Category Archives: ExpertWitness

Mesothelioma

Court Denies Daubert Challenges to Expert Opinions About Asbestos Exposure in a Shipyard

John Wineland died from mesothelioma. Wineland’s personal representative sued Todd Shipyard and other defendants for negligently exposing Wineland to asbestos during Wineland’s service in the Navy.

Todd Shipyard filed a Daubert motion to exclude the testimony of four expert witnesses. Recognizing that the shipyard’s arguments addressed questions of credibility that should be decided by a jury, the court determined that the opinions of each expert were admissible.

Capt. Arnold Moore

Captain Moore was offered as an expert on “maintenance practices and conditions aboard Navy ships.” He has professional experience with “naval warships and their machinery, the operation and maintenance of steam propulsion plants, the repair and overhaul of Navy ships, [and] the role of Enginemen aboard naval ships.”

Moore reviewed personnel records regarding Wineland’s naval service, including records of his assignment to the engine room of the USS Tuscaloosa. That ship was overhauled at Todd Shipyard during Wineland’s service. Wineland devoted extensive time to preparing for and overseeing the overhaul.

Moore determined that the diesel engines and heated systems on the Tuscaloosa were insulated with asbestos. Records showed that Wineland frequently visited spaces where Todd Shipyard workers were performing repairs on the Tuscaloosa to observe the repairs and to inspect the repaired equipment.

Moore opined that removal and replacement of gaskets during the overhaul would have produced airborne asbestos fibers. He concluded that Wineland was likely exposed to asbestos dust while the ship was being overhauled at Todd Shipyard.

Todd Shipyard objected that Moore explained the basis for his opinions in insufficient detail. The shipyard noted that Moore identified no witnesses who actually saw Wineland performing the duties that Moore described.

The court decided that Moore’s methodology was reliable. In light of his experience and knowledge of the duties Enginemen, Moore’s review of records allowed him to determine the work that Wineland did while the ship was docked at Todd Shipyard. He did not need eyewitness accounts to understand that Wineland did the kind of work that exposes Enginemen to asbestos. Because his opinions had a reliable basis and would be helpful to the jury, the court denied the Daubert motion as to Moore.

Steven Paskal

Paskal is a certified industrial hygienist. His testimony was offered to explain “how asbestos reacts when released into the air, the risks it poses to human health, and how to mitigate those risks.” Paskal also expressed the opinion that Wineland was exposed to asbestos during his naval service and that work practices in shipyards during Wineland’s service were not designed to minimize exposure to asbestos particles.

Paskal based his opinions on his own experience as an industrial hygienist for the Navy and on his review of Moore’s reports. Todd Shipyard objected that Paskal had no factual basis for his opinions because he did not know the frequency, intensity, or duration of Wineland’s asbestos exposure at Todd Shipyard.

The court was unimpressed with the objection. Paskal was entitled to rely on Moore’s conclusion that Wineland was exposed to asbestos when gaskets and packing were removed and replaced. Moore’s review of maintenance and personnel records satisfied him that Wineland was frequently present when asbestos was released into the air. Details about the intensity and duration of those exposures were not necessary to the conclusion that Wineland was, in fact, exposed to asbestos. Paskal therefore had a factual basis for his opinions.

Paskal’s own training and experience allowed him to determine that each exposure to asbestos was “a million times greater” than Wineland would otherwise have experienced. He also offered the noncontroversial opinion that each exposure contributes to the risk of developing mesothelioma.

Todd Shipyard nevertheless complained that Paskal did not know how much cumulative exposure Wineland received at the shipyard. Apparently recognizing that a cumulative exposure rate was not necessary to Paskal’s opinion, Todd Shipyard argued in a reply brief that Paskal had insufficient evidence of exposure to support an opinion that Wineland’s exposure at the shipyard was a substantial factor in the development of his mesothelioma.

While Ninth Circuit precedent requires evidence that asbestos exposure was sufficiently significant to contribute to mesothelioma, the court was satisfied that Moore’s opinion supplied a factual basis for Paskal’s opinion. Moore determined the length of time that the ship was docked in the shipyard and the approximate frequency with which Wineland supervised and inspected work during the overhaul. That testimony provided an underpinning for Paskal’s causation opinion.

Dr. David Zhang

Dr. Zhang is a physician who practices occupational medicine. In his opinion, Wineland suffered from asbestos-related pleural malignant mesothelioma. Todd Shipyard argued that Dr. Zhang had no factual basis for his opinion that Wineland was exposed to asbestos or that the asbestos caused his cancer.

The court easily dismissed that challenge. Moore and Paskal provided the factual basis for the conclusion that Wineland was exposed to asbestos. Since asbestos exposure is the only known cause of mesothelioma, the conclusion that asbestos exposure harmed Wineland is inescapable.

Charles Ay

Charles Ay is an asbestos consultant. He worked as an asbestos insulator in the shipyard industry for twenty years, then began a career in asbestos detection, testing, and abatement. He expressed opinions about the presence of asbestos in pipe insulation during the 1970s, the consistent methods used to remove pipe insulation in a variety of industries during the 1970s, and the concentrations of asbestos fibers that are present when insulation is removed from pipes.

Ay’s testimony was obviously relevant. Todd Shipyard challenged it on the ground that Ay never worked at Todd Shipyard. The notion that “only our employees can testify against us” is not supported by precedent. Ay had experience in shipyards. Todd Shipyard offered no reason to believe that its asbestos removal procedures were different than those in other shipyards. At best, Todd Shipyard’s objections went to the weight a jury might give to Ay’s testimony, not to its admissibility.

 

USA legal system conceptual series - Illinois

Illinois Supreme Court Permits Party to Redesignate a Controlled Expert as a Consulting Expert

The Supreme Court of Illinois recently reviewed a state appellate court decision that permitted a party to avoid disclosure of an expert report by redesignating the expert as a consulting expert rather than a testifying expert. The state supreme court affirmed the lower court’s decision.

