Category Archives: ExpertWitness

Salvation Army Attorney Attacks Credibility of Retail Expert

An attorney for the Salvation Army has attacked the credibility of a retail management expert who testified that Salvation Army executives failed in their duty to protect the employees and shoppers who were killed in the 2013 collapse of a building in Center City Philadelphia.

Center City Building Collapse

On June 5, 2013, a building in Center City, Philadelphia was being demolished. During the demolition, an unbraced stone wall that was three- to four-stories high collapsed and crushed the Salvation Army thrift store that was located next to it. The collapse killed six people and injured 13 people, one of whom died 23 days later.

The man who was operating the excavator, Sean Benschop, and the general contractor, Griffin Campbell, were prosecuted for the deaths. Benschop pleaded guilty to six counts of manslaughter and other charges and was sentenced to 7.5 to 15 years in prison. Campbell was found guilty of involuntary manslaughter by a jury and was sentenced to 15 to 30 years in prison for his role in the catastrophe.

Civil suits were filed against the Salvation Army, the New York real estate investor Richard Basciano and his company STB, the architect, the contractor Campbell, and the excavator Benschop.

Expert Witness Robert Bartlett

In the consolidated civil suit, expert witness Robert Bartlett testified that the conduct of the Salvation Army officials was a “major management failure,” including hiring an architect but never sending him to the store to investigate what was actually happening. Bartlett argued that the Salvation Army officials failed by keeping their store open during the demolition of the building that was next door, without letting its managers, employees or customers know about the danger.

Robert Bartlett is a retail management consultant with over 25 years experience in the field. He runs Bartlett Joseph Associates, a retail industry management consultancy firm. His company focuses on business strategy, organization and management. It provides a broad range of product design and marketing services and has undertaken due diligence reviews of companies on behalf of investors and banks. Bartlett Joseph Associates’ extensive client list includes companies such as Bank of America, Banana Republic, Macy’s, Lowes Home Improvement, Williams Sonoma Target, and Wal-Mart. Robert Bartlett has provided expert testimony as a retail expert in dozens of cases, providing expert testimony on issues including vendor agreements, contracts, store leases, intellectual property, product dating and pricing, customer service and safety, and technology and brand marketing.

Attacking Bartlett’s Credibility

An attorney for the Salvation Army, John J. Snyder, confronted Bartlett with copies of emails that were sent and received between May 10, 2013 and May 15, 2013. The emails were between the Salvation Army and STB Investments Corp., the owner of the four-story building that crushed the Salvation Army store. Snyder argued that this chain of emails show that the Salvation Army was in communication with the STB Property Manager and was actively working to ensure the safety of its store, workers, and customers.

Snyder also argued that Bartlett is not credible as a witness when he criticizes the performance of Salvation Army officials because his opinions are based upon transcripts of court testimony and pretrial depositions.

Expert Testifies That Man Charged With Horrific Murder of 6-Year-Old is Competent to Stand Trial

A doctor has testified that Ronald Exantus, the man accused of killing 6-year-old Logan James Dean Tipton, is competent to stand trial.

Logan’s Death

Exantus has been charged with first-degree murder, burglary, two counts of second-degree assault, and one count of fourth-degree assault in connection with the death of Logan James Dean Tipton. Authorities claim that Exantus entered the Tipton’s home through an unlocked door, took a knife from the kitchen, and stabbed Logan repeatedly in the head while he slept. The oldest daughter in the family and the father, Dean Tipton, fought off Exantus until the police arrived.

There appears to be no connection between Exantus and the Tipton family.

The Expert

Dr. Amy Trivette is the medical director of Kentucky Correction Psychiatric Center in La Grange. Trivette evaluated Exantus from February 23 to May 2, while he was at the psychiatric center for a court-ordered evaluation and testified at Exantus’ competency hearing.

Trivette testified that Exantus understands the charges that he faces and is able to assist rationally in his own defense. Trivette testified that Exantus had no prior criminal or psychiatric history. Upon his admission to the psychiatric center, Exantus told staff that he smoked marijuana frequently in the year prior to his arrest and that he had contemplated suicide. Exantus also claimed to hear negative voices in his head that spoke to him the Creole language of his parents. While Exantus initially exhibited some impairment in his ability to think logically, Trivette testified that he improved over the course of his treatment at the psychiatric center and had “intact” judgment at the time of his discharge.

