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Texas flag and gavel

Texas Appellate Court Finds Expert Opinion of Foreseeability Insufficient in Medical Negligence Case

Desiree Ford used a prescription compounded cream containing ketamine and cyclobenzaprine. She sent a text saying that she would take a shower because “this lotion is making me feel weird.” Four days later, she was found dead in her bathtub. An autopsy determined that her death was caused by the toxic effects of ketamine and cyclobenzaprine.

Ford’s parents sued Dr. Michael Kelly, who prescribed the medication, and the pharmacy that dispensed it. Pursuant to Texas law, the parents served the defendants with expert reports prepared by a pharmacist, Diane Ginsburg, and by a physician, Dr. Michael Dominguez. The defendants objected to the reports.

The trial judge decided that Dr. Dominguez was not qualified to determine the cause of Ford’s death or to opine that the medication caused her death. The judge also determined that Dr. Dominguez’ report failed to explain adequately how the medication contributed to Ford’s death. Under Texas law, a pharmacist cannot testify as to the medical cause of a death, so Dr. Dominguez’ opinion was critical to Ford’s case.

The court granted Ford’s parents thirty days to correct the deficiencies in the report. The parents filed a more extensive report that included Dr. Dominguez’ C.V., and later filed an expert report prepared by Dr. Jill Urban. After considering other issues in the case, including the addition of a new defendant, the court overruled all objections to the reports and denied a motion to dismiss the case. The defendants appealed to the Texas Court of Appeals, which reversed the trial court’s order.

Texas Law

A statute in Texas requires the plaintiff in a negligence lawsuit against a healthcare provider to serve an expert report that provides a fair summary of the expert’s opinions regarding:

  • the applicable standard of care;
  • the manner in which the provider failed to meet that standard; and
  • the causal relationship between the provider’s negligence and the harm suffered by the patient.

Texas courts have interpreted the law to require plaintiffs to make a “good faith effort” to provide reports that:

  • inform the defendant of the specific conduct that is alleged to be negligent; and
  • allow the trial court to decide whether the lawsuit has merit.

A conclusory report does not meet that standard. Rather, the expert must explain any conclusions stated in the report. On the other hand, the report need not state all of the plaintiff’s evidence. Defendants can obtain that evidence in discovery.

Reports must be specific in their explanation of how a negligent act caused harm to the patient. Courts cannot rely on inferences to supply missing evidence of causation.

The defendants argued that the reports failed to explain why they should have foreseen that prescribing or dispensing the mediation to Ford would have caused her death. Foreseeability in Texas is regarded as an element of proximate cause. Expert reports need not use the word “foreseeability,” but they must make a good faith effort to provide proof of causation.

Dr. Dominguez’ Report

Dr. Dominguez based his opinion, in part, on these facts:

  • Kelly pre-signed prescriptions for a compounded cream that combined ketamine and cyclobenzaprine and provided those prescriptions to the pharmacy
  • Ford was paid $100 for every person she signed up to take compounded pain cream
  • Ford filled prescriptions Dr. Kelly gave her for the compounded cream
  • Ford had an extensive history of mental health problems, drug abuse, and an HIV infection
  • Ford self-administered the cream, felt weird, and was found dead in her bathtub four days later
  • Ford’s autopsy attributed her death to the toxic effects of ketamine and cyclobenzaprine

Dr. Urban’s report confirmed that Ford’s death was caused by the toxic effects of the compounded cream. Dr. Urban’s report did not address Dr. Kelly’s departure from the appropriate standard of care, as that was the function of Dr. Dominguez’ report.

Standard of Care

Dr. Dominguez opined that Dr. Kelly breached the appropriate standard of care because:

  • he failed to obtain an adequate history or to conduct an appropriate physical examination of Ford and did not maintain her medical chart appropriately;
  • a pain medication such as ketamine should only be prescribed after an in-person consultation, which did not occur;
  • a pain medication such as ketamine should not be prescribed in the absence of a therapeutic indication, such as chronic musculoskeletal pain, and should only be prescribed to patients who have an intolerance to oral analgesics; and
  • physicians are required to keep control of their prescription pads and may not provide pre-signed prescriptions to pharmacies.

Dr. Dominguez also explained that he is familiar with the pharmacological effects of therapeutic and nontherapeutic doses of the two drugs, and that he is familiar with how toxic drug overdoses cause death. He explained how ketamine (which is primarily used in anesthesia) and cyclobenzaprine (a muscle relaxant) could combine to cause respiratory depression to the point of death. He opined that using the cream caused Ford’s death, and faulted Dr. Kelly for prescribing the cream to a patient who had no need for it and whose history of mental illness and drug abuse made her a poor candidate for following prescribed doses. In Dr. Dominguez’ opinion, Ford’s death was a foreseeable result of having an inappropriate prescription for the compounded cream.


Remarkably, the court of appeals held that Dr. Dominguez’s opinion was conclusory because:

  • the only contraindications that Dr. Dominguez noted for ketamine are bipolar disorder and a history of drug use (both of which Ford had);
  • while those conditions might make a patient more likely to overdose, Dr. Dominguez did not determine that Ford actually overdosed, and in fact opined that the compounded cream would have killed her even if taken as prescribed;
  • Dominguez’ conclusion that the compounded cream can cause death does not establish that it did cause Ford’s death (notwithstanding the autopsy result, Dr. Urban’s report, and the absence of any other explanation for her death); and
  • even if Dr. Dominguez’ opinions establish “but for” causation, they do not explain why it was foreseeable that Dr. Kelly’s breaches of the standard of care would cause Ford’s death.

