Category Archives: ExpertWitness

Can Expert Witnesses Be Sued for Careless Opinions?

Like everyone else, expert witnesses sometimes make mistakes. When those mistakes affect the outcome of litigation, they can be costly. In some cases, experts might need to worry that their failure to render a careful and informed opinion will expose them to a lawsuit for negligence.

Maritime Experts Sued for Negligence

A dispute that illustrates the potential risks experts take when they provide opinions involves a cargo ship that was heavily damaged by fire. The owners contended that the ship was a total loss, meaning that the cost of repairs exceeded the ship’s value. The insurers disagreed. The insurance companies offered the ship’s estimated repair costs — an amount that they contended was less than the ship’s value — to settle the claim.

The owners eventually scrapped the ship and offered to settle for about $1.1 million. When the insurance companies declined that offer, the owners sued. The insurers hired a marine consultancy firm to provide an expert opinion concerning the vessel’s repair costs. The firm based its opinion on information provided by the ship’s builder and by two Chinese shipyards.

The primary dispute involved the amount of steel that would be required to repair the accommodation block (the portion of a cargo ship in which crew cabins are located). The marine consultancy firm estimated that the repairs would require 312 metric tons of steel. The owners’ technical expert estimated that 542 metric tons would be needed. The price differential between the two estimates was substantial. The cost of 542 metric tons of steel would have exceeded the ship’s value prior to the fire, while 312 metric tons would have produced a repair cost that was less than the ship’s value.

The experts eventually met and, as a result of the meeting, the marine consultancy firm revisited its opinion. It decided that it relied on faulty information and that the actual cost of repair would be almost $4 million more than the ship’s insured value. The insurance companies then settled the owners’ claim for $1.3 million, plus legal fees.

The insurers brought a claim for negligence against the consulting firm, arguing that they could have settled for a lesser amount if they had been properly advised. They also would have been responsible for lower legal fees. The insurers’ claim against the consulting firm was settled after mediation.

American Law Concerning Expert Liability

The case involving the cargo ship arose under British law, which in 2011 abandoned the immunity that experts who are hired for litigation previously enjoyed. Would the result be different in the United States? The answer depends upon the law of the state in which the expert has been hired.

The traditional rule in the United States has given witnesses — including experts — immunity for their courtroom testimony, even if the testimony is mistaken. Whether experts who are hired in anticipation of litigation should receive immunity for erroneous opinions that are rendered outside the courtroom is less clear.

What is clear is that the law is changing, at least in some states. In half a dozen jurisdictions — California, Connecticut, Louisiana, Massachusetts, Missouri and Pennsylvania — litigants are permitted to sue the experts that they hire for malpractice or breach of contract. At least two states (New Jersey and Vermont) allow court-appointed experts to be sued for negligence. Other states, including Michigan, continue to give experts immunity from suit for their testimony, but permit the party that hired the expert to sue for damages that result from reliance on the expert’s mistaken opinion.

The standard of absolute immunity for expert testimony is eroding as courts increasingly ask whether the truth-finding function of a trial is assisted by granting immunity to experts who form their opinions carelessly. How many American states will eventually follow the lead of the United Kingdom by abolishing immunity for expert witness testimony is uncertain. It is certain, however, that experts should exercise care and adhere to professional standards when they form their opinions. The failure to do so will hurt their reputations and might subject them to disciplinary sanctions imposed by professional organizations or licensing boards. If they are hired in a state that permits malpractice actions against expert witnesses, rendering careless opinions might also hurt an expert’s pocketbook.

Police Use of Force Expert Witness Reports Suggest No Prosecution for Officer in Tamir Rice Shooting

Expert reports submitted to prosecutors in Cuyahoga County suggests that a Cleveland police officer will not be charged in fatal shooting of a 12-year-old black boy at a recreation center last November.  The expert reports, which were made public last week, do not represent a final decision in the investigation, but the implication that prosecutors believe the officer acted reasonably created a wave of disappointment among advocates for police prosecution in fatal shootings.

Cleveland Officer Not Prosecuted for Fatal Shooting of Tamir Rice

On November 22nd, 2014 Cleveland police officer Tim Loehmann – a rookie on the force – responded to a 911 call regarding a black youth who appeared to be armed in a public park.  The youth was 12-year-old Tamir Rice who was spending his afternoon playing with a toy gun that looked realistic enough to prompt a call to the police and aggressive action from Officer Loehmann mere seconds after he arrived.  Within two seconds of Loehmann and his partner Frank Garmback pulling up to the gazebo where Rice was sitting, Loehmann had fired a point blank gun shot into the boy’s abdomen.  Although the officers frantically called for emergency vehicles, Rice’s wound was fatal and the boy died before medical aid arrived.