The Defense Position

According to Trivette, Exantus understands that the charges against him are serious and the roles of the judge, jury and attorneys. Exantus’ public defender, Bridget Hofler, pointed out that Exantus was not clear on all of the court rules and procedures. She noted that Exantus incorrectly believed that 7 of 12 jurors would have to vote him guilty for him to be convicted. Trivette opined that Exantus would be able to understand such concepts if they are explained to him.

Hofler questioned Trivette as to whether competency is fluid, asking if it was possible for Exantus to not be competent by the time trial began. Trivette answered that it was possible.

Woodford Circuit Judge Rob Johnson will issue a written ruling on Exantus’ competency to stand trial.

After the competency hearing, Hofler made a statement to reporters, “Sometimes, people just have psychotic breaks … They (psychiatric center personnel) can’t even determine what kind of psychosis it was. They just know he was psychotic. He was psychotic when he was in KCPC, they treated him … and he got better… He did a lot of really bizarre things that I’m not really able to go into now, culminating in him getting into a car, and driving over 300 miles to a place he’d never been, going in the home of people he’d never met, and this thing happening… I mean, he’s never been to Kentucky before other than to drive through it to get to Florida to see his parents.”

An Expert Witness Who Made a Difference

This year is the 45th anniversary of the Attica prison uprising. The most notorious prison riot in American history led to 43 deaths of prisoners and guards and triggered a demand for prison reform. A recent New York Times story reports that prison conditions improved after the uprising, although some of the reforms promised in 1971 have never been implemented or have been rolled back.

There are few heroes in the story of the Attica riot. One person who deserves to be remembered for his heroism is Dr. John Edland, the medical examiner of Monroe County, New York. Pressured to support the lies told by prison authorities and other state government officials, Dr. Edlund stood up for the truth. He paid a heavy price for his unwavering honesty as an expert witness, but he never lost his integrity.

The Attica Riot

About half of the 2,200 inmates in the overcrowded Attica prison took 38 guards hostage on September 9, 1971. The inmates presented prison authorities with a list of demands. They wanted more than one shower per week and more than one roll of toilet paper per month. They wanted an end to routine beatings by prison guards and to solitary confinement in cells where they were forced to sleep naked on a concrete floor. They wanted prison officials to recognize their right to practice religions other than Christianity.

Prison officials agreed to bring in outside observers to tell the inmates’ story. The officials also agreed to many of the prisoners’ demands, although they would not agree to grant amnesty to inmates who were involved in the riot.

Four days after the uprising began, Gov. Nelson Rockefeller ordered more than 200 armed troopers to storm the prison. In the violence that followed, 39 people were shot to death, including 10 prison employees. Four people had died earlier.

The Attempted Cover-Up

State officials tried to blame the deaths of hostages on prisoners. Officials told the press that prisoners had slashed the throats of the prison employees.

When Dr. Edland autopsied the dead, it was apparent that the hostages had died from gunshot wounds, not from knife wounds. Since the prisoners had no guns, Dr. Edland’s findings compelled the conclusion that the hostages were killed by the state troopers’ gunfire.

State officials attempted to undermine Dr. Edland’s autopsy report. Immediately after Dr. Edland finished his autopsy, the Corrections Department issued a statement claiming that eyewitnesses had seen the victims’ throats being slashed.

The governor issued a statement after the autopsy claiming that the hostages had been killed by inmates. Police officers who watched Dr. Edland remove bullets from the hostages’ bodies said nothing to contradict the official story. State officials also told the families of the deceased victims that inmates had cut the victims’ throats.

Attacks on Dr. Edland

In response to the misrepresentation of his autopsy results, Dr. Edlund sought the advice of clergy. He then released his autopsy report to the media so that the truth would be made public.

Fearing that Dr. Edland would be an effective witness for families of the hostages, state officials began a campaign to damage his credibility. The state police found two local undertakers who were willing to support the claim that the hostages had died from knife wounds rather than gunshots.