While many states view foreseeability as an element of duty (that is, everyone has a duty to avoid engaging in conduct that could cause a foreseeable harm to another person), Texas views foreseeability as an element of proximate cause. That view of the law requires plaintiffs to prove not only that negligent conduct caused a harm, but that the negligent actor should have foreseen that result.

In Texas, a harm is foreseeable if a person of ordinary intelligence would anticipate the danger created by a negligent act. Foreseeability is usually a jury question. A view of the evidence that is more respectful of a jury’s role in the civil justice system might lead to the conclusion that the likelihood of a mentally ill patient overdosing on a drug that should never have been prescribed to her creates a foreseeable risk of death. Whether or not Ford actually overdosed shouldn’t matter if, in fact, death was a foreseeable consequence of giving the drug to a mentally ill patient and if the patient died because she took the drug.

The court of appeals seems to have set an impossible standard for expert witnesses to meet in a case where a jury might reasonably regard a doctor’s negligence as obvious, and where it could reasonably agree with an expert that the patient would still be alive if the doctor had not breached a standard of care. Setting impossible standards for expert opinions is an unfortunate tendency of appellate courts that place the protection of doctors from the consequences of negligent actions above protection of the public. The tendency is particularly unfortunate for the public when judges substitute their own opinions for the well-reasoned opinions of experts.

Baby feet

Medical Examiners Clash Over Cause of Baby’s Death

The medical examiners testifying in the aggravated manslaughter trial of Michael Marrara offered vastly different explanations for why his son died on March 26, 2012.

Death of Andrew Marrara

On March 26, 2012, Michael Marrara called 911 to report that he found his son blue and non-responsive. Andrew Marrara was pronounced dead a short time later at Englewood Hospital. The postmortem exam found blunt force trauma to the head and nerve damage to the eyes. There were also three posterior healed rib fractures. The official cause of death was ruled “closed head trauma” and categorized as a homicide.

Michael Marrara was charged with aggravated manslaughter, aggravated assault, endangering the welfare of a child and hindering in connection with Andrew’s death. He faces a maximum of 65 years in prison, with up to 46.5 years of parole ineligibility.

Expert Testimony

At trial, the state is attempting to show that Marrara killed his son because he was frustrated that he would not stop crying. The state argues that Marrara shook his son so hard that the blood vessels burst in his head.

An autopsy showed that Andrew died from blunt force trauma to the head as a victim of homicide. The autopsy was conducted by Dr. Jennifer Swartz, a forensic pathologist, and confirmed by Dr. Frederick DiCarlo and Dr. Lucy Rorke-Adams.

Dr. DiCarlo testified that the forensic tests show that the bruise on Andrew’s lip occurred on the morning of his death and that the blood on the brain was fresh. DiCarlo concluded that Andrew’s injuries were caused by “blunt force,” which “can be due to shaking” or “a punch to the forehead.”

Senior Assistant Prosecutor David V. Calviello asked Rorke-Adams if there was any evidence that the death was natural. Rorke-Adams, who is an expert on child injuries, testified that there was no way that Andrew died of natural causes.

Marrara’s defense team argued that Andrew was a sick child that died of natural causes. They pointed to his 18 visits to the doctor during his 10 weeks of life and state that the hemorrhages found on the brain were not the result of physical abuse; rather, they were due to a medical condition called cerebral venous thrombosis, or CVT, a rare form of stroke triggered by a virus.

The defense team hired acting Bergen County Medical Examiner, Dr. Zhongxue Hua, to review the autopsy. Hua claims that there is microscopic evidence of a virus in Andrew’s system. Hua identified “inclusion bodies,” the microscopic clusters of proteins that are often indicators of a virus. Rorke-Adams acknowledged that inclusion bodies were present in Andrew’s brain tissues, but said that their presence had no significance and that there was no evidence that Andrew suffered from CVT or a blood disorder.

Hua said that Andrew lacked several injuries that are common in shaken baby cases such as retinal hemorrhage, neck injury, and bruising. He said, “You do not have significant trauma, you do not have reasonable evidence of shaking, but you do have a real disease there that could be fatal.”


Michigan Court of Appeals Approves Mechanic’s Expert Testimony

A defense challenge to the use of a mechanic as an expert witness to discredit the defendant’s claim that his brake line failed was rejected by the Michigan Court of Appeals. The court held that the mechanic’s testimony satisfied Michigan’s version of the Daubert standard.

Facts of the Case

Dalton Carll was 17 and a novice driver when he crashed a pickup truck on a gravel road. Two of his friends were riding in the truck bed and four other friends were inside the passenger area. Carll went through a stop sign and struck a car that was entering the intersection. The driver of that car was killed and his passenger was injured. The two people riding in Carll’s truck bed were also injured.

A passenger in Carll’s truck testified that he was driving at 30 to 40 mph when he reached the stop sign. Carll testified that he tried to stop  but the truck failed to respond when he applied the brakes. Carll supported his defense with evidence that a post-accident inspection of his truck determined that the brake line was broken.

Carll was convicted of causing death by reckless driving and three counts of causing injury by reckless driving. On appeal, Carll contended that the prosecution’s expert witness should not have been allowed to testify.

Expert Testimony

Carll testified that he was driving at 20 to 30 mph when he approached the stop sign. He testified that the brakes had been “spongy” but responsive until he reached the stop sign, when they failed to stop the truck.

