Category Archives: General


Expert’s Demonstrative Exhibit Held Inadmissible Because It Was Based on Speculation Rather Than Science

Douglas Shaneyfelt was driving at night on a state highway in Ohio. Robert Byram was backing his tractor-trailer into his driveway. Byram’s vehicle was blocking both lanes of traffic when Shaneyfelt began braking. His pickup truck slammed into the side of Byram’s vehicle.

Byram contended that he was not negligent because he checked the road for oncoming traffic and saw none before he began to back into his driveway. Byram broke no law. Whether it is prudent for a trucker to back into a driveway from a highway at night was a question for the jury. The jury found in favor of Byram.

Shaneyfelt moved for a new trial, contending that he was prejudiced by the computer-simulated images that Byram’s expert witness used as demonstrative evidence. The trial court agreed and granted the motion for a new trial. The Ohio Court of Appeals held that the exhibit was inadmissible but reversed the order for a new trial after finding that the exhibit was not prejudicial.

Demonstrative Evidence

Byram called Ashley Dunn as an accident reconstruction expert. Dunn prepared three computer-simulated images to show how Byram’s truck would have appeared to Shaneyfelt at a distance of 600 feet, 400 feet, and 250 feet.

Shaneyfelt complained that the images were not produced in discovery but were only disclosed four days before trial. The trial court agreed with Shaneyfelt that the untimely production of the images violated the court’s discovery order.

The trial court nevertheless concluded that under Ohio law, discovery violations should not result in the exclusion of evidence unless the violation caused material prejudice to the opposing party. To determine whether the violation was prejudicial, the court allowed the expert to testify, subject to cross-examination.

After the trial, the court determined that the demonstrative exhibits were inadmissible because there was no evidence that they accurately represented Shaneyfelt’s view of the accident. Specifically, Dunn did not measure the brightness of the lights and reflectors on Byram’s tractor-trailer or the brightness of Shaneyfelt’s headlights. Without making that measurement, Dunn could only hazard a guess about how the scene might have appeared to Shaneyfelt.

The court reasoned that Dunn’s demonstrative evidence was “speculative and void of case-specific facts.” Because Dunn’s testimony misrepresented the exhibits as depicting an accurate view of the scene when he could not have known whether the exhibits were accurate, the testimony and related exhibits were prejudicial.

The trial court noted that Byram took a chance by producing the exhibits after the discovery deadline. The court granted a new trial and barred Byram from calling Dunn, or anyone in Dunn’s firm, as an expert witness in further proceedings. Byram appealed.

Appellate Analysis

In the absence of any measurement of headlight brightness, it was impossible to make a demonstrative exhibit that accurately displayed the scene as Shaneyfelt would have seen it. While Dunn relied on industry standards and studies to determine how bright the scene might have been, it is common knowledge that headlights do not always meet industry standards.

Bulbs tend to produce less light as they get older. Perhaps more importantly, dirty or cloudy headlight coverings reduce the brightness of headlights. No assumptions about industry standards can take the place of actual facts when preparing demonstrative evidence.

The court of appeals agreed with Shaneyfelt that the pdf exhibit he received four days before trial differed from the 40” by 30” exhibit that was displayed to the jury. The brightness of the lights in the trial exhibit had been enhanced.

Byram contended that the difference was caused by brightness settings on the printer used to print the pdf. However, the trial exhibit had a car dashboard superimposed over the simulated view that was missing from the pdf. The trial exhibit was obviously not the same exhibit disclosed to Shaneyfelt.

Regardless of the belated pretrial disclosure, the court of appeals agreed that the trial exhibit was inadmissible. Because Dunn did not measure the brightness of the lights shown on the exhibit, the representation of Shaneyfelt’s alleged view was based on speculation, not fact.

The appellate court nevertheless concluded that the improper exhibit was not prejudicial. The court found no evidence in the record that Byram’s decision to back a tractor-trailer into a driveway at night was negligent. The court noted that Shaneyfelt’s own expert agreed that Shaneyfelt’s headlines should have illuminated the truck when Shaneyfelt was 288 feet from the truck. The expert calculated stopping distances and concluded that, if Shaneyfelt had slammed on his brakes at the moment the truck became visible, he could have narrowly avoided the collision.

Lessons Learned

If the trial judge had excluded the exhibit before the jury saw it, there would be no need to guess about the verdict the jury might have returned if it had not been exposed to inadmissible evidence. That is what the judge should have done, although it is not clear that Shaneyfelt objected to the expert’s methodology (as opposed to the belated disclosure) prior to trial.

Demonstrative evidence can be a persuasive tool at trial. Images embed themselves in the minds of jurors more effectively than words. Experts may therefore provide a valuable service for lawyers when they prepare demonstrative exhibits.

But exhibits are evidence, and when they are prepared by experts, they are subject to the same rules of admissibility as other expert evidence. Demonstrative exhibits should have a basis in fact and should reflect the expert’s application of a reasonable methodology.