Facts of the Case

Alexis Dameron sued Mercy Hospital and other medical defendants for malpractice after her femoral nerves were damaged during robotic surgery. In response to interrogatories, Dameron identified Dr. David Preston as a “controlled” expert witness. Dameron’s interrogatory answer stated that Dr. Preston would be performing certain tests on Dameron and would testify about the rest results.

Dr. Preston conducted the tests and prepared a report. A few weeks later, Dameron notified the defendants by email that she was withdrawing Dr. Preston as a controlled expert and redesignating him as a consulting expert. Dameron also declined to produce Dr. Preston’s report.

The defendants contended that Dr. Preston’s report was discoverable. Dameron filed a motion to designate Dr. Preston as a nontestifying consulting expert. Dameron claimed that Dr. Preston had been inadvertently identified as a controlled expert. The defendants, no doubt suspicious that Dameron was motivated to change the expert’s designation by displeasure with the expert’s opinion about the test results, resisted the motion.

The trial court denied the motion and ordered Dameron to produce Dr. Preston’s report. To create an appealable issue before a final judgment was entered, Dameron refused to comply and the court entered a “friendly” contempt order, which it stayed pending appeal.

Treating Physicians

As is common, Illinois law does not regard treating physicians as expert witnesses. Illinois recognizes that treating physicians use their expertise to provide medical treatment and share that expertise with juries when they testify about the treatment they rendered. They are, however, treated as fact witnesses who are not generally subject to the same rules that apply to retained experts.

The medical records and reports prepared by treating physicians are generally discoverable. Plaintiffs waive physician-patient privilege by starting a lawsuit that places their physical condition in issue.

The defendants argued that Dr. Preston was a treating physician because his testing of Dameron constituted treatment. The supreme court clarified that whether a doctor is a treating physician depends on the relationship between the doctor and patient, not on the substance of any testimony the doctor might give. Doctors who are retained primarily for the purpose of litigation are not treating physicians even if they conduct the same tests that a treating physician might conduct.

Dr. Preston was retained to provide opinions to assist Dameron in litigation. Dameron did not hire Dr. Preston to treat her medical condition. Rather, Dameron’s counsel hired and paid for Dr. Preston. Dameron’s relationship with Dr. Preston was not that of a patient who seeks medical treatment from a physician. The fact that Dr. Preston tested Dameron in order to form an opinion about her condition did not make him a treating physician.

Consulting Experts and Controlled Experts

Illinois law distinguishes between a “controlled” expert witness and an “independent” expert witness. A controlled expert is one who has been retained to give expert testimony. A party or a party’s employee who is identified as a testifying expert is also a controlled expert. An independent expert is any testifying expert who is not a controlled expert.

Illinois law also draws a distinction between a controlled expert and a consulting expert. Illinois defines a consultant as “a person who has been retained or specially employed in anticipation of litigation or preparation for trial but who is not to be called at trial.”

Illinois requires litigants to identify testifying experts and to disclose the subject matter of their testimony. Litigants must make a more detailed disclosure of opinions to be offered by controlled experts, including reports they have written. The opinions expressed by consulting experts are privileged unless there are compelling reasons to order their disclosure.

Changing Expert Designations

No procedural rule in Illinois addresses the ability of a litigant to change the designation of an expert from “controlled” to “consulting.” Caselaw allows a party to abandon a previously designated expert if the abandonment does not prejudice or surprise the adverse party at trial.

The supreme court saw no meaningful difference between abandoning an expert and redesignating an expert. Dameron gave notice of the redesignation about a year before trial. The defendants were not surprised at trial by the redesignation. Dameron effectively abandoned a controlled expert, as Illinois caselaw allows.

Since Dameron did not disclose Dr. Preston’s report, the defendants were not prejudiced by reliance on opinions they expected Dameron to present at trial. Following federal precedent, the court concluded that an expert’s opinions cannot be shielded from discovery after the expert’s report is disclosed. When only the expert’s identity has been disclosed, the party who retained the expert is free to abandon a designation of the expert as a trial witness or to redesignate the expert as a consultant.

Work Product

The defendants claimed that Dr. Preston’s report was discoverable because it did not constitute “core work product” under Illinois law. They argued that medical test results are facts, not privileged opinions that would reveal Dameron’s litigation strategy or the mental impressions of her attorney.

The court decided that the language of the Illinois rule governing consultants defeated the defendants’ argument. The rule provides: “The identity, opinions, and work product of a consultant are discoverable only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject matter by other means.” The rule’s reference to “facts or opinions” protects not just work product but generally precludes the discovery of “facts or opinions” from consulting experts.

Examining the history of the Illinois rules and corresponding federal rules, the court decided that the work product privilege and the rule limiting discovery from consulting experts are not coextensive. The policies that support shielding consultants from discovery are not identical to the policies that underlie the work product privilege. Whether a consultant’s test results are characterized as facts or opinions therefore does not determine whether they are discoverable.

The defendants made no showing that they could not obtain comparable test results through an independent medical examination. Accordingly, no exceptional circumstances existed that permitted discovery of Dr. Preston’s test results. The supreme court concluded that the trial court erred by ordering production of Dr. Preston’s report and by holding Dameron in contempt for violating the discovery order.

 

Election Experts Testify in Virginia Voter ID Case

Virginia Supreme Court Allows in Evidence of Expert’s History of Testifying as an Expert

The Supreme Court of Virginia has ruled that evidence of an expert witness’ past testimony as an expert is admissible evidence.

The Accident

In December 2015, Deborah Graves was driving her vehicle when she was hit from behind by Samantha Shoemaker. Graves experienced back, hip, and neck pain, along with increased depression and anxiety in the months following the crash. Graves sought medical care and physical therapy that cost over $26,000. Graves filed a lawsuit against Shoemaker seeking $150,000 in damages.

The Expert Witness

Shoemaker’s insurer, State Farm, hired attorney John P. Cattano to represent her in the lawsuit. Cattano retained Dr. William C. Andrews, an orthopedic surgeon who specializes in medicolegal work to testify as a defense expert witness.

