Category Archives: ExpertWitness

Murder Conviction Overturned Because Expert Testified via Skype

The New Mexico Supreme Court has overturned the murder conviction of Truett Thomas and ordered a new trial because the trial court judge improperly allowed the prosecution’s expert witness to testify via Skype.

Truett Thomas’ Case

Thomas was charged with the murder of Guadalupe Ashford, whose body was found behind a trash can in a parking lot in 2010. It was determined that Ashford had been assaulted, suffering head injuries including a fractured skull and dislodged tooth. Police found blood on the scene that didn’t belong to Ashford and ran it through the Combined DNA Index System (CODIS). The blood was a match for Thomas. Thomas was arrested and charged on this DNA evidence, but denied knowing Ashford.

When Thomas’ case went to trial, the forensic analyst who had originally tested the blood had moved away. The prosecutor expressed concern over securing the presence of the forensic analyst and suggested that she be allowed to testify over Skype. When the court asked the defense counsel’s thoughts on allowing Skype testimony, the counsel responded, “I don’t like it, but I think it will work. . . . It’s just weird. She’s really just going to be there to establish the chain of custody, so she’s not—I mean, she’s important, obviously, for the State, but she’s not too important. I don’t really have a problem with Skyping it, as long as there’s no technical issues. If there’s technical difficulties, then they’re not going to be able to establish the chain of custody. Then it’s game over.”

However, at another hearing closer to trial, the defense counsel expressed concern about the Skype issue and stated that it might “cause a confrontation problem.” The district court judge allowed the testimony, ruling that the defendant had waived any objection to the Skype testimony through the earlier acquiescence.

Prosecution’s Expert Testifies by Skype

At trial, the prosecution called the forensic analyst to testify via Skype. Her image faced the jury, but she could only see the attorney questioning her. She could not see the defendant, the jury, nor the district court judge. The State had a second forensic scientist analyst testify in person; however, this analyst had not performed the DNA measurements, she had only interpreted the measurements made by the first absent analyst.

A jury found Thomas guilty of first-degree murder and first-degree kidnapping. He received consecutive sentences of life imprisonment for the murder and eighteen years for the kidnapping.

New Mexico Supreme Court Rules on Skype Testimony

Thomas made a motion for a new trial, based on additional DNA evidence and a social media post that the district court judge had made during his trial. He appealed his conviction to the New Mexico Supreme Court. The New Mexico Supreme Court found that the Skype testimony violated Thomas’ right to confront the witnesses against him, as guaranteed by the Sixth Amendment to the United States Constitution. The Sixth Amendment to the Unites States Constitution states, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” See U.S. Const. amend. VI.

California Asbestos Exposure Case Allows Controversial Expert Testimony

In a recent asbestos exposure case, Davis v. Honeywell International, Inc., California’s second appellate district has allowed an expert witness to testify that every asbestos exposure is a substantial factor in causing the disease. This goes against the trend around the country of courts rejecting plaintiff experts’ attempts to proffer similar testimony and moves away from Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, which held that trial courts are supposed to play a “gatekeeper” role in keeping out unreliable expert evidence. Davis opens the door in allowing a jury, not the trial court in its “gatekeeper” role, to decide whether to accept the theory.

Davis v. Honeywell International, Inc.

In Davis, an auto mechanic and home remodeler sued Honeywell, alleging that his exposure to asbestos in Bendix brake linings that he used in performing brake jobs in the 1960s and 1970s was a substantial factor in contributing to his risk of developing malignant mesothelioma. The Bendix linings were 50 percent chrysoltile asbestos by weight. Honeywell is responsible for the injuries caused by brake products manufactured by the Bendix company. When the plaintiff died, his daughter was substituted as plaintiff in her capacity of personal representative of her deceased father.

Prior to trial, Honeywell filed a motion in limine to preclude the plaintiff from presenting expert testimony that every exposure to asbestos contributed to Davis’s mesothelioma. The trial court denied the motion and plaintiff’s experts were allowed to testify.

Expert Testimony Offered at Trial

At trial, Dr. James A. Strauchen, M.D., a pathologist, testified for the plaintiff that mesothelioma can occur with very low doses of asbestos exposure, that each exposure is cumulative, and that mesothelioma typically occurs 20 to 50 years after exposure. The plaintiff’s other expert, Dr. Barry Castleman, testified that reports and articles that have been published, beginning in the 1890s, warning of the dangers of asbestos exposure.

Honeywell presented its own expert testimony from an epidemiologist, an industrial hygienist, a pathologist, and an expert in brakes and brake safety. The epidemiologist testified that there was no association between employment as a mechanic and the risk of mesothelioma. The industrial hygienist testified that Davis’ probable cumulative exposure from his work with brakes was below the Occupational Safety and Health Administration (OSHA) limits. He also testified that extremely high heat applied to the brake linings converts asbestos fibers into non-toxic substances. Honeywell’s pathologist testified that exposure to brake dust does not cause mesothelioma. Its brake expert testified about why asbestos was used in brake linings.

