Category Archives: ExpertWitness

Damages Expert Testimony Rejected in Patent Infringement Case

It is well established that expert witnesses who offer their opinions to juries must build testimony from a solid foundation of reliable methodology that supports their conclusions.  The Daubert standard of evaluating the reliability of testimony applies to any expert, including, as a recent federal decision highlights, expert witnesses whose testimony is focused strictly on determining appropriate damage awards. In Sloan Valve Company v Zurn Industries, a federal judge in the Northern District of Illinois showed that damages expert witnesses must base their testimony on credible methods of collecting and investigating data – holding damage testimony to a high standard that all experts must satisfy.

Case Background

Sloan Valve filed a lawsuit against Zurn Industries for an alleged patent infringement on its toilet plumbing fixtures. According to Sloan, Zurn copied flush toilet designs that allows users to alter the volume of flush water by changing the direction of the handle. During expert witness discovery, Sloan presented the testimony of Richard Bero to identify the damages Zurn’s patent infringement cost Sloan in terms of lost business.

As part of his analysis, Mr. Bero analyzed the market value of the valve assembly to calculate Zurn’s potential profits from Sloan’s lost sales. After hearing the damage analysis, Zurn moved to exclude the expert testimony for a number of reasons stemming from Bero’s failure to demonstrate that he used reasonable and reliable calculations during the course of his investigation. Applying a Daubert review of Bero’s methodology, the judge agreed and Sloan’s damages expert was precluded from testifying at trial.

Damages Expert Witness Testimony is Dismissed

The Court in Sloan v Zurn determined that the plaintiff’s damages expert witness presented a flawed testimony for a number of reasons. When analyzing the damages caused by Zurn’s alleged patent infringement, Mr. Bero:

  • Failed to narrowly tailor his analysis to the specific parts at issue in the patent dispute
  • Improperly included lost profits from related products sold by Sloan
  • Predicted, with no reliable method to his analysis, that Sloan would have been able to sell the parts at a higher price than Zurn had the patent infringement not occurred
  • Conducted his investigation without using any accepted method of royalty analysis, instead choosing to formulate a basic calculation that contrived an unsupported damages figure based on the biased testimony of Sloan executives and broad assumptions of the effect Zurn’s infringement had on Sloan’s sales

Mr. Bero’s testimony predicting Sloan’s damages from lost business lacked reliable and professionally verified methods for identifying the cost of patent infringement. The Court was unconvinced that Mr. Bero’s economic prediction was sufficiently supported by proven royalty analysis, and as such rejected his financial expert witness testimony.

Sloan Decision Demonstrates Importance of Daubert Standards

The Sloan decision serves as a reminder that the methodologies of data collection and investigation used by damages expert witnesses must be just as sound as that used by experts who help juries determine the outcome of a lawsuit. As with any expert witness, financial professionals hired to testify to damages have available an established set of methods that a court will look to when verifying the reliability of testimony, and a party hiring a financial expert must be sure the expert is incorporating them. The Daubert standards of expert witness testimony apply to all professionals called upon to inform judges and juries – including those who focus solely on calculating damages.

 

Medical Experts Shed Light and Cast Doubt On Shaken Baby Syndrome

The tragic death of 4-month-old Lincoln Wilber in 2007, initially determined to be the result of child abuse, is getting a second look by a handful of nationally renowned medical expert witnesses. At the behest of Northwestern University’s Medill Justice Project, experts in abusive head trauma, pathology, and Sudden Infant Death Syndrome (SIDS) reviewed the facts of the incident and cast doubt on the criminal prosecution of Lincoln’s care-giver.

Lincoln’s care provider, Jennifer Hancock, was tried and convicted of causing death by child abuse, in large part with the assistance of four medical experts specializing in shaken baby syndrome and head trauma. Hancock, who is serving 13 years in prison for the crime, was alone with Lincoln for 5 ½ hours prior to his death and convicted on the strength of a head and leg fracture that experts believed were indicative of abusive behavior.

Medical Experts Skeptical over Cause of Infant’s Death

Medical experts approached by the Medill Project examined Lincoln’s autopsy report, MRIs, CT scans, and medical history before providing several alternative theories to the infant’s death:

  • Lincoln had a blood clot:  Dr. Michael Laposata, the head pathologist at Vanderbilt University Hospital and an expert in blood clotting, examined Lincoln’s case and said that because his mother had a history of Lupus and blood clotting, it is likely that Lincoln had similar issues. Dr. Laposata pointed out that a blood clot could lead to higher blood pressure, rupturing vessels and causing a subdural hematoma.
  • Lincoln had an existing brain injury:  Dr. Ronald Uscinski, a neurosurgeon who also teaches at Georgetown University, served as an expert witness for Jennifer Hancock during her trial. He testified, and still believes, that Lincoln’s birth caused a subdural hematoma – brain bleed – that made him susceptible to the problem arising again. Dr. Jan Leestma, who has testified for defendants in infant death cases, reaffirmed the possibility by pointing out that Lincoln’s behavior and recent illness could have been the result of a chronic brain injury that could have become aggravated before the boy was alone with Hancock.
  • Lincoln’s Death the Result of SIDS:  Dr. Michael Stier, the forensic pathologist who conducted Lincoln’s autopsy and declined to testify for the defense at trial, has rethought the case after further examination. Upon looking closer and Lincoln’s injuries and the timeline of his brain bleed, Dr. Stier believes that the death is surrounded by uncertainty and could have been the result of Sudden Infant Death Syndrome – an unexplainable cause of infant death.

Key to the medical experts’ analysis of Lincoln’s death is the timing of his brain bleed and his physical injuries. Dr. Julie Mack, a radiologist in Hershey, Pa. and experienced defense expert witness, examined Lincoln’s medical charts and concluded that his brain began bleeding 24 hours prior to his death – supporting any of the above theories. Dr. Mack was unconvinced by Lincoln’s leg and skull injuries, claiming that the injuries likely occurred during attempts to revive him.

Expert Witness Investigation Used in Appeal of Conviction

It is unsure if reexamining Lincoln’s death will have any impact on the criminal conviction of Jennifer Hancock, who is not involved in the Medill Justice Project’s investigation. The medical expert witnesses offering their opinion have only been able to conclude that Lincoln’s death was suspicious, and not necessarily the cause of head trauma or shaken baby syndrome, but none were able to definitively point to an alternative theory. Attorney Carrie Sperling, co-director of the Wisconsin Innocence Project, is preparing an appeal for Hancock and will rely on the several alternative theories to cast doubt on Hancock’s guilt – hoping to overturn her conviction.

Even if the expert investigation into Lincoln’s death is too vague to contribute to Hancock’s defense, the case is worth noting. Medical expert witnesses are critical to understanding the tragic deaths of infants, and criminal or civil cases in the future will benefit from the type of analysis made available by the experts who reevaluated the cause of Lincoln’s death.

Sixth Circuit Dismisses EEOC’s “Race Rating” Expert

The US Court of Appeals for the Sixth Circuit issued a ruling that dismissed an unreliable expert witness, demonstrating the strict requirements that must be met by parties seeking to admit expert testimony into a trial. In EEOC v Kaplan Higher Education Corp, the Sixth Circuit criticized the EEOC for calling an unreliable expert to bring a case “on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted by only the witness himself.”

EEOC v Kaplan Higher Education Uses Unique Expert Witness

Kaplan, a for-profit educational company noted for its college and graduate school test preparation programs, was sued by the EEOC for requiring a credit check from potential applicants as part of the hiring process. The credit check, according to the EEOC, violated Title VII of the Civil Rights Act because it had a disparate impact on African American applicants – meaning more black candidates were eliminated due to the check than white.

In order to prove the disparate impact, the EEOC relied on data from one of the third-party credit-check services used by Kaplan in its hiring process. Since the credit-check service did not have data on the race of each applicant, the EEOC combined the credit data with information on each applicant obtained from the candidate’s state department of motor vehicles. Most states also did not include information on race, however, each provided a color copy of the applicant’s driver’s license – which included a photograph.

Completing the link between credit-check data and the race of each applicant required the EEOC to hire an expert witness who created a process known as “race rating.” The expert’s process, created specifically for the litigation, required five “race raters” to independently identify the race of each applicant based on a visual inspection of the driver’s license photo. If at least four of the five raters agreed, the EEOC’s expert determined that the applicant was a member of the identified race.

Sixth Circuit Dismisses EEOC’s Race Rating Expert Witness

Upon reviewing the EEOC’s race rating expert report, the trial court refused to allow him to testify against Kaplan. On appeal, the Sixth Circuit agreed, finding that the race rating process created specifically for the lawsuit did not meet the Daubert requirements for expert witness testimony. Under Daubert standards, an expert witness may only present testimony to the court if his opinion is based on reliable and scientifically supported knowledge – a standard that the EEOC race rating process failed to satisfy.