Dr. Andrews reviewed Graves’ medical records and prepared an expert report. Dr. Andrews opined that much of the pain that Graves complained of after the crash was caused by preexisting conditions. Dr. Andrews also found that most of the treatment that Graves received was not medically necessary or reasonable to treat her minor injuries. State Farm paid Dr. Andrews $3,362 to issue this report.

Shoemaker’s attorney deposed Dr. Andrews and discovered that Dr. Andrews had been hired by Cattano or his firm 30 to 35 times over the past 10 to 12 years and that he only testified on behalf of a plaintiff one of those times. Dr. Andrews admitted that State Farm had paid him $793,198 for testimony he provided for their insureds from 2012 to 2018. However, he claimed that he was not aware that State Farm was the insurer until he was told at the deposition.

Trial Court

Shoemaker admitted her fault, so the case went to trial on the issue of damages only. Graves made a motion to introduce evidence of Dr. Andrews’ previous relationship with Cattano’s firm and State Farm.  After hearing arguments on the issue, the trial court allowed in evidence that Dr. Andrews had testified on behalf of Cattano’s clients 30 to 35 times in the past. She was not allowed to ask about prior work for State Farm because they were not in a “direct relationship.”

The jury returned a verdict in favor of Graves for $3,000 plus interest. Graves moved for a new trial based upon the ruling that prevented her from introducing evidence of Dr. Andrews’ previous relationship with State Farm. The court denied her motion and she appealed.

The Supreme Court of Virginia

On appeal, Graves argued that the trial court’s ruling went against the Supreme Court of Virginia’s ruling in Lombard v. Rohrbaugh, 262 Va. 484 (2001) by interpreting it to mean that a party must demonstrate a “direct relationship” between an expert and an insurance company before cross-examining the expert on previous payments from that insurance company.  The Supreme Court of Virginia agreed.

The court emphasized that its decision in Lombard only required that there be a “substantial relationship” between an insurer and an expert. The court emphasized that the central issue is not “artificial labels.” Instead, the focus should be on the potential for bias because of the witness’ interest in the case.

Here, State Farm’s past payments of nearly $800,000 to Dr. Andrews over the course of 7 years created a substantial relationship that had potential to create bias in the witness. The court ruled that Graves should have been able to introduce this evidence to the jury. The court vacated the trial court’s verdict and remanded the case for further proceedings.

 

GEICO Expert Cleared to Testify in Insurance Fraud Case

A GEICO expert has been cleared to testify in an insurance fraud case where a physician has been accused of improperly certifying certain healthcare services for payment.

The Alleged False Statements

Dr. Luis Mas is a family medicine specialist with a practice in Coral Gables, Florida. Government Employees Insurance Co., GEICO Indemnity Co., GEICO General Insurance Company, and GEICO Casualty Co. filed a suit against Dr. Mas, alleging violations of the Racketeer Influenced and Corrupt Organizations Act, the Florida Deceptive Unfair Trade Practices Act, the Florida Civil Remedies for Criminal Practices Act, common law fraud, and unjust enrichment.

Specifically, the lawsuit alleged that Dr. Mas submitted thousands of fraudulent insurance charges, misrepresented coding levels on billing statements, and changed which medical provider administered treatment on the examination reports. The lawsuit claimed that unsupervised massage therapists and physical therapist assistants performed services that were billed as doctors.

The Daubert Motion

Government Employees Insurance Co., GEICO Indemnity Co., GEICO General Insurance Company, and GEICO Casualty Co. retained Dr. James Dillard to testify on their behalf.

Dr. Mas’s defense team filed a Daubert motion seeking to exclude Dr. Dillard’s testimony.  They sought to exclude Dr. Dillard because his testimony could not be used to prove that Dr. Mas falsified any medical examinations or billing records.  Instead, Dr. Dillard opined that healthcare providers committed fraud in three ways: (1) that Dr. Mas falsified his clinical judgment on the medical necessity of the treatment protocols, (2) that Dr. Mas and others falsified the examination results for the purpose of inflating medical bills, and (3) that the therapeutic care at each facility was performed without supervision.  Dr. Mas’s attorneys argued that, under Florida law, opinions were not actionable for fraud and Dr. Dillard needed to instead rely on statements of fact to undermine Dr. Mas.

Government Employees Insurance Co., GEICO Indemnity Co., GEICO General Insurance Company, and GEICO Casualty Co. argued that Dr. Mas’s motion had no merit because it contained conclusory arguments and failed to question Dr. Dillard’s qualifications or helpfulness to the jury.

The United States District Court for the Southern District of Florida ruled that even if Dr. Mas only gave a statement of opinion, he was a person with superior knowledge on the subject and he knew or should have known from the facts in his possession that the statement of opinion was false.  Because of this, Dr. Mas fell under the exception to the Florida rule that an action for fraud generally may not be predicated on statements of opinion.

The district court noted that Dr. Mas’s motion had three weaknesses.  First, it made the assumption that Dr. Mas rendered an opinion.  Second, the motion “cherry-picked” portions of cases to support its reasoning. Third, it did not take into account that an exception could apply in this case. Based on the allegations and the evidence in Dr. Dillard’s report, an exception may apply because there is a factual dispute on Dr. Mas’s involvement with how the medical facilities handled treatment and billing records.

Accordingly, the district court denied the motion and allowed Dr. Dillard to testify.

Prison, Barbed Wire

Woman Allowed to Present Expert Testimony to Overturn Shaken Baby Conviction

A Mississippi woman who pleaded guilty in 2007 to shaking an infant to death will be allowed a hearing to argue that her life sentence should be overturned.

The Infant’s Death

On July 18, 2005, Amy Wilkerson was 29-years-old when she was caring for an 8-week infant child, Tristan Chinn.  At 2 pm on that day, Wilderson called 911 and told the authorities that Tristan had stopped breathing.

