Category Archives: General

NewHampshire

New Hampshire Supreme Court Relies on Language Expert to Strike Down Voter Suppression Law

One of the nation’s many ongoing political debates involves the regulation of voting. Some people argue that voting, as the essence of democracy, should be as easy as possible. Others argue that voting rules should minimize the possibility of fraud, even if the rules make it more difficult to vote.

Laws that make it difficult to vote are often challenged in court. A recent case in New Hampshire illustrates how expert witnesses help courts understand the impact of laws that might burden the right to cast a ballot.

New Hampshire Law

A New Hampshire town election in 2020 sparked claims of voter fraud. An audit determined that some ballots had been folded in a way that caused a counting machine to count too many or too few votes for a candidate whose name was in line with the fold. The audit found no evidence of voter fraud.

Alleged concerns about voter fraud in New Hampshire predated the 2020 election. In 2017, the New Hampshire legislature changed its voting laws to remedy a nonexistent problem. A key change affected voter registration.

Under previous law, voters who registered could present proof that they lived in the voter district or could sign an affidavit affirming that their stated identity, age, citizenship, and place of domicile (place of residence) were all true. The new law required anyone who registered more than 30 days before an election to present proof that they were domiciled in the voting district where they registered. The affidavit that was formerly used was not regarded as proof.

Voters who registered within 30 days of an election were given a choice. If they had “documentary evidence” of their intent to be domiciled at their registered address, they could check a box stating that they would submit that evidence within ten days after voting. If they failed to do so, “official mail” would be sent to their registered address to confirm their domicile. A voter who failed to meet the 10-day deadline was also subject to civil or criminal penalties.

If the registering voter had no “documentary evidence” establishing an intent to be domiciled at their registered address, the voter could check a different box. “Official mail” would then be sent to their registered address to confirm the voter’s domicile.

Registering voters who stated that they had “documentary evidence” of their intent to be domiciled at their registered address were given a separate form that described the kinds of evidence that the state deemed acceptable. That evidence included proof of purchase of residential property within the district, proof that a lease was executed within the district more than 30 days before the election, proof of residency at a college dorm, proof that the voter’s dependent minor child was enrolled in a public school within the district, or a New Hampshire driver’s license or ID showing an address within the district.

Challenge to Voter Registration Law

The state Democratic party and the League of Woman Voters sued the Secretary of State, alleging that the new law violated the New Hampshire Constitution by unreasonably burdening the right to vote. The trial judge entered a preliminary injunction against the law on the ground that threatening to jail voters for failing to deliver paperwork to a county office within ten days after an election would deter people from voting.

The court noted the absence of any evidence that voters were unlawfully registering and voting in New Hampshire districts. Since there was no compelling need for a law that would suppress voting, the judge determined that it was probably unconstitutional. 

The injunction prevented the law from taking effect prior to state elections in 2018. However, the Supreme Court vacated the injunction to avoid confusion, since it was entered shortly before the election was to occur. It nevertheless maintained an injunction against enforcement of the provision that allowed voters to be punished for failing to submit evidence of their domicile within 10 days after the election.

The trial court then heard evidence to decide whether a permanent injunction should be entered. The trial focused on the complex and confusing language used in the various forms that were provided to voters who wanted to register within 30 days of an election.

Plain Language Expert 

The challengers to the election law called Deborah S. Bosley as an expert witness. Bosley is a professor emeritus of technical communication at UNC Charlotte, a former board member of the Center for Plain Language, and the owner of The Plain Language Group. Her expertise is in helping organizations create written information that is easy to use and understand.

Bosley knew from its title that New Hampshire’s new “Verifiable Action of Domicile” document wouldn’t be easy to read. She reviewed that document and the new six-page voter registration form. She conducted a readability analysis and tested the documents’ usability in the age group 18-29, which has the lowest voter turnout in New Hampshire. She compared the documents to Federal Election Commission standards and to standards followed by experts in the field of plain language. 

Bosley concluded that the voter registration form is “written at a readability level equivalent to the Harvard Law Review.” Bosley testified that the Verifiable Action of Domicile is “written at the level of a first-year graduate student and that both forms would be very difficult for the average adult to read and understand.”

The State called no expert witness to challenge Bosley’s testimony. Based on her uncontested opinions, the trial court determined that the language in both forms was “needlessly complex, both in length and in diction.”

Other Expert Witnesses

The League of Women Voters also called Muer Yang as an expert witness. The League identified Yang as a leading expert on voter line management and optimization, a subset of the field of mathematics known as queuing theory. Yang testified that the new law would lengthen voter registration lines and increase the time it would take voters to register.

Michael Herron, a professor of government at Dartmouth, testified as an expert in the statistical analysis of election administration. Herron analyzed the new law using the “calculus of voting” theory, which examines the impact of the costs and benefits of voting on the decision to vote. Herron testified that the costs imposed by the new law would have a disproportionate impact on certain voters, including college students, highly mobile voters, and the homeless. He concluded that, over time, fewer people would participate in New Hampshire elections as a result of the new law.

Trial Court Decision

The trial court credited the expert testimony in finding that New Hampshire’s new voter registration law was unconstitutional. The court agreed with Bosley that the language of the new documents was confusing and needlessly complex. The court agreed with Yang that the new law would increase the time it takes to register.

Based on that testimony, the court identified voter confusion and longer lines as costs associated with the new law. Those costs, as well as fear of being jailed if the required information could not be provided promptly after the election, burdened the right to vote. The court agreed with Herron that certain voters would be discouraged from voting because of the new law.

Evidence of how the new law affected the 2018 election confirmed the experts’ conclusions. The court found that some registrants filled out the registration form incorrectly by checking both boxes. Other registrants left the polling place because they did not believe they could register without producing immediate evidence of their address. Some election officials turned away registrants who did not produce required documents despite their willingness to do so after the election. Several college students testified that they did not register because they believed they would be unable to prove their residence within the district.

The court also noted that honest voters who were eligible to vote would be subjected to criminal prosecution if they failed to produce required documents within ten days after the election. The court concluded that subjecting honest, eligible voters to the risk of criminal prosecution because they did not gather documents and bring them to a municipal clerk within a short window was an unreasonable burden on the right to vote. 