In its ruling, the Sixth Circuit identified several reasons to disallow testimony on racial identification by the EEOC’s race rating expert witness:

  1. The EEOC expert did not demonstrate that his newly created race rating system had been tested or that it had an acceptable rate of error. Although the EEOC cross-checked the results with other external sources identifying the Kaplan applicants’ race, the Sixth Circuit determined that cross-checking a sample of the results was insufficient.
  2. The expert’s methodology, invented specifically for the litigation, was not subject to peer review or “submission to the scrutiny of the scientific community.” Courts are often unfamiliar with the subject matter expert witnesses testify about, so when an expert’s methodology has undergone review and critique from his peers, his investigation is more likely to be accepted by the legal community.
  3. The EEOC race rating system did not have a standardized methodology for determining race. Instead, the process relied on the visual assessment of five independent raters who knew the names of each applicant – a fact the court felt could impact the racial analysis.
  4. Without peer review from the scientific community, there was no evidence that the race rating methodology had been generally accepted as reliable.
  5. The court determined that the sample of 1,090 applicants was not representative of Kaplan’s applicant pool as a whole. Of the EEOC expert’s sample, 23.8{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of applicants failed the credit-check, however, only 13.3{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of applicants failed overall – meaning that the EEOC expert’s results were skewed to favor the plaintiffs’ claim.

The Sixth Circuit’s opinion clearly identified reasons why the EEOC’s rate rating expert witness failed to satisfy the Daubert standard for scientific expert testimony. The unique and highly specific review process created for the purpose of the EEOC’s case against Kaplan was not reviewed or critiqued by the scientific community, and was not created using a sound or objective methodology. As such, the Sixth Circuit refused the EEOC’s expert testimony.

9th Circuit Roundup: A Case of Contaminated Water and Medical Expert’s Failed Methodology

The 9th Circuit handed down two recent decisions to provide guidance on the treatment of expert witnesses by trial judges. The attention expert witnesses receive from the federal circuit serves as a point of emphasis on how important it is to have experts who can pass judicial scrutiny prior to offering their testimony.

9th Circuit Revives Expert Testimony in Contaminated Water Case

Earlier this month, the 9th Circuit overturned a lower court’s dismissal of expert testimony by pointing out that judges do not have the authority to question an expert’s conclusions. When evaluating whether or not an expert witness is permitted to testify, a judge must follow the Daubert standard and focus on the expert’s qualifications and the methodology he used to support his testimony.

Pomona, California filed a lawsuit against SQM North America Corporation (SQMNA) for contaminating water by importing Chilean materials into the town several decades ago. To support its claim, Pomona called Dr. Neil Sturchio, the director of the Environmental Isotope Geochemistry Lab at the University of Illinois at Chicago. Dr. Sturchio conducted a study of Pomona’s water using a “stable isotope analysis” and determined that sodium nitrate from Chile’s Atacama Desert, used by SQMNA in fertilizer, was responsible for contaminating the town’s water.

A lower federal court determined that Dr. Sturchio’s conclusions were outside of the scientific mainstream, and therefore he was not permitted to testify at court. On appeal, the 9th Circuit pointed out that Dr. Sturchio’s expert testimony was supported by a methodology that was published in a 2011 manual for the Department of Defense, and therefore was built on a sufficiently sound foundation. During the publishing process, Dr. Sturchio’s methodology was reviewed by two other laboratories, giving the process further credence as a collaborative work. In its conclusion, the 9th Circuit pointed out that when an expert witness is supported by scientifically sound methodology, the validity of his conclusions are facts that are reserved for a jury, not for a judge.

9th Circuit Requires Closer Scrutiny of Medical Expert

In April, the same 9th Circuit court kicked back an asbestos lawsuit because the plaintiff’s expert witness was not sufficiently evaluated by the lower court judge before being allowed to testify. At trial, the judge refused to conduct a Daubert review of a medical expert witness, allowing him to take the stand despite objections from the defense over his credentials and methods employed during pre-trial investigative studies.

In Barabin v Asten Johnson, Inc, the plaintiff and his wife alleged that he developed mesothelioma from asbestos exposure while working at the defendant’s paper mill. A medical expert witness was called to connect fibers found in the mill’s dryer felts to the asbestos exposure that caused the plaintiff’s condition, and, with his assistance, the plaintiff was successful. On appeal, the 9th Circuit Court determined that the lower court had failed to properly evaluate the expert’s methodology, which involved tests performed in different conditions than present at the paper mill, and sent the case back for a re-trial that involved a Daubert review to scrutinize the medical expert’s qualifications.

Medical expert witnesses, who are critical in toxic tort cases, must pass close scrutiny to ensure that testimony presented to a jury is reliable and supported by sound scientific investigation. In Barabin, the trial judge failed to properly scrutinize a key expert witness, leading to the 9th Circuit reversing the trial’s outcome.

As the use of expert witness testimony becomes more commonplace, decisions like these from high ranking federal jurisdictions will provide emphasis on the importance of properly evaluating experts before allowing them to speak at trial.

Dueling Experts and the Oscar Pistorius Case

On Valentine’s Day, 2013, noted South African Olympian Oscar Pistorius, who gained fame for competing in the 2012 London Olympics despite not having legs below his knees, fired four gunshots through his bathroom door to kill his live-in girlfriend, model Reeva Steenkamp.  Now, from halfway across the globe, the ensuing murder investigation has captured the attention of the American public and kept legal experts and laymen wrapped up in the twists and turns of the trial.