An exhibit that recreates an accident may be persuasive when an accident reconstruction engineer relies on physics and math to recreate an accident scene. An exhibit that is based on a guess as to how the accident scene might have appeared has no value at all. To assure that demonstrative exhibits are admissible, experts should use the same care when preparing exhibits that they use when preparing reports and formulating opinions.


Statue of justice

Conviction Reversed Because Expert Witness Vouched for Credibility of Accuser

Appellate courts continue to reverse convictions when prosecutors use expert witnesses to vouch for the credibility of alleged victims. Credibility is for the jury to decide and no reasonable methodology allows an expert to determine whether another witness is telling the truth.

Richard Hopkins was charged in Michigan with multiple counts of having sexual contact with two minors. Hopkins rented property to the alleged victims’ mother, who agreed that Hopkins should babysit her daughters while she was working.

In addition to describing incidents of sexual touching, the alleged victims testified that they watched a pornographic movie at Hopkins’ residence and saw pictures of intimate body parts while scrolling through photos that were stored on his computer. One of the girls said she told their mother about the sexual contact, but the mother testified that she first heard about it from social services.

The testimony of the children, if believed, would have been sufficient to support the prosecution’s case. The prosecution nevertheless tried to bolster its case by using two expert witnesses for the improper purpose of vouching for the child witnesses. The Michigan Court of Appeals reversed Hopkins’ convictions because the prosecution’s strategy deprived him of a fair trial.

Vouching Testimony Regarding Credibility of Alleged Victims

Cynthia Bridgman testified for the prosecution as “an expert in the field of child abuse and therapy.” Bridgman is a therapist who provided therapy to the two alleged victims.

Bridgman claimed that “children’s statements are often labeled as inconsistent or not credible when, actually, they’re very credible.” She then testified that “research on credibility shows that kids rarely make up abuse allegations.”

Hopkins’ lawyer objected that Bridgman was vouching for the credibility of the accusers. The trial court permitted the testimony because it was based on studies regarding the truthfulness of children generally and not the truthfulness of the alleged victims.

The appellate court concluded that the trial court erred. The prosecution’s evidence essentially told the jury that children rarely lie about sexual abuse and that the jury should therefore believe the stories told by the alleged victims.

Research shows that adults have about a 50-50 chance of determining whether a child is lying. Studies that purport to measure how often children fabricate stories of sexual assault are inherently suspect because researchers have no way of knowing whether the stories are fabricated. The court, however, did not address the expert’s reliance on what might be “junk science” in forming her opinions, since the opinions amounted to inadmissible vouching for the credibility of the alleged victims.

Vouching Testimony Regarding Interview Techniques

Brooke Rospierski testified as an expert in forensic interviewing and disclosure of sexual abuse in children. Psychologists are sometimes called as defense experts to explain how improper interviewing techniques can induce children to say what they think the interviewer wants to hear, whether or not it is true.

In this case, however, the expert was called by the prosecution. Rospierski did not confine herself to testifying about interviewing techniques but testified that she saw no “red flags” that would cause her to believe that “either child was coached or pressured to fabricate any allegations.”

In some states, that kind of testimony would be admissible to rebut a defense expert’s testimony that the statements made by children could have been produced by improper interview techniques. In this case, since the prosecution called Rospierski before the defense presented its case, her testimony had no purpose other than to bolster the credibility of the accusers.

The court concluded that Michigan law precludes an expert from testifying that a child has not been coached by interviewers if that testimony sends a signal that the child was telling the truth. The line between commenting on interview techniques and vouching for the veracity of a child’s statement is a fine one, but the Court of Appeals decided that the expert’s testimony crossed that line.


Expert Testimony About the Value of a Statistical Life Rejected by Federal Court in Montana

The United States District Court for the District of Montana recently confronted an ongoing controversy in the measurement of wrongful death compensation. While different jurisdictions apply different standards for the compensation of wrongful death plaintiffs, a recurring question is whether damages should include the value of a statistical life. The district court decided that expert testimony regarding the damages was inadmissible.

Facts of the Case

Johnny Gibson was experiencing chest pain, heartburn, pressure between his shoulder blades, and fatigue. He was evaluated by Kimberlee Decker, a nurse practitioner at the federally funded Central Montana Community Health Center (“CMCHC”).

Decker referred Gibson for an ultrasound of his gall bladder. She did not order a heart workup, an EKG, or a stress test. Nor do the medical records suggest that she considered a heart problem as the cause of Gibson’s symptoms.

About a week later, Gibson had a heart attack. He died in surgery. The federal government, which employed Gibson, conceded her negligent deviation from the appropriate standard of care for a patient presenting with Gibson’s symptoms.

Gibson’s wife, children, and estate brought a wrongful death claim under federal law based on medical malpractice. Liability was not contested. The issues at trial involved the damages that the government should pay.

Damages Experts

Gibson’s wife testified that Gibson earned between $10,000 and $25,000 per year as a ranch worker and painter. He was often paid in cash or in-kind services (such as free lodging and hunting privileges) that was not reflected on tax returns.

The plaintiffs called Dr. Ann Adair, an Associate Professor of Economics, as an expert witness regarding damages. Gibson was about 63 years old when he died. Adair testified that Gibson would have worked another 4 years. Based on average earnings of Montana farm workers, she calculated his lost earning capacity to be about $150,000.

