Former Minnesota police officer Jeronimo Yanez, who was acquitted of manslaughter charges in the shooting death of Philando Castile, relied on use of force expert testimony to justify to jurors his decision to use fatal force during the incident.

The case, which gained national attention as another divisive police shooting, will conclude without a successful prosecution, and serves as another example of the use of police force experts in criminal trials of officers accused of using excessive violence when apprehending suspects.

Minnesota Officer Acquitted in Philando Castile Shooting

On July 6, 2016 school cafeteria supervisor Philando Castile was shot to death by Minnesota police during a routine traffic stop, sparking outrage across the country over police use of force tactics. Following an investigation into the shooting, Officer Yanez, who fired the fatal shots, was arrested and charged with manslaughter for Castile’s death.

Prosecutors presented video evidence, which has since been released to the public, testimony from Castile’s girlfriend who was in the car next to him, and physical evidence to argue that Officer Yanez’s use of deadly force was unreasonable. According to the evidence, Castile informed Yanez that he had a legally-owned gun in the car with him, which caused the officer to draw his weapon and approach the car.

During a brief and confusing sequence, during which it appears Yanez commands, “Don’t pull it out” in reference to Castile’s weapon, Officer Yanez opened fire and killed Castile in front of his girlfriend.

Following the shooting incident, Officer Yanez was relieved from duty and formally charged with manslaughter for his role in the fatal incident. Prosecutors argued that officer Yanez used unreasonable and excessive force during the traffic stop, making the shooting illegal and not in the line of duty.

Defense attorneys for Yanez responded that Castile’s admission that he had a gun combined with rapid movements during a night-time traffic stop gave the officer reason to believe that his life was in danger, which justified the police shooting. In an effort to bolster the argument, defense attorneys called a use of force expert witness.

Police Use of Force Experts Key in Castile Shooting Defense

In an effort to demonstrate that Officer Yanez acted reasonably in firing fatal shots at Philando Castile, defense attorneys called a use of force expert witness who told jurors that police officers in the situation Yanez found himself in are trained to react with force when a suspect may be reaching for a weapon.

Emanuel Kapelsohn, a police training expert witness, took the stand during the defense portion of the trial to tell jurors that Yanez acted appropriately because he had reason to believe that Castile was reaching for a weapon. Kapelsohn told jurors that it takes less time for a suspect to reach for a gun than it typically does officers to process a weapon and react, meaning that police who suspect a gun may be in danger if they wait to see it.

To emphasize his point, Kapelsohn conducted a demonstration in the courtroom during which he placed a replica of Castile’s handgun into a pocket in a pair of shorts identical to the ones Castile was wearing on the night of the shooting. The gun protruded from the short pockets, which, as Kapelsohn pointed out, allowed easy access.

Kapelsohn recorded the time it took him to remove the gun from the shorts, and showed jurors that it takes only about one-third of a second for the weapon to become a threat — less than the roughly half a second it takes for officers to respond to a threat. Kapelsohn concluded that police officers, while not perfect, are trained to respond to the presence of weapons with deadly force in order to ensure their own safety.

Use of Force Experts Matter in Police Shooting Cases

The value of Kapelsohn’s use of force testimony underscores the importance of use of force expert witnesses during police shooting trials. Although the issue sparks debates which touch on a variety of racial, social, and economic issues, the ultimate question before jurors is whether or not an officer who engaged in a police shooting acted reasonably considering the circumstances he or she was in at the time.

A use of force expert witness for the defense will often present information to the jurors about police training in weapon and threat identification, and help defense attorneys argue that an officer acted reasonably considering his or her perception of threat.

Dalia Dippolito was charged with hiring a hit man to kill her husband. In 2011, Dippolito was convicted of soliciting an undercover police officer to commit the murder. The verdict was overturned on appeal because an error in selecting the jury deprived Dippolito of a fair trial.

Dippolito changed lawyers and her case went to trial again in December 2016. Dippolito’s defense of entrapment hinged on the claim that police officers in Boynton Beach, Florida set her up because they wanted to appear on an episode of COPS. The desire of the police to look good on television backfired when an evenly divided jury was unable to reach a unanimous verdict. A mistrial was declared.

Defense evidence in the third trial relied heavily on expert witnesses. The judge allowed one expert to testify, disallowed a second, and gave conditional approval for the third expert to testify.