Honeywell Challenges Trial Court’s Failure to Exclude Expert Testimony

The jury found for the plaintiffs and Honeywell appealed. On appeal, Honeywell’s primary argument was that the trial court failed to properly exercise its gatekeeper role and exclude Dr. Strauchen’s testimony that was based upon an “every exposure” theory. Honeywell argued that: (1) the testimony was speculative and illogical; (2) he improperly relied upon regulatory standards which do not establish causation; (3) the theory is not supported by scientific literature or epidemiological studies; (4) it is contrary to the direction in Rutherford v. Owens Illinois (1997) 16 Cal.4th 953, that a causation analysis must proceed from an estimate concerning how great a dose was received; and (5) other jurisdictions have rejected this theory.

The court in Davis rejected each of Honeywell’s arguments. It noted that Rutherford held that a plaintiff in an asbestos-related cancer case could demonstrate causation “by demonstrating that the plaintiff’s exposure to defendant’s asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer.” Rutherford v. Owens-Illinois, Inc., 16 Cal.4th 953, 976-977, fn. omitted (1997). The court found that the plaintiff properly presented such testimony and that the trial court did not abuse its discretion in allowing it.

Music Experts Testify in Stairway to Heaven Plagiarism Trial

Music expert witnesses have testified on behalf of plaintiffs in the Stairway to Heaven plagiarism lawsuit being heard in a US federal court. The rock band countered with a music expert of their own, giving jurors the opportunity to weigh expert opinions should the case proceed. The high profile copyright lawsuit against the surviving members of Led Zeppelin will continue this week with a ruling expected in the near future.

Led Zeppelin Sued for Stairway to Heaven

Earlier this month the long anticipated copyright lawsuit against the surviving members of Led Zeppelin over their hit song Stairway to Heaven began in a federal US District Court. Plaintiff Michael Skidmore, the trustee managing the estate of songwriter Randy Wolfe (stage name, Randy California), filed the lawsuit alleging Zeppelin stole key pieces of music found in Stairway to Heaven from Wolfe’s song Taurus. Taurus was written by Wolfe while he performed with a 60’s era rock band known as Spirit, and the plaintiff argues that members of Led Zeppelin had heard the song and liked it so much that they used its musical foundation to generate Stairway to Heaven.

The Stairway to Heaven lawsuit has been percolating for several years with Wolfe, who died in 1997, accusing Led Zeppelin members Robert Plant and Jimmy Page of stealing the song in the late 1960’s after a concert in which the two bands shared a billing. Plant and Page have steadfastly denied remembering the song or knowing who Spirit was, and have argued that while they may have heard the song before there is no evidence that they intentionally stole from Wolfe. According to the defendants, any musical similarities are coincidental. While the plaintiffs have provided several pieces of circumstantial evidence – the songs were written only years apart, the two bands performed on the same billing, and Page once praised Spirit in an interview – the case lacks hard evidence that Page or Plant intentionally stole the musical foundation of Taurus when composing Stairway.

In order to demonstrate unlawful plagiarism on the part of Led Zeppelin, attorneys for Skidmore called two music expert witnesses to explain the similarities between Taurus and Stairway to Heaven which the plaintiff argues are too striking to be coincidence.

Music Expert Witnesses Testify in Stairway to Heaven Trial

Skidmore’s attorney Francis Malofiy concluded his case by calling two music expert witnesses to the stand to connect the musical dots between Taurus and Stairway to Heaven which the plaintiffs argue provides evidence of plagiarism. Professional guitar player Kevin Hanson, who has played rock music for years and now teaches guitar lessons, took the stand and played key passages from both songs on his acoustic guitar in the courtroom. Hanson told the jury that the songs are “virtually identical,” and when the two songs were played simultaneously he testified that they sounded like one piece of music. Attorneys for Led Zeppelin had Hanson admit during cross examination that he could easily tell the two apart, but the music expert maintained that the similarities between the two pieces of music were significant.

Dr. Alexander Stewart, a musicologist, took the stand as the second music expert witness called by plaintiffs in the Stairway to Heaven lawsuit. Dr. Stewart testified that the two songs have identical downward chord progression in some places, and the “note pairs” which represent iconic components of Stairway to Heaven are shared with note pairs in Taurus. Telling jurors that both Taurus and Stairway included a unique and unusual progression from an E note to an A note which suggests Page and Plant were familiar with Spirit’s work before writing Stairway.

Attorneys for Led Zeppelin countered with an expert witness who explained to the jury that the two songs had significant differences, and any similarities between them were likely due to common musical “building blocks” many songs share.