Sean Black, a CPA, testified as an expert for the government. He calculated lost earning capacity of about $17,000 based on Gibson’s reported earnings prior to his death.

The court accepted the testimony that Gibson’s earnings included unreported income, making Black’s calculation inaccurate. After finding Adair’s methodology to be reliable, the court accepted Adair’s estimate as the most reasonable approximation of lost earning capacity. The court also accepted Adair’s undisputed estimate that the lost value of household services that Gibson provided to his family was about $144,000.

Based on the testimony of Gibson’s cardiac surgeon and family members, the court found that Gibson experienced pain and suffering before his surgery. The court concluded that Gibson would have needed similar surgery and would have experienced similar symptoms even in the absence of medical malpractice. The court awarded only $10,000 for pain and suffering attributable to the failure to diagnose Gibson’s heart condition.

Value of a Statistical Life

The primary disagreement among the experts was whether the plaintiffs were entitled to compensation for the value of a statistical life, in addition to lost earning capacity. The value of a statistical life is not the value of a life, which is incalculable, but the value of reducing risks to life.

Adair testified that the value of a statistical life can be measured under either the revealed preference or stated preference theory. The revealed preference theory measures the extra compensation that workers require to take substantially more dangerous jobs or the amount people are willing to pay for insurance, safety gear, and safer products. The stated preference theory imputes a value from studies that ask individuals what they would do to avoid certain risks.

Adair calculated the value of a statistical life according to guidance provided by the United States Department of Transportation and by the Environmental Protection Agency. The Transportation Department methodology resulted in a value of $9.6 million while the EPA methodology resulted in a value of $7.4 million without adjusting for inflation.

The district court noted that many federal courts “have expressed skepticism” about basing wrongful death damages on the value of a statistical life. Government agencies value a statistical life for the purpose of making cost-benefit decisions about safety measures (such as pollution reduction technology) that reduce the risk of death. The court concluded that the government’s decision-making tools do not provide a reasonable or reliable measurement of damages for a wrongful death. Making a Daubert ruling, the court accordingly disregarded Dr. Adair’s testimony regarding the value of a statistical life.

The court did not explain why Dr. Adair’s methodology was unreliable. It seemed to decide as a policy matter that the value of a statistical life cannot be awarded as damages in a wrongful death case. Curiously, it did so without considering whether controlling law — in this case, Montana state law — would permit an award of damages for the value of a statistical life. Other federal courts might reach a different decision about the reasonableness of an expert’s opinion concerning the value of a statistical life, depending on state court precedent regarding wrongful death damages.


Expert Witness Report Alleges Negligence in Prison Death

Expert Opinions Offered in Support of Challenges to Death Penalty Protocols

Public opinion about the death penalty has been shifting since the mid-1990s, as DNA testing and other evidence has revealed the frequency with which innocent defendants are sent to death row. Opinions have also been swayed by the realization that the death penalty is administered arbitrarily, with race often proving to be a critical factor as courts decide who should live and who should die.

Colorado recently became the latest of 22 states to reject the death penalty. The governors of three other states have imposed a moratorium on executions. States that maintain a death penalty have turned to experts in an effort to determine whether executions can be carried out in a way that does not torture the condemned prisoner.

Expert Testimony in Death Penalty Challenge

Experts continue to inform the ongoing death penalty debate. Last year, expert testimony in Ohio persuaded a federal court that Ohio’s method of executing prisoners was likely to cause extreme pain. The court relied on the testimony of several expert witnesses to support its conclusion.

Ohio’s lethal injection protocol begins with an injection of midazolam, a sedative that, in the administered dose, can make it extraordinarily difficult for an inmate to breathe. Inmates next receive a paralytic drug to prevent them from moving, followed by potassium chloride, which stops the heart.

Warren Henness, among other inmates, challenged the three-drug protocol. He argued that the paralytic makes it impossible to alert the authorities to the extreme pain caused by the drugs. He contended that midazolam causes extraordinary pain and does not shield inmates from feeling that pain before they die.

Henness supported his challenge with testimony from five expert witnesses, including a neuropathologist, a pulmonologist, a pharmacologist, a professor of anesthesiology who is also certified as a clinical pharmacologist, and an anesthesiologist who is certified in pain management. Each expert had impressive credentials.

The magistrate judge who heard Henness’ challenge excluded a government expert witness who, in this and other cases, had failed to produce an expert report containing the information required by federal law. The court rejected a Daubert challenge to another witness for the state, while expressing doubt that the expert’s opinion was entitled to significant weight.

Another government witness was excluded prior to trial because he had published little relevant research and was largely repeating the opinions of other experts. In addition, the minimal research that he had performed contradicted the opinions that the state wanted him to offer in court.

Court’s Analysis of Expert Evidence

Based on the expert testimony, the magistrate judge found that the second and third drugs cause excruciating pain, a finding the state did not contest. The magistrate judge also found that midazolam does not block the pain caused by the injection of the second and third drugs. An inmate who is sedated by midazolam is not unconscious and, as multiple lay witnesses at executions have observed, is capable of experiencing severe pain.