Police Procedures Expert

The defense called retired LAPD detective Timothy Williams as an expert in police procedures. Williams testified that Boynton Beach police mishandled the investigation from its inception.

The investigation began when Dippolito’s former lover, Mohamed Shihadeh, contacted the police to report that Dippolito wanted to have her husband killed. According to Williams, the police made several mistakes.

First, they disregarded concerns that Dippolito was a domestic abuse victim. Instead of focusing on how they could arrest Dippolito for committing a crime, they should have focused on how to prevent the crime by protecting Dippolito from abuse.

Second, the police did not follow Dippolito or her husband and did nothing to protect her husband from harm. If the police seriously believed that the husband was at risk, Williams would have expected them to take action to protect him.

Third, Williams faulted the police for forcing Shihadeh to act as an informant by threatening to arrest him if he refused. Williams said that coercing Shihadeh tainted the investigation.

Fourth, Williams told the jury that the police should have recorded key conversations between Shihadeh and Dippolitio while Shihadeh was acting as an informant, rather than relying on Shihadeh to recount those conversations truthfully. Shihadeh had an incentive to lie, after all, if giving false information that was helpful to the police would help him avoid arrest.

Finally, Williams testified that it was inappropriate for the police to invite COPS to film the investigation. He suggested that the police should try to make a good case, not good television.

The prosecution countered that Williams was unfamiliar with the facts. For example, Williams testified that no money changed hands, despite evidence that Dippolito gave Shihadeh $1,200 in cash that Shihadeh was supposed to give a hit man for the purchase of a gun and cell phones. He also had not seen certain texts that the prosecution relied upon.

The weight the jury gave to Williams’ testimony is unclear. His cross-examination, however, highlights the need for expert witnesses to conduct a careful review of all evidence that might be relevant to their expert opinions before they testify.

Body Language Expert

The defense proposed to call Susan Constantine-Perfido as an expert in body language and human behavior. She would have testified that “Dippolito’s facial expressions on the undercover police video don’t show that she intended to have her husband killed.”

In particular, the prosecution relied on a video in which Dippolito told a police officer posing as a hit man that she was “5,000 percent sure” she wanted her husband dead. The defense wanted Constantine-Perfidio to testify that because Dippolito shook her head “no” when she made that statement, she must have been lying.

There is some support for the notion that “microexpressions” cannot easily be faked and that people can be trained to recognize them. On the other hand, it is one thing to say “her face shows that she was surprised” and quite another to say “her face shows that she did not intend to kill her husband.” Microexpressions reveal emotions, not intentions.

We spend our entire lives communicating with others, and in that sense, we are all experts at interpreting expressions. The judge concluded that the jury was just as capable as the expert of interpreting Dipplolito’s body language. The judge therefore disallowed the proposed testimony.

Battered Women’s Syndrome Expert

The defense listed Dr. Lenore Walker as a potential expert witness. Dr. Walker did pioneering research into battered women’s syndrome.

The judge ruled that Walker could testify to support a defense of subjective entrapment, if evidence suggested that police officers’ actions made Dippolito feel she was forced to go through with the murder plot. Walker was prepared to testify that Dippolito was “easily open to coercion from former lover, Mohamed Shihadeh, who Dippolito’s attorneys say forced her to go through with the plot under pressure from Boynton Beach police.”

Walker would have testified that Dippolito suffered from Post-Traumatic Stress Disorder after having been in an abusive relationship, and that her PTSD made her easily coerced by men. The judge, however, conditioned that testimony upon Dippolito’s submission to a mental health examination by the state’s expert. Dippolito did not appear for that examination because the defense refused to surrender Dippolito’s Fifth Amendment right to remain silent.

Ultimately, the court concluded that Walker would not be allowed to testify. If Dippolito had testified that she was a battered woman and that she wanted to kill her husband for that reason, Walker’s testimony might have been relevant. Since the defense is maintaining that Dippolito did not intend to have him killed, and since Dippolito did not testify, the judge decided that Walker’s expert testimony would not be relevant.

A number of lawsuits have alleged that Zoloft, an anti-depressant manufactured by Pfizer, causes heart defects in babies when the drug is taken during pregnancy. The lawsuits turn on expert evidence that Zoloft causes cardiac defects in a fetus when taken early in a pregnancy.