The attacks on Dr. Edland resonated with members of the public who assumed that prisoners, rather than the police, had been responsible for killing the hostages. Dr. Edland began to receive threatening calls that accused him of being a Communist and siding with the inmates.

As a respected medical examiner, Dr. Edland had dedicated himself to finding the true cause of death in every case. When called upon to do so, he testified to the facts as he knew them. He could not believe that his integrity and reputation were suddenly under attack. According to his wife, Dr. Edland “was shocked that people wouldn’t believe him. Until that time, people always believed him.”

Dr. Edland’s Work as an Expert Witness

Other medical examiners who examined the bodies rallied to Dr. Edland’s defense. New York City’s medical examiner confirmed Dr. Edland’s findings, noting that “passions sometimes overtake truth and justice.” Days later, the State Correction Commissioner was forced to admit that the hostages died of gunshot wounds and not of slashed throats.

Dr. Edland testified about his autopsy results in several trials that followed the Attica riots. He always told the truth, but he continued to received threatening phone calls from misguided individuals who thought he was betraying the police by refusing to support the claim that the hostages were killed by knife-wielding prisoners.

Dr. Edland’s family recalls how he became dispirited after facing public scorn simply because he was an honest witness. He suffered a breakdown and was hospitalized for severe depression.

After his discharge, Dr. Edland resigned from his position as medical examiner. He joined the faculty of Vanderbilt University and later became a dean at Creighton University in Omaha.

Until his death in 1991, Dr. Edland continued to testify as an expert witness, but in criminal cases, he only testified for the defense. He told the press that he was “no longer interested in the state’s case because it seems they have so much power” compared to “the poor little guy on the other end.”

Dr. Edland stands as a model for all expert witnesses. Trials are a search for the truth. Experts serve a crucial role in helping juries find the truth, but only if their testimony is honest. Sometimes serving the cause of truth is difficult, but expert witnesses who do so in the face of adversity, like Dr. Edland, are among the heroes of the judicial system.

Image Credit: By Jayu from Harrisburg, PA, U.S.A. (Attica, New York (Correctional Facility)) [CC BY-SA 2.0], via Wikimedia Commons

DNA Expert Thrown Out of Court

The DNA expert who was presented by defense attorneys in the trial of a man charged with participating in the violent beating of a gay black man was thrown out of court by a Brooklyn Supreme Court Justice.

Taj Patterson

On December 1, 2013, 22-year-old Taj Patterson was walking home on Flushing Avenue in Williamsburg, Brooklyn when he was assaulted by a gang of men associated with a Hasidic neighborhood watch group known as the Shomrim. The men were responding to a report that someone in the area had been vandalizing cars. That report later turned out to be false.

Patterson testified that he was chased by three Hasidic Jewish men who were screaming “something negative” at him. Additional men joined the attack. Patterson recalled, “I was trying to stop cars, two or three, to get them to help. I banged on the windows asking for help, but they kept driving. There were 20 people behind me. … I gave up.”

Prosecutors claim that the members of the Shomrim mistook Patterson for the vandal and beat him so badly that he lost vision in his right eye. The responding police officers spoke to four witnesses at the scene and obtained the license plate of a car that was used by attackers to flee. The case was quickly closed, but reopened when Patterson’s mother went to the press with her son’s story.

In April 2014, Abraham Winkler, Pinchas Braver, Joseph Fried, Aharon Hollender, and Mayer Herskovic were arrested and charged with Patterson’s assault. Winkler and Braver made a deal with the Brooklyn district attorney’s office, pleading guilty to a reduced charge of unlawful imprisonment. The prosecutors dismissed all charges against Fried and Hollender, stating that the witnesses who had originally identified them had recanted. Only Herskovic’s trial is still pending.

Herskovic’s Trial

At Herskovic’s trial, Patterson testified that he was able to strike one punch at the leader of the group, breaking his glasses. He stated that, “That same individual who stood in the middle of the three men kicked me in the face, the ringleader.”

Patterson was unable to identify Herskovic as one of his assailants, but the prosecution was able to link Herskovic to the crime based with “touch DNA” evidence that was found on the heel of the shoe that Patterson was wearing on the night of his attack. Patterson’s sneaker was hurled onto the roof of a nearby building after two passersby intervened in the attack.