Investigators questioned Wilkerson after the boy’s injuries turned out to be consistent with those of other victims of shaken baby syndrome. Court records showed that “Wilkerson gave several conflicting accounts of the events surrounding Tristan’s death. At the hospital, Wilkerson told Tristan’s mother that Tristan had been injured while riding in the car. Wilkerson later told police detectives that Tristan’s injury occurred when he fell from the couch and hit his head. Wilkerson eventually confessed that her ‘couch story’ was false and that she had shaken Tristan to death.”

The Legal System

Wilkerson was indicted for capital murder. Wilkerson initially pled not guilty, but later entered a guilty plea for depraved-heart murder. Following her guilty plea, Wilkerson was sentenced to life in prison, with eligibility for parole after 30 years.

Three years later, Wilkerson filed a motion for post-conviction relief, arguing that her trial attorneys were ineffective. The circuit court denied her claim. Wilkerson appealed the dismissal of her motion, arguing that her guilty plea was involuntary and that her trial attorney was ineffective. The Court of Appeals of Mississippi affirmed the lower court’s decision.

The Innocence Project

Wilkerson brought her case to the Innocence Project. The Mississippi Innocence Project and the Wisconsin Innocence Project took her case.

With the help of her Innocence Project lawyers, Wilkerson argues that new evidence has arisen since the date of her trial. New scientific evidence has increasingly discredited shaken baby syndrome as a cause of death and an expert who had originally consulted on her case has been discredited.

Wilkerson’s original defense attorneys had consulted with pathologist Dr. Steven Hayne before trial. Dr. Hayne had opined that the cause of death was shaken baby syndrome. Dr. Hayne has since been discredited. In 2008, the Mississippi public safety commissioner removed Hayne from the state’s list of authorized medical examiners.

Four medical experts on Wilkerson’s legal team, two forensic pathologists, a pediatric neuropathologist, and a neuroradiologist, reviewed the records and believe that Tristan likely died from a stroke. Defense expert forensic pathologist Janice Ophoven wrote, “Tristan’s brain reflects a longstanding pathology that eventually led to collapse while in Ms. Wilkerson’s care, for reasons having nothing to do with intentional trauma.”

Wilkerson’s defense team presented this new evidence to the court. In 2018, Circuit Court Judge Dale Harkey denied Wilkerson a hearing. However, the Mississippi Court of Appeals reversed Judge Harkey’s ruling and decided to allow an evidentiary hearing in Wilkerson’s case.

At this hearing, Wilkerson will be allowed to present expert testimony showing that the infant’s brain injury happened before the baby was placed in her care and that the brain bleeding may have begun at the time of the infant’s birth.

Ethics

Lawyer Sanctioned for Intimidating Expert Witness

In an ideal world, all the players in the legal system, including judges, lawyers, and expert witnesses, would behave professionally at all times. Professional behavior includes treating other professionals with civility.

In the real world, participants in the legal system do not always bring a professional demeanor to court. A lawyer who tried to intimidate an expert witness recently learned that unprofessional behavior has consequences.

Intimidating Comments

Rudy W. Gorrell, Jr. is an attorney in Louisiana. He represented Brienne Russ in separate custody cases against the fathers of her two children. Both fathers were represented by Terrance Prout.

Prout called the same pediatric psychologist to testify as an expert witness in each case. She appeared in court three times.

On the first occasion, Gorrell approached the expert in the courtroom before she testified. Gorrell told her: “I’m coming for you”; “You’re not needed here”; “You’re not going to get on the stand”; and “I’m going to make you sit here all day.”

Before the expert testified, the hearing was continued to a new date. The expert appeared again on that date. Before the hearing started, Gorrell approached her in the courthouse parking lot and said, “I’m not sure why you’re here” and “You’re not going to testify again today.” The expert explained that she was in court because she had been subpoenaed to appear. Gorrell then said, “Well, you can’t testify to the child’s anxiety, and I am going to get you.” He added, “I don’t know why you are coming up, because we don’t need you to come up here [to testify].”

The hearing was again continued. The expert returned for the third court date. As she was sitting next to one of Prout’s clients on a bench outside the courtroom, Gorrell approached her and said, “You better stop messing with me, I will get you.”

The expert was finally able to testify at the third hearing. However, she was intimidated by Gorrell’s remarks and at times felt physically afraid of him.

Gorrell’s Explanation

At his disciplinary hearing, Gorrell denied threatening the expert or telling her she didn’t need to be present. He claimed that he merely suggested she should be on call rather than sitting around waiting to testify.

Gorrell testified that he told the expert that he disagreed with the relevance of her opinions because they were based on anxiety the children had experienced two years earlier. Why Gorrell would deem it appropriate to discuss the relevance of testimony with the witness rather than opposing counsel or the court is unclear.

Gorrell suggested that Prout’s animosity toward him accounted for the expert’s accusations. He admitted, however, that he could not think of any reason why the expert would lie about him.

Discipline Imposed

The hearing committee that considered the ethics complaint resolved the conflicting testimony in the expert’s favor. The committee concluded that Gorrell’s comments to the expert “caused her to feel intimidated and had no substantial purpose other than to delay or burden her.”

While the expert felt intimated, the hearing committee noted that Gorrell’s conduct caused no actual harm because it neither delayed the proceedings nor influenced the expert’s testimony. The committee nevertheless recognized the potential for harm. Witness intimidation can discourage witnesses from giving truthful testimony.

Intimidation can also discourage professionals from providing expert testimony in future cases. Experts who suffer abuse may decide that providing expert testimony isn’t worth the trouble.

The Louisiana Supreme Court agreed with the hearing committee. The court noted that Gorrell had no prior discipline during a long career. It therefore agreed with the committee that a public reprimand was warranted as discipline for his unprofessional conduct.