The trial court found that unrebutted expert testimony, “supported by testimony from a multitude of witnesses and the State’s own data, suggests that the complicated and confusing nature of the forms will increase average registration times and result in longer lines at polls,” which, “together with navigating the forms and the penalties, may outweigh the benefit of voting for some individuals.” The trial court concluded that the new law, “if fully implemented, will suppress voter turnout.” It therefore invalidated the law.

State Supreme Court Decision

The New Hampshire Supreme Court affirmed the trial court’s decision. The supreme court rejected the state’s argument that the trial court based its ruling on anecdotal evidence. The supreme court accepted the trial court’s findings that its decision was “supported by the persuasive and credible expert testimony offered by Plaintiffs, for which the State had no effective rebuttal.”

In the end, expert testimony carried the day for the election law challengers. The state’s failure to call its own experts to challenge any of the expert opinions offered by the plaintiffs amounted to a concession that those opinions were correct. The supreme court affirmed the trial court’s decision because expert testimony firmly established that New Hampshire’s new law would unreasonably burden the right to vote and would suppress voter turnout with no demonstrable improvement of election integrity.

side view of empty hospital bed

Expert Testimony Supported Claim Against Hospital for Negligent Credentialing

The Iowa Supreme Court recently reversed a lower court decision that dismissed a lawsuit against a hospital for negligently credentialing a surgeon. The Supreme Court agreed that an expert’s opinion that the hospital was negligent was admissible and that the opinion entitled the patient to a jury trial in his negligence claim against the hospital.

Facts of the Case

Dr. David Segal performed surgery on Roxanne Rieder’s neck and lower back at Mercy Medical Center in 2015. In the days following the surgery, Rieder experienced severe pain in her lower back, radiating into her left leg. She told Dr. Segal that she felt tingling and numbness in her leg and that she could not lift it off the bed.

Dr. Segal performed a second surgery of Rieder’s lower back to decompress nerve roots. Three days later, Rieder was discharged. She continued to experience pain in her neck, both arms, and both legs, as well as numbness and related symptoms.

On the day of her discharge, the Iowa Board of Medicine filed charges accusing Dr. Segal of “professional incompetency” concerning his treatment of several other patients. At some point prior to the surgery he performed on Rieder, Dr. Segal informed Mercy Medical Center than he was being investigated by the Board of Medicine. Mercy did not suspend his credentials while the investigation was pending.

Expert Opinion on Standard of Care

Rieder sued Dr. Segal and several other entities, including Mercy. Rieder settled with all of the defendants except Mercy. Mercy contended that it had no duty to take action against Dr. Segal until the Board of Medicine revoked his license.

Rieder contended that Mercy was negligent in continuing to credential Dr. Segal after learning that he was under investigation. In support of that position, Rieder offered the expert opinion of Dr. Charles Pietrafesa. Dr. Pietrafesa opined that the applicable standard of care required Mercy “to take swift and immediate action to limit, restrict, or suspend Dr. Segal’s privileges with respect to care of any patients at Mercy at that time.”

Mercy took Dr. Pietrafesa’s deposition. Dr. Pietrafesa explained that Mercy breached the standard of care by failing to conduct its own investigation into Dr. Segal’s competency after learning that he was being investigated by the Board of Medicine. Dr. Peitrafesa also testified that, had it conducted an investigation, Mercy would have discovered facts that would compel a reasonable hospital administrator to suspend Dr. Segal’s privileges immediately.

Dr. Pietrafesa identified additional facts that, in his opinion, triggered a duty to suspend Dr. Segal’s surgical privileges. Dr. Segal had been sued for malpractice seven times and had been sent to the Center for Personalized Education for Physicians due to concerns about his competency. Mercy also received a subpoena for records of surgical complication rates that should have alerted it to issues requiring further investigation.

The trial court concluded that Mercy Hospital did not have sufficient information to create a duty to suspend Dr. Segal’s surgical privileges. Because it did not know the basis of the Board’s investigation, it would not have known that he posed a serious risk to his patients.

The court also ruled that evidence of earlier malpractice claims was inadmissible under Iowa law. The court decided that Dr. Pietrafesa’s opinion was inadmissible because it relied on the prior lawsuits.

Negligent Credentialing

Most states recognize that a hospital can be liable for negligent credentialing. Iowa’s courts have ducked the issue in the past. The Iowa Supreme Court ducked it again in Rieder’s case. Since Mercy did not claim that negligent credentialing is not a viable tort claim in Iowa, the Supreme Court assumed for the purpose of this case only that liability exists for negligent credentialing.

The Supreme Court rejected Mercy’s argument that it had no duty to investigate Dr. Segal. A hospital always has a duty to exercise reasonable care for its patients. The question is not whether it had a duty but whether it breached that duty by failing to conduct an investigation.

The dispositive question was whether Dr. Pietrafesa’s expert testimony was sufficient to establish that Mercy was negligent. The Supreme Court agreed with the trial court that evidence of prior malpractice lawsuits is not relevant proof that a doctor was negligent in some other case. But Dr. Pietrafesa did not rely on the lawsuits as proof that Dr. Segal was negligent. He testified that a reasonable hospital administrator, confronted with those lawsuits, would be negligent not to investigate the competency of a doctor who had been sued so many times. The Supreme Court agreed that the lawsuits were relevant to Mercy’s credentialing decision.

Whether the lawsuits themselves were admissible evidence did not determine whether Dr. Pietrafesa was entitled to rely on them in forming an expert opinion. Experts are entitled to rely on the kind of facts that are reasonably relied upon by other experts in a field, whether or not those facts are admissible evidence. Precedent from other states satisfied the Court that experts would reasonably rely upon the existence of malpractice lawsuits when they decide whether a hospital was negligent in credentialing a surgeon.

Finally, the Supreme Court decided that Dr. Pietrafesa’s expert opinion was sufficient to create a dispute of fact that entitled Rieder to a trial. Dr. Pietrafesa testified that the combination of facts known to the hospital, including the fact of the Board of Medicine’s investigation, the Board’s subpoena for medical records concerning complication rates from Dr. Segal’s surgeries, and multiple malpractice lawsuits filed over a span of years, would have alerted a reasonable hospital to the need to investigate Dr. Segal’s competency. Since the hospital did not do so, Dr. Pietrafesa’s expert testimony would allow a jury to find that the hospital was negligent in credentialing Dr. Segal.

 

Courtroom

When Must a Summary Witness Testify as an Expert?

