at the point where the car made contact with his body.

Defective Design Evidence

A former employee of SFA testified that he investigated earlier instances of false engagement and that SFA was aware of the problem. The employee developed an alternative design that would have used a locking pin to assure that the ratchet bar remained in place. However, SFA declined to adopt the safer design.

A number of SFA’s competitors sell similar jack stands that incorporate a locking pin as a safety feature. The former employee of SFA admitted that SFA was aware that its competitors used that design.

Competitors also included a warning about false engagement in their instruction manuals. No such warning was included in SFA’s manual, despite SFA’s awareness of the problem.

Challenge to Heath’s Qualifications

The defendants contended that Heath was not qualified to testify as an expert because he had no experience in accident reconstruction other than giving testimony as an expert witness. The court noted, however, that Heath has a degree in mechanical engineering and has authored many publications on vehicle lifting, safety, and accidents. He has performed accident reconstructions before, and the fact that he did so in his capacity as an expert witness did not diminish his expertise.

Challenge to Facts Supporting Heath’s Opinions

The defendants also concluded that Heath’s report lacked an adequate factual foundation because he relied on evidence provided by Christian’s father. The court recognized that “there is nothing nefarious about an expert relying on witness accounts.” Experts must base opinions on facts and those facts often come from witnesses.

The court noted that experts cannot comment on the credibility of witnesses; that is, they cannot say that they believe that a witness told them the truth. They are nonetheless free to premise an opinion on facts supplied by an eyewitness that they assume to be true for the purpose of rendering an opinion. Different experts may reach different opinions based on different eyewitness accounts. It is up to the jury to decide whether the facts upon which an expert relies have been established.

Moreover, Heath did not rely exclusively on facts provided by Christian’s father. He also reviewed accident reports that recorded the observations of the first responder and he visited the accident scene. When he prepared his rebuttal report, he conducted testing to determine how much force would be required to move a floor jack if Christian had, in fact, crawled under the car while it was supported only by a floor jack. That testing provided data in support of his opinion that the theory advanced by the defendants’ expert was improbable.

Notably, the court emphasized that when it asks whether an expert’s opinion is supported by “sufficient facts or data,” it must not decide whether the facts upon which the expert relies are true. If a jury could reasonably find those facts to be true, the only question for the court is whether the facts are sufficient to support the expert’s opinion. That is a distinction that some judges forget in their zeal to apply Daubert.

Challenges to Heath’s Methodology

The court also rejected attacks on Heath’s methodology. The defendants faulted him for not inspecting the jack stand’s surfaces closely, for not taking into account the weather (although the weather inside the garage was presumably unremarkable), and for failing to discuss engineering literature. None of those attacks rendered Heath’s methodology unsound.

The failure to cite peer-reviewed studies is not dispositive when an expert relies on his own experience and on sound principles of science. As the court noted (and as judges sometimes forget), an expert need not rule out every possible alternative cause of an accident if a reasonable methodology allows the expert to arrive at a likely cause.

The defendants complained that Heath tested worn jack stands rather than the new jack stand that Christian used, but Heath testified that a worn jack stand is less likely to experience false engagement. The test results were therefore not skewed in the family’s favor by testing a worn jack stand.

Since Heath’s methodology was reliable and since a jury could credit his findings, the court determined that Heath’s opinions were admissible. The defendants were free to present competing expert testimony and to cross-examine Heath to expose the weaknesses they perceive in his opinions, but it is ultimately the jury, not the court, that decides whether those opinions are worthy of belief.


Expert Testimony Convinces Court that Virginia Defendant was Wrongly Convicted

A woman was raped in Reston, Virginia in 1975 by a man who entered her apartment through an unlocked balcony door. She did not know her attacker, but the police were able to prepare a composite sketch from the description she provided. Months later, the police showed the sketch to a person who said it resembled her brother’s friend, Winston Scott. The police then placed Scott’s photograph in an array with other photographs and showed it to the victim. She picked out Scott’s picture.

The woman was understandably shocked and frightened during the assault. She acknowledged that the light was dim and that she did not get a good look at the rapist. She nevertheless identified Scott as her attacker during the trial. That is unsurprising, since witnesses who are shown a suspect’s photograph tend to base in-court identifications on their memory of the photograph. No other evidence linked Scott to the apartment where the victim was raped.