During the 10 months since the shootings, the Cuyahoga County prosecutor’s office has received intense pressure to arrest and charge Loehmann for his role in the shooting, which many critics argued was evidence of a broad problem of overly violent behavior instigated by Cleveland police officers.  For his part, Loehmann claimed that he believed the replica air pistol that Rice was playing with was a real gun, and he followed department procedure to warn the boy to put his hands up before Loehmann deployed his weapon.  Loehmann also did not receive information about the details of the 911 call during which the caller told dispatch operators that the gun was “probably a toy.”

Despite Loehmann’s claims, members of Tamir Rice’s family and advocates for police accountability have actively pressed for the officer’s arrest and prosecution.  Demonstrations and protests have been accompanied by national commentary and debate, including a highly critical review of Cleveland police tactics submitted by the Justice Department.  After several months of investigation, prosecutors released two expert witness reviews of the Tamir Rice shooting that seem to affirm Loehmann’s claim that he acted reasonably and within department guidelines.

Expert Witness Reports Support Police Action in Tamir Rice Shooting

As part of the investigation into Rice’s tragic shooting, Cuyahoga prosecutors commissioned two independent expert witness reports to evaluate the incident and comment on the reasonableness of Loehmann’s behavior as an officer approaching the scene.  One of the experts is a retired FBI agent and the other is a prosecutor in Colorado, and both reports suggested that the incident – however tragic – was not clearly demonstrative of excessive use of police force.

Kimberly Crawford, a retired FBI agent who is an expert in police tactics, wrote that Officer Loehmann could not be expected to recognize Tamir’s gun was fake, and stated that in order to properly evaluate the officer’s behavior prosecutors must ask if a “reasonable officer, confronting the exact same scenario under identical conditions could have concluded that deadly force was necessary.”  Citing the relevant federal legal standard and the information that Officers Garmback and Loehmann were operating under, Crawford concluded her analysis by writing, “In light of my training and experience, it is my conclusion that Officer Loehmann’s use of deadly force falls within the realm of reasonableness under the dictates of the Fourth Amendment.”

Crawford’s expert opinion was echoed by another expert in police tactics, Colorado prosecutor S. Lamar Sims who similarly found that Loehmann used reasonable force.  According to Sims’s expert report, Loehmann had every reason to believe that he was responding to a call about teenage to adult male carrying a real gun, and when he saw Tamir Rice with an authentic looking toy pistol, his immediate response to a threat – even if incorrect in retrospect – was reasonable.  After reviewing the facts of the situation, the life-like appearance of the gun, and the information Officer Loehmann was given from the 911 call, Sims concluded his letter by writing, “There can be no doubt that Rice’s death was tragic and, indeed, when one considers his age, heartbreaking.  However … Officer Loehmann’s belief that Rice posed a threat of serious physical harm or death was objectively reasonable as was his response to that perceived threat.”

Tamir Rice Family and Supporters Disheartened by Expert Witness Reports

Although the Cuyahoga prosecutor office told the press that they are not reaching conclusions based solely on the expert witness reports, attorneys for the Rice family released a statement expressing the family’s concern that there will not be a criminal prosecution. Prosecutors have indicated the case will still go to a grand jury to determine charges, but Jonathan S. Abady, an attorney for the Rice family, said in the statement that not enough is being done.

Abady wrote, “Prosecutors exercise substantial influence over the grand jury process and whether an indictment will issue or not. The video footage and other evidence readily available from the outset made clear that this was a completely unreasonable use of deadly force against Tamir.”  Nothing has been decided yet, but if the two police use of force expert reports carry substantial weight, then Officer Loehmann may avoid prosecution for the shooting.

government assistance for indigent defendants

Expert Medical Examiner Accused of Being Gun for Hire

Can a medical examiner who is employed by the state serve as an expert witness for private parties? Assuming the state imposes no barrier to outside consulting, the question is whether testifying for private parties might create a conflict of interest.

The potential peril of acting as an expert witness for private litigants is illustrated by a special report in the Atlanta Journal Constitution that criticizes Dr. Kris Sperry, the chief medical examiner for the Georgia Bureau of Investigation. The AJC investigation accuses Sperry of acting as a “hired gun” who tailors his testimony to suit the needs of the lawyers who pay him.

Since 2003, Sperry has worked on more than 500 cases as a paid forensic consultant, all while being employed fulltime by the State of Georgia. The AJC investigation suggested that Sperry’s outside consulting, which doubles the $184,000 salary he earns from the State of Georgia, undermines his credibility as a witness for the state.