Hundreds of federal lawsuits were consolidated in the Eastern District of Pennsylvania, in a process known as multi-district litigation. After excluding expert testimony offered by the plaintiffs’ steering committee, the district court judge granted summary judgment to Pfizer and dismissed the cases without a trial. That decision was appealed to the Court of Appeals for the Third Circuit.

Epidemiologist Testimony

The plaintiffs’ steering committee initially relied on the expert opinions of epidemiologist Anick Bérard. The trial court excluded Dr. Bérard’s proposed testimony because he relied (in the court’s words) on the “novel technique of drawing conclusions by examining ‘trends’ (often statistically non-significant) across selected studies.”

After Bérard was excluded as an expert witness, the plaintiffs’ steering committee proposed to call Nicholas Jewell, a statistician, to prove causation. Pfizer filed a Daubert motion to exclude Jewell’s testimony. The court’s decision to grant that motion was affirmed on appeal.

Jewell’s Testimony

Jewell analyzed studies that found a significant association between Zoloft and cardiac defects. The court declined to consider one of those studies because scientists who tried to replicate its results could not do so, and declined to consider another because the study contained an error that invalidated its results.

The trial court expressed concerns about the remaining studies because those that reached consistent results were based on the same database, while a study with a larger database failed to replicate those results. Jewell could not explain the inconsistency in a way that satisfied the court.

The trial judge also faulted Jewell for relying on statistically insignificant results, for disregarding a meta-analysis that reported insignificant associations between Zoloft and cardiac defects, for reanalyzing two studies that found no significant association between Zoloft and cardiac defects, and for conducting his own meta-analysis that included two studies but disregarded others.

The trial judge ultimately found that Jewell “failed to consistently apply the scientific methods he articulates, has deviated from or downplayed certain well-established principles in his field, and has inconsistently applied methods and standards to his data so as to support his a priori opinion.”

The Appeal

The question on appeal was whether the judge crossed the elusive line between acting as a gatekeeper to prevent the jury from hearing unreliable testimony and acting as a juror by judging the credibility of Jewell’s opinions.

The court of appeals noted that a judge must take care not to usurp the jury’s role. A trial court should exclude expert testimony only when the flaw in the expert’s methodology, or application of the methodology, is so large that the expert lacks “good grounds” for his or her conclusions.

Statistical Significance

According to the court of appeals, the central question on appeal was “whether statistical significance is necessary to prove causality.” Declining to state “a bright-line rule,” the court conceded that a causal connection between drug ingestion and a resulting harm may exist even in the absence of statistically significant findings. For example, studies of small populations might not detect significant differences in outcomes between pregnant mothers who took a drug and those who did not, while studies of larger populations (if they existed) might detect that difference.

Still, it was the plaintiffs’ obligation to prove a causal connection between Zoloft and birth defects. The court concluded that statistical significance is not a “magic criterion” of admissibility, but regarded it as “an important metric to distinguish between results supporting a true association and those resulting from mere chance.”

The plaintiffs argued that the district court erroneously required “replicated, significant epidemiological results before inferring causality.” The appellate court decided that the trial judge did not impose that requirement as a legal standard, but made a factual finding about what the teratology community generally requires to establish causality. Of course, the difference between a factual finding and a legal standard is murky when the factual finding drives the court’s decision about whether the legal standard of reliability has been satisfied.

The court based its finding about what the teratology community requires on the court’s own review of the scientific literature to determine the “prevailing standard” that scientists follow. Although proof that a scientific methodology has been generally accepted is not required by Daubert, it is a factor the court can consider. Since the court also considered (and rejected) alternative methodologies used by Jewell and Bérard, including general trends analysis, reexamination of studies, and meta-analysis, the court of appeals decided that the trial court did not create an inappropriate legal standard that applies in all cases.

“Weight of Evidence” Methodology

Jewell’s expert opinions rested on a combination of two methodologies: a “weight of evidence” analysis and the Bradford Hill criteria. A weight of evidence analysis invokes a chain of reasoning to arrive at the best answer to a question. The Bradford Hill criteria are principles that epidemiologists use to distinguish a mere association from a causal connection.

The court of appeals agreed that the weight of evidence analysis and the Bradford Hill criteria are reliable methodologies for determining causation. The appellate court agreed with the trial court, however, that Jewell failed to apply the methodologies in a reliable way.