Alibi witnesses confirmed that Scott was sleeping in a house that was about 8 or 9 miles from the crime scene on the night of the attack. Scott did not have a car.

Prosecution’s Expert Evidence

The prosecution relied on the testimony of Mary Jane Burton, the head of forensic serology at Virginia’s Bureau of Forensic Science (BFS). Burton testified that she found semen in the jeans that the victim put on after her attack. She sent samples of the semen to the crime lab. The lab results indicated that the semen contained secretions from a person with blood type A. Scott had blood type O.

Apparently unhappy that forensic evidence cleared their only suspect, Burton submitted a different sample from the jeans to the crime lab. Miraculously, the second test determined that the semen was secreted from someone who was blood type O.

Burton tried to explain the discrepancy by claiming that “bacterial growth” caused by storing the jeans in a plastic bag may have produced a false blood type. However, Burton failed to test the original semen sample for bacteria and thus had no foundation for her opinion. A prosecution-friendly judge nevertheless permitted her to give her speculative opinion to the jury.

Despite the clear presence of reasonable doubt, a jury found Scott guilty. He was released on parole in 1981. He has spent his life living under the shadow of a rape conviction.

DNA Testing

After Virginia nearly executed two innocent people based on inaccurate crime lab testimony, the state crime lab was audited. The audit revealed that analysts routinely produced questionable results, often in response to pressure from government agencies that wanted the results to match their theory of guilt. Pressure from prosecutors or law enforcement agencies may explain why the crime lab initially reported a test result that was inconsistent with Scott’s guilt but later changed its finding.

Gov. Scott Warner ordered DNA tests of all evidence samples collected and retained by the crime lab between 1973 and 1988, before DNA testing was available. The testing of sperm samples in Scott’s case was completed in 2010.

The analyst concluded only that DNA collected from the sperm samples did not match anyone in the state’s DNA database. The analyst did not try to exclude Scott because of a policy that required DNA to be collected from four loci to make an identification. That policy did not apply to the use of DNA to exclude a contributor, but the analyst used it as an excuse to avoid excluding Scott as a source of the DNA in the victim’s jeans.

In 2017, DNA was collected from Scott. The crime lab’s comparison of Scott’s DNA to DNA taken from the sperm samples eliminated Scott as a possible source of the sperm. The victim’s boyfriend was also eliminated a contributor of the sperm sample, suggesting that the sperm came from the rapist.

Actual Innocence

The victim recently admitted that she was never sure of her identification, but assumed the police would not show her photographs unless the guilty person was included among them. She thought that the rapist was shown in one of the six pictures, so she selected the closest match. Mistaken identifications under similar circumstances contribute to about 70% of wrongful convictions.

Scott filed a petition seeking a determination that he was actually innocent of his crime of conviction. Scott’s parole had ended and, in many states, he would not have been entitled to relief because state law usually limits the availability of legal relief to individuals whose freedom is restrained in some way, including the restraints imposed by conditions of parole.

Virginia allows people to file a petition for a writ of actual innocence as a way of clearing their name. Since the effects of a criminal conviction never go away, the petition is a valuable tool that all states should adopt as a remedy for injustice.

Prosecutors Resist Justice

Prosecutors are often unwilling to admit their errors, although decades after a wrongful conviction, they are sometimes willing to admit that their predecessors made a mistake. It is remarkable that the prosecutors currently handling Scott’s case told the court that the new DNA evidence did not prove Scott’s innocence. They claimed that the stain might have come from someone other than the rapist.

The victim’s boyfriend was excluded as the source of the semen. The victim denied having consensual sex with anyone except her boyfriend. It is therefore difficult to understand who else might have contributed the semen that was inside the victim’s jeans, if not the rapist.

To overcome that obstacle in its shameful effort to keep a wrongful conviction intact, prosecutors argued that the victim did her laundry in washing machines used by other tenants of her apartment building, and theorized that semen might somehow have transferred from the washing machine to the inside of her jeans. Not surprisingly, prosecutors did not offer that theory during Scott’s trial, since it would have undermined an already shaky test result.