The Need for Civility

Commentators have long bemoaned the loss of civility in the legal profession. Supreme Court Justice Neil Gorsuch has argued that the loss of professional civility reflects a larger “civility crisis” in society. In Justice Gorsuch’s words, the growing tendency to shout down and insult people with whom we disagree reflects a failure to embrace the American ideals of freedom and equality. Maintaining a free society requires “treating each other as equals — as persons, with the courtesy and respect each person deserves — even when we vigorously disagree.”

The Gorrell decision should remind lawyers that the duty to provide vigorous advocacy in the courtroom does not justify an attempt to discourage an expert witness from testifying. Lawyers who disagree with an expert witness can attempt to expose flaws in the expert’s opinions through cross-examination. Confronting and attempting to intimidate an expert witness outside the courtroom is never acceptable behavior.

 

dollar bills

Expert Witness Helps Gambler Deduct Losses

People who gamble and win are required to report their winnings as income on their tax returns. Gamblers frequently attempt to offset that income by reporting their gambling losses. The IRS allows filers to report losses up to, but not in excess of, their winnings.

Gamblers sometimes try to offset winnings with losses they can’t easily substantiate. For example, a taxpayer might report $7,000 in winnings from bets placed in casinos. The taxpayer might then claim $7,000 in losses from casino betting. Significant casino winnings are documented in a W-2G form but no comparable tax form is issued to document losses.

The IRS has developed detailed recordkeeping requirements for taxpayers who want to deduct gambling losses. Taxpayers who don’t follow those rules typically learn that the IRS assumes one of two things are true: undocumented losses did not occur or undocumented losses were offset by unreported winnings.

While the IRS usually wins those disputes, a taxpayer recently made use of an expert witness to convince the Tax Court that his gambling losses exceeded his winnings. The case is a reminder that the creative use of expert witnesses can make the difference in difficult cases.

John Coleman’s Gambling

John Coleman retired in 2004. He earned a modest income after retirement from an insurance consulting business.

Coleman was a compulsive gambler. He began gambling on card games in high school. He played slot machines in Atlantic City and gambled closer to home when casinos opened in Maryland. After his retirement, he gambled more frequently.

As is true of most compulsive gamblers, Coleman’s gambling interfered with his life. He became delinquent on property taxes and utility bills. In 2019, he began treatment for a gambling disorder.

During 2014, Coleman gambled away a good bit of a $150,000 insurance settlement he had received. Four casinos gave Coleman W-2G forms that documented about $350,000 in gambling winnings. He won that money by playing slot machines. Casinos must issue a W-2G form when a gambler wins a slot machine jackpot of $1,200 or more.

Two of the casinos made no record of Coleman’s slot machine losses. Nor did those casinos keep track of Coleman’s smaller slot machine winnings that they were not required to report on W-2G forms.

At the other two casinos, Coleman sometimes signed into slot machines using player cards that the casinos issued. Those cards tracked all winnings and losses. However, Coleman did not always use those cards. Sometimes he didn’t have his card with him when he decided to enter the casino. Sometimes he stopped using the card because he thought his luck might change if he didn’t sign into a machine.

Coleman established that he regularly withdrew $2,000 to $3,000 per day from his bank account to fund his gambling. He also established that he made ATM withdrawals and received credit card advances while he was gambling.

Coleman’s Expert Witness

Coleman failed to file a 2014 tax return. After the IRS estimated his income, Coleman challenged the estimate and attempted to file a return that the IRS refused to accept. By the time the case came to tax court, the IRS agreed that Coleman’s reported income and deductions were correct in most respects. The IRS disagreed that Coleman was entitled to offset his gambling winnings with an equal amount of gambling losses.

At trial, the IRS maintained that Coleman could not prove his gambling losses because he had not kept a daily record of his losses at each casino. To overcome his poor recordkeeping, Coleman presented the expert testimony of Mark C. Nicely.

The Tax Court recognized Nicely “as an expert in mathematics, the casino gaming industry, and casino gaming equipment, particularly slot machines.” Nicely worked as a computer software engineer who specialized in algorithm development before focusing his career on the gaming industry. He has testified as an expert witness in a variety of cases that involve gambling.

Nicely made mathematical calculations of Coleman’s probable losses based on the frequency with which he gambled and the expected win percentage of the slot machines in the casinos where he gambled. He based his conclusions on the mathematical likelihood that Coleman lost more often than he won.

Slot machines in Maryland and Delaware are programmed to return 87{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} to 95{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of gamblers’ bets as winnings. A gambler might beat the odds by placing a bet, winning, and going home, but a gambler who continues to gamble on slot machines over a significant period of time is statistically destined to lose more money than the gambler will win. Based on Nicely’s calculations, the odds that Coleman could have won more than he lost over the course of 2014 were about 140 million to one.

Tax Court Decision

While noting that deductions must be supported by evidence, the court recognized that not all gamblers keep meticulous records of their losses. In the absence of those records, the Tax Court can estimate losses, but only if the estimate can be substantiated by reliable evidence.

In Coleman’s case, Nicely’s expert testimony provided that evidence. The court found that Nicely’s testimony was consistent with evidence that Coleman made substantial cash withdrawals to support his gambling habit. In addition, Coleman’s lifestyle and debt problems suggested that Coleman did not spend gambling winnings on anything other that continued gambling. The Court was satisfied that Nicely’s expert methodology confirmed that Coleman’s gambling losses offset his winnings.

Don’t Try This at Home

Coleman benefited from playing slot machines that have a fixed ratio of wins versus losses. Nicely was able to calculate Coleman’s probable losses based on that ratio. When gambling depends on skill as well as luck — poker, for example — an expert may not be able to save a taxpayer who did not keep adequate records.

Gamblers on horse racing sometimes try to claim losses by gathering losing tickets that other gamblers have discarded. Since they are so easily acquired, the IRS will not accept losing tickets as evidence of gambling losses. For the same reason, the Tax Court is unlikely to so.

Taxpayers rarely win disputes with the IRS about their gambling losses. The safest practice is to avoid disputes by keeping a daily log of money spent gambling and by supporting that log with bank records and other documentary evidence. Under some circumstances, however, the Coleman case demonstrates that expert testimony can help gamblers avoid substantial tax liability.