Herskovic’s legal team brought in Arthur Young, a forensic scientist, to challenge the legitimacy of the DNA evidence. Lead prosecutor Timothy Gough challenged Young’s status as an expert, asking, “Has there ever been a time when you were not declared an expert?” When Young responded that there was a time that he was not admitted as an expert in Staten Island, prosecution questioned him further. Eventually, Young admitted that he had been fired from multiple jobs, that he had embellished his qualifications, and that his website made some incorrect statements about his expertise.

Brooklyn Supreme Court Justice Danny Chun dismissed Young and instructed the defense team that it had 24 hours to find another DNA expert.

Herskovic faces up to 25 years in prison if he is convicted.

Toxicology Expert Discredited and Cases Are in Jeopardy

Toxicology expert, Dr. Fessessework Guale, has been accused of lying on the stand. The cases in which Dr. Guale has testified are now in jeopardy.

Gaule’s Degree

Dr. Guale claimed to have a Masters of Science degree in Toxicology from Oklahoma State University. However, according to a notice sent by the Harris County District Attorney’s office, “Dr. Fessessework Guale of the Harris County Institute of Forensic Sciences may have testified in past trials that she received her Master’s (sic) of Science degree in Toxicology when, in fact, she received her Master’s (sic) of Science degree in Physiological Sciences (with coursework and research in toxicology).” The District Attorney’s Office is now requesting that defense attorneys review 10 years of their DWI cases to search for erroneous testimony from Dr. Guale.

Dr. Guale’s resume shows that her degree is from a veterinary college and that her doctorate is in veterinary medicine from an Ethiopian veterinary school. Guale has been employed since 2006 with the Harris County Institute of Forensic Sciences, which is the county’s medical examiner’s office. The Harris County Institute of Forensic Sciences says that its hiring manager should have noticed Dr. Guale’s degree discrepancies on her resume and job applications. That manager left the office before this controversy surfaced.

Jeff McShan, spokesperson for the Harris County District Attorney’s Office, has stated that prosecutors are still trying to determine how many cases Guale testified in as an expert. Records from the Harris County Institute of Forensic Sciences show that Guale has testified in 33 cases dating back to 2011.

Responding to the questions about her credentials, Guale stated, “I did not lie. It’s just a misunderstanding. I actually told the truth.” When questioned about her claim to have a Masters in toxicology, she responded, “My Masters is in Physiological Sciences which toxicology is a sub-discipline of.” Guale also noted that she is board certified in forensic toxicology and claims that the basic science behind the effects of alcohol is the same in animals and humans. Guale’s expert witness testimony has been about defendants’ blood alcohol content.

Community Response

The Harris County Criminal Lawyers Association (HCCLA) is requesting that criminal charges be brought against Guale for perjury. Commenting on Guale’s resume, HCCLA President Tyler Flood has stated, “That’s a lie, she has a masters in physiological sciences… But when you look closer it doesn’t relate to humans.” Flood also opined, “It’s very disturbing because there are people who are charged with felony offenses … and they can be convicted and go to jail or prison based on her testimony. And she’s not qualified to be talking about this subject.”

The Harris County Institute of Forensic Sciences stated that Guale is being retrained and that it remains confident in her abilities. It has stood behind Guale, stating that she has taken part in continuing education in forensic toxicology and “has earned certification by the American Board of Forensic Toxicology reflecting her knowledge, training, and experience in forensic toxicology… Dr. Fessessework Guale is fully qualified to hold her current position … and to provide expert testimony in court.”

Prosecutors Argue to Exclude Police Shooting Expert

Michael Edington is a 27-year-old police officer with the Norfolk Police Department who has been charged with the manslaughter of David Latham, who he shot while on duty. As part of Edington’s defense, his attorney, Jeff Swartz, plans to introduce an expert witness who will testify on how Norfolk officers are trained to decide whether to shoot. The prosecutors are trying to keep the expert off the stand.

The Shooting

On June 6, 2014, Audrey Latham called the police for assistance with her son. Audrey Latham said her son was suffering from schizophrenia and had recently stopped taking his medication. She had called the police at least eight times previously for assistance with her son.