Defense Expert Testimony

Scott countered with expert evidence from Nora Rudin, a forensic DNA consultant. Rubin explained that it is possible for a DNA sample to survive laundering, but that the large intact stain found in the victim’s jeans was inconsistent with a semen sample in clothing that had been laundered. She would not expect a stain to still be visible, or to show so many sperm cells concentrated in one area, if the jeans had been washed.

Rudin’s expert opinion convinced the Virginia Supreme Court to reject the prosecution’s theory. The court also rejected the prosecution’s cheeky attempt to argue that the jeans might not have been the ones that the victim put on after the rape. That argument clearly could not have been advanced in good faith, given that the prosecution relied on those very jeans as evidence at Scott’s trial.

The court also rejected the prosecution’s contention that Rudin’s expert opinion was inadmissible because she was retained by the defense. While the actual innocence law requires testing to be conducted pursuant to state standards, Dr. Rudin testified about results of tests that the state conducted according to its own standards. Virginia law does not require prosecutors to agree with defense experts before their opinions can be admitted.

In the end, the court decided that clear and convincing evidence established Scott’s innocence. No rational jury, viewing all of the evidence that is now available, would convict Scott. Accordingly, his conviction was vacated.

Court room

Prosecution Challenges Psychologist Testimony in Rape Case

The prosecution in a Santa Cruz, California rape case is challenging the credibility of a proposed defense expert on sexual consent.

The Crime

Christian Daniel Rodriguez, 29, of Watsonville, California is accused of raping and restraining a woman on September 11, 2015. Rodriguez is charged with five felonies: two charges of rape by force or fear involving an impaired victim and a victim who is falsely imprisoned; two charges of forced sodomy; and false imprisonment. Rodriguez has denied all charges.

The Trial

Rodriguez was tried for the first time in January 2017, but the jury was unable to reach a unanimous verdict. The vote was deadlocked 11 to 1. Rodriguez was scheduled for a retrial. The retrial was postponed four times during 2018. Rodriguez’ second trial finally began on January 30, 2019. He has been held in Santa Cruz County Jail since December 4, 2015 with a bail that was set at $100,000.

Rodriguez’ current trial is being held in front of Santa Cruz County Superior Court Judge Stephen Siegel. Multiple witnesses have testified, DNA evidence has been filed, and a transcript was read from previous testimony by the woman who has alleged that she was raped. There was also a transcript from the prior case where a witness confirms that someone was held down and raped.

Rodriguez has nine prior criminal cases that have been tried in Santa Cruz County Superior Court. In 2010, he was convicted of having sex with a minor more than three years younger than him and soliciting or encouraging a minor in connection with the sales or transport of a controlled substance.

Expert Witness Controversy

Public defender Alyssa Thompson is representing Rodriguez. Thompson proposed to add Dr. Deborah Davis as an expert witness to testify on Rodriguez’ behalf.

Dr. Davis is a professor at University of Nevada who specializes in psychology and law. Specifically, Dr. Davis focuses on the areas of: witness memory, false confessions, issues of sexual consent, rules of evidence, and jury research. Prior to her tenure at University of Nevada, Dr. Davis served as an assistant professor of psychology at Georgia State University and Southern Illinois University and as a post-doctoral research associate at Ohio State University, where she received her Ph.D. She also currently serves on the Faculty of the National Judicial College.

Attorney Thompson submitted a PowerPoint presentation that described the topics of Dr. Davis’ testimony. Prosecution took issue with the contents of the presentation.

Assistant District Attorney Steven Moore filed a motion that disputed the credibility of Dr. Davis on the issue of sexual consent. He wrote, “The use of statistical charts to prove consent or a defendant’s mental state is not admissible . . . . If it were, the people would call rape experts to show that only two percent to eight percent of women falsely report rape. I would then argue that just based on the report alone, our case is proved to be 92 percent to 98 percent accurate.”

Bamboo stick massage

Medical Expert Opinion Ruled Admissible Despite Failure to Examine Patient

Dawn Dawsey sued Carnival and the company that provided spa services for a cruise she took, alleging that her hip was fractured when excessive force was used during a bamboo massage. Each party brought Daubert motions to exclude the expert testimony offered by the opposing party. The judge sensibly decided to admit all the expert testimony and let the jury sort it out.