Midazolam, in the dosage given by the state, is also likely to cause pulmonary edema, an extremely painful condition that causes airways in the lungs to fill with fluids, creating the sensation of drowning. In other words, Ohio’s execution protocol is akin to waterboarding, a form of torture. In fact, the experts explained, it is worse than waterboarding because the sensation of drowning is accompanied by excruciating pain as chemicals cause the inmate to feel like fire is flowing through the inmate’s veins.

In light of Supreme Court precedent, the magistrate judge declined to halt Henness’ execution because he was unable to demonstrate that Ohio had the ability to kill him more humanely. On appeal, in a remarkably cursory opinion that essentially ignored expert evidence that the magistrate judge carefully parsed, the Sixth Circuit determined that a pulmonary edema is not sufficiently painful to create the “needless suffering” that violates the constitutional safeguard against cruel and unusual punishment. One wonders whether a judge who actually experienced a pulmonary edema might express such a callous opinion.

The Sixth Circuit’s opinion has been justly criticized for elevating “junk science” above expert evidence that was accepted by the trier of fact. By underplaying the extent of the suffering caused by the execution protocol, the Sixth Circuit is permitting what well qualified experts regard as death by torture — exactly the kind of cruel and unusual punishment that the Eighth Amendment forbids.

Expert Opinions Sway the Governor

Based on the expert testimony, Ohio Gov. Mike DeWine granted a temporary stay of Henness’ execution. The governor ordered a review of the state’s execution protocol, with a view to replacing midazolam with a drug that would not cause pain and that would prevent the inmate from feeling the pain caused by the remaining drugs.

When Gov. DeWine was told that no such drug could be identified, he asked the Ohio Department of Rehabilitation and Correction whether other methods of execution would be less painful. That review is apparently still underway. Henness’ execution has been rescheduled three times and is currently set to occur May 14, 2020. The governor postponed other executions and has not yet decided when and whether Ohio executions will resume.

Some other states have abandoned execution protocols that use midazolam. Fearing an agonizing death, Tennessee inmates have chosen electrocution over the administration of midazolam. Most states, however, do not give condemned prisoners a choice of execution methods. Whether Tennessee, Ohio, and other states that still use midazolam in executions will eventually hear the voices of expert witnesses remain to be seen.


Growing Trend of Using Rap Lyrics as Evidence in Court

An expert on hip-hop culture has noted an uptick in the trend of prosecutors using rap lyrics and videos as evidence of guilt.

The Shooting Death

On December 10, 2016, shots were fired at a “Naughty or Nice Pajama Jam” party being held in the warehouse district of Carson in the Los Angeles area. A 24-year-old partygoer, Davion Gregory, was shot five times. Gregory was brought to the Harbor-UCLA Medical Center and pronounced dead on arrival. Two other people were wounded in the shooting: Travis Harvey-Broome and Kwentin Polk.

Investigators found shell casings from a .40-caliber Glock and a .38 revolver at the scene. There was no video footage of the shooting and no one could identify the shooters. L.A. County sheriff detectives Francis Hardiman and Richard Biddle visited Harvey-Broome and Polk at the hospital, who described seeing a “light-skinned black guy with braids or dreads” in the parking lot, vaguely remembering seeing a black Mercedes SUV and red Mustang or Benz.

Approximately one week later, Hardiman heard the name “Drakeo the Ruler” on a wiretap in an unrelated gang case. Detective Hardiman alleges that he spoke to the victim’s family about Drakeo and they told him that they had also heard rumors about Drakeo being involved with the shooting. This led to an investigation into Darrell Caldwell, a rapper who goes by the name, Drakeo The Ruler.

Darrell Caldwell/Drakeo’s Trial

Drakeo was eventually charged with murder, attempted murder, felony gun possession by a felon, and criminal gang conspiracy in connection with the shooting death of a Davion Gregory.

Drakeo was acquitted of all charges of murder and attempted murder and convicted on a charge of felony gun possession by a felon. The jury was hung on the count of criminal street gang conspiracy. The prosecutors’ theory behind this charge is that Drakeo had ordered the shooter to kill a musical rival, “RJ,” but the shooting was botched and Gregory was killed. As evidence, prosecutors cited a line from Drakeo’s song “Flex Freestyle,” in which he raps, “I’m ridin’ round town with a Tommy gun and a Jag / And you can disregard the yelling, RJ tied up in the back.”

Hip-Hop Culture Expert

Drakeo’s defense attorneys called Erik Nielson to testify as an expert witness in Drakeo’s first trial. Nielson is an Associate Professor of Liberal Arts at the University of Richmond. His research is focused on African American literary and musical traditions with an emphasis on hip-hop culture. Nielson has co-authored two books on the topic, The Hip Hop & Obama Reader and Rap on Trial: Race, Lyrics, and Guilt in America. He is also the author of numerous academic articles, chapters, reviews, and feature articles on the topic.

Nielson has estimated that he has been asked to consult on over 60 cases where prosecutors have introduced rap lyrics or videos as evidence of guilt. Nielson also conducted research with University of Georgia law professor Andrea Dennis that reveals over 500 instances of prosecutors using this tactic.