Greg Bittner, who owned and operated a local auto repair shop, testified as an expert for the prosecution. Bittner inspected the truck after the accident and determined that it had a broken brake line. He testified that, in his opinion, the brake line came apart during the accident but was functioning before the accident.

Bittner based his opinion on his observation that the brake line was “cleanly cut” at the point where the cab and the frame had bent into the line. The frame damage was caused by the accident. He saw no evidence of wear or corrosion that would cause a brake line failure.

Bittner also testified that the front brakes operated on a separate line and that Carll should have had some braking power from the front brakes even if the brake line to the rear brakes had broken. Bittner inspected all rotors, calipers, and pads and found nothing that would prevent the brakes from functioning.

Appellate Ruling

Carll argued on appeal that Bittner should not have been allowed to testify as an expert. The court of appeals affirmed the trial court’s conclusion that Bittner was qualified to render an expert opinion. He is state certified as a brake mechanic and has 15 years of experience testing, maintaining, and repairing brake systems. That experience was sufficient to qualify him as an expert in brakes.

Following the Daubert formula of expert opinion admissibility, Michigan requires the trial judge to determine that the expert based opinions on adequate facts, used reliable principles and methods to form opinions, and reliably applied those methods to the facts. The defense made a general challenge to Bittner’s methodology as unreliable.

The court of appeals was satisfied that Bittner’s testimony “rested on a reasonable analysis.” Bittner gathered relevant facts by inspecting the components of the braking system. He explained how hydraulic brakes work and how the front brakes should have worked even if the brake line to the rear brakes was severed before the accident.

Bittner testified about the reasons why brake lines fail and the evidence of failure that he has seen (including corrosion and rust) during his years of repairing defective brakes. He reasonably concluded that the absence of such evidence indicated that the brakes did not fail before the accident. His observations of the bent frame in the vicinity of the brake line supported a reasonable hypothesis that the brake line severed during, not before, the accident. Consequently, Bittner was able to form a reasonable opinion about the most likely cause of the broken brake line.

Massachusetts Law

No Error in Massachusetts Court’s Expert Witness Rulings Regarding Insanity Defense

Christopher Piantedosi was found guilty of first degree murder after stabbing his girlfriend to death. Piantedosi admitted killing the victim. He rested his defense on the contention that antidepressants caused involuntary intoxication that negated criminal responsibility for the crime.

Piantedosi challenged his conviction on appeal, arguing that the trial court erred by excluding the testimony of his expert witness while admitting the testimony of the state’s expert. The Massachusetts Supreme Court affirmed the conviction.

The Murder

Piantedosi argued with his girlfriend. His daughter was a witness to the argument. At one point, Piantedosi brandished a small knife that he pulled from his pants pocket. His girlfriend told him to leave. Piantedosi began to talk to himself, telling himself to calm down.

Piantedosi then grabbed a butcher knife and chased his girlfriend into his daughter’s bedroom. His daughter had been video chatting with a friend who was still connected to the daughter’s tablet. Through the video connection, the friend witnessed Piantedosi stabbing the victim multiple times. Piantedosi repeated the words “You got to die” during the stabbing.

Piantedosi’s Mental Health History

The murder occurred on May 3, 2012. In late April 2012, Piantedosi was admitted to a hospital for self-inflicted injuries to his arms. He was diagnosed with depression and was given prescriptions for Trazodone and Prozac.

Piantedosi was discharged on May 2. Several people who saw him at a class on the evening of his discharge noted that he seemed tired and unwell. On May 3, he appeared to be pale and dehydrated.

Dr. Wade Meyers, a forensic psychiatrist, evaluated Piantedosi after he was arrested. Dr. Meyers concluded that Piantedosi suffered from involuntary intoxication caused by taking a combination of Trazodone and Prozac. He also concluded that Piantedosi was unable to appreciate the wrongfulness of his conduct or to control his behavior.

Dr. Meyers explained that rage reactions, hostility, and a disinhibition of behavior are possible side effects of both medications. He concluded that Piantedosi suffered from bipolar disorder and was therefore more vulnerable to those side effects. Both Trazodone and Prozac contain warnings that the drugs can induce violent mood swings in people who suffer from bipolar disorder.

In rebuttal, the prosecution called Dr. Alison Fife, a forensic psychiatrist. She did not agree that Piantedosi suffered from bipolar disorder. She also disagreed that Piantedosi was involuntarily intoxicated. She testified that Piantedosi’s behavior was not driven by a mental illness, but by feelings of anger, sadness, and rage.

Limitations on Dr. Meyers’ Testimony

Dr. Meyers interviewed Piantedosi before he formed any opinions. The defense asked Dr. Meyers whether he learned anything from Piantedosi concerning his mental health history that was significant to his opinion. The prosecutor objected that the question called for hearsay since Piantedosi had not testified. The court excluded proffered testimony that Piantedosi had discussed his experience of manic-like symptoms, hyperactivity, moodiness, extended periods of sleep, and significant stressors in his life.

The Massachusetts Supreme Court recently abandoned the traditional rule that an expert’s opinion must be based on personal knowledge or on facts that have been admitted into evidence. Most courts have rejected a strict application of the traditional rule because it impairs the ability of experts to express honest and helpful opinions. The Massachusetts court adopted the majority rule that experts can base opinions on evidence that has not been admitted if the evidence is the type of information that experts would routinely rely upon.