Treating Physicians’ Testimony

The defendants asked the court to exclude the expert testimony of Dawsey’s treating physicians on the ground that they did not prepare expert reports. The court denied the motion as to all experts who were not providing testimony as to the cause of the fracture, because treating physicians are not generally required to provide reports concerning their diagnosis and treatment.

Plaintiff’s Expert’s Causation Testimony

Dr. Christopher Troiano, an orthopedic surgeon, reviewed Dawsey’s post-cruise medical records and concluded that the massage caused her hip injury. The defendants challenged his methodology, claiming that he had none.

In particular, the defendants complained that Dr. Troiano did not examine Dawsey, did not interview her or read her deposition testimony, relied on “anecdotal” statements that she made to treating physicians who recorded them in her medical records, reviewed only the medical records provided by her attorney, and did not consider other possible causes of the injury.

In effect, Dr. Troiano concluded that, given the absence of evidence of any other traumatic event, the massage must have caused the hip fracture. That opinion is supported by logic, as an expert should not be required to speculate about alternative causes of an injury in the absence of evidence that anything else happened to Dawsey that could have fractured her hip.

The court recognized that Dr. Troiano’s methodology was not ideal and appeared to be on the fence as to whether the doctor’s opinion was admissible. As the judge noted: “Reviewing only medical records selected by the plaintiff’s attorney is problematic, to say the least, especially when the expert does not also review the plaintiff’s medical records from before the cruise or review her deposition testimony.”

The court nevertheless took note of cases holding that a medical expert does not necessarily need to examine a patient before forming an opinion about the cause of an injury. The court concluded that it is the jury’s function to weigh evidence. After cross-examination at trial, a jury might give the expert’s opinion no weight at all. That call, however, is one that should be made by a jury, not a judge.

The court noted, however, that “Dr. Troiano’s opinion testimony on causation is far from strong and barely squeaked by the pre-trial motion to exclude it.” The court decided only that the opinion was admissible. Whether the opinion would be sufficient to support a verdict in Dawson’s favor was an issue the court could not decide until all evidence was presented at the trial.

Defense Experts’ Causation Testimony

The defense experts opined that a bamboo massage cannot result in a broken hip. Dawsey moved to exclude that testimony because none of the experts offered an opinion as to the actual cause of the hip fracture.

The court concluded that the experts were not required to explain how Dawsey’s hip was fractured. They were permitted to criticize the causation testimony of Dawsey’s expert and to opine about inconsistencies in Dawsey’s testimony that made the massage an implausible cause her injury.

Defense Radiologist’s Testimony

Dawsey also challenged the admissibility of Dr. Whiteman’s expert testimony. Dr. Whiteman is a diagnostic radiologist. Dawsey argued that Dr. Whiteman is unqualified because he is not a surgeon and does not treat hip fractures. The court concluded that the radiologist could offer an opinion about causation while noting that Dawsey was free to cross-examine him vigorously about any limitations in his medical training that could affect his credibility.

Dr. Whiteman’s report stated: “I do not know the cause of Ms. Dawsey’s left hip fracture, but it definitely was not caused by the massage.” Dawsey argued that Dr. Whiteman rendered that opinion without considering the amount of force that was exerted as the masseuse “placed a hand under the bamboo stick and against the hip and extended the stick outward to stretch the outer side muscles and hip joints.”

Repeating its ruling that defense experts do not need to pinpoint an alternative cause of an injury, the court noted that the defense has no burden to disprove causation. Rather, a defense expert’s testimony is admissible if it casts doubt on the plaintiff’s theory about the cause of an injury. Since Dr. Whiteman did so, it was up to the jury to determine whether his testimony would undermine Dawson’s theory of causation.


Conviction Reversed Because Police Officer Gave Inadmissible Expert Opinion in Prostitution Trial

The Mount Laurel, New Jersey Police Department arrested John Salyerds as the result of a sting operation. The police ran an internet ad that allegedly offered prostitution services. Salyerds was arrested in a motel room after he responded to the ad.

The police contended that the ad offered a “$50 short stay special.” Prior to the trial, Salyerds asked the prosecution to produce the ad to which he responded. Salyerds contended on appeal that the prosecution gave evasive responses to his request and never produced it.