Sperry’s Critics

In 2013, Sperry testified as an expert witness for federal prosecutors who accused a former police officer of committing murder by shooting a victim with a sniper rifle. The victim’s body was burned beyond recognition and no bullet was ever found. Without examining the body, Sperry confidently asserted that the victim was shot in the back by a high-powered rifle. Sperry was paid $5,000 for that testimony.

Sperry based his opinion on his review of an X-ray. Although Sperry claimed that “any competent forensic pathologist” would agree with his opinion, four pathologists condemned his opinion as the product of supposition rather than forensic science.

The medical examiner in New Orleans concluded that the X-ray showed metal fragments from the car. According to that expert, no other explanation could account for the missing bullet, which would not have been destroyed by the fire.

Dr. Steven Karch, an Oakland pathologist, said that Sperry was relying on “junk science” to support his opinion. Dr. Jerry Spencer, the former chief medical examiner for the Armed Forces Institute of Pathology, agreed that no credible medical examiner would base a conclusion that a victim was shot by a high-velocity rifle on an X-ray.

The most prominent of Sperry’s critics in the New Orleans case was Dr. Vincent DiMaio, the medical examiner in San Antonio, Texas. DiMaio is the author of several leading forensic science treatises, including one on gunshot wounds. MiMaio not only disagreed with Sperry’s interpretation of the X-ray, he testified that Spencer’s testimony about entrance and exit wounds and the bullet’s supposed path through the body was insupportable without examining the body.

Credibility and Controversy

Not all of Sperry’s detractors focus on his alleged willingness to tailor testimony to the needs of the lawyers who hire him. An Atlanta television station criticized Sperry a few years ago for contradicting the medical examiners in other states when he testified privately. That criticism was probably unjustified, since Sperry exposed testimony that was arguably slanted to favor the examiners’ employer. That’s exactly what an expert should do, making it all the more ironic that Sperry now seems to be slanting his own testimony to favor the people who hire him.

Prosecutors have been accused of intimidating state medical examiners who act as expert witnesses for criminal defendants. Some prosecutors apparently feel that medical examiners should always be on the side of the prosecution, when in fact they should be on the side of the truth. Science is a process of discovering the truth, even if the truth contradicts a prosecutor’s theory of how a crime was committed.

There is nothing inherently wrong with a state medical examiner doing private consulting for a private party. Testifying for the prosecution, the defense, and civil litigants may help medical examiners retain their independence. On the other hand, there is something very wrong with a medical examiner who departs from objective scientific findings by slanting testimony to favor the party that pays the examiner, particularly when that testimony has no foundation in science.

Double Billing

Sperry testified 13 times for the State of Georgia between 2010 and 2014. During that same period, he testified 42 times for private parties.

Sperry told his boss that he puts in his 40 hour weeks for Georgia and works for private clients during his free time, including his leave time. He also told his boss that he doesn’t recall much about his private work and shreds his files after he is done testifying.

False Confession Expert Witness Testifies During Child Abuse Trial

Earlier this week a false confession expert witness took the stand in the trial of Wisconsin man accused of violently shaking his infant son and causing the boy’s death.  The expert testimony represents a growing trend of psychology experts applying their research and testimony to criminal courts across American jurisprudence.

Wisconsin Man on Trial for Child Abuse

David Allen Sr. of Milwaukee, Wisconsin is on trial for child abuse and homicide for the 2013 death of his infant son, David Allen Jr.  In October of 2012 Allen and Junior’s mom brought the infant to the hospital after he stopped eating and suffered from a noticeable change in activity.  Physicians at the Children’s Hospital in Milwaukee diagnosed the child with bleeding between the brain and the skull and brain swelling.  According to doctors, these injuries are common signs of child abuse, and David Sr. was arrested and charged with abuse.  Junior died in foster care the following April and murder was included in David’s charge.

Although the prosecutors have some available physical evidence of child abuse, the key component to their case against David Allen is his confession given to police while in custody following his 2012 arrest for abuse.  During a two-day interrogation period covering more than 3 ½ hours Allen finally admitted to police investigators that he had shaken his son and dropped him onto a concrete floor.  The prosecution built their case on the strength of Allen’s confession, but during trial attorneys for the defendant argued that he had been coerced to providing a false story to the police.

False Confession Expert Takes the Stand in Child Abuse Trial

To bolster the defendant’s claim that he was coerced into providing a false confession, attorneys called Dr. Lawrence White who is a professor psychology at nearby Beloit College and specializes in false confession research.  White began his expert testimony by explaining the field of false confession research generally, telling jurors that recent research has demonstrated situations in which regular people can be coerced into providing false confessions.  White also told jurors that of the 300 offenders exonerated of serious crimes by DNA evidence 25{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of them had falsely confessed to crimes – even heinous crimes – they did not commit.