Several police officers responded to the call. When the police arrived, Latham was still holding a knife that he had grabbed earlier when he was fighting with his brother. Within minutes of police arrival to the Latham home, Edington shot Latham six times, including two times in the back.

The Indictment

A special grand jury was impaneled to decide whether to indict Edington. The grand jury considered charges of second-degree murder, use of a firearm in the commission of a felony, and voluntary manslaughter. The grand jury returned a charge of voluntary manslaughter. Voluntary manslaughter is a class-5 felony in Virginia, punishable by up to 10 years in prison.

When Edington was indicted, Latham’s Family released a statement saying, “The family is pleased the criminal case will go forward. They are looking for justice for their son. They are pleased the grand jury found there is sufficient evidence to indict, but they know there is still work to be done. The criminal case will be a public trial. We feel it is good because everyone will be able to know what happened. We are pleased the court system seems to be working. From everyone knowing what happened here, we can prevent this from happening to other families.”

Expert Witness Controversy

Defense attorney Jeff Swartz wants to call expert Urey Patrick to testify in Edington’s defense. Patrick has 24 years experience with the FBI and has been testifying in similar court cases since his retirement in 1997. Patrick has reviewed Norfolk’s police office training and proposes to testify regarding why officers shoot to kill, why they fire so many shots, and why they may continue to shoot when someone is no longer a threat.

Commonwealth’s Attorney Greg Underwood argued that Patrick should not be allowed to testify. Underwood argued that Patrick doesn’t know how Norfolk trains its officers because he has never trained them nor seen them trained and any testimony on Norfolk’s training would be inadmissible hearsay. Underwood also argued that Patrick is not qualified to testify as to why an officer would use deadly force. Underwood also stated that he thought that Patrick would testify about whether Edington was justified in shooting Latham.

Circuit Judge Junius Fulton III has yet to decide whether to allow Urey Patrick to testify.

Questions Surrounding a Houston Toxicology Expert Witness Raise Doubt on DWI Convictions

Several Houston area DWI convictions have come under review after a toxicology expert witness had her credentials questioned following a recent trial. The expert has defended herself and her work, however, defense attorneys have asked the Houston DA to conduct a thorough review of past convictions and to remove her from testifying as an expert witness during future DWI trials.

Houston Toxicology Expert Witness Has Credentials Questioned

An expert witness in toxicology who has taken the stand in hundreds of Houston DWI cases since 2006 has had her credibility and qualifications come under fire after defense attorneys noticed her degree does not reflect the specialty upon which her testimony focuses. Dr. Fessessework Guale works as an expert in toxicology with the Harris County Institute of Forensic Sciences in Houston, and has built up a reputation as a noted witness over years of testimony in DWI and other felony trials. Dr. Guale entered the field by claiming she had a Master’s of Science degree in Toxicology from Oklahoma State University, but some digging by a local defense attorney uncovered inconsistencies in her record.

According to Tyler Flood, who is president of the Harris County Criminal Lawyers Association, Guale has misrepresented her qualifications and put her expert testimony in serious doubt. Research by Flood revealed that Guale’s degree is actually in physiological sciences, which could include toxicology research, however, Guale’s studies in toxicology focused largely on animals rather than humans. Flood found these revelations to be significant, telling reporters, “She has flat out stated and testified under oath, I have a Master’s Degree in Toxicology, and that is not the truth … She has lied to the crime lab that she works at, she’s lied to prosecutors, and she’s lied to judges.”

In addition to potentially seeking criminal charges against Guale for the deception, Flood and other criminal defense attorneys have asked for her resignation, for a thorough review of all the DWI cases in which she has testified as a toxicology expert witness, and for the DA to stop using her as an expert witness in trials.

Toxicology Expert Defends Herself Against Allegations of Deception

Speaking to reporters at her home in Houston, Dr. Fessessework Guale defended herself against the allegations that she had lied to prosecutors and judges about her qualifications as a toxicology expert witness. According to Dr. Guale, the matter is simply a “misunderstanding,” and she has the necessary qualifications to take the stand as an expert in toxicology. Guale told reporters, “My training is in toxicology but the degree says physiological sciences, which is a big area which toxicology is a sub part of it … It’s called a sub discipline.” She did not address concerns that her toxicology focus was on animals while she studied at Oklahoma State.