Led Zeppelin Presents Expert Witness in Stairway to Heaven Case

Attorneys for the former members of Led Zeppelin sued for allegedly plagiarizing portions of Stairway to Heaven from the Spirit song Taurus called Dr. Lawrence Ferrara, a musicologist from NYU, as a defense music expert witness to discuss the two pieces of music. Dr. Ferrara, who played both songs on his piano in order to demonstrate differences, told jurors that the songs were largely dissimilar, even in areas that the plaintiff alleges were identical. Dr. Ferrara went on to play other pieces of music which were arguably similar to both Taurus and Stairway in order to demonstrate to jurors that there are building blocks of music which overlap across many songs, suggesting that any similarities between Taurus and Stairway to Heaven are coincidental rather than unlawful.

Members of Led Zeppelin have asked the judge to dismiss the case by alleging the plaintiffs failed to meet an adequate burden of proof. A ruling is expected later this week.

Expert Witness in Freddie Gray Trial Falls Apart Under Cross-Examination

The prosecutors who sought murder charges for the death of Freddie Gray concluded their case against Officer Caesar Goodson Jr. with an expert witness who fell apart under cross-examination.

The Prosecution’s Case

Goodson, 46, faces the charge of second-degree depraved heart murder, three counts of manslaughter, second-degree assault, reckless endangerment, and misconduct in office for the death of Freddie Gray. Gray, a 25-year old black man, died of a spinal injury that was determined to have happened while being transported in a police van on April 12, 2015. Goodson was the driver of the van.

The prosecution argues that Gray suffered from a “rough ride,” where a driver takes sharp turns and jolts to jostle a prisoner who is handcuffed without a seatbelt. They allege that Goodson failed to secure Gray with a seat belt and intentionally drove him around in a reckless manner. The prosecution also argues that Gray was hurt early in the van’s journey and that the officers failed to get him the necessary medical help.

Expert Testimony Falls Apart

The state called 21 witnesses to support its case. Its final witness was Stanford O’Neill Franklin, a former police commander who once oversaw police training for the Baltimore Police Department. Franklin was called to support the prosecution’s theory that Gray had suffered a rough ride. He testified that, “[i]t’s extremely important that the ride be as smooth as possible to prevent the person in the back from being propelled around the inside “… and that if prisoners were unsecured and shackled, they would have no way to prevent themselves from becoming projectiles.

However, Franklin’s testimony fell apart during cross-examination. Under questioning by defense attorney Matthew Frailing, Franklin was unable to point to any evidence that Goodson drove erratically. When Frailing asked the direct question, “It’s not your contention that Officer Goodson in any way engaged in a rough ride?” Franklin responded, “I can’t say for sure.” Franklin also testified that a seat belt would not have necessarily ensured that Gray was secured in the van.

Franklin’s testimony was the finale of a series of witnesses that failed to effectively support the state’s case. Another state witness, Detective Michael Boyd, testified under cross-examination that the videos did not show the van taking an abrupt path. Additionally, Donta Allen, who was also in the van with Gray, told investigators that he experienced a “smooth ride.”

Trial Moves Forward Despite Weak Case

Following the state’s five-day presentation of its case, defense filed a motion for acquittal, arguing there is not enough for the case to move forward. The presiding judge, Circuit Judge Barry G. Williams, denied that motion, but expressed concern about the merits of the murder charge.

Two defense attorneys who are not involved in the case, but have observed the proceedings, have said that the state has put on a “weak case.”

Goodson is the third officer to go to trial in this matter. Officer Porter stood trial in December, but the jury failed to reach a verdict. He is scheduled to be retried in September. Officer Nero was acquitted on all counts.

Photo Credit: Minneapolis rally and march to support the people of Baltimore, by Fibonacci Blue is licensed under CC BY-SA 2.0.

Rough Ride Expert Testifies in Trial of Officer Charged with Freddie Gray’s Death

A “rough ride” expert witness testified for prosecutors charging a Baltimore Police Officer in the high profile death of Freddie Gray, who died in police custody last August. Six members of the Baltimore PD were charged with felonies ranging from assault to second-degree murder, but prosecutors have so far been unable to earn convictions against two of the officers. The state rested its case against the third officer after presenting its rough ride expert witness and the trial will resume later this week.

Third Officer Stands Trial for Death of Freddie Gray

The trial for Officer Caesar Goodson Jr., the officer who drove the police van in which Freddie Gray died, began earlier this month and featured more than 20 witnesses called by prosecutors who have charged Goodson with second-degree murder, manslaughter, assault, reckless endangerment, and misconduct in office for alleged reckless driving which caused Gray, who was unbuckled in the back of the vehicle, to suffer a fatal spine injury. According to prosecutors, Goodson Jr. failed to secure Gray with a seatbelt and intentionally drove in a reckless and dangerous manner in retaliation for Gray’s attitude and resistance to police authority.