The court noted that “flexible methodologies” require an expert to make choices by, for instance, assigning more weight to one factor than another. Reliable application of a flexible methodology requires the expert to justify those choices with sound scientific reasoning. It is that reliance on the scientific method that distinguishes the reliable application of a methodology from an outcome-driven assessment of evidence.

The court of appeals accepted that methodologies such as trend analysis, meta-analysis, and reanalysis may be reliable, but faulted Jewell for failing to apply those techniques reliably and for failing to failing to explain how his analysis supported selected Bradford Hill criteria. According to the court, Jewell “applied these techniques inconsistently, without explanation, to different subsets of the body of evidence.”

The court of appeals rejected some of the trial court’s reasoning. Unlike the trial court, the court of appeals did not think it is inherently problematic for one scientist to reanalyze data obtained by another scientist and to arrive at a different conclusion as a result of that reanalysis. The court of appeals also thought the trial judge usurped the jury’s role in concluding that one study cannot replicate another when both studies are based on the same population, a proposition that Jewell disputed. The court of appeals nevertheless concluded that the trial court did not abuse its discretion in concluding that Jewell’s conclusions were insufficiently reliable to satisfy Daubert.

Donald Mikko was hired by the Atlanta Police Department as Director of its Crime Lab. His employment contract permitted him to perform private consulting work on his own time.

A district attorney in Georgia learned that Mikko had prepared an expert report, and was planning to testify, for a criminal defendant in Florida. The district attorney, in the apparent belief that crime lab personnel should only assist the prosecution and never the defense, complained to the Atlanta police chief.

The police chief fired Mikko, who sued the police department for violating his right to free speech. His lawsuit was dismissed. Mikko’s appeal was recently decided by the Court of Appeals for the Eleventh Circuit.

Mikko’s Termination

Mikko was an expert in firearms and toolmarks. His employment contract allowed him to “perform consulting work as a private citizen so long as it did not relate to criminal prosecutions within the City of Atlanta or any investigations in which the City of Atlanta was a participant.”

After Mikko agreed to testify as a defense expert in a Florida criminal prosecution, the Florida district attorney wrote to the district attorney in Fulton County, Georgia, asking for his help to prevent Mikko from testifying. Some might question the ethics of a prosecutor who deliberately interferes with a defendant’s selection of an expert witness, but that issue was not before the court.

Mikko’s supervisor in the police department told Mikko that the Fulton County district attorney was concerned about his private consulting. During a conference call, the Chief Executive Senior Assistant District Attorney for Fulton County said she could not believe that Mikko “was going to testify for the defense” — as if science always favors the police and never an innocent defendant. She also characterized his expert report as “bad-mouthing” the Florida police, although she apparently did not challenge the accuracy of his expert opinions.

Mikko’s supervisor told him that “it did not look good” for the Atlanta Police Department to have its crime lab director testifying for the defense. That comment seems to reflect the attitude that experts employed by the government are required to give testimony that favors not just their employer, but parties who are on the “same side” as their employer. As is common when crime labs are controlled by the police, the supervisor apparently did not accept or understand the concept that experts are advocates for the truth, not for a particular side in a legal dispute.

Mikko pointed out that he was doing exactly what his contract allowed him to do. The police chief nevertheless fired him.

Mikko’s Lawsuit

Mikko sued the City of Atlanta, the district attorney, and the senior assistant district attorney, alleging that they attempted to induce him to suppress his expert report and testimony. He also alleged that his report exposed wrongdoing on the part of Florida police officers who mishandled evidence. Mikko contended that his right to free speech included the right to criticize the government and to testify as an expert.

Mikko filed his lawsuit in state court. His complaint asserted three state law claims. He also asserted a federal claim for the violation of his civil rights. The federal claim alleged that Mikko was subjected to unlawful retaliation to prevent him from testifying and to deter him and other experts from testifying in other cases, in violation of the First Amendment.

The defendants removed the case to federal court. The district court dismissed the state law claims against the individual defendants on the ground that the prosecutors Mikko sued were immune from suit under Georgia law. The court declined to hold that the prosecutors were entitled to qualified immunity on the federal claim. The prosecutors appealed that decision.

Absolute Immunity Defense

Judges have given themselves absolute immunity from suit for acts that they take in their official capacity as judges. Prosecutors often try to cloak themselves with the same immunity, but the Eleventh Circuit concluded that the prosecutors sued by Mikko were not entitled to absolute immunity.