Federal courts may allow a summary witness to explain how documents and testimony fit together. The Court of Appeals for the Fifth Circuit recently rejected the argument that a summary witness needed to testify as an expert to explain the government’s case.

Facts of the Case

Carl Nicholson is a certified public accountant. He was charged with eleven tax crimes, including filing false tax returns for himself and assisting clients in the preparation of false tax returns. A jury found Nicholson guilty on all counts. A judge sentenced him to five years in prison.

Nicholson was a partner in an accounting firm. Pursuant to firm policy, Nicholson was entitled to use his personal credit card for business expenses and to request reimbursement from the firm. Nicholson was reimbursed for charges to his American Express (“Amex”) account that were incurred for personal reasons, including family travel.

Nicholson did not report the improper reimbursements as income on his personal tax returns. Some of the criminal charges related to his failure to disclose taxable income.

Nicholson’s partners bought out his interest in the firm in 2015. To calculate the amount of profit Nicholson earned from that sale, Nicholson claimed to have paid $150,000 for his interest in the company and an additional $300,000 that he paid overtime on the firm’s behalf. The firm’s managing partner testified that the additional payments of $300,000 were never made. Although the managing partner recalled that Nicholson made an initial investment of $150,000, financial statements showed that he actually paid $100,000. Nicholson was thus accused of inflating his investment in the firm by $350,000 to reduce the amount of taxable profit he made when he sold that interest.

Summary Witness

The government relied in part on testimony given by IRS Agent Bradley Luker. Through Luker, the government introduced summary charts of Nicholson’s tax returns. The charts also summarized Nicholson’s Amex reimbursement requests.

The Federal Rules of Evidence allow summaries to be introduced into evidence “to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.” However, the summaries may not introduce evidence that the jury has not already heard.

All of the information in Luker’s charts was taken from earlier testimony and documents that had been received into evidence, including tax returns and bank statements. The jury was instructed that “summary charts and witnesses are no better than the underlying testimony and the documents upon which they are based and are not themselves independent evidence.”

In the Fifth Circuit, at least, a summary witness is entitled to “sort through the evidence” to show how the documents that were introduced into evidence “related to each other and to the charges in the indictment.” However, summary evidence may not be used to “fill in holes” in the party’s case by assuming the existence of facts that have not been independently established.

Was Lurker an Expert Witness?

Nicholson argued that Lurker should not have been allowed “to state his conclusions about whether Nicholson’s income tax returns were ‘false’ and what the ‘correct’ amounts should have been.” Lurker was not an accountant and did not testify as an expert. Nicholson argued that only an expert should be allowed to state opinions about tax matters.

The court of appeals concluded that Lurker was merely summarizing other testimony and therefore did not testify as an expert. Since the court did not quote Lurker’s testimony, it is difficult to evaluate whether he offered his own opinion about how income should have been reported.

Nicholson also contended that Lurker’s testimony was not summative but was in conflict with other testimony. Lurker testified that a $66,000 payment from one of Nicholson’s clients was not for accounting services. The client testified that he was billed for accounting services and, while he disputed whether the money was owed, he paid the bill. Since the client had an agreement with Nicholson’s firm that he would not be charged for accounting services, there was evidence to support the conclusion that the $66,000 was not for accounting services. The court found no conflict in the testimony despite evidence that the client told Nicholson to record the funds as a payment for accounting services.

Nicholson also complained that Lurker contradicted the managing partner, who testified that he recalled Nicholson making an initial investment of $150,000 in the firm. The court of appeals noted that Lurker did not characterize the managing partner’s testimony as false but did testify about the $100,000 investment shown on financial statements. Since those statements were in evidence, there was no conflict between Lurker’s testimony and facts in evidence.

Finally, the managing partner testified that he did not authorize reimbursement of funds for family vacations and other expenses for which Nicholson charged the firm. The managing partner did testify that whether some of those expenses were legitimate might be a matter of opinion, but in his opinion they were not. Lurker testified that he based his chart of improper expense reimbursements on the managing partner’s testimony.

The court of appeals rejected the claim that Lurker essentially testified as an expert who agreed with the manager’s opinion as to the legitimacy of the expense reimbursements. The court also rejected the argument that Lurker improperly bolstered the managing partner’s testimony. It was up to the jury to decide whether to believe that Nicholson improperly reimbursed himself for nonexistent business expenses and failed to claim those reimbursements as income.

The court of appeals nevertheless recognized that the case involved issues of accounting, business arrangements, and tax preparation that went beyond the knowledge of average jurors. Given the thin line between showing how documents relate to each other and explaining the documents, perhaps the government should have relied on an expert witness to help prove its case. Since Lurker merely summarized testimony and documents that were already in evidence, however, he did not testify as an expert. To the extent that an expert might have been in a better position to give that testimony, the court regarded any error as harmless.

Pennsylvania Justice

Expert Cannot Base Pain and Suffering Opinion on Lay Testimony

Experts offer valuable opinions during trials, but their opinions must be based on their expertise. In an unpublished decision, the Superior Court of Pennsylvania held that an expert’s opinion that a deceased man suffered before he died was inadmissible because it was based on the testimony of another witness.

Facts of the Case

James Cowher II was given an echocardiogram after experiencing chest pain. The result was normal. About nine months later, Cowher told his treating physician that episodes of chest pain, accompanied by shortness of breath, nausea, and sweating, were becoming more frequent. His physician performed an electrocardiogram and conducted another test for heart damage. The tests revealed no abnormalities.

The physician referred Cowher to a group of cardiologists. Cowher explained his symptoms to Dr. Sobhan Kodali. Dr. Kodali was aware that Cowher had a family history of heart disease, was overweight, and had high cholesterol. Dr. Kodali performed another electrocardiogram and conducted a lipid test. The results were normal. Without further investigation, Dr. Kodali attributed Cowher’s symptoms to stress.

About a month later, at the age of 48, Cowher died from heart failure while jogging. An autopsy revealed substantial blockage in two of Cowher’s arteries. The pathologist concluded that Cowher’s death was caused by severe coronary artery disease. While the pathologist identified the immediate cause of death as “cardiac arrythmia,” the coroner reported the cause of death as “acute myocardial infarction” due to severe coronary artery disease.

Expert Report

Cowher’s widow sued Dr. Kodali for wrongful death based on medical negligence. She also brought a survival claim based on Cowher’s pain and suffering prior to death. Her complaint alleged that Cowher died from an acute myocardial infarction.