White then turned his false confession expert testimony to the particulars of David Allen’s interrogation and ultimate confession to Milwaukee police investigators.  White testified that police detectives used several tactics that provide opportunity for suspects to issue false confessions: isolation over three days, constant interviewing, and talking to Allen when he was clearly mentally and emotionally tired.  Investigators also provided Allen with a narrative – that he lost control and shook his son – and threatened that both Allen and the boy’s mother would suffer maximum jail sentences without a confession.

White concluded by pointing to explanations from the police’s report about the child’s injuries that Allen had adopted directly into his confession as evidence that investigators drove the conversation to fit their narrative of the incident.  On cross examination, prosecutors took the defense false confession expert to task for not really knowing how common coerced confessions are.

Prosecutors Question Validity of False Confession Expert Witness

On cross-examination prosecutors asked White about the actual incidence of false confessions, and the expert admitted that most confessions are true.  White was also unable to provide statistics on how frequently false confessions occur because there are not accurate numbers.  Prosecutors also pointed out that many of the conditions of false confessions – such as mental impairment, youth, and 12-hour or longer interrogations – were not present in David Allen’s case.  White agreed that some factors were not present, but maintained that the situation had characteristics of false confessions.

Allen’s trial, which also features medical expert witnesses to challenge the initial diagnosis of child abuse, will last until the end of the week.

Delaware Pill Mill Doctor Convicted with Help from Expert Witness Testimony

Last week a Delaware physician was convicted on more than 100 counts of illegally prescribing narcotics and filing false insurance claims in a high profile pill mill criminal prosecution. Prosecutors presented evidence from a medical practices expert witness who told jurors that suspect bookkeeping and lack of records strongly suggested the defendant was guilty.

Delaware Pill Mill Doctor Charged with Illegal Prescription Sales

Dr. Lawrence Wean, 61, operated a private practice in Chadds Ford, Delaware before being arrested last December for allegedly providing patients with narcotics without properly evaluating them.  Investigators posing as patients were able to receive prescription narcotics such as Percocet and Oxycodone without being examined or asked for a medical history. During trial, the police investigators told jurors that they were given prescription medication in exchange for cash on multiple visits to Wean’s office.

In addition to police investigators, patients of Wean’s told jurors that they were able to receive power pain medication with very little effort providing they paid for their medication in cash.  Wean’s employees informed the court that the doctor kept very few records and often had hundreds or thousands of dollars in cash around the office.  In order to pull all the evidence together, prosecutors called an expert in prescription pain medication to inform jurors that Dr. Wean’s behavior was indicative of illegal prescription medicine sales.

Pain Medication Expert Witness Testifies in Pill Mill Prosecution

Before resting their case against Dr. Lawrence Wean, prosecutors called Dr. Eric Lipnack as a pain medication expert witness who reviewed 30 of Dr. Wean’s patient medical files to identify potential bookkeeping discrepancies that would suggest illegal distribution of pain medicine.  On the stand Lipnack told jurors that Wean’s record keeping habits were “disgraceful” and “irresponsible” and evidence of a narcotic distribution system that failed to live up to legally required standards.  Lipnack pointed out pain medication prescriptions being given to patients who did not have medical histories, charts that indicated they had been evaluated by Wean, or regular appointments.  Further, Lipnack pointed to Wean’s practice of repeatedly welcoming patients back who he had previously dismissed for suspected pain medication addiction as evidence that the doctor was running a for-profit pill mill out of his private practice.

Defense attorneys forced Lipnack to admit that he had not spoken to any of Wean’s patients or discussed their pain medication needs, but the prosecution’s expert witness maintained that his review of Wean’s business and medical records was sufficient to notice irregularities.  Telling jurors that when a doctor doesn’t record visits in writing then they didn’t happen, Lipnack testified that lack of written records about patient examinations suggested the defendant didn’t conduct any medical review before prescribing pain medication.  During closing arguments, prosecutors pointed to the testimony of their lead expert witness to argue that Wean’s poor record keeping and lack of written records about patient visits was strong evidence that the defendant was running an illegal prescription pill operation.

Pill Mill Doctor Convicted of Illegal Pain Medication Sales

After three days of deliberations, jurors convicted Wean on 99 counts of illegally prescribing controlled substances, and more than a dozen counts of insurance fraud for claims that the doctor filed with patient insurance companies.  Dr. Lipnack’s pain medication expert testimony helped prosecutors convince jurors that Dr. Wean’s lack of written records was evidence of illegal activity and not simply a case of absent-minded record-keeping as the defendant claimed.  Wean will face a sentencing hearing on December 2nd.

Man Accused of Killing Adrian Peterson’s Son Uses Medical Experts During Trial

Earlier this week a jury in South Dakota convicted the man accused of killing the son of National Football League Star Adrian Peterson of 2nd degree murder despite testimony by several defense experts that attempted to cast doubt on the cause of death.  Throughout the trial both prosecutors and defense attorneys presented several medical expert witnesses who disputed the cause of death and culpability of the defendant.