The court ruled that prosecutors may have absolute immunity when they act as advocates in the judicial process by, for example, charging a defendant or presenting evidence in support of a conviction. In Mikko’s case, however, the Georgia prosecutors were not acting as advocates when they tried to stop Mikko from testifying because they had no official involvement in, or jurisdiction over, the Florida case in which Mikko would have testified.

Nor does absolute immunity extend to a prosecutor’s role as an employer, rather than advocate. And even if it did, the court noted, the prosecutors were not Mikko’s employer.

Qualified Immunity Defense

The court concluded, however, that the prosecutors could be legitimately concerned that if Mikko testified for defendants, he might harm his ability to testify for Georgia prosecutors by giving inconsistent testimony that criminal defense attorneys could use when cross-examining him. That conclusion is puzzling, since Mikko could give inconsistent testimony even if he only testified for prosecutors, or if he testified in civil cases. Nor did the court identify any reason to believe that an honest expert would change his opinions depending on whether the expert testifies for the prosecution or the defense.

The court also noted that the prosecutors could legitimately be concerned that Mikko might be unavailable to testify on their behalf if he is working for private clients. That concern is also puzzling, since his employment contract expressly authorized him to work for private clients. His employer presumably would not have made that agreement if it had been concerned that working for private clients would interfere with his job duties.

Whether or not the prosecutors’ concerns were legitimate, the question is whether firing Mikko in retaliation for his expert opinions violated Mikko’s right to free speech. The court of appeals did not answer that question.

Instead, the court noted that no other federal court has clearly answered that question in the context of the same or similar facts. It therefore applied the doctrine of “qualified immunity,” which shields government officials from liability for their allegedly unconstitutional acts when the constitutional violation has not been “clearly established.”

Whether experts have a constitutional right to testify against the prosecution will never be clearly established if courts continue to duck the issue, as did the Eleventh Circuit. In any event, the court ruled that the prosecutors were immune from suit and dismissed Mikko’s constitutional claim.

Sending the Wrong Message

Whether or not the court correctly granted qualified immunity to the prosecutors, its decision sends the message that expert witnesses who work for crime labs must only testify in a way that favors the police or prosecutors, and they might correctly be perceived as “tainted” if they testify truthfully for the defense. The court’s decision seems to assume that expert witnesses shape their testimony to meet the needs of the party that employs them. That’s a cynical view and an injustice to honest expert witnesses.

As ExpertPages has discussed, crime labs have been justly criticized when their employees act as advocates for the police or prosecution. An expert’s duty is to the truth, not to a particular party. Sometimes the truth benefits the prosecution. Other times it benefits the defense. The truth always benefits justice, and justice suffers when experts are discouraged from giving truthful testimony because a government employer thinks they should never help the “other side.”

Charles Aillones sued Glen Minton in Vanderburgh County, Indiana for negligently causing a car accident. Aillones wanted to elicit expert testimony from the nurse practitioner who treated him. The trial judge ruled that a nurse may not testify as a medical expert. On appeal from that ruling, the Indiana Court of Appeals decided that the nurse practitioner could give expert testimony in an ordinary case involving injuries related to a traffic accident.

Facts of the Case

Minton was driving a vehicle that collided with the rear of Aillones’ vehicle. Aillones obtained treatment from Alan Swartz, a licensed nurse practitioner, for pain in his neck and lower back.

Swartz has a master’s degree in nursing and is board certified as a nurse practitioner. His license allows him to examine and treat patients, to interpret lab results, to prescribe medications, and to refer patients for physical or occupational therapy. He has treated more than one hundred traffic accident victims.

Swartz diagnosed Aillones as having a concussion and a cervical sprain. Swartz prescribed a muscle relaxant and ibuprofen. Two weeks later, Aillones was still in pain. Swartz switched the prescription from ibuprofen to naproxen and referred him to a physical therapist.

Aillones sued Minton for negligence. He designated Swartz as his medical expert.

Expert Opinions

Swartz testified in a deposition that Aillones had sustained an injury to the soft tissues in his neck and lower back. When asked whether the injuries were caused by the collision, Swartz testified he did not see the collision but could say that the injuries were caused by trauma. He also testified that the injuries were consistent with the motor vehicle accident that had been described to him.