Nielson explained that the role that he plays at criminal trials is correcting prosecutorial mischaracterizations of rap music. He noted that prosecutors “routinely ignore the fact that rap is a form of artistic expression – with stage names, an emphasis on figurative language and hyperbolic rhetoric – and instead present rap as autobiographical.”

Nielson further explained that this practice is effectively asking “jurors to suspend the distinction between author and narrator, reality and fiction, and to read rap lyrics as literal confessions of guilt. No other art form is exploited like this in court. And yet it’s an effective strategy precisely because it taps into stereotypes about rap music and the young men of color who are its primary creators.”

In Nielson’s opinion, introducing rap lyrics as evidence in criminal trials can be highly prejudicial because it allows prosecutors “to draw on stereotypes about young black and Latino men as violent, hypersexual and dangerous.”

Drakeo is set to be retried on the criminal gang conspiracy charge. If convicted, he faces life in prison.



Are You Thinking About Becoming an Expert Witness?

In this time of economic uncertainty, a part-time gig as an expert witness might provide helpful supplementary income. Almost anyone who has knowledge or training in a specialized field that exceeds the knowledge of most people has the potential to be an expert witness. At the same time, some people are more suited for the role of expert witness than others.

Individuals with degrees in engineering, accounting, psychology, and a variety of scientific disciplines regularly appear as expert witnesses. They explain or refute the economic and emotional losses claimed by plaintiffs. They analyze the likelihood that a defendant’s conduct did or didn’t harm a plaintiff. Medical experts testify about the nature and degree of injuries or disabilities.

In intellectual property cases, experts explain how a new invention or song is similar to or different from a patented invention or a copyrighted song. Experts in real estate valuation offer opinions about the value of real property. Experts in all kinds of personal property, from classic cars to comic book collections, offer opinions about the value of property that has been lost or damaged.

In criminal cases, expert witnesses who are employed by the government offer forensic or “criminalistics” testimony. The criminal defense bar hires experts to refute that testimony, often by pointing out the uncertain foundations upon which it is built.

Would You Be a Good Expert?

Not every field of expertise requires a degree. An auto mechanic who has serviced cars for many years might be well qualified to explain that a brake failure was the likely cause of an accident. An experienced roofer is well positioned to explain the cause of a leaky roof in a newly purchased home.

On the other hand, people often consider themselves to be experts despite having little more knowledge in a field than the average person. When experts in a field typically have specialized training, a court is unlikely to regard an expert as qualified in that field unless the expert can prove that he or she has the same training or experience that other members of the field commonly possess. Things do not go well for purported experts who try to fool a court by falsifying their credentials.

While specialized knowledge is essential, an expert witness must also be able to express that knowledge, both in writing and in testimony. In federal cases and in many state courts, a retained expert must prepare a written report. A witness who cannot prepare a report that states and supports opinions in clear language will have difficulty finding work.

Expert witnesses are often called upon to testify in depositions. Since most cases settle, they less frequently testify in court, but experts are sometimes called upon to give trial testimony. People who are nervous about speaking in front of a small group of people might not be good trial witnesses. People who are short-tempered or impatient will not respond well to cross-examination. Good expert witnesses have the ability to think on their feet, to answer complex questions in language that juries can understand, and to earn the respect of lawyers, judges, and juries by giving honest answers to difficult questions.

Expert Witnesses Are Not Hired Guns

Advocacy organizations that complain about “judicial hellholes” have tried to undermine the credibility of retained experts. To make it harder for plaintiffs to prevail in lawsuits against insurance companies and corporations, they have tried to spread the message that experts are “hired guns” who will say anything in exchange for a paycheck.

The truth is that most expert witnesses give honest opinions, whether they have been hired by a plaintiff or a defendant. They analyze the facts and arrive at conclusions that are supported by the evidence. While they are conscious of the goals a client hopes to achieve, they do not bend the truth to help a client win a case.

Experts who are “hired guns” in the sense that they offer unsupported or irrational opinions quickly lose credibility in the legal community. They become vulnerable to cross-examination. They risk having a judge reject their reports and bar their testimony because they offer opinions that no jury could regard as reasonable.

While expert witnesses can and should earn income by providing services to lawyers and their clients, the best motivation to become an expert witness is a desire to help jurors understand the facts of a case. Honest and ethical experts can enjoy a long and fruitful career as expert witnesses.

Only an Expert Can Testify that a Patented Invention Was Obvious

One defense to a patent infringement lawsuit is that the patent should not have been granted because the patented invention is based on an obvious modification of existing ideas. The issue in HVLPO2, LLC v. Oxygen Frog, LLC was whether a lay witness could testify about the obviousness of an invention. The Court of Appeals for the Federal Circuit ruled that expert testimony is often required to establish obviousness.

Facts of the Case

The two patents at issue involved a device that manages the flow of oxygen gas mixtures to torches used by glass artists. There was no question that Oxygen Frog infringed two patents held by HVLP02. The only question at trial was whether the device used a method for controlling the flow of oxygen that would have been obvious to a person with ordinary skill in the field in light of existing ideas and technology.