Her employers at the Harris County Institute of Forensic Sciences (HCIFS) released a statement which supported Dr. Guale’s qualifications to testify as a toxicology expert witness, but noted it would review her education and training in light of the allegations against her. In its statement, the HCIFS noted that Guale had participated in toxicology training and received certification by the American Board of Forensic Toxicology “reflecting her knowledge, training, and experience in forensic toxicology.” Pending completion of the review of her prior testimony and educational qualifications, Guale has been reassigned and may require re-training before she can continue to testify in court.

Houston DA to Review Impact of Toxicology Expert Mix-up

Attorney Tyler Flood and several other Houston area defense attorneys have called for a complete review of all the cases in which Dr. Guale testified as a toxicology expert witness. The Harris County DA released a statement which said its office is in the process of assessing which cases Dr. Guale’s testimony may have impacted the verdict and will proceed with a formal review accordingly. Attorneys representing clients who were convicted after trials which featured Guale have been asked to contact the DA, but whether or not the issue will result in convictions being overturned remains to be seen.

Attorneys for Jaime Flores, who was convicted of being intoxicated and causing a fatal car accident in part due to Guale’s toxicology expert testimony, have announced that they will file a motion for a new trial based on the revelation about her qualifications and education. Given that Guale has undergone training in toxicology analysis, the miscommunication about the precise nature of her degree may have minimal effect on most of the prior cases she worked on. However, her reputation has come under serious fire and she could be dismissed from future testimony as a toxicology expert in DWI trials.

High Profile Forensic Expert Witness Rejected due to Questionable Qualifications

A DNA expert witness who has testified on behalf of defendants in several high profile trials was dismissed from a Colorado courtroom for being unqualified. The expert’s dismissal could result in attorneys being less likely to use him, however, he argues the judge’s decision to denounce his qualifications was made in error and his expert testimony is scientifically validated.

High Profile Expert Witness Dismissed from Colorado Trial

Richard Eikelenboom is a forensic scientist who has testified as a DNA expert witness in several high profile trials across the country, most notably on behalf of Casey Anthony who was acquitted by a Florida jury in 2011 on all charges stemming from her 3-year-old daughter’s death. Eikelenboom took the stand in the Casey Anthony trial as a DNA expert, and told jurors that there was not sufficient forensic evidence to connect Anthony to her daughter’s death. His DNA expert testimony contributed in part to her acquittal, and Eikelenboom has been called as a forensic expert for several years in trials across the country.

Last week, Eikelenboom’s reputation and position as a DNA expert witness suffered a significant blow when a Denver judge discredited his qualifications to testify about forensic evidence in court. During testimony in a 2013 sexual assault case, the judge presiding over the trial found that Eikelenboom had committed serious errors in his DNA analysis by failing to follow proper scientific standards set by other professionals in the field. According to prosecutors in the case, Eikelenboom admitted on the stand that he did not have experience directly extracting or analyzing DNA, that his lab is not properly accredited, and that he himself failed proficiency tests in 2011 and 2012.

After hearing about flaws in Eikelenboom’s analysis and proficiency level, the Denver judge rejected his testimony by finding he was unqualified to take the stand. Since being dismissed as an unqualified expert, Eikelenboom has attempted to dispute the judge’s conclusion and offer assurances that his forensic expert testimony is built on sound principles and methods.

Debunked Expert Witness Defends Qualifications

Speaking to the media after being dismissed from testifying as a forensic expert witness, Richard Eikelenboom attempted to address the accusations that he does not produce reliable DNA analysis. Calling the claims that his methodology is fundamentally flawed “completely unfounded,” Eikelenboom told reporters that the prosecutors manipulated his responses in order to paint an inaccurate portrayal. According to Eikelenboom, the trial judge did not completely understand his work or his qualifications, and therefore made the decision to reject his testimony without all of the relevant facts.

Eikelenboom also pointed out that his lab has received accreditation from two separate professional organizations, including the American Society of Crime Lab Directors (ASCLD). Additionally, some of the disputed DNA testing which prosecutors used as proof that he was not qualified was conducted decades ago, and Eikelenboom maintains that he has received the proper training and education to act as a forensic science expert witness. He also told the press that his professional name and reputation has been slandered, and announced intentions to contact a lawyer.