Prior to trial, Minton’s lawyer asked the court to preclude Swartz from testifying about the cause of Aillones’ injuries. The trial court ruled that a nurse practitioner does not qualify as an expert witness. Minton was granted the opportunity to appeal that ruling prior to trial.

Nurses as Expert Witnesses

As is true in most states, Indiana law provides that a witness is qualified to testify as an expert if the witness has “skill, knowledge, or experience” in a “scientific field, business, or profession beyond the knowledge of the average person.” Indiana courts have permitted experts to testify when they have special knowledge that would help a jury understand the facts of a case, even if they have no formal training.

The trial court relied on Indiana precedent that deemed nurses to be unqualified to give an opinion as to medical causation. The Indiana Court of Appeals noted that those cases involved allegations of medical malpractice. Despite the broad language used by the appellate courts in those cases, the holdings could properly be limited to opinions rendered by a nurse as to whether a doctor’s negligence harmed a patient.

The decisions relied on the superior medical training of doctors, and viewed a nurse’s opinion as insufficient to support a claim that medical negligence caused a patient’s injury. Ordinarily, whether if an expert is qualified to render a helpful opinion, it is up to the jury to decide whether the expert’s opinion is worthy of belief. Although the appellate court did not say so, the decisions might be seen as following the common judicial trend of extending greater protection to doctors than courts extend to other defendants in negligence cases.

The court of appeals also took note of an earlier decision that held open the door for nurses to testify about the appropriate standard of care that a nursing home should provide. The court suggested that in some contexts, a nurse would have the kind of experience and training that would allow a nurse to form expert opinions that might be helpful to a jury.

The court of appeals concluded that “no blanket rule prevents a nurse [from] acting as an expert witness.” The question is whether the nurse has enough knowledge, education, experience, or training to form an opinion and, if so, whether that opinion would be helpful to the jury.

Expert Opinions of Nurse Practitioner

The court noted that Indiana law defines a nurse practitioner as an “advanced practice nurse” who plays a specialized role in delivering advanced levels of nursing care. By regulation, nurse practitioners are entitled to diagnose conditions, assess the findings of physical examinations and lab results, make health care plans, and prescribe drugs.

The court concluded that a nurse practitioner is a highly trained and educated medical professional. While a nurse practitioner does not have the same education as a physician, that fact goes to the weight a jury might give to the expert opinion, not to its admissibility.

The court did not decide the limits of expert testimony a registered nurse who is not a nurse practitioner might be allowed to give in an ordinary negligence case. Nor did the court decide whether a nurse practitioner, unlike a registered nurse who has not been certified as a nurse practitioner, might be qualified to testify as to medical causation in a medical malpractice case.

Rather, deciding the case on the limited facts before it, the court held that a nurse practitioner may be qualified to testify as an expert that a patient’s injuries were consistent with a car accident. The court said that Swartz could not testify that the accident caused the injuries, since Swartz did not see the accident. Presumably, that same logic would prevent a doctor from testifying that an accident caused an injury. Absent evidence of any other potential cause, however, the expert’s testimony that an injury is consistent with an accident should permit a jury to infer that the injury was caused by the accident.

Significance of the Case

The Aillones decision is noteworthy for two reasons. First, the decision allows injury victims to obtain expert testimony from the medical professional who might be best suited to give it. When a patient is treated by a nurse practitioner, that witness is in the best position to explain the patient’s injuries to the jury. Given the high cost of medical experts, it benefits injury victims to call a treating nurse practitioner as an expert, rather than having the victim examined by a doctor simply to gain an admissible expert opinion.

Second, the connection between Aillones’ injuries and the car accident seems obvious. Allowing a nurse practitioner to testify that the injuries are consistent with the accident is reasonable under the facts of the case.

In other cases, where it is less obvious that the injuries were caused by the accident, or where there are grounds to contest the issue of causation, it may be necessary to obtain additional expert opinions. Causation of whiplash injuries, for instance, might best be explained by a biomechanical engineer working in conjunction with a neurologist. Understanding the nature and complexity of the facts that may be disputed will help attorneys select experts that are appropriate for each case.

Bubba Clem (known as Todd Clem before he changed his name) is a radio host who is better known by his on-air name, Bubba the Love Sponge. He generally fits the mold of a “shock jock” and has more than once been in trouble with his employers and the Federal Communications Commission for making racially offensive remarks and treating his listeners to graphic descriptions of sexual activities.