Expert Witnesses Used in Trial of Man Accused with Killing Adrian Peterson’s Son

Joseph Patterson, 29, was found guilty of 2nd degree murder for killing 2-year-old Tyrese Robert Ruffin, the young son of NFL star Adrian Peterson.  In 2013 Patterson was the boyfriend of Ruffin’s mother and was accused of murder after the child died of blunt force trauma to his head.  Prosecutors alleged that Patterson had violently abused Tyrese, delivering four blows to the boy’s head that caused the fatal trauma.

To support their contention, prosecutors called medical expert witness Donald Habbe, a forensic pathologist, to explain the results of Ruffin’s autopsy to the jurors.  Habbe told the jurors that the four wounds on Tyrese Ruffin’s head were consistent with blunt force trauma.  Habbe went on to testify that bleeding in the brain and back of the eye which caused Ruffin’s death were likely the result of the blows that left the marks on the boy’s skull.  According to Habbe’s expert opinion, the cause of the boy’s death was not accidental, but was a homicide caused by child abuse.

Defense attorneys for Patterson responded with medical experts to counter the prosecution’s claims that Ruffin was murdered by introducing other possible causes of the injuries the boy suffered.

Defense Attorneys for Joseph Patterson Present Expert Testimony

In response to the prosecution’s allegations that Patterson delivered the fatal blows to Tyrese Ruffin, defense attorneys called medical experts to present alternative theories of the boy’s death.  Dr. Waney Squire, a neuropathologist from Oxford, England who specializes in injuries to children, took the stand after examining Ruffin’s brain samples.  According to Dr. Squire, Ruffin’s brain samples did not indicate a traumatic injury suffered directly to the skull, and the blood in the boy’s brain was not nearly at the levels she would expect if the 2-year-old had been struck or shaken.  Instead, Dr. Squire suggested the forensic evidence was consistent with evidence of a child choking to death while being given CPR – supporting Patterson’s claim that he had attempted to revive the boy who was choking on a fruit snack.

Dr. Roland Auer, a neurologist at the University of Saskatchewan in Canada, took the stand to directly refute a prosecution expert who had concluded that brain hemorrhaging is a clear sign of trauma.  According to Dr. Auer, the physical markings evident on the boy’s body were not severe enough to support the type of injuries that would have been sufficient to cause fatal brain trauma.  Like Dr. Squire, Dr. Auer told jurors that the prosecution’s medical experts had been too hasty when coming to the conclusion that Tyrese Ruffin’s death was the result of deliberate and abusive blunt force trauma administered by the defendant.

Ultimately, jurors were not convinced by the efforts of Patterson’s defense expert witnesses and convicted the defendant 2nd degree murder for Tyrese Ruffin’s death.  Patterson’s conviction carries a mandatory life sentence, which he will begin serving after the formal conclusion of his criminal proceedings.

Joseph Patterson Prosecutors Question Cost of Expensive Expert Witnesses

Throughout the course of the Patterson prosecution more than 12 medical expert witnesses had testified about the disputed cause of death of 2-year-old Tyrese Ruffin, raising concerns about the rising costs of expert witnesses.  Prosecutors told the media that they generally use doctors or forensic examiners who had directly interacted with the victim during treatment or after death, but defense teams are more likely to use high priced experts to examine the evidence of the crime well after it happened.  State attorneys prosecuting Patterson have an annual budget of $2,500 per year to pay experts which limits their ability to hire the same type of outside expert witnesses that defense lawyers have access to.

Even public defender expert witness budgets can dwarf prosecution allocations, allowing for the pursuit of high priced experts to take the stand for defendants.  In the Patterson case, Dr. Squire received more than $10,000 for her work while Dr. Auer was paid at a rate of $400 per hour to investigate and testify about Tyrese Ruffin’s death.  Such an inequitable balance in ability to hire expert witnesses leads to concerns that defense attorneys can solicit high priced hired guns to sway jurors with elite credentials that prosecution experts cannot match.

While the highly credentialed medical experts testifying on behalf of Joseph Patterson were not enough to sway the jury in this case, the budget discrepancy that allows defense attorneys to pursue higher priced experts is a concern shared by prosecutors across the country who struggle to find experts who fit their budget.

Motion for New Trial Based on Art Valuation Experts

Luke Brugnara made the mistake of representing himself in a federal criminal trial. Brugnara was convicted of mail fraud, wire fraud, and a number of lesser charges.

A lawyer would probably have hired an expert to testify for Brugnara during his trial. Expert testimony might have persuaded the jury that Brugnara was the victim of fraud rather than the perpetrator.