 

Fourth Circuit Allows Recovery of Expert Witness Fees

The Fourth Circuit Court of Appeals has allowed the recovery of expert witness fees in Maryland where a fee=shifting provision specifically used the word “fees” separately from “attorney fees.”

The Underlying Dispute

In November 2005, Lennar entered into a contract with three companies (Settlers Crossing, Washington Park Estates, and Bevard Development Company) to purchase 1,250 acres of land in Prince George’s County for $200 million. Lennar paid $20 million in deposits. Sandler, the sole owner of a seller company, personally guaranteed the return of the $20 million deposit if the seller companies breached the contract.

In 2006, Lennar asked the seller companies to renegotiate the contract because of the decline in the residential housing market. The companies agreed and in May 2007, the purchase price of the property was reduced from $200 million to $134 million. All parties agreed to a guarantee of specific performance by Lennar. During this time, the seller companies received a $100 million loan from iStar, which was partially secured by the property and the sellers’ rights under the purchase agreement.

In 2008, following a series of disputes, Lennar notified the companies that it elected to terminate the contract and demanded a refund of its $20 million deposits. The seller companies refused. During this time, the seller companies defaulted on their loan to iStar and iStar foreclosed upon the property.

The District Court Case

In July 2018, Lennar filed a lawsuit against iStar, Sandler, and the three seller companies in the United States District Court District of Maryland. Lennar alleged breach of contract, fraudulent inducement, concealment breach of environmental representations and warranties, and claim for declaratory judgement. The seller companies and iStar filed a joint counterclaim for declaratory relief and specific performance of the contract.

Following pretrial proceedings, two main issues remained for trial: (1) whether the seller companies denial of Lennar’s access to the property constituted a breach of contract; and (2) whether the seller companies had breached the environmental representations and warranties in the purchase agreement. A bench trial was held to resolve these issues.

The majority of the trial was spent on the environmental representations claim. Lennar presented three expert witnesses to testify on this issue. iStar called four experts to testify on this issue.

Following the bench trial, the district court determined that Lennar had failed to satisfy its burdens and iStar was entitled to specific performance of the contract. The district court entered judgment in favor of iStar. Lennar appealed and the Fourth Circuit affirmed the judgment.

The Fee-Shifting Agreement

Following the Fourth Circuit’s affirmance, iStar sought reimbursement of its costs, fees, and expenses in accordance with a fee shifting provision in the purchase agreement. Specifically, iStar requested $14,880,227.82 in attorneys’ fees, $656,002.12 in expert witness fees, and $553,712.56 in costs.

The relevant provision stated:

In the event of any litigation arising under or pursuant to this agreement . . .
the parties hereby agree that . . . the prevailing party in such matter shall be
entitled to recover from the non-prevailing party[] such party’s costs, fees
and expenses incurred in such litigation, including actual and reasonable
attorneys’ fees and court costs.

Lennar challenged the reasonableness of the attorneys’ fees and the entitlement to expert witness fees.

The district court determined that the plain language of the provision entitled authorized the recovery of all attorney fees, fees, and costs. Lennar contested the awarding of expert witness fees, arguing that Maryland law does now allow the recovery of expert witness fees under a fee-shifting agreement. Lennar cited two district court cases where the district court determined that the recovery of “all costs” and “expenses” did not provide for the recovery of expert witness fees.

The Fourth Circuit noted that the fee-shifting provision in this case was broader than the provision in the other cases. Here, the provision specified “attorney fees” as a separate item from “fees.” The court determined that the plain language of the contract indicated that attorney fees were only a subset of that total fees that may be recovered. Accordingly, the Fourth Circuit determined that the awarding of expert witness fees was proper.

Expert Witness

District Court Admits Expert Testimony Regarding Specific Causation in Hernia Mesh Litigation

Thousands of lawsuits against C.R. Bard allege that the company’s surgical mesh products have harmed patients. Cases involving mesh used to repair hernias have been consolidated in the Southern District of Ohio. In a recent decision, that court considered whether a surgeon’s expert testimony about specific causation should be admitted or excluded.

MDL Litigation

When similar lawsuits from around the country end up in federal court, they may be consolidated for pretrial proceedings using multidistrict litigation (MDL) procedures. Consolidation allows plaintiffs to coordinate and share discovery. It also enables a single court to resolve pretrial issues that are common to each of the individual cases. Consolidation arguably promotes the efficient and uniform determination of pretrial motions, although whether it actually does so is the subject of much debate.

Since cases are often removed from state courts that require early designation of expert witnesses, it can be difficult for an MDL judge to resolve Daubert issues efficiently. Different plaintiffs often designate different experts. While procedures vary, a plaintiffs’ steering committee will typically select expert witnesses and other plaintiffs’ lawyers will either adopt those experts or reject them and designate their own.

Experts who testify about general causation can have a far-reaching impact on pending cases. General causation is the concept that a product or substance is capable of causing harm to a patient. When a court grants summary judgment because the consolidated plaintiffs have no admissible expert evidence that a product or substance is capable of causing an alleged harm, all the plaintiffs may lose their cases.

Specific causation focuses more narrowly on opinions that pertain to each specific plaintiff. For that reason, the decision to admit or not to admit specific causation testimony might only affect a specific plaintiff, not the entire universe of plaintiffs who have been consolidated in the MDL.

Specific Causation Expert

Steven Johns is the plaintiff in the first case selected for trial in the Bard MDL. A Bard mesh was implanted in Johns to correct a hernia. Additional surgeries followed that Johns attributed to the failure of the mesh. Johns brought claims under Utah law alleging manufacturing and design defects in the mesh as well as a failure to warn of risks associated with the product.

Johns designated Dr. David Grischkan as a specific causation expert. Dr. Grischkan opined that the Bard mesh at issue caused Johns to suffer adhesions when its coating failed. The coating covers one side of the polypropylene mesh. The coating is designed to decay slowly so that the mesh will be gradually absorbed into the organ against which it is placed. That slow decay, which Bard advertised as occurring over “less than 30 days,” is intended to safeguard against the risk that the mesh will cause adhesions. The formation of adhesions may result in organs and tissues sticking together.