Goodson has pled not guilty to the charges, and maintains that he did not act inconsistent with department regulations in either his actions towards Gray or his driving tactics. Defense attorneys for Goodson have argued that there is no evidence of the officer intentionally subjecting Gray to a rough ride, and as such the state cannot meet its evidentiary burden of proof necessary to earn a conviction. Goodson is the third of six Baltimore Police who will face trial for Freddie Gray’s death. William Porter, the first officer to be charged, had his case end with a mistrial in December and Edward Nero, a bike officer on the scene, was acquitted last month.

The case will not be heard by a jury because Goodson, like the two officers before him, elected to receive a verdict from the judge.

Rough Ride Expert Testifies for Prosecutors

Stanford O’Neill Franklin, a retired police trooper who has overseen transportation training for the Baltimore Police Department, took the stand as a police rough ride expert witness to explain the concept of “retaliatory prisoner transportation” designed to make a post-arrest ride uncomfortable and even dangerous. According to Franklin, suspects who are unsecured but shackled in a police van are prone to becoming “projectiles” if the officer driving the vehicle engages in reckless or dangerous behavior. Franklin told the court, “It’s extremely important that the ride be as smooth as possible to prevent the person in the back from being propelled around the inside,” and testified that officers are forbidden from intentionally driving erratically as retaliation to unpleasant behavior from the suspect.

During cross examination, defense attorney Matthew Fraling directly asked Franklin if Goodson had submitted Gray to a rough ride. Franklin responded, “I can’t say for sure” after going over the evidence of the path the vehicle took while Gray was in the back. Franklin did say that Goodson should probably have buckled Gray in given the fact that the suspect did not appear to a danger to officers after his arrest, but conceded that it is unclear if Gray would have been adequately secured with the seat belt on.

Franklin’s admission that he could not say whether or not Gray was subject to a rough ride by Goodson could be a blow to the prosecution’s case, as the expert’s comments echo testimony from two other state witnesses – a police officer and another defendant who shared the ride with Gray – that there was insufficient evidence to conclude the ride featured abrupt stops and was not smooth.

Defense Attorneys for Baltimore Police Officer Request Dismissal

At the conclusion of the testimony of the prosecution’s rough ride expert witness, attorneys representing Caesar Goodson Jr. requested the judge dismiss all charges due to insufficient evidence of illegal police conduct. Pointing to Franklin’s uncertainty regarding the nature of ride during which Gray died, defense attorneys argued there is strong cause to doubt the contention that Goodson caused Gray’s death. Prosecutors, who have relied heavily on their rough ride theory, may still be able to demonstrate that Goodson violated the law during his treatment of Gray before the ride, but the case seems harder to prove after their expert’s testimony.

If the charges against Goodson are not dismissed, the case will continue this week with the defense presenting its version of events. Later this month Officer Porter will likely face a re-trial, and the remaining officers – Officer Garret Miller, Lt. Brian Rice, and Sgt. Alicia White – will see their trials in July and October.

Ethics Expert Aids in Corruption Conviction of Former Alabama Speaker of the House

The former Alabama Speaker of the House was convicted on corruption charges in part due to ethics expert witness testimony from a past director of Alabama’s Ethics Commission. Prosecutors called the ethics expert in order to explain to jurors the rules that politicians in Alabama must follow when they have personal business interests which could benefit from state funding.

Alabama Speaker of the House Convicted Corruption Charges

Mike Hubbard, the Republican former Speaker of the House for Alabama’s legislature, was convicted last week on 12 of 23 ethics violations for using his political position to earn contracts for companies which he either owned or had financial interest in. Hubbard was found guilty of using his position as a speaker and as a leader of the Alabama Republican Party to funnel money to two of his companies: Craftmaster Printers and the Auburn Network, a broadcast company in the state. Prosecutors argued that Hubbard attempted to obtain up to $2.3 million in government contracts or financial favors by exerting his influence over Alabama politics.

After a 12-day trial, jurors convicted Hubbard on 12 counts of ethics violations, including “voting on legislation with a conflict of interest and using his office for personal gain through a consulting contract.” Hubbard was taken into custody and faces up to 20 years in prison for each of his convicted counts with a sentencing trial set for July 8^th. Hubbard’s ethics trial could be the tip of the iceberg as current and former governors of Alabama may also be charged with abusing their office for personal gain.

A key component of the prosecution’s case against Rep. Hubbard was testimony from an ethics expert witness who not only explained the ethical rules Alabama politicians must follow, but pointedly identified instances where the former speaker had directly violated his lawful obligations.