Whether experts can testify about hearsay statements upon which they rely in forming an opinion is a different question. The answer varies from state to state. The court concluded that in Massachusetts, an expert testifying on direct examination may not articulate any underlying facts that support the expert’s opinion if those facts are not independently admissible.

The court observed that its rule departs from the federal rule, which generally allows experts to disclose inadmissible facts if they would help the jury understand the expert’s opinion and are more helpful than prejudicial. The court declined to adopt the federal rule because, in the court’s view, it allows parties to use experts as a backdoor means of presenting inadmissible evidence to the jury.

The court noted that Dr. Meyers was allowed to testify that Piantedosi suffered from a bipolar disorder and that his diagnosis was based, in part, on the history he took from Piantedosi. Explaining that history, however, would require repeating Piantedosi’s out-of-court statements. The rule against hearsay prevented Dr. Meyers from referring to those statements.

Prosecution’s Expert Testimony Regarding Motivation

Dr. Fife, the prosecution’s expert, testified that mental illness “did not drive” Piantedosi to kill the victim and that he was driven to kill her by feelings of depression, as well as sadness mixed with anger and rage. On appeal, Piantedosi argued that the testimony was improper because an insanity defense in Massachusetts does not depend on proof that a mental illness drove the defendant to commit a crime. Instead, the question is whether a mental illness deprived the defendant of the ability to appreciate the wrongfulness of his conduct, or made the defendant substantially less capable of conforming his conduct to the requirements of the law.

The Massachusetts Supreme Court did not view the testimony about what “drove” the defendant as problematic. While the testimony was not couched in terms of the legal standard, it was another way of expressing whether Piantedosi was capable of conforming his behavior to the requirements of the law.

Dr. Fife also strayed from the legal standard by testifying that she likes to think of the legal standard as asking whether the crime would have occurred even in the absence of a mental illness. That isn’t the test for insanity in Massachusetts and an expert’s incorrect understanding of the law has significant potential to prejudice the jury.

The trial judge stepped in promptly, however, and instructed the jury that the court would define the applicable law at the end of the trial. The state supreme court did not regard the expert’s confusing misstatement of the law as prejudicial, given the trial court’s correct statement of the law during jury instructions.

Finally, the defense objected that the expert’s opinion invaded the jury’s province as the ultimate fact-finder by essentially expressing an opinion that the defendant was guilty. Courts are not always consistent in the latitude they give to experts, but the Massachusetts Supreme Court followed the general and somewhat contradictory rule that, while an expert witness may not express an opinion about a defendant’s guilt or innocence, an expert may give an opinion that “reaches or approaches the ultimate issue in a case.” However fuzzy the line between those two rules might be, the court ruled that Dr. Fife did not cross it.

Expert Witness

Expert Accused of “Side Switching” Is Allowed to Testify

Thousands of patients sued C. R. Bard, Inc. and Bard Peripheral Vascular, Inc. after they sustained injuries from the implant of a Bard IVC filter. The inferior vena cava (IVC) is a vein in the lower half of the body. Surgeons implant IVC filters in patients who are at risk of developing blood clots in their legs, including patients who are diagnosed with deep vein thrombosis and are at risk of developing a pulmonary embolism.

The plaintiffs in the lawsuits allege that the Bard IVC filters either perforated their IVC or broke apart and caused damage to their organs. The plaintiffs argue that Bard IVC filters are more dangerous than other IVC filters and that they should have been warned of the dangers. Bard denies that its IVC filters create more risks than are common to all IVC filters. Bard asserts that doctors are familiar with those risks.

The lawsuits were consolidated in a federal district court in Arizona. The plaintiffs expect to use several expert witnesses to prove their claims. In addition to medical experts who will testify about the harm caused to each patient, the plaintiffs have identified regulatory experts and engineers who may testify.

Expert’s Alleged “Side Switching”

Bard filed a motion to exclude the testimony of Dr. Thomas Kinney, a mechanical engineer, physician, and interventional radiologist. The plaintiffs want Dr. Kinney to testify about design defects in the Bard IVC filters and about Bard’s failure to warn patients of those defects.

Dr. Kinney and two colleagues wrote an extensive report that addressed two of the seven IVC filters at issue in the litigation. The report concluded that “Bard was aware of design defects and high complication rates associated with its filters and failed to adequately warn physicians of those dangers.”

Beginning in 2005, Dr. Kinney served for four years as a consultant for Bard with regard to its IVC filter. In 2006 and 2007, Bard hired Dr. Kinney to serve as an expert witness in two lawsuits against Bard for injuries allegedly caused by IVC filters.

Bard asked the court to disqualify Dr. Kinney as an expert because he engaged in “side switching” by agreeing to testify for the plaintiffs. The plaintiffs opposed the motion because it would deprive them of the services of a highly qualified expert and would keep the jury from hearing strong evidence of Bard’s negligence.

“Side Switching” Concerns

Disqualification motions are rarely granted because courts are reluctant to prevent experts who have “useful specialized knowledge” from sharing that knowledge with a jury. The standard for disqualifying an expert is therefore difficult to meet — at least in the Ninth Circuit, where courts generally view experts in a positive light and trust juries to evaluate expert testimony.

As a general rule, experts are free to testify for plaintiffs in some cases and for defendants in others. Testifying for both plaintiffs and defendants does not constitute “side switching.” In fact, lawyers often prefer experts who have testified for both plaintiffs and defendants, because those experts cannot easily be accused as having a bias in favor of a particular side in litigation.

The “side switching” analysis becomes relevant when an expert is hired by a party and later testifies against that same party. In those circumstances, the concern is that the expert may be basing an opinion on information that the expert received in confidence.