To establish that the technology underlying the patents was a matter of public knowledge before the patents were issued, Oxygen Frog pointed to a blog post on a glass blowing internet forum that described an oxygen system. That system was similar to the patented device, but it involved a single circuit while the patented device used two circuits, one to provide power to oxygen generators and the second to provide power to an air compressor.

Oxygen Frog also pointed to a video that was posted online by Tyler Piedbes, a glass blowing artist. Oxygen Frog deposed Piedbes and played most of the deposition for the jury. Oxygen Frog did not offer Piedbes as an expert witness.

Piedbes was asked whether he thought adding a second circuit to the oxygen system described online was an obvious modification. HVLPO2 objected that Piedbes was not offering admissible lay testimony because an opinion about obviousness could only be provided by an expert witness. The trial judge overruled the objection and Piedbes answered “yes.”

The court instructed the jury that Piedbes could offer an opinion as to whether the modification “would occur to him from his perspective” and whether the modification was obvious. The court also instructed the jury that it was to make its own determination of obviousness.

The jury decided the obviousness question in favor of Oxygen Frog. HVLPO2 appealed. It contended on appeal that Piedbes’ testimony was inadmissible because he did not testify as an expert.

Appellate Opinion

Obviousness is not analyzed from the perspective of an ordinary person. Rather, the question is whether the patented invention modified an existing invention or technology in a way that would have been obvious to a person of ordinary skill in the relevant field (“a person of skill in the art,” in the language of patent law).

The Court of Appeals noted that it “is often helpful to have a technical expert explain, for example, the scope of the prior art or motivations for combining various components.” That explanation cannot typically be provided by a lay witness, because explanations of facts that are beyond the knowledge of ordinary jurors can only be made by expert witnesses. A person who is not an expert in the relevant “art” cannot usually assist the jury’s determination of obviousness.

Priebes might have been an expert, but he did not testify as an expert. He was not disclosed as an expert witness and did not prepare an expert report. The appellate court rejected the argument that Priebes was entitled to provide lay testimony about obvious modifications of oxygen system that had been described online. That testimony was “the province of qualified experts, not lay witnesses.”

Oxygen Frog argued that Priebes’ testimony, even if inadmissible, did not harm HVLPO2. Of course, Oxygen Frog only called Priebes as a witness because it hoped his testimony would influence the outcome. The Court of Appeals noted that the jury may have relied entirely on Priebes’ testimony when it decided the question of obviousness.

The trial court’s limiting instruction did not cure the error because it expressly allowed the jury to consider Priebes’ inadmissible opinion. In addition, HVLPO2 could not make a Daubert challenge to test the reliability of Priebes’ testimony since Priebes was not designated as an expert. Under those circumstances, the failure to designate Priebes as an expert could not be dismissed as harmless error. HVLP02 was therefore entitled to a new trial.


Expert Witness in Criminal Case

Expert Opinion in Patent Case Rejected as Conclusory

TQ Delta owns patents for technology that reduces the power consumed by certain systems that transmit electronic signals, including DSL systems. The technology reduces the probability of data loss that must otherwise be addressed with costly equipment.

Several providers of communications equipment or services, including Cisco Systems, Verizon, Time Warner Cable, and Dish Network (collectively “Cisco”), challenged the patents. They contended that TQ Delta’s technology was not original and thus could not be patented. Rather, they contended that knowledge publicly available prior to the patents made the TQ Delta technology obvious to anyone with ordinary skill in the field of signal transmission. To defeat the patent, Cisco also needed to prove that a person with knowledge would have been motivated to create the same technology.

The challenge was filed with the United States Patent and Trademark Office (PTO). Relying on expert testimony offered by Cisco, the PTO agreed that the patents were not valid. The Court of Appeals for the Federal Circuit held that the PTO erred by relying on expert testimony that the appellate court regarded as conclusory.

Cisco’s Expert Testimony

Administrative agency decisions must be affirmed if they are supported by substantial evidence. A decision is supported by substantial evidence if a reasonable factfinder could reach the same conclusion based on the evidence before the agency.

Expert opinions can provide substantial evidence, but only if the opinions are not conclusory. Rather, the expert’s opinion must be supported by reasoning that takes account of relevant facts. An unexplained opinion does not constitute substantial evidence to support an agency’s conclusion.

Cisco relied on the expert opinion of Dr. Jose Tellado. Dr. Tellado identified technology that was similar to TQ Delta’s and opined that a person with ordinary skill in the same field would have recognized that using that technology to solve the transmission problem in the way patented by TQ Delta “would have been a relatively simple and obvious solution.”

The appellate court concluded that Dr. Tellado provided an insufficient link between existing technology and the adaptation of that technology patented by TQ Delta. Dr. Tellado did not explain why the adaptation of the technology would have been “relatively simple.” Nor did he explain his “unsupported and conclusory” assertion that a person with ordinary skill in the field would have been motivated to make the patented adaptation at the time the patent was obtained.