Alabama Ethics Expert Witness Aids in Corruption Conviction

Former director of the Alabama Ethics Commission Jim Sumner took the stand during Mike Hubbard’s corruption trial as an ethics expert witness and explained to jurors that the former Speaker of the House did not consult the commission when he engaged in questionable business dealings between the state and companies that he held a financial interest in. According to Sumner, the ethics commission was not consulted before Hubbard supported laws which provided thousands of dollars to companies which he was linked to, with ethics officers only finding out about potential conflicts of interest after it was too late to advise on the matter.

Sumner also testified as an ethics expert witness by explaining to jurors that public officials in Alabama cannot act in their official capacity on issues which could benefit themselves or businesses in which they hold an interest. Sumner told the court that the Alabama Ethics Commission is available to public officials should they have questions, but no public official, including the Speaker of the House, is allowed to vote on or support legislation which would benefit his or her business interests. According to the Alabama ethics expert, the law prohibiting conflict of business and political interests is purposefully broad in order to discourage even the hint of corruption in state politics.

Sumner concluded his testimony by telling jurors that he had a working relationship with Hubbard which suggested the defendant was keenly aware of the applicable ethics laws.

Prosecutors Connect Former Alabama House Speaker to Illegal Corruption

After calling the ethics expert witness, Alabama prosecutors offered substantial evidence that former Speaker Mike Hubbard tied his business and political interests together in violation of ethics law. Former business associates and executives for companies which Hubbard held a personal stake in testified that the Speaker’s position made him an attractive consultant and that companies he worked with received hundreds of thousands of dollars in the form of state government contracts.

Hubbard has maintained that he was conducting lawful business with friends and associates, and that he did not consult with the ethics committee because he was not engaged in corrupt or illegal behavior. Hubbard’s defense team pointed out that he frequently consulted with ethics expert Jim Sumner on other matters, and did not demonstrate a pattern of corruption which warranted conviction. Jurors disagreed, and in one month one of the most powerful Republicans in Alabama will receive a potentially lengthy jail sentence for ethics violations.

Misconduct by Experts on Both Sides of Case Requires New Trial

A recent decision of the U.S. Court of Appeals for the Federal Circuit concluded that expert witnesses testifying on both sides of a patent infringement dispute committed misconduct. The decision vacated the judgment and remanded the case for a new trial.

Expert Testimony at Trial

Rembrandt Vision Technologies sued Johnson & Johnson Vision Care, alleging that certain Johnson & Johnson contact lenses violated Rembrandt’s patent. At trial, Rembrandt called Dr. Thomas Beebe as an expert witness. Dr. Beebe supported his testimony with the results of tests he performed on the contact lenses.

In his direct testimony, Dr. Beebe described the testing methodology he used. He had also explained that methodology in his expert report. On cross-examination, however, Dr. Beebe changed his testimony and described a “drastically different” testing methodology. Because that methodology was not disclosed in Dr. Beebe’s expert report, the court struck Dr. Beebe’s testimony.

In its defense, Johnson & Johnson relied upon the expert testimony of Dr. Christopher Bielawski. Dr. Bielawski challenged not just the opinions but also the credibility of Dr. Beebe. For example, Dr. Bielawski testified that Dr. Beebe’s failure to correct mistakes in his data was “misleading and tantamount to dishonesty.”

The jury found in favor of Johnson & Johnson. The trial court also granted judgment for Johnson & Johnson as a matter of law, after finding that Rembrandt had insufficient evidence to support its claim without Dr. Beebe’s testimony.

Motion for New Trial

After the trial, Rembrandt discovered that Dr. Bielawski had testified falsely. He claimed during his testimony that he personally tested the contact lenses when, in fact, his graduate students and lab supervisors conducted the testing while he was out of the country. He also represented himself as an expert in a certain testing methodology (time-of-flight secondary ion mass spectrometry) when, in fact, he had no experience with that methodology whatsoever.

In addition, Dr. Bielawski withheld test results and data analysis that would have undermined his opinions and trial testimony. Johnson & Johnson contended that it was unaware that Dr. Bielawski concealed the results of tests that were unfavorable to its position.

Rembrandt moved for a new trial on the ground that the verdict was procured by fraud and that newly discovered evidence revealed Dr. Bielawski’s deceptive conduct. The district court denied the motion on the ground that Rembrandt failed to show that Dr. Bielawski’s false testimony affected the result of the trial.

Court of Appeals’ Decision

On several occasions during the trial, Dr. Bielawski impugned the credibility of Dr. Beebe. Rembrandt was denied the same opportunity to challenge the credibility of Dr. Bielawski because it did not know that he testified falsely and withheld critical documents. Dr. Bielawski’s misconduct was at least as serious as Dr. Beebe’s. The court of appeals therefore had little difficulty concluding that Dr. Bielawski’s misconduct deprived Rembrandt of a full and fair opportunity to present its case.