“Side-Switching” Tests

The district court noted its inherent power “to protect the integrity of the adversary process, protect privileges that otherwise may be breached, and promote public confidence in the legal system.” It therefore analyzed the disqualification motion in light of those concerns.

Most courts have adopted two tests to decide whether to disqualify an expert for “side switching.” The first, known as the “bright-line test,” excludes an expert’s testimony when the expert clearly received confidential information while working for the adverse party in the same litigation.

When there is a dispute about the expert’s receipt of confidential information, courts often rely on a second test. The court asks whether it was reasonable for the adverse party to believe that it had a confidential relationship with the expert and whether it gave the expert confidential information that is relevant to the current litigation. An affirmative answer to both questions will usually result in disqualification.

When courts use a different test, they still focus on whether a confidential relationship existed and whether the expert received confidential information. Those courts tend to focus on policy considerations: giving parties a fair trial while protecting the integrity of, and public confidence in, the legal system.

Application of the Tests

There was no dispute that Bard once had a confidential relationship with Dr. Kinney. The question was whether Bard (or Bard’s attorneys) gave Dr. Kinney confidential information. Information is confidential if it falls within the realm of attorney-client privilege or attorney work product, or if the information is particularly significant.

Examples of confidential information include: an attorney’s assessment of the strengths and weaknesses of a party’s case; litigation strategy; the role of experts at trial; and the party’s anticipated defenses. Evidence that a business knew its product is defective should not usually be confidential because that is the kind of information that should be disclosed in discovery.

Bard contended that its attorneys in the earlier cases shared their “mental impressions” with Dr. Kinney, but they presented no evidence to substantiate that claim. Dr. Kinney testified that he reviewed medical records in the earlier cases but did not talk to counsel about defense strategy.

Since the parties disputed whether Bard gave confidential information to Dr. Kinney, the court did not apply the bright-line test. Instead, it examined the evidence in support of Bard’s contention that it gave confidential information to Dr. Kinney.

The court noted that Dr. Kinney was a Bard consultant for four years and that he executed agreements prohibiting the disclosure of confidential information. That evidence permitted an inference that Dr. Kinney received confidential information. However, the Ninth Circuit requires “specific and unambiguous” evidence that a party gave confidential information to an expert before the expert will be disqualified. Bard presented no such evidence. The existence of a confidentiality agreement does not prove that relevant confidential information was provided to an expert, and Bard offered no such evidence.

The court noted that Bard failed to provide declarations from Bard attorneys or Bard employees identifying confidential information they gave to Dr. Kinney. On the other hand, Dr. Kinney’s declaration stated that he received no such information. Since Dr. Kinney’s declaration was unrefuted, the court denied the motion to disqualify Dr. Kinney as an expert witness.

California Law Legal System Concept

California Appellate Court Hikes Burden for FEHA Expert Fees

In Arave v. Merrill Lynch, a California Appellate Court recently ruled that employers who win Fair Employment and Housing Act (FEHA) cases can be reimbursed for the fees and costs only if they can prove that the plaintiff’s case was frivolous.

The Dispute

Brent Arave was a managing director with Merrill Lynch and a member of the Church of Jesus Christ of Latter-day Saints. In September 2010, an anonymous employee satisfaction survey was conducted by a third party on behalf of Merrill Lynch. The survey led to Arave’s resignation and him suing his former employer under the California Fair Employment and Housing Act, alleging discrimination, harassment, and retaliation based upon his membership in the Church of Jesus Christ of Latter-day Saints.

A jury returned a verdict in favor of defendants and awarded them fees and costs, including $83,642.68 in costs and expert witness fees. Arave appealed the ruling.

The Appeal

Arave argued numerous claims on appeal, including that the trial court erred by awarding defendants costs and expert witness fees on his FEHA claims, despite finding that the claims were nonfrivolous.

The trial court awarded the defendants $54,545.18 in ordinary legal costs. In Williams v. Chino Valley Independent Fire District, the California Supreme Court held that a prevailing defendant cannot recover ordinary costs on FEHA claims “unless the court finds the action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so.”  The appellate panel found that, because the trial court held that the FEHA claims were not objectively without foundation, the defendants were not entitled to recover the ordinary costs it incurred in defending Arave’s FEHA claims.

The trial court awarded defendants $29,097.50 in postsettlement offer expert witness fees under Code of Civil Procedure section 998. The appellate panel reversed the award of expert fees, ruling that the FEHA reimbursement provision found in Section 12965(b) trumped the more general fee-shifting provisions in section 998(c) of the Code of Civil Procedure and section 12965(b) does not authorize expert fee awards to defendants absent a showing of frivolity. Because the trial court determined that the claims were not frivolous, the appellate panel held that it erred in awarding expert witness fees to defendants.

The court wrote, “Prospective plaintiffs with meritorious claims trying to decide whether to attempt to vindicate their rights would not be able to predict their exposure. Any attorney advising a prospective plaintiff would have to acknowledge they may lose even a very strong suit and end up being compelled to pay defendant tens of thousands of dollars in expert witness fees. Indeed, if we accepted defendants’ position, our decision would be an object lesson for all future FEHA plaintiffs on the risks of bringing colorable discrimination claims.”

The decision by the Fourth Appellate District creates a split of authority among the California appellate courts on the issue of FEHA expert witness fees.