According to Dr. Grishkan, the coating failed to decay slowly. Instead, the mesh was rapidly absorbed into Johns’ organs, quickly exposing them to the polypropylene mesh. Dr. Grishkan noted that Bard’s own studies show that the coating can disappear in less than seven days, which is not enough time to avoid the formation of adhesions during the healing process. Dr. Grishkan’s determined that adhesions attributable to Bard’s product caused Johns’ pain and distress, leading to surgery to remove and replace the mesh.

Expert Qualifications

Bard filed a Daubert motion to exclude Dr. Grishkan’s testimony. Bard complained that Dr. Grischkan is a surgeon, not an expert in mesh design. He did not claim expertise in the chemicals used to coat the mesh that was implanted into Johns and, according to Bard, was unqualified to opine that the coating disintegrated too rapidly.

Parsing Dr. Grischkan’s proposed testimony, the court agreed that the doctor’s experience using mesh products to repair hernias did not qualify him to explain why the coating failed to perform as advertised. He had no experience using the coated product. Nor did he have experience with bioengineering or biochemistry. He could not say how the particles in the coating are broken down by the human body. His review of animal studies and other literature fell short of making him an expert on the coating used on the Bard mesh product.

The court nevertheless recognized that Dr. Grishkan did not need to explain how the coating failed to express an opinion that it failed and that the failure injured Johns. Dr. Grishkan has years of personal experience using a variety of mesh devices to repair hernias. He has personally observed the damaging effects caused by polypropylene mesh. He is capable of recognizing complications caused by mesh when he sees them. His training and experience qualified him to testify about the ways in which polypropylene mesh causes complications after its implantation.

Reliability of Expert Methodology

Dr. Grishkan performed a differential diagnosis to rule out other possible causes of Johns’ continuing medical problems. The rapid absorption of Bard’s polypropylene mesh was the only cause he could not rule out. Dr. Grishkan was qualified to make a differential diagnosis.

The court rejected Bard’s attack on the reliability of Dr. Grishkan’s differential diagnosis. Bard made no showing that Dr. Grishkan inappropriately ruled out other potential causes. Nor did Bard identify potential causes that Dr. Grishkan failed to consider. Rather, Bard complained that Dr. Grishkan “ruled in” the fast absorption of its polypropylene mesh as a potential cause of adhesions when he had no basis for doing so.

The court recognized that Dr. Grishkan relied on medical records that supported his view of the speed at which the mesh was absorbed. Surgical findings made clear that the coating failed to protect Johns’ organs from adhesions and therefore did not serve its intended purpose. Reliance on those facts to form an opinion was a reliable methodology.

Bard also complained that Dr. Grishkan improperly relied on Bard’s internal documents. The court concluded that Dr. Grishkan based his opinion largely on his experience and a review of Johns’ medical records. Experts have wide latitude to consider a variety of facts when they form opinions. The fact that Dr. Grishkan bolstered his opinion with information he found in Bard’s corporate documents did not render his methodology unreliable.

Future Pain and Medical Care

The court agreed, however, that Dr. Grishkan’s opinion about Johns’ ongoing pain and need for future surgery was speculative. Johns’ adhesions were corrected with the same Bards’ mesh. While Dr. Grishkan thought that Johns’ current pain might result from a similar failure of that product, his opinion was not based on a new medical examination. Dr. Grishkan’s opinion that similar problems likely have similar causes did not strike the court as being based on a reliable methodology.

Accordingly, the court allowed Dr. Grishkan to testify that Johns suffered from adhesions caused by the absorption of the Bard mesh and that Johns needed another surgery because the mesh was absorbed too quickly. However, the court did not allow Dr. Grishkan to testify that any problems Johns had after that surgery are related to implantation of another mesh of the same design.

Adequacy of Warnings

Dr. Grischkan also proposed to testify that Bard’s warnings were insufficient to alert doctors about the risks associated with the surgical mesh. The warnings indicate that the coating disappears in “less than 30 days.” Yet Bard’s internal documents show that that the coating can be completely absent within seven days. Dr. Grischkan opined that doctors would want to know that information before deciding whether to take the risk of implanting the product.

Dr. Grischkan’s report stated that any reasonable surgeon would understand Bard’s warning to mean that the coating would remain intact during the healing period and that implantation was therefore safe. Because that representation was contrary to experience, and because Bard’s warning failed to mention various complications that could arise from implanting the mesh, Dr. Grischkan regarded the warning as deficient.

The court concluded that Dr. Grischkan had sufficient experience with surgical mesh to testify about the warning’s adequacy. He could not testify about the adequacy of the warnings from a legal or regulatory perspective, but he could explain whether the warnings adequately disclosed risks that a surgeon would want to understand before deciding to use the product.

Police Officer Was Not Qualified to Testify as an HGN Expert

Kayin Love was charged with driving under the influence of alcohol (DUI). She appealed her conviction, contending that the arresting officer should not have been permitted to testify as an expert witness.

In an unpublished opinion, the Maryland Court of Special Appeals concluded that a police officer must be qualified as an expert to give testimony about the horizontal gaze nystagmus (HGN) test. The court ducked the issue of whether the arresting officer was an expert by concluding that the trial court did not regard the officer as an expert. The court then faulted the defense attorney — who had already objected that the officer was not qualified to testify about the HGN — for not objecting again when the officer testified about the HGN result.

Facts of the Case

Officer Robert Farmer testified that Love did not stop her vehicle behind the crosswalk of an intersection. Although she stopped before she entered the intersection, the vehicle encroached upon the crosswalk in violation of Maryland law.