The prosecutor made the unlikely claim that the police officers who posted the ad to the internet “did not have access to a printer” and therefore did not print a hard copy. The prosecutor also asserted that the police tried to find the ad before the trial so they could print it, but it had mysteriously vanished from the internet. The trial judge barred any reference to the content of the ad since the ad was not produced in discovery.

Salyerds called the number in the ad and asked for the “$50 special.” He was given a motel room number. Salyerds went to that room and asked for the “short stay special.” An undercover detective told him to put the money on the table. As Salyerds was doing so, the detective went into the bathroom. Armed officers then burst into the room and arrested Salyerds for engaging in prostitution as a patron (purchaser of services).

There was no prostitute in the room. The undercover detective did not intend to provide sex. No touching occurred. The judge nevertheless found Salyerds guilty because he provided money in exchange for sex. Whether the prosecution proved Salyerds’ intent was the key issue at trial.

Officer’s Testimony

During Salyerds’ municipal court trial, the prosecutor asked one of the detectives who was involved in the arrest to explain the meaning of “short stay special.” Salyerds objected that the question called for expert testimony and that the detective had not been designated as an expert.

The municipal judge overruled the objection and said that the detective could explain what the term meant to him. The real question, however, was what “short stay special” meant to Salyerds, not what it meant to a police detective.

The detective testified that a “short stay special” is “an agreement between two people to engage in an act of prostitution under circumstances where they agree to the act and the amount itself.” The detective agreed that “short stay special” is not a common term and testified that his understanding of the term was based on his training and experience as a police officer.

The municipal judge found Salyerds guilty on the strength of that testimony. On appeal from a New Jersey municipal judge’s decision, a defendant is entitled to a new trial before a Law Division Judge. The detective gave the same testimony before the Law Division Judge, who overruled an objection that the testimony constituted an expert opinion.

The Law Division Judge decided that the detective was giving an admissible lay opinion and found Salyerds guilty. Salyerds took another appeal, this time to the New Jersey Superior Court Appellate Division. That court reversed his conviction.

Appellate Ruling

Pretrial discovery obligations in a New Jersey criminal prosecution require identification of expert witnesses and production of either a copy of an expert report or a summary of the expert’s testimony. The prosecution did not comply with that rule. The question on appeal was whether the detective’s opinion was a permissible lay opinion or inadmissible expert testimony.

The term “short stay special” is not self-defining. The term may have different meanings, depending on context. A resort might use “short stay special” to refer to a discounted room price for a weekend getaway. Prostitutes might use the term to mean something very different.

While municipal judges typically allow police officers to give any testimony the prosecution wants to elicit, the Appellate Division paid close attention to the law governing expert evidence. The prosecution offered the detective’s opinion precisely because the detective had more knowledge than the judge about what “short stay special” might mean when that term is used by prostitutes.

Lay opinions might help a judge understand evidence, but New Jersey law confines lay opinions to knowledge acquired through a witness’ perceptions. A witness who simply interprets what the witness saw or heard, without relying on other information, is giving a lay opinion. “It looked to me like he was aiming the gun” is an example of a lay opinion.

Expert opinions, on the other hand, depend on specialized knowledge that is beyond the ken of an ordinary person. The detective testified that his understanding of the term “short stay special” was informed by his training and experience as a police officer. Since the detective relied on specialized knowledge to help the court understand a term of art allegedly used by prostitutes, the detective was testifying as an expert.

Slang Experts

Police officers often testify about their understand of drug jargon in drug prosecutions to explain how a defendant might have understood common words like “rock” (crack cocaine) or “bump” (one gram). They identify numbers jotted on a piece of paper as a “drug ledger.” All of those opinions are based on a claim of specialized knowledge and can only be provided if the prosecution complies with rules governing the admissibility of expert testimony.

The Appellate Division concluded that the trial judge failed to apply the proper legal standard when it ruled that the detective could give a lay opinion about the meaning of a slang term. Since the detective was testifying as an expert, the prosecution’s failure to identify him as an expert witness barred his testimony.