Court Dismisses Expert Witness Lawsuit Against Professional Association

Execution Challenged Because Expert Known as “Dr. Death” Allegedly Gave False Testimony

Death sentences are usually reserved for particularly heinous killers. Jeff Wood is an exception. He didn’t kill anyone, but a Texas jury sentenced him to death in 1998. The death sentence may have been influenced by the testimony of an expert witness, known to lawyers and in the media as “Dr. Death,” who allegedly gave false and unethical testimony during Wood’s sentencing trial.

Jeff Wood’s Felony Murder Conviction

Wood was sitting in a truck outside a Kerrville convenience store while Daniel Reneau committed a robbery. Reneau shot and killed a store clerk. Under the felony murder law in Texas, a person who commits a felony is held responsible for a murder caused by any dangerous act committed in the course of the felony.

Under the Texas law of parties, when two people conspire to commit a felony and, while attempting to commit the felony, one of the conspirators commits another felony, the conspirator who did not commit that felony is responsible for it, despite having no intent to commit it, if the commission of that felony should have been anticipated. Wood maintained that he didn’t know Reneau was armed and had no reason to expect that a murder would be committed during the robbery. The prosecutor, however, claimed that “Wood knew Reneau would kill Keeran if he didn’t cooperate.”

The jury agreed with the prosecutor and found Wood guilty of felony murder because he conspired to commit the robbery that led to the murder. The prosecutor asked for a death sentence. The jury authorized a death sentence and the judge imposed it. Wood lost a number of appeals and post-conviction proceedings. He was scheduled to be executed in 2016.

Wood’s pending execution prompted a national outcry. Whether or not Wood was aware that the robbery might end in murder, Wood did not pull the trigger. Even some supporters of the death penalty consider it morally wrong to execute a defendant who did not personally cause the victim’s death. Some Texas legislators are trying to change Texas law so that death sentences are not imposed under the law of parties, but their efforts to date have been unsuccessful.

Dr. Death’s Role at Sentencing

While Wood’s challenges to his conviction have been unsuccessful, he recently persuaded an appellate court to stay his execution so that a new challenge to his death sentence could be considered. His primary challenge is based on sentencing testimony of Dr. James Grigson.

An appellate court in 1989 recognized that Dr. Grigson had earned the nickname “Dr. Death” because of the number of criminal trials in which he had testified in support of the death penalty. Without ever having met or interviewed the defendant, Dr. Grigson consistently testified in capital cases that the defendant “certainly” or “absolutely” would commit future acts of violence.

Wood’s habeas petition alleges:

  • Grigson grossly exaggerated the number of capital murder defendants he had examined when he testified in Wood’s trial
  • Grigson falsified the percentage of cases in which he claimed to have found the defendant to be “not dangerous” in order to enhance his credibility
  • Grigson unethically told juries that he could predict with “100% certainty” that a defendant would be dangerous in the future, when no witness has the ability to predict the future with certainty (in fact, Grigson was expelled from professional organizations for giving that unethical testimony)
  • Grigson falsely testified that he could make an accurate prediction of future dangerousness without examining the defendant, based on facts posed in a prosecutor’s hypothetical question, after he had been expelled from a professional organization for doing just that
  • When he told Wood’s jury about his credentials, he failed to disclose that he had been expelled from professional organizations for giving testimony similar to the testimony he planned to give in Wood’s trial

Wood’s habeas petition also quotes jurors who were angered to learn that the prosecution called Grigson as a witness without disclosing his expulsion from professional organizations. Those jurors no longer believe the death penalty is an appropriate punishment for Wood.

Jeff Wood’s Future

As a result of the appellate court’s decision, Wood’s case will be returned to the trial court for a hearing to determine whether Grigson’s expert testimony was false or misleading, and if so, whether it affected the death sentence. If Wood loses that hearing, he will be entitled to appeal. His execution, once days away, will not occur any time soon. There is good reason to believe that it will never occur, given public opposition to imposing the ultimate penalty upon a defendant who played a minor role in the robbery that led to the victim’s death.

In the meantime, Wood’s mental health, which wasn’t good at the time of his trial, has continued to deteriorate. Wood was delusional at the time of his sentencing hearing and instructed his lawyers not to defend him, a fact that gave the Texas judicial system no pause in its zeal to execute defendants.

Wood’s lawyers have petitioned the governor for clemency. Gov. Greg Abbott has never changed a death sentence, but Wood’s case is unusual. His request to commute his death sentence to a life sentence has the support of the district attorney who prosecuted his case, the district judge who is hearing his case now, and the Kerrville chief of police.

In a letter to the governor, District Attorney Lucy Wilke stated she would not have used Grigson as an expert witness if she had known about his expulsion from professional organizations. She also cited Wood’s low intelligence, his history of nonviolence in and out of prison, and the fact that he didn’t shoot anyone. Wilke knew that Wood wasn’t the shooter when she asked the jury to sentence him to death, but she has apparently had a change of heart in the intervening twenty years.

Regardless of the outcome, Wood’s case is another reminder that defense lawyers need to pay particular attention to the credentials of prosecution experts. Wood’s lawyers may have been hampered by the instruction not to defend their client, but if they had attempted to verify Grigson’s credentials, they could have notified the prosecutor of his expulsions, which would probably have convinced the prosecutor not to call Grigson as a witness against Wood.


Experts Testify in Walker Murder Trial

Kentucky State Police expert witnesses testified about their analysis of forensic evidence in the trial of George Walker for murder and tampering with physical evidence.