Farmer detained Love and questioned her while she still in the driver’s seat. Farmer gave familiar testimony that Love had a flushed face and watery, bloodshot eyes. He asked Love if she had been drinking and she said she had one drink and one beer an hour and a half before she started driving. That quantity of alcohol in that time frame would not cause most drivers to exceed the legal limit.

A second officer arrived who apparently had more familiarity with the process of making DUI arrests. Officer William Weill provided inevitable testimony that he smelled the odor of alcohol coming from Love’s vehicle — an odor that Farmer apparently failed to detect.

Weill administered a walk-and-turn test, a one-leg stand test, and a horizontal gaze nystagmus (HGN) test to Love. Based on Love’s performance on those field sobriety tests, Weill decided he had probable cause to arrest Love for DUI.

Field Sobriety Tests

The three standardized field sobriety tests that Weill administered were developed and endorsed by the National Highway Traffic Safety Administration (NHTSA). The same contractor that developed the tests for NHTSA also validated the tests. The validation assessed the tests in controlled laboratory conditions, not as they are actually administered — on the side of road, often on an uneven surface, at night, in a variety of weather conditions. The agency’s failure to subject the tests to real-world validation and to an objective peer-review process suggest that NHTSA was more interested in helping the police justify arrests than in producing good science.

While courts routinely regard the standardized field sobriety tests as evidence that a driver has a blood alcohol content in excess of the legal limit, the tests were developed with little scientific rigor. An independent analysis of the tests found that “research that supports their use is limited, important confounding variables have not been thoroughly studied, reliability is mediocre, and that their developers and prosecution-oriented publications have oversold the tests.”

Even NHTSA agrees that the tests are not valid unless the arresting officer follows the exact procedure described in the training manual. On cross-examination, officers often reveal that they can’t recall the details of the procedure they are supposed to follow.

A larger issue arises when officers testify that the tests are valid. Officers claim the tests are valid because NHTSA says they are valid, not because the officers are familiar with the research methodologies that underlie the tests. Traffic officers simply lack the scientific knowledge and education that is required to give an expert opinion about the validity of field sobriety tests.

The HGN Test

The most doubtful of the three standardized tests is the HGN. The test assumes that a driver has a blood alcohol concentration in excess of 0.08 based on whether and when the driver’s eyes “twitch” or “jerk” while following a pen or some other object.

All eyes twitch (that is, they all show nystagmus) when people move their eyes as far as they can to the left or right. According to NHTSA, there is a correlation between an unlawful blood alcohol concentration and the onset of twitching before the eyes reach a 45-degree angle as they move to the left or right.

Unfortunately, eyes might twitch for dozens of other reasons, particularly if the driver is facing oncoming headlights or gazing in the direction of the police car’s flashing red-and-blue lights. Perhaps more problematic is that the validity of the test result depends on the officer’s accurate determination of whether the driver’s eyes have reached a 45-degree angle. Since officers do not carry a protractor in their tool belts, their estimates are unverifiable and may be wholly unreliable.

Even when the officer performs the HGN perfectly, NHTSA found that the test produces an inaccurate result 22{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the time. Other researchers have determined that nystagmus may appear before the eyes reach a 45-degree angle in drivers who are well under the legal limit. Given the frequent reliance on HGN results as trial evidence, whether a test that is so prone to error meets the reliability standard of Daubert is an important question.

Weill’s Expert Testimony

At Love’s trial, Weill testified that he had “specialized training in alcohol-related offenses,” consisting of the 40-hour course that most police officers take before they are assigned to traffic duty. He also testified that he had made a large number of DUI arrests, although that testimony sheds little light on whether he conducted field sobriety tests correctly before he made the arrests.

Courts commonly hold that police officers can testify about HGN results if they have been “trained.” Yet the training only teaches officers how to administer the test. Whether the test itself satisfies the Daubert requirement that expert evidence must be based on sufficient facts and a sound methodology is not the subject of law enforcement training. Learning how to administer a test is not the same as learning whether the test has a sound scientific basis.

When Weill testified that he performed an HGN test on Love, defense counsel objected that Weill was not qualified to testify as an expert witness regarding the validity or interpretation of HGN test results. The prosecutor initially indicated that Weill would not be asked to testify about the HGN results but proffered Weill as an expert on the other two field sobriety tests. After a confusing colloquy, the court agreed that Weill was an expert on the strength of his testimony that he had been “trained.” Weill then testified about the HGN test result.

The appellate court acknowledged that Maryland precedent requires an expert witness to testify about HGN results. Weill was clearly not an expert. The appellate court overcame that obstacle by deciding that the trial court did not actually intend to qualify Weill “as an expert regarding the HGN test.”

The appellate court concluded that Love’s objection — “the State had failed to lay a sufficient foundation to qualify Officer Weill as expert with respect to the standard field sobriety tests” — did not address Weill’s testimony about the HGN test because the prosecutor claimed that Weill would not testify as an expert regarding that test. According to the appellate court, when the trial court ruled that Weill could testify as an expert, the ruling only applied to Weill’s testimony regarding the other two field sobriety tests. Because defense counsel did not object to Weill’s lay testimony about the HGN results — testimony that was plainly improper under Maryland law — she failed to preserve the issue for appeal.

Lessons Learned

Courts often bend over backwards to preserve DUI convictions. This appears to be one of those cases. The prosecutor clearly understood that the trial judge had agreed that Weill could testify as an expert regarding the HGN. Since the admissibility of an HGN result depends on a foundation of expert testimony, it would have been improper for the prosecutor to try to place the test results before the jury through lay testimony. It seems disingenuous to conclude that the trial judge and parties did not believe that Weill was testifying as an expert. Since there was no evidence of his expertise, the testimony should not have been allowed.

It is always problematic when police officers testify as expert witnesses. It is even more problematic when an officer testifies as an expert to support the officer’s own decision to make an arrest. The testimony is inevitably self-serving and rarely helpful to the jury. While defense attorneys should always object to police officers who testify as expert witnesses, Love’s case is a reminder that those objections should be lodged against every question that asks an officer to give testimony that only an expert witness is qualified to provide.