The court of appeals concluded that Rembrandt was not required to prove that Dr. Bielawski’s misconduct affected the verdict. While the district court struck Dr. Beebe’s testimony, leaving it with little proof of a central part of its claim, the case might have proceeded differently if Dr. Bielawski had not withheld critical documents during discovery. Learning of the weakness in Johnson & Johnson’s defense could have changed the way Rembrandt approached its proof of the case.

When fraud is committed during a trial, the fundamental question is whether the judgment was fairly obtained, not whether it was factually correct. The court of appeals did not attempt to determine how the case would have proceeded if Dr. Bielawski had obeyed the rules because that analysis would depend largely on speculation. Instead, it asked whether the trial was fair to Rembrandt. The court concluded that it was not.

Johnson & Johnson nevertheless argued that it should not be held responsible for its expert’s misconduct because it had no knowledge that the expert withheld information or testified falsely. The court of appeals expressed skepticism regarding that claim since the withheld results concerned tests that Johnson & Johnson asked Dr. Bielawski to perform. It nevertheless decided that Johnson & Johnson’s knowledge of the fraud did not matter because regardless of Johnson & Johnson’s complicity, the expert’s fraudulent conduct tainted the trial. Perjury and fraud undermine the integrity of a trial whether or not a party suborns the perjury or encourages the fraud.

Lessons for Experts and Lawyers

The lesson to be learned, for experts and lawyers alike, is the importance of telling the truth. Experts should turn over all test results to the lawyers who hire them, even if they are unfavorable. Experts should not “puff” their qualifications and they should not take credit for work they did not do. Nor should they decide during their testimony that they relied upon a previously undisclosed methodology.

Lawyers, in turn, should make sure that their experts understand their obligations. Lawyers should expressly ask experts for all test results and data that pertains to the case, even if the experts have chosen not to rely on that data. Lawyers should be sure to understand the methodology upon which an expert relied and should prepare the expert to be cross-examined. When lawyers and experts work together and follow the rules, the case is much less likely to be returned to the trial court for a second trial.

Expert Witnesses Testify in Coast Guard Investigation of Maritime Tragedy

A formal investigation into the fatal sinking of a cargo vessel during a hurricane featured expert witness testimony from a former captain of the ship and an expert on navigating storms. Experts testified during a public hearing with the goal of helping the review board determine potential liability and identifying opportunities for improved safety measures on large cargo ships.

Federal Investigation Hearings review the Sinking of Cargo Ship El Faro

Last week, the U.S. Coast Guard Marine Board of Investigation held the second of three rounds of investigatory hearings regarding the 2015 sinking of the ocean cargo ship El Faro. On October 1, 2015, the El Faro sank near the Bahamas while en route to Puerto Rico when it navigated into the path of Hurricane Joaquin. All 33 souls on board died in one of the worst maritime disasters of a US ship in more than 30 years, and the Coast Guard subsequently took up the investigation in order to identify potential gaps in safety and communication which may have caused the tragedy.

During the course of the hearings, the Coast Guard’s investigatory board heard testimony on shipping standards, inspection requirements, communication practices in the shipping industry, and navigation strategy when approaching hurricanes. Tote Maritime, the company El Faro shipped for, and inspectors employed by the Coast Guard came under particular scrutiny for potential failures in ship maintenance and safety reviews, with expert witnesses on ocean shipping coming before the board to offer information which may help investigators reach conclusions about the disaster and determine future safety procedures.

Expert Witnesses Testify in El Faro Sinking Hearings

Former El Faro captain Jack Hearn testified before the investigative committee about the ship’s performance during cargo runs. Captain Hearn, who sailed the ship when it was known as the Northern Lights and operated out of Alaska, testified as an expert in navigating and managing the El Faro. Hearn told the committee that the ship was more difficult to control when it carried cargo containers, and that the hatches could not open after the ship was underway. Had the hatches opened, the ship could better manage water intake during storms, and become more difficult to sink. Hearn also told investigators that it was customary for delays of up to several hours before captains were given permission to change course, saying that Tote Maritime’s delay in responding to El Faro’s request to alter its heading before the crash was not uncommon.

James Franklin, a hurricane expert witness, testified before the committee about the challenges of predicting the movement of Hurricane Jaoquin. According to Franklin, the hurricane was predicted to move away from the United States and out of the El Faro’s planned route to Puerto Rico before the storm unexpectedly stopped and moved directly into the ship’s path. The hurricane expert told Coast Guard investigators that the southward motion of the storm which caused the unexpected change in direction is unusual, particularly considering how strong of a storm Jaoquin was. Both Franklin and Hearn noted that navigating when hit by a hurricane is difficult as the ship would just be trying to stay afloat, suggesting that once the El Faro was hit by the storm there was very little crew members could have done.