The Murder

On December 21, 2015, Allison Walker was reported missing by her husband, Chris. Logan County Deputy Sheriff Kyler Harvey questioned Chris Walker’s brother, George, about Allison’s disappearance.

Harvey reported that George initially said that he heard “in the wind” that Allison Walker’s body was in the nearby Red River. Later in his interview, George admitted to choking Allison, tying her hands and feet with rope, and dragging her to the river and dumping her body. George led authorities to the spot where Allison Walker’s body would later be found by the Logan County Search and Rescue.

On December 23, 2015, Allison Walker’s body was found in the Red River, 200 yards from where George had indicated. Her body was wrapped in a blue tarp and bound with rope.

The Trial

George Marshall Walker, 22, of Adairville, Kentucky, was charged with murder and tampering with physical evidence in the death of his sister-in-law, Allison Walker.

During opening statements, George’s attorney Nathan Beard argued that George did not kill Allison; he confessed to keep his brother Chris from being arrested.

The Kentucky State Police presented numerous expert witnesses to testify about the forensic evidence found in the case.

Amy Burrows-Beckham, assistant medical examiner for the state, testified about the autopsy that she conducted on Allison Walker’s body. Burrows-Beckham determined that Allison died from asphyxiation from strangulation. Drowning may also have been a factor in the death, although how a person who has stopped breathing as the result of a strangling can drown is something of a mystery. Time of death could not be established because Allison’s body had been placed in cold water, so there was no decomposition.

Jon David Clem, forensic chemist with the Kansas State Police Central Lab in Frankfort, testified about his analysis of the rope that was found on Allison’s body compared to the rope that was found in the laundry room inside her home. While Clem could not make a physical match because of the frayed ends of the rope from the laundry room, he found that both ropes shared identical construction and contained the same fibers.

Alison Tunstill, forensic biologist with the Central Lab, testified about the vaginal swabs that were collected from Allison Walker’s body. Tunstill testified that the male-specific DNA sample that she analyzed was not large enough to determine whether it came from either George or Chris Walker.  George Walker had told investigators that he had sex with his sister-in-law on the night that she died.

Sabrina Christian, forensic biologist with the Central Lab, testified about the cervical swabs obtained from Allison Walker. Christian testified that the swabs showed DNA consistent with a second person, but the sample was too limited for her to determine if it belonged to either George or Chris Walker. Christian also testified that Allison Walker’s underwear was analyzed and that it tested positive for the saliva of Allison Walker and Chris Walker.


The jury found George Walker guilty of both murder and tampering with evidence. He was sentenced to 55 years in prison.

Wisconsin Justice

Administrative Agency Must Consider an Expert Witness’ Inconsistent Prior Testimony

Ultratec, Inc. owns patents on systems for assisting the hearing impaired in making telephone calls. Ultratec sued CaptionCall, LLC in a federal district court in Wisconsin for patent infringement. UltraTec won a $44 million verdict in that case.

While that lawsuit was underway, CaptionCall petitioned the Patent Trial and Appeal Board (PTAB) to review the patentability of Ultratec’s systems. The inter partes review that it initiated allows the PTAB to revoke patents on limited grounds. Whether an inter partes review may lead to an unconstitutional deprivation of property, on the theory that the PTAB has no authority to take away a patent that it has already granted, is a pending question before the Supreme Court. That question was not decided in the Ultratec case.

Ultratec lost before the PTAB, which caused the district court handling the infringement lawsuit to put those proceedings on hold pending an appeal of the PTAB decision. The issue on appeal was whether the PTAB should have considered the testimony that CaptionCall’s expert witness gave in the infringement lawsuit — testimony that was, in Ultratec’s view, inconsistent with written declarations he made to the PTAB.

Inconsistent Expert Evidence

While the PTAB’s website describes the inter pares review as a “trial proceeding,” the Court of Appeals for the Federal Circuit noted that the review hearings bear little resemblance to a trial. Witnesses are rarely allowed to testify. Parties make written submissions of evidence and are allowed to make a brief oral argument.

In the inter pares review, CaptionCall relied on the expert testimony of Benedit Occhiogrosso to challenge the patentability of Ultratec’s systems. Occhiogrosso also testified (and was cross-examined) in the infringement trial. Ultratec filed a motion before the PTAB to reopen the record so that it could submit Occhiogrosso’s trial testimony, which it contended was inconsistent with his declarations to the PTAB. The PTAB denied that motion without reviewing Occhiogrosso’s trial testimony.

The PTAB ruled in CaptionCall’s favor in its challenge of Ultratec’s patents. The PTAB relied heavily on Occhiogrosso’s expert evidence in making that ruling, often noting that it considered Occhiogrosso to be more credible than Ultratec’s expert witness. Ultratec appealed to the U.S. Court of Appeals for the Federal Circuit, arguing that the PTAB should have considered Occhiogrosso’s trial testimony before deciding that his declarations were credible.

Appellate Court’s Decision

The Court of Appeals for the Federal Circuit reversed the PTAB. The appellate court concluded that the PTAB had no legitimate basis for refusing to consider the testimony Occhiogrosso gave in the infringement trial. Ultratec could not have submitted that testimony before Occhiogrosso gave it, so Ultratec was justified in asking to supplement the record after evidence was closed.

The Court of Appeals disagreed with the PTAB’s conclusion that it would not be in the interest of justice to consider Occhiogrosso’s allegedly inconsistent testimony. Inconsistency on a decisive issue would have been highly relevant both to the PTAB’s substantive decision and to its assessment of Occhiogrosso’s credibility. Reviewing that evidence would not have been burdensome, and refusing to consider it was not something a fact-finding tribunal could reasonably do.