Brugnara’s Trial

The fraud charges were based on Brugnara’s agreement to pay millions of dollars to a New York art dealer for paintings, drawings, sketches, and sculptures by Willem de Kooning, Edgar Degas, George Luks, Joan Miró, and Pablo Picasso. The art was shipped to Brugnara in April 2014 but, according to the government, Brugnara refused to pay and refused to return the art.

An FBI search found four crates containing most of the art in Brugnara’s garage. A fifth crate, containing a Degas sculpture, was never recovered.

Brugnara, a former real estate investor and casino owner, consistently proclaimed his innocence. He represented himself in federal district court in San Francisco during a three week trial that was described as chaotic. Despite frequent outbursts that might have turned the jury against him, Brugnara managed to win acquittals on two charges of wire fraud and two charges of making false statements.

Brugnara has not yet been sentenced. With the help of counsel, he is seeking a new trial. His lawyers argue that new evidence if the form of expert testimony establishes Brugnara’s innocence.

Expert Testimony

Brugnara apparently based his defense on the argument that he did not pay the $11 million that he promised the art dealer because the art he received was “fake” and “worthless.” Unfortunately, his defense was based on his own rants rather than expert testimony. He also undermined that defense by making the arguably inconsistent claim that the dealer gave him the art as a gift.

Lawyers filed a motion for a new trial on the ground that expert testimony supports Brugnara’s view that the art dealer tried to swindle him. Brugnara’s expert testified that, viewed collectively, the art objects were worth $895,000, not the $11 million that Brugnara agreed to pay. The government’s expert agreed that much of the art the dealer sold to Brugnarra had no commercial value.

Even if the art was worth less than 10 percent of the amount Brugnarra agreed to pay, he might still have defrauded the dealer by refusing to return the art. The judge reasoned that Brugnara was not entitled to defraud the art dealer just because the art dealer tried to defraud Brugnara.

On the other hand, the jury might have resolved the charges in Brugnara’s favor if he had called an expert witness during his trial. The jury might have concluded that Brugnara’s refusal to pay $11 million for art that was worth less than $1 million was based on a desire to avoid being cheated rather than an intent to defraud.

While the judge has not yet ruled on the motion, the judge did point out that Brugnara claimed during his trial that the art was worthless. Brugnara had the opportunity to cross-examine the art dealer concerning its value but added to his woes by choosing to ask no questions. The judge suggested that Brugnara might need to live with the consequences of that decision.

Authenticity Versus Value

The government and defense experts both testified that their expertise lies in valuing art, not in authenticating it. Yet both experts expressed reservations about the genuineness of the art they inspected.

The government expert testified that the paintings by de Kooning were stylistically inconsistent with his authenticated work and that they appeared to have one signature painted over another. The defense expert testified that he had examined many paintings by de Kooning and that the artist’s signature on genuine works differed from the signature on the works that Brugnara purchased. At the same time, he testified that there is a market for art forgeries and that “suspect” de Koonings might have some commercial value.

The judge, who apparently engages in rants of his own, expressed reservations about the value of expert testimony. He told the defense expert: “All experts do is speculate” and “You’re an expert; all you’re doing is speculating anyway.” That attitude, more common among jaded judges than juries, explains why so many litigants opt for jury trials rather than allowing a judge to decide the case.

Valuing a Missing Sculpture

The value of the Degas sculpture is particularly difficult for the experts to assess, given that the sculpture was not recovered. The government claims that a similar bronze cast from the same foundry recently sold in a Hong Kong auction for $1.8 million. The defense expert testified that established auction houses like Sotheby’s and Christies refuse to sell bronzes from that foundry and questioned whether the Hong Kong buyers had an informed sense of the object’s true worth.

The defense expert was troubled that the auction house refused to disclose the auction catalog that would have established the auctioned sculpture’s value and history. The judge responded: “You’re putting this beyond the reach of any ordinary mortal to put a value on it. You’re discounting based on not knowing.”

The Value of Expert Testimony

Given the judge’s acerbic comments, it seems unlikely he will give Brugnara a new trial. It also seems doubtful that Brugnara can prove the expert evidence is “newly discovered” (the standard he must meet to win a new trial) since expert evidence was available to Brugnara and he chose not to pursue it. On the other hand, whether a conviction should be based on outright lies about value is a question that may need to be resolved on appeal.

The immediate lesson to learn from Brugnara’s case is that attempting to call an expert witness in order to win a new trial is an uphill climb. Expert witnesses should be consulted as soon as a litigant realizes that an expert opinion might influence the outcome of a trial.