Coast Guard Inquiries into El Faro Sinking will Continue

In addition to experts on piloting the large cargo ship and on hurricane storms, the Coast Guard investigators heard testimony about safety and inspection practices customary for the maritime shipping industry. Captain Hearn’s testimony about some of the features of the El Faro which may have exposed vulnerabilities could lead to changes in inspection requirements and safety standards, and Franklin’s expert hurricane testimony may suggest the need for greater caution when navigating near or around potential hurricane pathways.

The Coast Guard announced it will conduct one more series of hearings later this year before announcing its findings of liability and responsibility for the El Faro’s sinking. The investigative board hopes to have the ship’s data recorder which contains information about the El Faro’s final 12 hours, but the device will be difficult to recover from the wreckage. Without hard evidence of the El Faro’s fateful voyage, the investigators will continue to rely on maritime shipping expert witnesses in order to assess responsibility for the tragedy.

Florida Supreme Court set to Hear Arguments in Battle over Expert Witness Qualifications

A legal fight over expert witness qualifications in Florida is going to the state Supreme Court for a final decision. Since 2013, businesses, legislators, and attorneys have engaged in a dispute over what the appropriate legal standard for expert witness qualification should be, and the Florida Supreme Court has finally agreed to rule on the issue and hear arguments in early September.

Florida Legislature Pushes for Daubert Expert Witness Standard

In 2013 the Florida legislature passed a bill which elevated the standard used to evaluate expert witness qualifications from the Frye test to the Daubert test. Unlike the Frye test, which allows an expert to testify if his experience and content of his testimony are accepted by his professional field, the Daubert test for expert witnesses requires judges to thoroughly evaluate the testimony to make sure it is relevant to the trial and valid. Under the Daubert standard, trial judges must determine if the testimony is based on adequate facts or data, has been generated from reliable research principles and methods, and is the result of a proper application of the research principles and methods used. While judges still look to accepted practices of the expert’s professional field for guidance, the Daubert standard requires more careful evaluation of testimony before it is admissible.

The stricter Daubert test is used by the Federal judiciary and a majority of the states, but Florida has held onto the lessor Frye test, largely with the support of plaintiff attorneys and judges who prefer an expert witness standard which favors admissibility. In 2013, however, members of the business community and a coalition of defense attorneys were able to convince the Florida legislature that the Frye test exposes trials to “junk science” and unqualified expert witnesses because it is not restrictive enough, and as a result the lawmakers legislatively imposed the Daubert standard on all judicial proceedings in the state.

The move has not come without controversy, and over the last 3 years since it passed judges and plaintiffs’ attorneys have consistently rejected its implementation, culminating earlier this year in a recommendation from the Florida Bar Board of Governors that the state Supreme Court dismiss the law and retain the Frye standard for admissibility of expert witness testimony.

Florida Bar Association Calls for Frye Expert Witness Standard

Opponents of the Daubert standard argue that it unfairly restricts the expert witnesses that plaintiffs are allowed to call by placing unnecessary restrictions on admissibility. Plaintiffs’ attorneys argue that increased standards on expert witness admissibility only serves to drive up the cost of litigation which will make filing and pursuing lawsuits prohibitively expensive for some clients. Frye test proponents argue that a simpler test for expert witness qualification provides greater access to the legal system by not eliminating potential claims based on the financial resources of litigants.

Beyond ideological opposition to the Daubert standard, opponents of the 2013 Florida law argue the legislature does not have the authority to establish judicial rules of evidence. In a report released in March of this year, the Florida Bar Board of Governors formally recommended that the judiciary reject the 2013 law because it overstepped the separation of powers between the judicial and legislative branches of Florida government. According to opponents of the 2013 law, the legislature does not have the authority to tell the judiciary what the required standard for expert witness admissibility is, and the Supreme Court should therefore dismiss the law and continue with the traditional Frye test which Florida courts have used for years.

Florida Expert Witness Challenged Headed to State Supreme Court

Earlier this month, the Florida Supreme Court agreed to settle the debate about the state’s expert witness admissibility standard by issuing a final legal ruling. Supporters of the 2013 legislation argue that the people of Florida, through their elected representatives, have expressed the desire to increase the standard for expert witness testimony in order to keep “junk science” and frivolous experts away from litigation. Opponents of the law maintain that the legislative body does not have the authority to determine expert witness admissibility standards.

The case has gained significant attention across the state with several businesses and lawyers filing comments with the Florida Supreme Court in an effort to tilt the scales. The central question in the dispute – whether the legislature has authority to define rules of evidence – is an interesting legal battle between state judicial and legislative branches which will impact the way in which expert witnesses can be used in Florida.

Fifth Circuit Rejects Chiropractor’s Medical Testimony

Can a chiropractor serve as an expert witness? In cases involving injuries or conditions that chiropractors are qualified to treat, the answer is clearly “yes.” Like any other expert, however, chiropractors may offer only those opinions that they are qualified to render. A recent decision by the U.S. Court of Appeals for the Fifth Circuit concluded that the district court should not have allowed a chiropractor to offer medical opinions without assessing his qualifications to do so.