The court also concluded that the PTAB lacked the information it needed to make a reasoned decision about the importance of Occhiogrosso’s trial testimony, since it refused to review that testimony. The court faulted PTAB for adopting procedures that require it to decide whether to supplement the record with evidence that it never sees. Those same procedures prohibited Ultratec from submitting the testimony with its request to supplement the record, which prevented the Court of Appeals from reviewing the testimony in deciding the appeal. And since the PTAB denied the request during an unrecorded conference call and failed to enter an order explaining its decision, the PTAB did not comply with its obligation to present a full and reasoned explanation of its decision so that it can be reviewed in a meaningful way on appeal.

On remand, the Court of Appeals ordered PTAB to consider Occhiogrosso’s trial testimony. If, as Ultratec alleges, the testimony is inconsistent with the declaration that CaptionCall relied upon, the PTAB must decide whether that inconsistency specifically pertains to the patentability of Ultratec’s system and whether it more generally affects Occhiogrosso’s credibility as an expert witness.

Professional Cycling

Parties Argue over Experts in Government Fraud Case against Lance Armstrong

A multi-million dollar fraud lawsuit filed by the US government against former professional cyclist Lance Armstrong will go to trial in November of this year, but the sides are engaging in pretrial skirmishes over the admissibility of expert witnesses.

Armstrong, who famously fell from grace after admitting he used PEDs to achieve cycling greatness, has been sued by the US government to recover sponsorship money paid to Armstrong and his team by the US Postal Service (USPS). Both sides have called on expert witnesses to debate the value the USPS received from its sponsorship in order to help determine if the government was victim of a fraud perpetrated by Armstrong.

US Government Pursues Fraud Lawsuit against Lance Armstrong

In 2010, former Armstrong teammate Floyd Landis initiated a federal whistleblower case under the False Claims Act by asserting that the 7-time Tour de France champion’s deception about PED use constituted a fraud against the US government, which sponsored Armstrong’s team through the US Postal Service from 2000 – 2004.

Armstrong admitted to doping during his cycling career after a 2012 investigation by the US Anti-Doping Agency resulted in him being stripped of his Tour de France titles and banned from the sport. According to the government’s lawsuit, Armstrong’s PED use invalidated the USPS’s sponsorship contract. The agreement between the USPS and Armstrong paid $32.2 million during the life of the sponsorship, and federal attorneys argue that the cyclist violated the terms of the deal by cheating and lying, which in turn made the sponsorship worthless.

For his part, Armstrong and his attorneys have argued that during the life of the sponsorship agreement the USPS did not suffer any harm, but instead received a healthy financial profit as a result of the relationship. Suspicion of Armstrong’s doping did not reach peak levels until several years after the deal ended, and the former cyclist argues that the government received full value for its sponsorship during the period when he was winning multiple Tour de France titles. Both sides have attempted to prove the value of the sponsorship agreement with economic expert witnesses which the presiding judge will assess during the months preceding trial.

Federal Government Presents Experts on Sponsorship Value

US District Judge Christopher Cooper has allowed the government to pursue its lawsuit against Lance Armstrong by presenting “admissible evidence regarding the negative publicity the Postal Service received following the disclosure of Armstrong’s PED use,” allowing a jury to determine if the USPS suffered actual damages, and if so, what amount.

In an effort to prove the diminished value of its sponsorship agreement, the government proposed expert witness Larry Gerbrandt, who has submitted a report identifying nearly 1.5 billion online media impressions arising from Armstrong’s doping, with an additional 154 billion impressions stemming from the media coverage. Gerbrandt’s expert report concludes that these impressions highlight the negative publicity surrounding Armstrong, and significantly reduced the value of the sponsorship. Armstrong’s attorneys have submitted a motion to bar Gerbrandt’s testimony because it offers no concrete evidence of diminished value, and instead asks the jury to speculate too much on the central issue of the lawsuit.

The government has also submitted expert Jonathan Walker, who has evaluated the sponsorship agreement and concluded that it was worth zero dollars because the deal would not have happened had the government known about the doping. Walker’s expert testimony has been challenged by Armstrong’s team who have argued that a prior ruling in the case already dismissed claims by the government based on the argument that it never would have signed the agreement had it known about the doping.

Lance Armstrong Submits Expert Witnesses in Federal Fraud Lawsuit

Armstrong, who has maintained that the government received more than fair value for the USPS sponsorship, has submitted an expert witness to evaluate and estimate the value that the government earned from the deal. Douglas Kidder, an economics expert witness, conducted a valuation of the agreement and submitted a report which estimates the Postal Service received $257 million as a result of media exposure during the life of the sponsorship. According to Kidder, the government benefited financially from its relationship with Armstrong before revelations of doping became a serious public concern, and as such, the sponsorship was profitable.

Government attorneys have argued that Kidder is not competent to testify about media-based value of the sponsorship agreement, and as such he should be barred from testifying. Judge Cooper will review all the motions and arguments regarding proposed expert testimony in the Lance Armstrong fraud case this summer, setting the stage for the trial in November. Should Armstrong be found liable for fraud so severe that it nullified the value of the sponsorship, he could be forced to pay the government $100 million — which is triple the value of the deal and the maximum penalty allowed under the False Claims Act. Even if Armstrong’s attorneys and experts prove that the government did not suffer economic damages, he could be subject to penalties of up to $451,000 if found liable for fraud.