Cowher retained a cardiologist as an expert witness. The cardiologist’s expert report opined that Dr. Kodali was negligent in failing to diagnose Cowher as suffering from unstable angina. The report also faulted Dr. Kodali for not recommending cardiac catheterization and other diagnostic testing that would have revealed Cowher’s severe coronary artery disease. In the expert’s opinion, that disease could have been treated successfully with coronary bypass surgery.

The expert report expressed the opinion that Cowher died from cardiac arrythmia caused by severe coronary artery disease. The defense asked the court to exclude the opinion that Cowher died from anything other than a myocardial infarction as the complaint alleged. The court denied that motion.

The expert report also expressed the opinion that Cowher suffered conscious pain before he died. The court denied a defense motion to exclude that opinion.

Expert Testimony

At trial, each side presented the testimony of expert cardiologists. The expert for Cowher’s widow testified that Cowher died from a cardiac arrhythmia caused by coronary artery blockages that prevented sufficient blood from reaching the heart. The expert also testified that Cowher was suffering from unstable angina due to those artery blockages when he was examined by Dr. Kodali.

The expert testified that Dr. Kodali breached the applicable standard of care by failing to diagnose unstable angina in response to Cowher’s symptoms and by failing to order cardiac catheterization, a procedure that would have confirmed the existence of blockages. The expert opined that the correct standard of care would have resulted in bypass surgery that would have prevented Cowher’s death. The expert also testified that Cowher suffered pain before his death.

Dr. Kodali’s expert testified that coronary artery disease could not have caused Cowher’s death because no damage to the heart muscle was found during Cowher’s autopsy. Dr. Kodali’s expert also testified that Dr. Kodali’s diagnosis of Cowher’s chest pain as having a non-cardiac origin without conducting further testing did not breach the standard of care.

The jury awarded Cowher’s widow almost $2.5 million on her wrongful death claim. It awarded another $3.8 million on her survival claim. The trial court denied post-trial motions for a new trial and entered judgment for Cowher’s widow in the full amount. Dr. Kodali appealed.

Cause of Death

Dr. Kodali first argued that Cowher’s expert did not establish that negligence caused Cowher’s death because he testified that Cowher died from cardiac arrythmia (a condition that causes cardiac arrest) while the complaint echoed the coroner’s finding that he died from a myocardial infarction (a heart attack). The appellate court concluded that Cowher’s widow merely needed to prove that negligence caused his death. She did not need to prove the precise way in which he died.

The evidence established that Dr. Kodali failed to diagnose and treat Cowher’s severe coronary heart disease. That failure caused Cowher’s death. Whether the death was caused by a cardiac arrythmia or a myocardial infarction, the result was the same. Cowher died because Dr. Kodali did not diagnose and treat the health condition that caused his heart to stop functioning as it should.

Pain and Suffering

A neighbor who saw Cowher collapse testified that she heard him say “I need help.” The neighbor said that he appeared to be in pain and was very distraught. Cowher was conscious for about three minutes after he collapsed.

The expert witness expressed the opinion that Cowher experienced pain and suffering before his death. When asked about the basis for that opinion, the expert testified that he based his opinion on the neighbor’s testimony.

Dr. Kodali argued that an expert must give opinions that go beyond lay opinions. Testifying that Cowher experienced pain, when that testimony was based on a lay witness’ observation that Cowher seemed to be in pain, was not expert testimony. The expert did not need to apply his own expertise to conclude that Cowher experienced pain.

Since the jury heard the neighbor’s testimony, it seems doubtful that the expert’s opinion affected the verdict. The expert didn’t tell the jury anything more than it already knew. In the court’s view, however, placing the imprimatur of expertise upon an opinion that someone suffered pain could have influenced the jury. The court therefore reversed the verdict on the survival claim and remanded for a new trial on that claim.

Lessons Learned

It seems likely that the expert could have given admissible expert testimony on pain and suffering. A cardiologist presumably knows that heart failure is painful. Based on his experience treating patients who suffered from a cardiac arrythmia, and perhaps on knowledge gleaned from medical texts, the expert could probably have explained why his medical expertise informed his opinion that Cowher suffered pain. If the expert had been advised in advance that he should rely on his medical expertise when expressing his opinion, a new trial could likely have been avoided.

 

DNA

Forensic Experts Continue to Question Kevin Cooper Conviction

The murders of Doug and Peggy Ryen and two children in Chino Hills, California, were horrific. They were attacked with a hatchet, an ice pick, and one or two knives. A third child was stabbed but survived the brutal assault. Josh Ryen told the police that three white men had committed the crime. But Josh was only eight years old and he suffered a cracked skull during the assault. The police discounted his eyewitness account in favor of their theory that the crime was committed by a lone black man who days earlier had walked away from a minimum-security prison camp.

The physical evidence seemed to support Josh’s account. Two different T-shirts were apparently discarded at the scene. Light colored hairs were found clutched in the hands of the murder victims. A woman contacted the San Bernardino Sheriff’s Department to report her suspicion that her boyfriend (“Lee”), a convicted murderer who had recently been released from prison, had killed the Ryens. She gave the officers the blood-covered overalls that triggered her suspicions and reported that a hatchet was missing from her boyfriend’s tool rack.

Remarkably, the sheriff’s investigators threw out the overalls without testing them for the victims’ blood. They instead focused their tunnel vision on Kevin Cooper. Investigators explained that they did not want the overalls to “complicate” their case against Cooper. Having developed the theory that Cooper was the murderer, they devoted their resources to proving that the theory was correct while disregarding evidence that pointed to other suspects. That practice, all too common throughout the history of police investigations, is the formula for a wrongful conviction.

An investigative article by New York Times columnist Nicholas Kristof raised serious questions about Cooper’s conviction. Kristof asked why the police and prosecutors had failed to ask experts to test the hairs and blood found at the scene of the crime. Expert DNA analysis in criminal cases is, when properly employed, the most objective means of guiding investigations and proving guilt.

Kristof wrote that “an innocent man was framed by sheriff’s deputies and is on death row in part because of dishonest cops, sensational media coverage and flawed political leaders.” His 2018 article spurred Gov. Jerry Brown, and his successor, Gov. Gavin Newsom, to order comprehensive DNA testing of the available evidence. Kristof recently acquired the DNA test results and updated his investigation.