Finally, the court noted that Salyerds engaged in no sexual behavior and did not discuss sex with the undercover officer, except to refer to a “short stay special.” The only evidence of Salyerds’ criminal intent was therefore his use of that phrase. Since Salyerds’ conviction hinged on the detective’s inadmissible opinion that the phrase referred to an act of prostitution, Salyerds’ conviction had to be reversed.

Texas flag and gavel

Attorney-Client Privilege Shields Attorney Communications with Expert Who Is Employed by Party

On occasion, a party in a case will act as his or her own expert witness. When a party proposes to testify as an expert, is the opposing party entitled to obtain communications between the party and the party’s attorney concerning the expert testimony?

Certain communications between a testifying expert and the attorney who retained the expert are discoverable. On the other hand, communications between an attorney and a client are privileged. Which rule controls when the client testifies as an expert?

The Texas Supreme Court tackled that question in In re City of Dickinson. The decision comes down on the side of attorney-client privilege.

Facts of the Case

Hurricane Ike damaged property owned by the City of Dickinson. The city made a claim under its windstorm insurance policy. The city sued Texas Windstorm Insurance Association when the company failed to pay all the insurance proceeds that the city demanded.

Texas Windstorm relied on the affidavit of its corporate representative and senior claims examiner, Paul Strickland, in opposing a summary judgment motion. The affidavit stated facts and also expressed expert opinions. Strickland testified in a deposition that the affidavit had gone through a process of revision based on emails with Texas Windstorm’s attorney.

The city demanded production of those emails, citing a Texas discovery rule that allows a party to obtain all documents “provided to, reviewed by, or prepared by” an expert “in anticipation of a testifying expert’s testimony.” That rule would typically require production of written communications from a party’s lawyer that the expert reviews before preparing a report or affidavit.

Texas Windstorm resisted production of the documents on the ground of attorney-client privilege. Texas Windstorm’s attorney argued that Strickland was the liaison between Texas Windstorm and its law firm. In counsel’s view, the emails were privileged communications between the law firm and its client.

The trial court ruled that Texas Windstorm waived attorney-client privilege by using an employee of its client as an expert witness. Texas Windstorm challenged that ruling with a writ of mandamus. The Texas Court of Appeals ruled that the emails were privileged.

The city petitioned the Texas Supreme Court for mandamus, arguing that the court of appeals abused its discretion in failing to apply clear discovery rules to experts who are also parties to litigation. The conflict between expert discovery rules and attorney-client privilege had not previously been resolved in Texas.

Texas Supreme Court’s Legal Analysis

The supreme court noted that a comment to the expert discovery rule suggested that the work-product privilege does not shield materials prepared by an attorney from discovery when they are shared with an expert. However, the comment suggested that other privileges might still apply.

The supreme court observed that the rule governing discovery from expert witnesses was subject to a broader discovery rule that allows discovery of all materials that are relevant and not privileged. The expert discovery rule creates no explicit exception to attorney-client privilege. Reading the rules together suggests that no discovery of privileged materials (except those covered by work-product privilege) can be obtained from experts.

A question left open by that analysis, however, is whether a client waives attorney-client privilege by designating its own employee as an expert. The expert discovery rule makes no distinction between experts who are retained and those who are employed by a party. The failure to make that distinction might imply that an expert who is employed by a party should have no greater right to shield documents from discovery than an expert who is retained by a party.

Parties are deemed to waive attorney-client privilege when they knowingly disclose facts that would otherwise be privileged. The city argued that Texas Windstorm waived the privilege by using an expert with knowledge that the expert would be subject to the discovery rules that apply to testifying experts.

The supreme court rejected that argument. The rule states that a party “may request” disclosure from experts but does not require the expert to disclose anything. The supreme court decide that the city was entitled to request the emails but Texas Windstorm was not required to provide emails if they were protected by an applicable privilege. Of course, the rule writers would not have compelled parties to make discovery requests, so the use of the phrase “may request” rather than “must request” probably has nothing to do with the obligation of the opposing party to respond to the request.

Texas Supreme Court’s Policy Analysis

The answer comes down to a question of competing values. Do we want parties to give up the important benefits of attorney-client privilege when they use their employees as expert witnesses? Do we want businesses to shield themselves from discovery of materials that influence expert opinions by using their own employees as experts?