Soil Scientists Testify in Botanical Gardens Controversy

A Connecticut judge was recently asked to decide whether a restraining order should be entered to halt work on a project that allegedly violated environmental laws. Expert testimony by soil scientists was the focus of a two day hearing in New London Superior Court.

The Chelsea Gardens Controversy

A nonprofit foundation plans to create an 80-acre nature preserve and butterfly pavilion on land in Mohegan Park that it leased from the City of Norwich. The controversial Chelsea Botanical Gardens project has inspired protest from city residents who fear that pristine wilderness will be lost to structures that include a visitor’s center and an international gardening school. Supporters of the project argue that it will attract hundreds of thousands of visitors each year, providing an economic benefit to Norwich.

Clearcutting began on six acres within the park in April. Officials of Chelsea Gardens Foundation claimed the deforestation “is necessary to give future investors an idea of the project’s layout as they seek private contributions.”

Norwalk resident Chuck Evans Jr. disagrees. He filed a lawsuit against Chelsea Gardens Foundation alleging that the clearcutting is a public nuisance. Evans contends that the Foundation has violated local and state environmental regulations. The lawsuit seeks an injunction that would prohibit the project from moving forward.

As part of his lawsuit, Evans asked for a temporary restraining order. Granting the order would force the Foundation to stop working on the project until a final decision is made on Evans’ request for a permanent injunction.

Expert Testimony at the Restraining Order Hearing

Evans relied on the expert opinion of Stamford-based soil scientist Steven Danzer. During more than four hours of testimony, Danzer explained his belief that the clearcutting was environmentally harmful to the park’s wetlands because the Foundation had no plan to prevent soil erosion. According to Danzer, storm water runoff will increase due to the lack of ground cover. Danzer also testified that the clearcutting did not fall within the scope of state and local permits issued to the Foundation and that the Foundation failed to obtain a required storm water management permit.

On cross-examination, Danzer admitted that he did not inspect the wetlands before the clearcutting began and therefore could not perform a before-and-after comparison. He also acknowledged that he took no photographs to support his opinions.

The Foundation countered with the testimony of Norwich-based soil scientist Robert Russo. He testified that he prepared an ecological inventory of the site in 2000 and drafted a wetlands report in 2012.

Based on recent visits to the site, Russo contended that the clearcutting did not have an adverse effect upon wetlands. He testified that the porous soil remained capable of absorbing rainwater. Russo said he saw no significant difference between vegetation and habitat in the wetlands before and after the clearcutting.

Restraining Order Denied

The court denied the request for a temporary restraining order. That does not end the controversy, as the court could still grant an injunction after hearing more evidence during a trial. On the other hand, it will probably take strong evidence to persuade the judge to stop the project after his initial ruling permitted the Foundation to move forward.

The Chelsea Gardens Foundation waited less than a day after defeating the restraining order application before launching a campaign to raise the funds it requires to move the project into its next phase. Fundraising should be easier now that legal challenges to the development seem less likely to prevail.

Mother Convicted for Leaving Infant in a Hot Car uses Psychology Expert Witness

An El Paso woman was recently convicted of criminally negligent homicide for the 2013 death of her infant daughter who was left in a hot car for 8 hours.  Jurors issued the guilty verdict despite hearing testimony from a psychiatrist expert witness who explained that the defendant suffered from “forgotten baby syndrome” which was presented as a condition that causes parents to leave their kids in cars unintentionally.

Texas Woman Charged with Death of Infant Left in Car

In May 2013 Wakesha Ives returned to her car after a long day teaching at an El Paso middle school to find that her 5-month-old daughter Janay Aliah Ives had spent the entire day locked inside the hot car.  Despite frantic efforts by school staff and paramedics to revive the baby at the scene, Janay was taken to a local medical center and pronounced dead with an internal temperature of 105 degrees.  Janay died of environmental heat exposure suffered due to being confined in her mother’s vehicle for an entire day, and Wakesha was subsequently arrested and charged with criminally negligent homicide for leaving her infant in her car while she was at work.

Throughout the investigation and trial Wakesha maintained that she mistakenly believed that she had dropped Janay off at day care prior to arriving at the school for work.  During her trial, a tearful Wakesha took the stand to tell jurors that she was devastated by her daughter’s death, and loved Janay as any mother would.  Wakesha explained that she was suffering from memory lapses due to her blood pressure medicine and on the day in question forgot that she had not dropped Janay off at day care like she typically did.

Wakesha’s attorneys told jurors that the defendant was experiencing significant levels of stress at her job and was suffering from chest pains, light-headedness, and memory loss because of high blood pressure medication that she was taking at the time.  In an effort to further demonstrate that Ives was not criminally culpable for her daughter’s death, the defense presented testimony from a psychology expert witness who explained that Wakesha showed signs of Forgotten Baby Syndrome which could have explained her inattentiveness to Janay.