DNA Evidence

A torn T-shirt believed to be worn by one of the killers is key evidence in the case. The police claim that Cooper’s blood was on the T-shirt, but given the conduct of the sheriff’s investigators, neutral observers have concluded that the investigators planted the blood to strengthen their case against Cooper. That conclusion is bolstered by the presence of a preservative in the blood on the T-shirt, suggesting that the blood came from a vial of blood (now nearly empty) that was drawn from Cooper and kept as evidence.

Bicka Barlow, a DNA expert who is helping Cooper, told Kristof that she has never seen so much blood disappear from a vial. The blood testing performed in the case would not account for the loss. Planting blood on other evidence would, however, explain why the blood disappeared.

Whether Cooper ever wore the shirt might be determined by analyzing sweat stains, but that analysis was only recently performed. Police and prosecutors did little to protect the shirt’s integrity. Samples of DNA taken from the shirt have degraded. No DNA profile could be created from the samples.

Testing showed that the hairs clutched in the victims’ hands did not come from Cooper, but that was obvious from the hair color. In fact, no hairs from an African-American were found at the crime scene. The DNA testing did not produce a match to any other suspect.

Authorities found a discarded towel that had been taken from the crime scene. The towel yielded a full DNA profile. Cooper was excluded as the source of the DNA. Unfortunately, the DNA did not match anyone within a DNA database.

The Burden of Proving Innocence

Three witnesses have come to light who are willing to testify that they have recently heard Lee boast about murdering a family. Lee (the owner of the bloody overalls that sheriff’s investigators discarded) is not the source of the DNA on the towel.

It is often true that forensic evidence points in different directions. If, as Josh stated, there were three killers, the fact that Lee’s DNA is not on the towel does not exclude him as a suspect. The evidence is probably not sufficient to prove Lee’s guilt, but the question is not whether Lee killed the victims. The question is whether Cooper killed them. The new DNA evidence raises a serious doubt about Cooper’s guilt.

Prosecutors point to other forensic evidence, including a shoe print and cigarette butts that they associate with Cooper. All of that evidence has been cast in doubt by the likelihood that the San Bernardino Sheriff’s Office planted evidence to strengthen its case against Cooper. Kristof calls attention to the checkered history of that office, including previous accusations that it planted evidence to strengthen dubious proof of guilt.

Unfortunately, prosecutors are too often unwilling to admit that they might have sent an innocent person to prison (or in this case, to death row). The San Bernardino County District Attorney’s Office resisted DNA testing, challenged all of Cooper’s attempts to get a new trial, and continues to oppose investigations of Cooper’s innocence.

It seems odd that prosecutors champion the reliability of DNA testing when they use it to prove guilt but argue against DNA testing that calls their prosecutions into question. Yet prosecutors depend on the police to help them make cases. They are often reluctant to acknowledge faults in police investigations or in their own prosecutions.

Whether Cooper will ever be exonerated is doubtful. He has exhausted all of the legal remedies that are presently available. The new forensic testing, and the opinions of his forensic experts, do not indisputably establish his innocence. But the expert evidence does raise serious doubt about Cooper’s guilt — enough doubt that Cooper should certainly be removed from death row. Nicholas has urged Governor Newsom to convene a panel to review Cooper’s conviction and to make a recommendation about clemency. If Cooper is innocent — and there is good reason to question the evidence of his guilt — clemency may be his last hope for justice.

Discrimination

Pratt & Whitney Wants Experts Disqualified in $1 Billion Soil Toxins Suit

An aerospace and defense company wants a Florida federal judge to disqualify the expert witnesses presented by property owners who have accused it of contaminating their water supply and devaluing their homes.

The Lawsuits

Five married couples who have children who are members of a pediatric brain tumor cluster designated by the Florida Department of Health and two property owners who claim their land is far less valuable because of soil contamination filed two consolidated suits against United Technologies Corporation, which does business as Pratt & Whitney. The parties claim that the company sent toxic and carcinogenic chemicals into the porous underground aquifer that their properties share.

The cases are Cotromano et al. v. United Technologies Corp. et al., case number 9:13-cv-80928, and Adinolfe et al. v. United Technologies Corp., case number 9:10-cv-80840, in the U.S. District Court for the Southern District of Florida.

The total claims are estimated at $1 billion.  The cases were initially dismissed by the trial court, but were reinstated by the Eleventh Circuit, which ruled that the trial court had erred in requiring excessive factual proof at the dismissal stage of litigation.

The Experts

The plaintiffs retained numerous experts to help them prove their claim. Pratt & Whitney filed motions arguing that each of those experts should be excluded.

The plaintiffs presented Dr. Marco Kaltofen as an expert to testify that there is evidence that the plaintiffs had been exposed to contaminants that originated at the Pratt & Whitney facility. Pratt & Whitney argued that Dr. Kaltofen’s testimony should be excluded because he failed to apply or identify a methodology that would allow him to conclude that there was radioactive contamination in the property. Pratt & Whitney also claimed that Dr. Kaltofen’s testimony failed to identify any actual source of materials or address how the materials were allegedly transported to the plaintiffs’ properties.

The plaintiffs presented toxicologist Dr. William Sawyer to support their claims. Pratt & Whitney argued that Dr. Sawyer’s opinions should be excluded as lacking in fit because they are “fundamentally unreliable.” Pratt & Whitney noted that Dr. Sawyer had not issued an expert report in support of the plaintiffs’ property claims; instead, the plaintiffs relied upon Dr. Sawyer’s previously-disclosed cause opinions from three personal injury cases. Pratt & Whitney argued that because none of the other personal injury cases dealt with the cancer cluster designation, Dr. Sawyer’s opinions were not relevant here. Pratt & Whitney also argued that Dr. Sawyer’s methodology was unreliable. The company noted that for two plaintiffs, Dr. Sawyer had no calculation of the alleged dose of Thorium-230 to which they were exposed. For another plaintiff, Dr. Sawyer relied upon a flowed dose calculation that was based on samples taken from her spine years after she was diagnosed with brain cancer.

The plaintiffs presented Dr. Bernd Franke as a radiological researcher to support their claims. Pratt & Whitney argued that Dr. Franke’s testimony should be excluded because there was no fit between his analyses and any issue to be resolved at trial, he relied upon improper and unjustified assumptions, and his methodology was not reliable. Pratt & Whitney noted that Dr. Franke’s testimony was only related to one individual who was not part of the cancer cluster identified by the FDOH.