Bubba was recently in the news for surreptitiously filming his wife while she was having sex with Hulk Hogan. That video sparked a highly-publicized lawsuit after Gawker placed the video on its website. ExpertPages discussed the expert testimony offered by Hulk Hogan in this post.

Nielson’s Lawsuit

Nielson Audio, the ratings company, sued Bubba for fraud and related wrongs after Bubba attempted to influence a member of the Nielson ratings panel. Nielson attempts to keep the identities of panelists a secret, and prohibits subscribers to its ratings service from contacting them.

Bubba admits that he had contact with a member of the Tampa ratings panel, although how that came about may be a disputed fact. It is not disputed that Bubba tried to influence the panelist by encouraging the panelist to listen to his show.

Nielson uses devices that look like pagers to measure the listening habits of its panelists. Nielson contends its panelists are representative of the listeners in a given marketplace. If a panelist tunes in to a particular show, Nielson may conclude that thousands of people in the relevant marketplace listened to the same show.

Nielson has accused Bubba of shipping radios to the panelist’s home after instructing the panelist to manipulate that data that Nielson collects. The suit alleges that Bubba offered to pay the panelist each month to help Bubba boost his ratings.

Text messages quoted in the lawsuit suggest that Bubba instructed the panelist never to listen to his “main rival” in Tampa. The suit also alleges that Bubba influenced at least one other member of the same panel.

Bubba was suspended for eight days after his actions became public. He subsequently apologized.

Nielson’s Damages

Nielson claims that its subscribers have questioned the integrity of its data as a result of Bubba’s misconduct. According to Nielson, Bubba’s fraudulent attempt to boost his ratings caused Nielson to suffer irreparable damage to its “reputation and the reputation of its rating reports as an unbiased tool.”

Whether a jury will agree that the harm was either irreparable or significant is unclear, as Nielson may have repaired the damage by removing the tainted data from its ratings report and by de-listing the station that employed Bubba for one month. To prove that its claims are substantial, however, Nielson enlisted the services of an expert witness.

Damages Expert

Nielson proposed to call David A. Haas as a damages expert. Haas has an M.B.A. and specializes in management accounting. Haas proposed to testify about the injury that Bubba’s conduct had on Nielson’s reputation and goodwill.

Bubba filed a Daubert motion, asking the court to exclude Haas’ testimony because:

• Haas is not an expert in the radio industry or in the measurement of radio audiences;
• Haas based his opinion on data provided by Nielson without independently verifying it;
• a layperson could just as easily determine damages, so Haas’ analysis would not assist the jury;
• Haas did not investigate other potential causes of harm to Nielson’s loss of goodwill or damaged reputation; and
• Haas’ proposed testimony is prejudicial even if it is relevant.

The district court rejected those claims. The court noted that Haas has calculated damages in dozens of cases for businesses in a variety of industries. Expertise, the court said, need not be industry-specific when “broadly applicable calculations and measurements” are adequate to assess damages, and when there is no reason to believe that experience in a specific industry is necessary to calculate damages accurately.

The court noted that Haas is entitled to rely on data provided by Nielson since it is the kind of data upon which experts routinely rely. Whether the data is accurate is a question that the jury can decide if it is contested at trial. The court also questioned whether it would have been possible for Haas to independently verify Nielson’s internal data by contacting a knowledgeable outside source, since no sources were identified who would have access to that data.

Bubba argued that Nielson will not be forced to grant pricing concessions as a result of his misconduct because Nielson has a virtual monopoly over audience measurement, so customers have no choice but to pay what Nielson asks. The court thought that was an argument for the jury to consider rather than a reason to exclude Haas’ testimony. Haas relied on documents showing that pricing concessions were requested by one customer, and his discussions with Nielson about those documents supported his opinion.

Haas calculated harm to reputation and goodwill by using a “financial modeling technique.” The court decided that his testimony therefore goes beyond the calculations a lay jury could make without expert assistance.

The court concluded that Haas was not required to consider alternate sources of harm to Nielson’s reputation and that his failure to do so goes to the weight the jury should give his opinions, not to their admissibility.

Finally, the court found nothing prejudicial about Haas’ testimony, given that Bubba intends to offer his own expert to refute Haas’ opinions. It will be up to the jury to weigh the opinions of each expert when and if it measures damages.