As the case unfolds, expert witnesses have emerged as important characters in the drama by providing factual analysis to support or contradict Pistorius’ claim that he fired the shots in self-defense under the belief that the person behind his bathroom door was an intruder.  A recent two-week adjournment provides opportunity to pause for analysis of the impact the critical expert witnesses have had.

Experts for the South African Prosecution

Lead South African prosecutor Gerrie Nel notably called experts in ballistics and pathology to help contradict Pistorius’ claim that he fired on what he suspected was a home invader.  Police ballistics expert Chris Mangena and pathology expert Gert Saayman were both called by Nel in order to call into question Pistorius’ testimony about the evening and the fatal encounter.

Ballistics expert witness Mangena: Of critical issue to Pistorius’ claim that he was unaware that the person behind his bathroom door was Steenkamp is the order in which the bullets hit her. Both sides agree that the fatal wound was administered by a shot to the head that would have caused instant death, and the prosecutor’s ballistic expert witness testified that the head-shot was the third and final bullet to make contact. Mr. Mangena further testified that Steenkamp was struck with two other bullets – one in the hip and one in the arm – both of which would have caused pain and given cause for the victim to scream prior to being killed with the third shot. Mr. Mangena also claimed that the pattern of wounds on the body would make Pistorius’ story that he fired two rapid “double taps” impossible, meaning that he would have had the opportunity to hear her scream and identify her before firing the fatal shot.

Pathology expert witness Saayman: Gert Saayman’s testimony of the gruesome wounds suffered by Ms. Steenkamp was highlighted by the defendant vomiting in court at the graphic description. However, his most contested claim was in regards to something far less serious: the contents of the victim’s stomach. Pistorius has told the court that he and Steenkamp were in the bedroom by 10 PM, and asleep shortly after, and that he thought she was still sleeping next to him when he discharged the firearm against the suspected intruder. However, according to Saayman, Ms. Steenkamp had probably eaten around 1 a.m. – meaning that the two were not together in bed from 10 p.m. until the time of the shooting.

The prosecution’s use of expert witnesses was well crafted, and targeted key points of Pistorius’ story of how the shooting took place. Defense attorney Barry Roux aggressively questioned both, and shaped his own expert witness list to directly challenge their findings.

Pistorius Calls Pathology Expert Jan Botha

First to testify for Pistorius was pathology expert witness, Dr. Jan Botha. Dr. Botha opened by calling into question the methodology used by Dr. Saayman when he determined that Steenkamp had eaten only two hours prior to the shooting, calling the claim to be questionably supported by facts. Dr. Botha then turned his attention to the claim that Pistorius would have had the opportunity to hear the victim scream before firing the fatal shot. Although he did not speak to the order in which Ms. Steenkamp’s wounds were caused, Dr. Botha did testify that the pain caused by the impact of the bullets would have caused her body to go into shock – making it highly unlikely that she would have cried out unless there was significant time between the shots.

Pistorius Recent Defense Expert Creates Confusion

The most compelling expert presented in the case has been Pistorius’ forensic expert witness, and apparent jack-of-all-trades, Roger Dixon, whose contradictory account of the shooting led prosecutor Nel to question his qualifications and create doubt about the defendant’s version of the incident.

Dixon, hired by Pistorius as an expert witness to support his version of the shooting, is a former police forensics investigator who now teaches geology. During a dramatic three-day affair, Dixon initially testified to confirm Pistorius’ account that the room was too dark for him to recognize that Ms. Steenkamp was no longer in bed with him. He then contradicted ballistic expert Chris Mangena’s testimony that the victim was in a defensive position – indicative of an argument between her and Pistorius – when the shooting started by testifying that she was leaning towards the door handle in preparation to come out of the bathroom – supporting Pistorius’ account that he reacted to an unfamiliar noise. Finally, Dixon conducted visual and audio tests to dispute testimony from Pistorius’ neighbors that called into question the timing of the gunshots and the position the shooter was in.

Sparks began to fly when Mr. Dixon was cross-examined by prosecutor Nel for having a confessed “laymen’s understanding” of ballistics, for not taking Pistorius’ height into account when recreating the scene, and for contradicting the defendant’s own testimony of what the scene looked like during and after the shooting. Because Dixon is a geologist, and not actively conducting forensic investigations, he was taken to task for being unqualified and for providing testimony that could prove unreliable – calling his entire expert witness credentials into question.

Judge Thokozile Masipa, who is solely responsible for determining Pistorius’ guilt in South Africa’s non-jury system, has delayed the trial for two weeks following the up and down testimony of Mr. Dixon. The defense will resume on May 5th, and will likely attempt to reconcile Mr. Dixon’s testimony with Pistorius’ version of the events with another independent forensic expert witness.