The parties participated in a seven-hour hearing on the issues, but the matter remains unresolved. The hearing was continued and the parties were instructed to contact the court with their available dates in the next two weeks.

Alabama

Retired Doctor Could Not Act as Expert Witness in Alabama Malpractice Trial

Janice McGill had surgery to relieve pain in her temporomandibular joint (TMJ). Dr. Victor Szymela replaced the joints in her jaw with prosthetic joints. He assured her that the excruciating pain she felt after the surgery would lessen with time. It did not. The surgery also worsened her overbite and failed to correct the “popping” she experienced when she moved her jaw.

McGill consulted Dr. Michael Koslin, who tried to manage her pain conservatively. After three years, Dr. Koslin determined that McGill’s pain was not responsive to treatment. He therefore performed surgery to remove the prosthetic joints. The procedure immediately relieved McGill’s pain.

McGill sued Dr. Szymela for malpractice. She alleged that he failed to explore alternative treatments and installed the prosthetic joints incorrectly.

McGill identified Dr. Louis Mercuri as an expert witness. The trial court excluded Dr. Mercuri’s testimony because he was not qualified as a malpractice expert under Alabama law. Without his testimony, McGill could not prove her negligent surgery claim. The jury ruled against her on her claim that Dr. Szymela negligently failed to explore alternative treatments.

McGill appealed, arguing that Dr. Mercuri was improperly excluded. The Alabama Supreme Court affirmed the exclusion of Dr. Mercuri’s testimony.

Legislative Interference with Choice of Malpractice Experts

Claiming that a nonexistent malpractice litigation crisis was impairing the availability of healthcare, the insurance and medical industries lobbied state legislatures for “reforms” that make it more difficult for malpractice victims to prove their cases. The perceived crisis involved escalating malpractice insurance premiums that were largely unrelated to litigation.

Many see the true crisis as being the extent of medical malpractice in the United States. Studies estimate that no more than one in seven patients who are harmed by malpractice bring a lawsuit to recover compensation for their injuries.

Since doctors are notoriously reluctant to testify against other doctors, several “reforms” protected doctors from liability by narrowing the range of experts who are allowed to testify. As a consequence, doctors who have the knowledge, training, and experience that traditionally qualify an expert to testify are excluded from the pool of available expert witnesses. Laws limiting the availability of expert witnesses often succeed in their intended goal — preventing victims of medical malpractice from obtaining compensation for their injuries.

Alabama Law

The Alabama Medical Liability Act limits the healthcare providers who are allowed to testify as expert witnesses in a medical malpractice lawsuit. An expert who expresses an opinion about a defendant doctor’s standard of care must be a “similarly situated” healthcare provider. If the defendant doctor is board certified in a medical specialty, the expert witness must be board certified in the same specialty.

Alabama law also requires the expert witness to have practiced in the same specialty within the past year. Since it is easier to find expert witnesses who teach medicine or who have retired from practice, Alabama’s practice requirement serves the insurance industry’s goal of making it difficult for injury victims to find expert witnesses who are willing to testify.

Dr. Mercuri’s Qualifications

The Alabama Supreme Court acknowledged that Dr. Mercuri is “a world-renowned TMJ surgeon, scholar, and surgical instructor” who has been “lifetime-certified by the American Board of Oral and Maxillofacial Surgery.” Unfortunately for McGill, the alleged malpractice occurred in 2014 and Dr. Mercuri retired in 2010.

Since 2010, Dr. Mercuri “devoted himself to research in the field of TMJ prosthetics and to teaching [joint replacement] surgical technique, including supervising students performing surgery on cadavers.” There was no dispute that Dr. Mercuri kept current on surgical techniques and the applicable standard of care.

The question before the court was whether Dr. Meruri met the statutory practice requirement. Dr. Mercuri testified that, as a visiting professor, he performed joint replacement surgery in Brazil with another doctor in 2013. The trial court deemed that testimony to be too vague to establish that Dr. Mercuri had actually “practiced.” Why the court believed that “I performed joint replacement surgery in Brazil” was vague is unclear.

Appellate Decision

As appellate courts tend to do, the Alabama Supreme Court decided that whether a doctor had “practiced” should be left to a trial court’s discretion. That decision is difficult to justify when the facts are undisputed. Whether Dr. Mercuri “practiced” depends on how that word is interpreted. The court was confronted with a pure question of law but declined to decide what the term “practice” actually means.

Instead, the court said that it has “allowed the contours of trial courts’ discretion to be determined over time, in a case-by-case manner.” There’s nothing wrong with developing the law — not every potential application of a statutory term can be foreseen — but trial courts do not have “discretion” to misinterpret or misapply the law. Once the facts are developed, whether those facts satisfy a legal standard is a question of law that the appellate court should decide without deferring to the trial court.

After reviewing four prior cases, the court decided that it had articulated a “clear” rule: “a court has wide latitude in deciding whether to admit or exclude as witnesses medical experts whose work in the year preceding the breach.” In fact, “we let trial courts do what they want” isn’t a rule at all. The supreme court provided no guidance to trial courts in future cases when they decide whether a doctor who practiced in a foreign country has met Alabama’s “practice” standard.

The supreme court affirmed the trial court’s decision to disallow Dr. Mercuri’s expert testimony, notwithstanding Dr. Mercuri’s undisputed testimony that he “performed” the surgical procedure that was the subject of his testimony within one year prior to Dr. Szymela’s performance of the same procedure. While the supreme court noted that Dr. Mercuri’s “general responsibilities” do not include practicing surgery, the statute only requires the expert to have practiced within the last year, not to have practiced with any particular frequency.

In a footnote, the court also recognized that Alabama allows “highly qualified” experts to testify even if they have not actively practiced within the last year. Because McGill did not expressly argue that Dr. Mercuri was highly qualified, a fact that was never in doubt, the court declined to apply the exception.

Lesson Learned

The McGill decision assured that a potential victim of malpractice lost her right to ask a jury for compensation because her expert witness, who was well qualified to express an expert opinion, had not engaged in sufficient practice within the prior year to satisfy the trial court. The decision elevates the protection of negligent doctors and their insurers above justice to injury victims.