The fact that another inventor could have created the same invention does not prove that the other inventor would have been done so in the same way as the patented invention. Dr. Tellado’s conclusory declaration therefore failed to provide substantial evidence to support the PTO’s decision that the patented technology was obvious. For that reason, the appellate court reversed the decision.

Lessons Learned

What may seem like a logical conclusion to an expert might be regarded as a conclusory opinion to an appellate court. Dr. Tellado needed to explain why an ordinarily skilled inventor would recognize a solution to a problem offered by existing technology and why that inventor would implement the solution in the same way it was implemented by the inventor of the patented technology. That is a daunting task.

Dr. Tellado and Cisco’s lawyers undoubtedly viewed his opinion as more than conclusory. The appellate court’s decision should encourage experts in patent litigation to justify the conclusion that an ordinary inventor would see patented technology as an obvious solution to a problem. Experts cannot work with the benefit of hindsight — the fact that one inventor devised a solution to a problem does not establish that other inventors at the time would have regarded the solution as obvious — but must offer a detailed explanation of the way in which existing technology made the adaptation of that technology in the patented invention an obvious solution to a problem.

An expert who says too much in a report might create fodder for cross-examination, but an expert who says too little risks having an opinion labeled as “conclusory.” The TQ Delta decision sends the message that the more explanation an expert provides, the less likely it is that the expert’s opinion will be dismissed as unhelpful.


side view of empty hospital bed

Mississippi Rejects Standard of Care Expert Testimony

Mary Thomas sought medical assistance for extreme back pain. A doctor diagnosed severe spinal cord compression. Two days later, she consulted with Dr. Adam Lewis, a neurosurgeon, who recommended surgery to fuse her cervical vertebrae.

After Dr. Lewis performed the surgery, Thomas suffered from quadriparesis, a condition characterized by weakness, but not complete paralysis, in all four limbs. Dr. Lewis performed a second surgery in an effort to relieve the condition, but the effort failed to restore full functionality to her arms and legs.

Thomas sued Dr. Lewis for malpractice. Thomas alleged that Dr. Lewis failed to manage her blood pressure, negligently allowing it to drop during the first surgery. She contended that a drop in her arterial blood pressure caused her quadriparesis. She also alleged that Dr. Lewis’ decision to perform the second surgery was negligent.

Standard of Care Evidence

Thomas based her proof on the expert testimony of a neurosurgeon, Dr. Neil Wright. Dr. Wright identified the appropriate standard of care and testified that Dr. Lewis departed from that standard.

Before the jury heard from Dr. Wright, the defense made a Daubert challenge to the admissibility of his testimony. The trial judge allowed the defense to question Dr. Wright outside the presence of the jury. The judge then decided that Dr. Wright’s testimony as to the standard of care concerning the first surgery was unreliable. The judge therefore excluded that testimony.

The judge allowed Dr. Wright to testify that the decision to perform the second surgery was negligent. After listening to that testimony, however, the judge decided that the evidence failed to establish a breach of the standard of care. The judge therefore directed a verdict in favor of Dr. Lewis.

Daubert in Mississippi

Mississippi follows the usual rule that requires a plaintiff alleging medical malpractice to present expert evidence that establishes a breach of the appropriate standard of care. The question before the Mississippi Supreme Court was whether the trial judge erred by excluding the standard of care evidence offered by Dr. Wright.

The application of Daubert to medical malpractice continues to challenge courts. Unlike chemistry and physics, medical science is inexact. The applicable standard of patient care is a matter of evolving consensus. It is not determined by experimental outcomes with known error rates.

In an earlier case, the Mississippi Supreme Court ruled that “when an expert (no matter how qualified) renders an opinion that is attacked as not accepted within the scientific community, the party offering that expert’s opinion must, at a minimum, present the trial judge with some evidence indicating that the offered opinion has some degree of acceptance and support within the scientific community.” That ruling is a clear departure from Daubert and its progeny, which rejected the concept that acceptance within the scientific community controls the admissibility of expert opinions.

The Daubert standard focuses on reliability, not on whether other experts agree with a proffered expert. A departure from generally accepted opinions is relevant to a reliability analysis, but not dispositive. The Mississippi Supreme Court did, however, note that there is no requirement that an expert’s opinion be supported by peer-reviewed articles, although it appears to have made an exception to that rule when an opposing position is arguably supported by peer-reviewed literature. In that situation, the flexible reliability analysis fashioned in Daubert seems to be trumped by a rigid requirement that an expert’s opinion must be supported by peer-reviewed literature.

Court’s Daubert Analysis

In the Thomas decision, the state supreme court first addressed a claim that the defense should have filed a Daubert motion before trial, rather than ambushing Thomas by asking to voir dire Dr. Wright during the trial before his testimony began. While the procedural rules in some jurisdictions require Daubert issues to be resolved in a more orderly fashion, Mississippi allows defendants to reserve their challenges to expert testimony until the expert is poised to testify. The supreme court’s analysis of that rule amounts to “that’s how we do it in Mississippi.”

Moving to the merits, the court concluded that Dr. Wright’s standard of care testimony regarding the first surgery was unreliable because it was “inconsistent with the medical literature.” The court did not identify that literature, so the conclusion is difficult to evaluate.