Expert Witness Explains Forgotten Baby Syndrome

Attorneys for Wakesha Ives called to the stand Dr. David Diamond, an expert witness specializing in neuroscience and memory at the University of Florida, who discussed a condition he called Forgotten Baby Syndrome.  Dr. Diamond told jurors that, “Forgotten Baby Syndrome is when normal, attentive, loving parents forget their kids in the car,” and can be distinguished from cases of neglect or abuse when parents are known to be slow, sluggish, or suffering from memory loss in the time prior to the incident.

Dr. Diamond’s expert testimony explained that because our memories are frail and prone to easy lapses, simple factors like a break in normal routine or a series of unusual events could lead a parent to overlook the fact that their child was left behind in a hot car.  According to Ives’s husband, she had not slept well the night before, and that he had placed the baby bag in back seat that morning rather than its usual spot in the front of the car.  Dr. Diamond explained that this seemingly innocent break in routine could trigger Forgotten Baby Syndrome, suggesting that Ives forgot about her daughter and was not acting negligently or maliciously by leaving Janay in the car.

Jury Convicts Texas Mother for Death of Infant Daughter Left in Hot Car

Despite emotional testimony from Wakesha Ives and analytical expert witness testimony about Forgotten Baby Syndrome by Dr. Diamond, the jury of 10 women and 4 men found the defendant guilty of criminally negligent homicide for Janay’s death.  The jury acquitted Ives of the more serious charge recklessness causing serious bodily harm due to omission – which carries a maximum sentence of 20 years – suggesting that jurors put some degree of stock into the defendant’s case and her expert witness’s contributions.

Ives will return to court in early October for a sentencing hearing, and faces up to two years in jail for her conviction.  Dr. Diamond’s expert witness testimony on Forgotten Baby Syndrome may not have been fully successful, but it seems that jurors incorporated his position into their decision by selecting the lesser available charge.  Forgotten Baby Syndrome is relatively unheralded in the legal community, but with the attention it has received in the Ives case more defendants may look for experts like Dr. Diamond who provide explanation why parents would leave infants unattended in hot cars.

New Funding for Experts in Sexual Assault Prosecutions

Many sexual assault crimes cannot be solved, and prosecutions cannot be commenced, without the help of experts. Some experts who testify as government witnesses in sexual assault cases work in state or municipal crime laboratories. Others work in private labs that provide services under contract with a state or municipal agency. One critical role that experts play is the analysis of evidence the police have gathered in a “rape kit.”

Sexual assault prosecutions around the country have stalled, and crimes have gone unsolved, because states and municipalities have not made funds available for experts to analyze the contents of rape kits. An editorialist recently observed that Kentucky is one of several states that suffers from “an inadequate state crime lab, a backlog of untested rape kits and a lack of money for prosecutors to pay for expert witnesses.”

Untested Rape Kits

A “rape kit” is a collection of evidence that is taken from the body of a sexual assault victim. It can include fingernail scrapings as well as swabs that gather semen, blood and other fluids from the victim’s body and clothing.

Ideally, the swabs are tested promptly and a DNA profile of the perpetrator is prepared. The profile can confirm or rule out the involvement of an identified suspect or, if the assailant is unknown to the victim, can be entered into a DNA database in search of a match.

Law enforcement agencies around the nation gathered hundreds of thousands of rape kits since the 1980s that they left untested. State and local crime labs that do not do their own DNA testing lacked funding to send the samples to private labs. Government agencies pay private labs as much as $1,000 per DNA test. In the midst of financial woes, many states and municipalities have made testing of rape evidence a low priority and have not been able to afford to pay private lab analysts to testify in court.

New Funding for Expert

In an attempt to resolve the problem of untested evidence, the U.S. Department of Justice and the Manhattan District Attorney’s Office are making $79 million in grant money available to 40 cities. The funds are earmarked for the testing of rape kit evidence. Manhattan’s contribution is being paid from civil forfeiture proceeds collected in prosecutions of international banks.

The new funds are expected to enable experts to test about 70,000 rape kits. To assure that the funds are not misapplied, agencies will need to pay for the testing in advance. If they demonstrate that the money was spent appropriately, they will receive reimbursement from the grant.

The project includes an agreement with two private labs to reduce the cost of DNA testing. Law enforcement agencies that are eligible for the grant may be able to obtain testing for $675.

Prosecutors will also be able to use grant money to pay expert witnesses to testify. The budgetary savings that the grant money makes possible may also free up resources that can be used to pay lab analysts to testify in court.

Grant recipients include the City of Memphis, California’s Contra Costa County, and the Arkansas State Crime Lab. The funds are eventually expected to reach 43 government agencies.