Forensic Expert’s Dismissal Could Limit Future Opportunities

Prior to last week’s challenge to his professional reputation, Eikelenboom testified in several criminal trials, several of which resulted in defendants being acquitted of fairly serious charges. In addition to Casey Anthony, the forensic expert was called by former Indiana State Trooper David Camm who was acquitted of killing his wife and children, and helped overturn a murder conviction of Tim Masters, a Colorado man who spent more than 20 years in prison before DNA analysis conducted by Eikelenboom’s lab was used to exonerate him. While none of the past work can be impacted by last week’s decision, Eikelenboom’s future as an expert witness may be in jeopardy.

Forensic science expert witnesses are widely used in criminal trials across the country, and competition for the opportunity to testify as an expert can be significant. Experts rely on their professional reputation in order to market their skill set, and Eikelenboom’s recent dismissal will likely impact his opportunities going forward. Attorneys will be hesitant to hire an expert whose qualifications have been questioned, even if the expert has testified successfully in high profile cases.

New Hampshire Court Dismisses Lead Paint Expert Testimony in Somali Refugee Lawsuit

The New Hampshire Supreme Court has dismissed testimony from a lead paint expert witness in a lawsuit against landlords accused of providing unsafe housing. The suit, which has been ongoing for nearly 10 years, may be nearing a conclusion as the plaintiffs are left without a key piece of testimony after the court’s decision.

Somali Refugees file Lead Paint Lawsuit

From 2005 through 2006 a group of Somali Bantu refugees lived in apartments owned by Wen Lin, a landlord in Manchester, New Hampshire. After several members of the community got sick, 20 of the refugees filed a lawsuit alleging that the apartments were contaminated by lead paint, which is a known hazard. The plaintiffs claimed that the defendants had provided an unsafe living environment which caused injury to the community members who lived there.

As with any injury lawsuit, the plaintiffs were required to prove that they suffered a legally actionable harm as a result of the defendant’s behavior or negligence, and in this case that meant the Somali refugees had to show they suffered an illness or injury as a result of exposure to lead paint. In order to satisfy their burden of proof, the plaintiffs hired a lead paint expert to evaluate their injuries and testify in court that the defendant’s apartment was the likely cause of harm suffered.

Lead Paint Expert Witness Submits Report to Trial Court

The Somali Bantu refugees attempted to demonstrate that their injuries were caused by their living conditions by having lead paint expert witness Dr. Peter Isquith, a trained clinical neuropsychologist, to conduct tests on 17 children of the plaintiffs. Dr. Isquith used two scientific measures in order to determine that the children suffered from a neurological condition which was “more likely than not” caused by lead paint in their living quarters.

In order to make this determination, Dr. Isquith used two common neurological tests which are designed to measure verbal and non-verbal intelligence and general intelligence. The tests are separated into a series of questionnaires which examine cognitive function, attention, language, memory, and learning, and social perception. According to Isquith the plaintiff’s children standardized scores fell in a lower percentile when compared to standardized scores of other children who were not exposed to the same levels of lead paint.

Dr. Isquith used his results to argue that the alleged harm suffered by the plaintiffs not only was real, but was caused by the apartments provided by the defendant. During trial, the defendants motioned to exclude Isquith’s testimony, and after a lengthy evidentiary hearing the trial judge excluded the plaintiff’s expert for failing to account for specific conditions of the plaintiffs.

New Hampshire Supreme Court Strikes Lead Paint Expert Witness

On appeal, the New Hampshire Supreme Court closely reviewed the methodology Isquith employed and agreed with the trial court that he had not met the scientific standards required of expert witnesses in the state. The Court affirmed the trial court’s position by writing that the tests Isquith had used failed to consider the differences between Somali children and his comparison group, or consider how “normal, healthy” Somali children would perform.