To the extent that the Texas Supreme Court engaged in a policy analysis, it focused on the attorney-client privilege as “quintessentially imperative” to the legal system. The privilege assures that lawyers can give candid advice to their clients. While that might be a quintessential imperative, the privilege also assures that the opposing party will never learn the extent to which a lawyer shaped the expert’s opinions when the expert is the lawyer’s client.

Fortunately, while the court’s decision frustrates discovery of attorney communications that may influence or dictate an expert’s opinion when the expert is employed by a party, that loss of discovery is mitigated by the reality that judges and juries recognize the inherent bias of a party’s employee. Parties who use their own employees as experts take a substantial risk thata judge or jury will not regard the employee as a credible witness. Retaining an independent expert reduces the risk that a jury will see the expert as biased. For that reason, parties do not usually use their own employees as critical expert witnesses in litigation.

Human brain

Expert Testifies SC Man Charged with Killing 5 Children Has Brain Defects

A brain expert has testified that the Lexington, South Carolina man who is charged with killing his five children has suffered from long-term brain injuries.

The Crime

In 2014, 37-year-old Timothy Jones, Jr. killed his five children. According to prosecutors, Jones killed his son Nahtahn, 6, after the boy broke an electrical outlet in their mobile home on August 28, 2014. Jones then strangled his 8-year-old daughter Merah and his 7-year-old son Elias with his hands. Jones then wrapped a belt around the necks of his 2-year-old son Gabriel and 1-year-old daughter Abigail and ended their lives.

Jones reportedly stuffed all of the bodies in garbage bags, loaded their remains into his Cadillac Escalade SUV and drove them through four different states. He finally dumped his children’s bodies in a deserted part of Camden, Alabama.

On September 6, 2014, Jones was arrested at a police checkpoint in Smith County, Mississippi after an officer detected what he described as “the smell of death” along with blood, maggots, and synthetic marijuana.

Under police questioning, Jones admitted to killing his children, but said that he did so as preemptive self-defense. Jones stated that he was worried that they would “chop him up and feed him to the dogs.”

Jones was charged with five counts of murder in connection with his children’s deaths. He faces the death penalty if convicted.

Murder Trial

Jones’ defense team has conceded that Jones killed his children, but he has pleaded not guilty by reason of insanity. In their opening statements, Jones’ lawyers claimed that he suffers from undiagnosed schizophrenia. Jones’ defense team brought in a brain expert to testify in his defense.

Dr. Travis Snyder is a neuro-radiologist from Las Vegas. He testified via prerecorded testimony about his examination of an MRI scan that was taken of Jones’ brain in April 2018. Dr. Snyder testified that he found evidence of “serious traumatic brain injury” in the left frontal lobe of Jones’ brain. He categorized this injury as a decompressed skull fracture. This testimony aligns with earlier defense statements that Jones was involved in a bad car accident as a teenager.

Dr. Snyder testified that people with injuries such as Jones’ may experience such symptoms as lower IQs and trouble focusing. However, not everyone has the same side effects. With regards to Jones’ MRI scan, Dr. Snyder testified that “You can have injuries to the corpus callosum, in a traumatic brain injury, but it could potentially relate to schizophrenia or schizoid-effective type disorders, it’s a positive correlation . . . it’s very difficult to [diagnose] schizophrenia from an MRI. I want to be clear to the jury, to diagnose schizophrenia from an MRI is very difficult.” Dr. Snyder testified that the scan indicated a likelihood of a schizophrenia diagnosis.”

However, Dr. Snyder also testified that current scientific research does not indicate that traumatic brain injuries cause schizophrenia. He said, “I don’t think it’s accepted medical fact that a traumatic brain injury causes schizophrenia, there may be some research that talks about it but schizophrenia does not have [a] known cause, it’s multi-factorial.”


Notwithstanding Dr. Snyder’s testimony, the jury found Jones guilty. He has been sentenced to death.

Florida Supreme Court

Florida Supreme Court Adopts Daubert After Rejecting It

What a difference a judge makes. Or, in the case of the Florida Supreme Court, three newly appointed justices.

On October 15, 2018, the Florida Supreme Court rejected the state legislature’s adoption of the Daubert standard for expert witness testimony. The majority opinion concluded that the standard infringes the jury’s role to determine whether expert testimony is reliable.