Plaintiff’s Claim

Due to a diabetic condition known as “peripheral neuropathy,” David Carlson began to lose sensation in his feet. He visited a chiropractor who had been promoting treatment for that condition with a ProNeuroLight device. The manufacturers of the device claim it uses infrared light to generate heat that dilates blood vessels and promotes circulation by increasing the presence of nitrous oxide in the affected area.

Within 48 hours after he was treated, Carlson developed ulcers on the bottom of his heels. His diabetic podiatrist determined that the ulcers were caused by burns. The burns caused a bone infection that required prolonged hospitalization, the eventual amputation of one leg below the knee, and the amputation of Carlson’s heel on the other foot.

Carlson sued the manufacturer of the ProNeuroLight device (Light Emitting Designs, Inc.) and its distributor (Bioremedi Therapeutic Systems, Inc.). Carlson based the products liability lawsuit on claims that the device was defectively designed and manufactured and that it was marketed without appropriate warnings to patients.

A key question during the trial was whether Carlson’s ulcers were caused by burns from the device or whether they were caused by his diabetes. The only witness called by the defense during the five-day trial was Dr. Lance Durrett, the chiropractor whose staff treated Carlson with the ProNeuroLight device. The jury found in favor of the defendant companies and the court dismissed Carlson’s case.

Chiropractor’s Testimony

Before the trial, Carlson filed a motion to exclude Dr. Durrett’s testimony on the ground that he was not qualified to render the opinions he was expected to give. The court denied that motion without a hearing.

Dr. Durrett testified that the wounds on Carlson’s heels looked like diabetic ulcers. He disagreed with a plaintiff’s witness who testified that they were burns caused by the ProNeuroLight device. According to Dr. Durrett, there was “not enough data” to support that conclusion. He also testified that the device could not have caused burn injuries because it was designed to prevent skin temperatures from increasing by more than two degrees Fahrenheit.

The defendant companies did not designate Dr. Durrett as an expert. On appeal, however, they did not challenge that fact that Dr. Durrett offered expert testimony. The court of appeals determined that Dr. Durrett testified as an expert.

The difference between the testimony given by a lay witness and an expert is determined by the content of the testimony, not by whether a party designated the witness as an expert. Since Dr. Durrett’s opinions were based on scientific, technical, or specialized knowledge, they were expert opinions. In particular, his testimony that the injuries looked like diabetic ulcers and that they could not have been caused by the ProNeuroLight device constituted medical opinions.

Admissibility of Chiropractor’s Testimony

Rule 702 of the Federal Rules of Evidence, as interpreted by the Supreme Court’s Daubert decision, requires a district court to consider whether expert testimony is relevant and reliable. Since Carlson’s lawyers filed a pretrial objection to the admission of Dr. Durrett’s opinions, the court should have held a Daubert hearing prior to the trial to assess whether Dr. Durrett’s reasoning or methodology was scientifically valid and whether he properly applied that reasoning or methodology to the facts of the case.

The reliability analysis requires the district court to decide whether an expert is qualified to form the opinions that will be shared with the jury. The court essentially asks whether the expert meets a minimum threshold of qualification. Whether the expert is highly qualified is a question that goes to credibility and is therefore for the jury to decide.

Dr. Durrett is licensed as a chiropractor. He is certified as an acupuncturist and as a clinical nutritionist. He also holds himself out as a specialist in alternative medicine. Dr. Durrett has more than a decade of experience with devices like the ProNeuroLight, although his only formal training consisted of attendance at two sales seminars.

While Dr. Durrett does not have a medical degree, medical opinions can be rendered by scientists who are qualified to testify about fields of medicine that are related to their own expertise. On the other hand, a witness who is not a physician and who does not have expertise in a field that is related to medicine is not qualified to give medical testimony.

The court of appeals noted that a chiropractor may be well-suited to provide expert testimony about the musculoskeletal system. A chiropractor will not generally be qualified to testify about other fields of medicine because they are usually beyond a chiropractor’s training and experience.

Since the district court did not hold a Daubert hearing, however, the court of appeals expressed no final opinion about Dr. Durrett’s qualifications. Instead, the court reversed the judgment and sent the case back to the district court with instructions to perform the gatekeeping function required by the Daubert decision. After hearing evidence, the district court must decide whether Dr. Durrett is qualified to testify as a medical expert. If he is not, Carlson will be entitled to a new trial. Since the court of appeals’ decision leaves the district court with little room to conclude that Dr. Durrett should be permitted to give medical testimony, it seems likely that Carlson will get a second chance to persuade a jury that his injuries were caused by the ProNeuroLight device.

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