It may have been difficult to find a better witness than Dr. Mercuri, but the decision stands as a reminder that the best expert witness is not always the right expert witness. A board-certified doctor with lesser qualifications who had performed multiple joint replacements for TMJ patients within the last year would have satisfied the statutory standard. Plaintiffs cannot always benefit from the best expert, but they should always try to find an expert who will be deemed qualified to testify.

 

A judge

Doctors Sued for Malpractice Must Use Expert Witness to Prove that a Different Doctor’s Negligence Caused the Patients Injury

The injury victim in a medical malpractice lawsuit is nearly always required to present expert testimony to establish that a physician breached the applicable standard of care and that the breach caused the victim’s injury. The Maryland Court of Appeals was asked whether the same standard applies to a doctor who defends a malpractice claim by asserting that the negligence of another party caused the victim’s injury. Under the facts of the case, the court decided that expert testimony was required.

Facts of the Case

Martin Reiss suffered from tumors in his kidney. A surgeon made a plan to remove the cancerous kidney as well as an enlarged lymph node that was adjacent to the kidney. The surgeon removed the kidney in 2011 but elected not to remove the lymph node because it was close to a large blood vessel that transports blood to the heart.

After the surgery, Reiss was treated by Dr. Russell DeLuca, an oncologist. Dr. DeLuca suspected that the lymph node was cancerous but agreed that it could not be removed safely. He opted to treat Reiss with chemotherapy. The treatment caused the lymph node to shrink, confirming that it was cancerous.

During a period of five years, Dr. DeLuca ordered periodic CT scans of the lymph node to determine whether it was enlarging. Between 2011 and 2014, Dr. Victor Bracey, a radiologist, interpreted the scans. He noted that a contrast dye was not used to perform scans, making interpretation less than optimal. He nevertheless concluded that the lymph node was not enlarging.

In 2015, a different radiologist, Dr. Elizabeth Kim, interpreted a non-contrast CT scan and found “soft tissue density” in the vicinity of the lymph node. She also concluded that the lymph node had enlarged since 2011. A biopsy confirmed that the lymph node was cancerous. A new oncologist agreed that the condition was inoperable.

Malpractice Lawsuit

Reiss sued Dr. Bracey and the surgeon who removed his kidney. He alleged that the surgeon was negligent for not removing the lymph node. At some point, Reiss dismissed his claim against the surgeon.

Reiss alleged that the lymph node could have been surgically removed at an earlier time. He alleged that by 2015, it had become inoperable. He contended that Dr. Bracey was negligent for failing to diagnose the enlargement of his lymph node at a time when it could have been removed.

Dr. Bracey denied that he was negligent. In his answer to the complaint, Dr. Bracey contended that Reiss’ oncologists were negligent and that their negligence caused Reiss’ injury.

Expert Testimony

Reiss presented the expert testimony of Dr. Paul Collier, a vascular surgeon, to establish that the lymph node could have been safely removed at any time before 2015 but not later. Dr. Bracey called Dr. James Black as an expert in vascular surgery. He agreed that the lymph node could have been removed in 2011 but disagreed with Dr. Collier’s opinion that the lymph node could not have been removed after 2015.

Reiss called Dr. Barry Singer as an expert in oncology. Dr. Singer testified that Reiss would have had a much greater probability of survival if the lymph node had been removed between 2011 and 2014. Dr. Singer opined that a biopsy would have confirmed that the lymph node was cancerous. He testified that surgical removal of cancer is always the best treatment option and that Reiss would have been cured if the lymph node had been removed. He explained that Reiss’ life expectancy is significantly shorter because the cancerous lymph node was not removed.

Alleged Negligence of Non-Parties

Dr. Bracey did not designate an expert to support his claim that Reiss’ oncologists were negligent. He instead made a general reservation of his right to rely on Reiss’ expert witnesses.

The trial judge ruled that the alleged negligence of the oncologists was relevant to Dr. Bracey’s defense. The judge also ruled that Dr. Bracey would not be allowed to cross-examine Reiss’ experts about the alleged negligence of his oncologists. The judge decided that Dr. Bracey needed to rely on his own experts and that disclosing an intent to rely on Reiss’ experts did not comply with expert designation rules. That ruling was not appealed.

Reiss called Dr. DeLuca as a fact witness. Dr. DeLuca testified that he discontinued chemotherapy because Dr. Bracey’s radiological reports convinced him that the cancer was in remission. He explained that he did not order dye to be used in administering the CT scan because he did not want to damage Reiss’ remaining kidney. He also testified that he did not refer Reiss’ case to the tumor board for an opinion on the viability of removing the lymph node because he relied on the surgeon’s opinion that the lymph node could not be removed safely.

Reiss’ new oncologist testified that he consulted with a general surgeon who advised against surgical removal of the lymph node because there was no clear separation between the lymph node and the vein. In that surgeon’s view, the risk of surgery would have outweighed the anticipated benefit. The oncologist acknowledged, however, that he did not ask a vascular surgeon to review the case.

No expert witness testified that the surgeon who removed Reiss’ kidney breached an applicable standard of care by not removing his enlarged lymph node. Nor did any expert witness testify that the standard of care required Dr. DeLuca or Reiss’ new oncologist to refer Reiss to a surgeon to remove the lymph node or to order a biopsy.

The jury demonstrated its confusion about the verdict form before finally determining that Dr. Bracey was not liable for Reiss’ injury. Reiss appealed.

Appellate Decision

Under Maryland law, “evidence of non-party negligence is relevant and admissible in medical malpractice cases.” The court noted that evidence of negligent acts by other doctors are relevant for three purposes: (1) to prove that the defendant doctor was not negligent; (2) to prove that the defendant doctor’s negligence was not a cause of the patient’s injuries; or (3) to prove that another doctor’s negligence was a superseding cause of the patient’s injuries “that cleaved the chain of causation running from the defendant’s negligence.”

Dr. Bracey was therefore entitled to introduce evidence that other doctors were negligent — for example, by not removing the lymph node during Reiss’ initial surgery, by not ordering dye to be used in the CT scan, by not performing a biopsy, or by not removing the lymph node after its cancerous nature became clear. If the jury decided that Reiss was injured because of mistakes made by other doctors and that Dr. Bracey did not contribute to that injury, it was entitled to find in Dr. Bracey’s favor.

The jury heard evidence about the decisions made by other doctors. The question before the court was whether the jury could find that those doctors were negligent in the absence of expert evidence.