Just seven months later, the court ruled that the “grave constitutional concerns” about Daubert’s now “appear unfounded.” What changed in the seven months since the court rejected Daubert? Did the weight of precedent compiled over a mere seven months persuade the court that it had made an incorrect decision? It usually takes years, and often decades of accumulated rulings, before a court disturbs its own precedent.

The only thing that changed is the composition of the court. The 2018 decision was authored by Justice Peggy Quince. Her opinion was joined by Justices Barbara Pariente, R. Fred Lewis, and Jorge Labarga.

Since then, Justices Quince, Pariente, and Lewis have all reached Florida’s mandatory retirement age. They have all been replaced by Gov. Ron DeSantis, creating what the Sun-Sentinel describes as “the most conservative Florida Supreme Court in decades.”

Ironically, Gov. DeSantis championed his appointments as masters of “judicial restraint” who oppose “judicial activism.” Overruling a recent precedent simply because a court wants to move Florida law in a more conservative direction is the very definition of judicial activism.

The Court’s Opinion

The court decided in 2017 that it would not adopt Daubert as part of Florida’s evidence code, notwithstanding the legislature’s desire to do so. The 2018 decision reversed a trial court ruling that applied Daubert.

The court’s newest decision claims not to “readdress” the correctness of its 2018 decision. Rather, the court’s decision reconsidered its 2017 decision not to adopt the Daubert standard.

The court decided to “revisit the outcome of the recommendation on the Daubert amendments.” The court decided that “the ‘grave constitutional concerns’ raised by those who oppose the amendments to the Code appear unfounded.”

To support that conclusion, the court quoted extensively from a dissenting opinion in the 2017 decision. As Justice Labarga noted in dissenting from the new opinion, the court acted “without further input from the Committee or the public.” The court held no new hearings and considered no new evidence. The only intervening change suggesting that the “grave constitutional concerns” identified in 2017 had suddenly become “unfounded” was the addition of three new justices who agreed with the 2017 dissent and saw an opportunity to impose their will on Florida law.

Ramifications of Adopting the Daubert Standard

Whether the Florida court’s judicial activism is wise depends on the reader’s perspective. Florida’s Frye standard has its faults, chief among them its failure to recognize that expert opinions might be well founded even if they are based on new or novel techniques that are not yet generally accepted by the scientific community. Those faults persuaded the U.S. Supreme Court to reject the Frye standard in Daubert.

The Daubert standard also has its faults, including its tendency to force judges who are unschooled in science to evaluate the reliability of scientific methodologies. There is little evidence that judges are more capable of evaluating expert testimony than jurors who might collectively have a stronger background in science than the judge. The decision has been justly criticized for diminishing the importance of juries in civil trials by substituting a judge’s opinion of expert evidence for the community’s opinion as represented by jurors whose duty is to evaluate evidence.

Business lobbyists and the insurance defense industry are the strongest proponents of Daubert because they view it as a shield against “junk science.” They tend to view any science offered by plaintiffs in toxic tort and products liability cases as “junk” if it might cause corporate defendants to lose trials.

Another view of Daubert, however, sees the decision as liberalizing the standard for admitting expert evidence by permitting expert testimony to be heard even if it is based on new or novel methods, provided those methods are reliable. Whichever interpretation of Daubert a court might adopt, it is clear that Daubert has increased the cost of litigation by encouraging Daubert motions that are advanced for strategic reasons, regardless of their merit.

The disparity in those competing views of Daubert explains why different courts have sharply divergent ideas about how Daubert should be applied. Empirical studies suggest that judges are excluding significantly more expert evidence after Daubert than before Daubert, despite the Supreme Court’s stated intent to liberalize the standard for admitting expert opinions.

To the extent that junk science was ever a serious problem in civil cases, studies suggest that judges in civil cases have become less likely to admit expert evidence that is scientifically groundless, whether or not they apply the Daubert standard. In criminal cases, however, junk forensic science remains a problem of crisis proportions. If the adoption of Daubert encourages Florida judges to be skeptical of prosecutors who use unreliable evidence in an effort to prove guilt beyond a reasonable doubt, the Florida Supreme Court’s abrupt “about face” might improve the quality of justice.