The court noted that Dr. Wright relied on literature of his own — an article published in Neurosurgery Focus — but the court concluded that the article did not establish a standard of care for managing blood pressure during neurosurgery. While the court focused on the authors’ conclusion that more studies are needed, the article’s abstract identifies several “treatment options, including maintenance of mean arterial blood pressure > 80 mm Hg,” that are designed to improve treatment outcomes. The court’s focus on the article’s statement that no “ideal” mean arterial blood pressure has been identified hardly supports its conclusion that the article identifies no standard of care.

Dr. Wright opined that articles discussing mean arterial blood pressure relied upon by the defense are irrelevant because they address surgeries involving spinal cord injuries, not surgeries involving spinal cord compression. The supreme court’s dismissive view of that opinion illustrates a key problem that arises when courts try to second-guess experts under the guise of “gatekeeping.” Dr. Wright is a neurosurgeon. He is in a better position to evaluate medical literature than state supreme court justices who have no medical training. There is, in fact, no reason to think that judges are better than jurors at evaluating medical evidence.

The court also rejected Thomas’ argument that Dr. Wright’s opinion was supported by a treating physician’s testimony that higher blood pressure is required to force blood into the confined space caused by a cervical disc herniation with stenosis. The court determined that expert testimony by the treating physician was “improper,” but whether or not it was improper, the trial court admitted it, making it evidence in the case.

More importantly, information that confirms the reliability of an expert’s opinion does not need to come in the form of admissible evidence. The state supreme court confused the concept of admissible testimony with the concept of information that supports or refutes the reliability of an expert’s opinion. After all, the articles that the supreme court found to be helpful were inadmissible hearsay, but the court relied on them anyway.

In the end, the court’s contention that Dr. Wright’s conclusions are not “reliable,” despite his reasoned explanation of those opinions and the existence of evidence to support them, amounts to a conclusion that Dr. Wright’s testimony was less credible than competing evidence. But even in Mississippi, credibility determinations are for juries, not judges, to make. Unfortunately, juries can only undertake that function when judges let them hear relevant expert testimony. When judges instead protect the medical industry from malpractice claims, juries are denied the opportunity to consider the valuable guidance that medical experts provide.


Prison, Barbed Wire

Judge Excludes Expert Testimony in Prison Sexual Relations Case

A district court judge has decided to exclude the testimony of an expert on interrogations and false confessions in the trial of a prison dental instructor who has been charged with unlawful sexual conduct with female inmates.

The Alleged Misconduct

Women inmates from the Topeka Correctional Facility have accused their former dental lab instructor of inappropriate sexual conduct. The women claim that Tomas Co, 73, flaunted his authority over them, touched their breasts and vaginas without their consent, and compelled one of them to massage his penis to ejaculation.

Mary Ostrander, a special agent with the Kansas Department of Corrections, interviewed 25 inmates about their experiences with Co. The women were participants in a program that was designed to teach them a marketable skill upon release. Co was a dental instructor who was tasked with training the inmates on how to make dentures. Some inmates told Ostrander that they feared that they would lose their certification if they objected to Co’s behavior.

Following Ostrander’s interviews with Co’s students, he was fired from his position. He was then charged with seven charges of unlawful sexual relations with seven different inmates.

The Proposed Expert Testimony

Chris Joseph, Co’s defense attorney, filed an expert witness disclosure letting the prosecution know that he intended to call Professor Alan Hirsch to testify on Co’s behalf. Joseph said that Hirsch is a nationally recognized expert on police interviews and interrogations, including the “Reid Technique,” which is a method of police interrogation. Joseph argued that the Reid Technique could affect the reliability of statements made by someone who was questioned utilizing that method.

According to his website, Hirsch is a Yale Law School-educated attorney and writer who has focused his career on false confessions. He has been retained as an expert in approximately 200 states, and has been qualified as an expert in Alaska, Arizona, Colorado,  Connecticut, the District of Columbia, Florida, Georgia, Indiana, Kentucky, Maine, Massachusetts, Michigan, Mississippi, Montana, New Hampshire, North Carolina, Ohio, South Carolina, Tennessee, Vermont, Virginia, and Washington.

The prosecution filed a motion to exclude Hirsch’s testimony. Shawnee County District Court Judge Cheryl Rios granted the motion.

Under Kansas law, judges “must assess on a case-by-case basis whether expert testimony will be helpful to the jury” and expert testimony is only admissible “if it will be of special help to the jury on technical subjects (with) which the jury is not familiar or if such testimony (will) assist the jury in arriving at a reasonable factual conclusion from the evidence.”

Judge Rios reasoned that the case was not factually complex and that “[i]t is well within the jury’s ability to determine whether the witnesses in this case made false accusations against the defendant and whether techniques used to question these witnesses resulted in false accusations.”

Judge Rios wrote, to allow the expert opinion testimony “would invade on the field of common knowledge and experience of the jury,” the judge wrote. She also stated that cross examination, persuasive argument and cautionary instructions by the defense will provide safeguards against unreliable witness testimony.