Without a baseline for comparison, the Court determined that the plaintiff’s expert witness had not provided sufficient scientific justification for his conclusions regarding the lead paint injuries. Further, Isquith’s work had not been reviewed by peers, and was fraught with uncertainty which made it akin to “guesswork [which] would not assist the jury in arriving at a fair and just verdict.” Accordingly, the Court found that Isquith had not met the threshold for expert witness reliability in New Hampshire.

The case serves as a reminder that well qualified and educated expert witnesses can provide seemingly meaningful analysis which cannot pass legal standards. Courts, particularly courts which operate under standards adopted in Daubert ant its state-level progeny, are required to look beyond expert qualifications and closely examine whether or not expert analysis reliably connects the facts of the case to scientific conclusions.

“Forgotten Baby Syndrome” Expert Offers Testimony In Trial for Negligent Homicide

Judge Wade Naramore is on trial for the negligent homicide of his son, Thomas, who was found dead after his father left him in a hot car in July 2015. Naramore is a circuit judge in Garland County, Arkansas.

At the time of his arrest, Naramore told investigators that he forgot to drop off his son at daycare and left him in the backseat for about five hours. He said that he didn’t realize his son was still in the back seat until he heard a noise in the rear of his car when he was driving to pick his son up from daycare later that day.

Following a six-month investigation by special Prosecutor Scott Ellington, Naramore was arrested and charged with negligent homicide, a Class A misdemeanor. He turned himself in and pleaded not guilty. Naramore faces up to one year in jail and a fine of $2,500 if convicted. The Arkansas Supreme Court has temporarily suspended Naramore, pending the outcome of his case.

Naramore’s Defense

Naramore’s defense team called David Diamond, Ph.D, to testify as an expert on memory loss. Dr. Diamond is a neuroscientist and professor at the University of South Florida. He is also the Director of the USF Center for Preclinical and Clinical Research on Post-Traumatic Stress Disorder. Dr. Diamond has studied the “Forgotten Baby Syndrome” and has testified in numerous cases as a scientific consultant on cases involving memory-related child death.

Dr. Diamond’s fee is $10,000 to investigate cases such as Naramore’s. Dr. Diamond says that he will only testify in cases that he determines to be accidents.

Dr. Diamond opined that there were several factors that may have affected Naramore on the day that he left Thomas in the hot car. Diamond noted that the numerous changes in Naramore’s routine, possible sleep deprivation, and stress or distractions all could have played a role in the incident.

On most mornings, Naramore ate breakfast at home, but that day he stopped for breakfast at McDonald’s. Dr. Diamond theorized that stopping for breakfast triggered a “restart” of Naramore’s habitual behavior of driving to work after stopping at daycare. His brain treated the stop at McDonald’s as if it were a stop at daycare. Naramore then stopped thinking of having a baby in the backseat, just as he would have done if he had dropped the baby at daycare.

The state attempted to undermine Dr. Diamond’s testimony by questioning the statements that Naramore made to him to help develop Diamond’s forgotten child theory.

In 2014, Dr. Diamond previously testified that 200 children have died worldwide over the past 15 years after being left in cars. A website called Kids and Cars has been created to raise awareness of this issue. According to the site, over 2,200 children are injured or killed in nontraffic events every week. Kids and Cars has also compiled data on convictions in cases of children dying from heat stroke in cars. It found that 28 percent of accidental cases result in convictions and 60 percent when someone knowingly left a child in a car.

Naramore’s Support

Naramore’s family has supported him throughout the ordeal. His mother-in-law, Jan Wright, testified that she learned of Thomas’ death when she received a phone call from a distraught Naramore that consisted of him screaming and wailing and asking her to call 911. Wright testified that Naramore was inconsolable over the next few days, requiring medication to sleep. She testified that she did not place blame on Naramore, saying, “Those things can happen to anybody.”

Jury Acquits Naramore

The jury found Naramore not guilty. Expert testimony likely helped the jury understand that the tragedy of Thomas’ death could have happened to any parent. In addition, the jury may have been influenced by the emotional testimony of Naramore and his family members.

The jury deliberated for three hours. Jurors had difficulty reaching a unanimous verdict. At one point, the vote was 10-2 (presumably in favor of acquittal). The jury later told the judge that the vote was 11-1. The judge told the jury to continue its deliberations, which resulted in the unanimous verdict of not guilty.

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