Dr. Bracey made the technical argument that he never asserted the negligence of other doctors as an affirmative defense and therefore had no burden to prove their negligence. Rather, he denied liability and raised non-party negligence as an alternative theory of causation that, in his view, he didn’t need to prove.

The court of appeals concluded that the label attached to the defense is not dispositive. The court held that “expert testimony is required to establish non-party medical negligence without regard to whether a defendant is raising the non-party medical negligence as an affirmative defense or in connection with a general denial of liability.”

That holding is consistent with the general rule that juries require the assistance of expert witnesses to determine whether a physician breached an applicable standard of care. Dr. Bracey’s “alternative theory of causation” could not be advanced without evidence. Expert evidence is required to persuade a jury that medical negligence occurred. Without that evidence, a jury would have no basis for concluding that Dr. Bracey’s “alternative theory” was grounded in fact.

Whether or not Dr. Bracey had the burden of persuasion, he had the burden of producing admissible evidence that non-party doctors were negligent. That burden of production could only be met by introducing expert opinions. Since Dr. Bracey failed to offer expert opinions, it was error for the trial court to submit a jury form that asked whether non-party physicians were negligent. That question sent the message that non-party negligence could relieve Dr. Bracey of liability. In the absence of expert evidence that the other doctors were negligent, the jury should not have considered their conduct in determining whether Dr. Bracey was liable. The court therefore remanded the case for a new trial.

 

Expert Allowed to Use Statistical Evidence of Plaintiffs’ Damages in FLSA Class Action

Eighth Circuit Discusses Whether an Expert Considered “Sufficient Facts” to Support a Conclusion

Joseph and Cindy Hirchak sued W.W. Grainger, Inc. and its subsidiary for selling and failing to warn about an allegedly defective product. They based their claim that Grainger sold the product on the opinion of an expert witness. A federal judge in Des Moines ruled that the expert’s testimony was inadmissible and granted summary judgment to Grainger. The Court of Appeals for the Eighth Circuit affirmed that decision.

Facts of the Case

Grainger distributes industrial equipment, including web slings. A web sling consists of straps or webbing. The webbing is typically made from polyester or a similar synthetic material. Web slings are wrapped around heavy objects and attached to a lifting device (such as a crane). The sling supports the objects as they are being lifted.

Joseph Hirchak was employed by Weiler Inc. Hirchak was working at Weiler’s plant when a web sling broke. The sling had been holding a load of steel tubing. The tubing fell on Hirchak, causing injuries.

While workers’ compensation is generally an exclusive remedy against an employer, an injured employee can bring injury claims against third parties if their negligence contributed to a work injury. Hirchak’s suit against Grainger alleged that Grainger supplied a defective web sling to Weiler and failed to warn Weiler about the defect.

Grainger distributes a variety of slings, including slings made by Juli Sling Company. Juli is a Chinese company. Hirchak alleged that the Grainger sold the defective Juli sling to Weiler. Grainger admitted that Weiler has an account with Grainger but denied that it supplied the defective sling to Grainger.

Grainger relied on its sales records and on the absence of Weiler purchase records evidencing sling purchases from Weiler. Grainger also argued that the Juli slings it distributes have sewn-in tags that the defective sling lacked. According to Grainger, those tags are sewn in by Juli. Grainger therefore contended that the defective sling was not a Juli sling.

Expert Evidence

To prove that Grainger supplied the defective sling, Hirchak relied on an expert opinion. Hirchak’s expert identified similarities between the defective sling and slings manufactured by Juli and distributed by Grainger. The expert based that comparison on two Juli slings that Grainger distributed, including a sling purchased from Grainger for the purpose of comparison and one furnished by Weiler. How Weiler determined that the sling was acquired from Grainger was unclear to the appellate court.

Grainger challenged the expert report. Grainger argued that virtually all web slings distributed in the United States share the similarities that the expert identified, regardless of their manufacturer. Grainger also argued that the expert failed to establish that it distributed the defective sling.

District Court Opinion

The district court decided that the expert’s opinion was not based on sufficient facts. Assuming that the points of comparison were sufficient to identify the defective sling as a Juli sling, that identification did not prove that Grainger distributed the sling. Weiler could have acquired it from any of Grainger’s competitors.

After excluding the expert opinion, the district court asked whether the remaining evidence established that Grainger distributed the defective sling. Finding none, it granted summary judgment in Grainer’s favor.

Appellate Opinion

The Eighth Circuit noted that experts must base opinions on sufficient facts to assist the jury in deciding factual disputes. When are facts “sufficient”? One measure of sufficiency is whether the facts both support the expert’s opinion and allow the expert to exclude other possibilities.

The court recognized that it isn’t necessary to rule out every possible alternative conclusion. It is, however, necessary to consider enough facts to account for obvious alternatives. The failure to rule out obvious alternatives suggests that the expert either failed to consider sufficient facts or failed to explain why the expert’s reasoning makes the expert’s conclusion more sound than alternative conclusions.

The court decided that the expert failed to consider sufficient facts to rule out the conclusion that a different distributor supplied the defective sling to Weiler. The expert’s focus was on facts tending to show that Juli manufactured the sling. The expert considered only a few facts to prove that Weiler obtained the sling from Grainger.

The expert compared the defective sling to two Juli-manufactured slings that came from Grainger. That comparison supported a conclusion that Grainger sells slings that are similar to the defective sling. Since other distributors also sell Juli-manufactured slings, the facts upon which the expert relied were not sufficient to rule out the alternative conclusion that a different distributor supplied the sling to Weiler.

Hirchak argued that, since Weiler had a Grainger-distributed Juli sling in its plant, it is reasonable to infer that Weiler acquired the defective sling from Grainger. Oddly, the court of appeals held that the expert could not draw that inference because only the jury could do so. Yet by granting summary judgment, the court deprived the jury of the opportunity to draw the inference.

A better analysis might focus on whether the inference is sufficiently reasonable that it would support a jury verdict in Hirchak’s favor. The fact that Weiler had one Juli-sling that was distributed by Grainger does not imply that all of its other slings came from Grainger.

While an expert may well have been able to identify the manufacturer of the defective sling, identifying its distributor was probably beyond the realm of expert testimony. Purchases and sales are typically proved by purchase records or the testimony of sellers or buyers. In the absence of that evidence, Hirchak had little hope of proving his case through expert testimony.

 

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.