Category Archives: General

Expert Testimony Not Needed to Prove Hurricane Damage

The Eleventh Circuit Court of Appeals has overturned a district court and ruled that an expert witness is not required to prove hurricane damage in Georgia.

The Damage to the Church

In March 2016, Southern Mutual Southern Mutual Church Insurance Company issued an insurance policy to Greater Hall Temple Church of God in Brunswick, Georgia. The policy covered “direct physical loss to covered property” if the loss is “caused by a covered peril.” The policy did not cover losses caused by water or loss to the interior of buildings caused by rain, unless the rain enters through an opening made by a “specified peril.” The policy defined specified perils to include windstorms.

In October 2016, Hurricane Matthew hit Georgia. Following the hurricane, the roof of the Greater Hall Temple Church of God in Brunswick, Georgia was damaged. Greater Hall submitted a claim for $15 million in damages with its insurer, Southern Mutual.

Southern Mutual retained an independent field adjuster, Alan Taylor, to inspect the damages. Taylor determined that the damage to the church was not caused by wind; it was caused by pre-existing structural issues. Southern Mutual denied the claim.

District Court

Greater Hall filed a lawsuit against Southern Mutual in district court, arguing that Southern Mutual had violated the terms of the insurance agreement for failing to pay for its claims.

Greater Hall retained three experts to testify on its behalf: John Kern, Shawn Brown, and Alfred Teston. The court refused to allow each of these witnesses to present expert testimony. One proposed expert was a civil engineer who had little experience with the type of metal roof that had been installed on the church. Another proposed expert had put in a bid to repair the roof damage, but had little knowledge about the roof’s prior condition and no experience in determining the causes of roof damage. The third expert was a contractor who had installed the roof, but the church did not disclose the subject of his testimony until after the discovery deadline.

Southern Mutual presented experts who testified that the water damage to the interior of the church was caused by “improper flashing” that diverted rainfall through the building’s HVAC system. They also presented evidence that the church’s roof had leaked prior to the hurricane.

Southern Mutual filed a motion for summary judgment and the district court granted it. Greater Hall appealed.

Eleventh Circuit

On appeal, the Eleventh Circuit agreed with the district court’s decision not to admit the proposed expert testimony of Kern and Brown because neither had the requisite experience or had used a sufficiently reliable methodology to formulate their opinions. The court of appeals also agreed that the district court had not erred by excluding Teston’s expert testimony for untimeliness.

However, the Eleventh Circuit disagreed with the district court’s decision to grant summary judgment in the insurer’s favor. The district court had granted summary judgment because “proving causation requires expert testimony,” all of Greater Hall’s expert testimony had been excluded, and Greater Hall could not rebut Southern Mutual’s expert report that suggested the damage to the building was caused by poor workmanship.

The Eleventh Circuit ruled that, under Georgia law, expert testimony is not necessarily required to prove causation in an insurance contract — a plaintiff may satisfy its burden with lay testimony. Accordingly, the court ruled that Greater Hall’s case survived summary judgment because it was possible for a reasonable jury to find in its favor.

Photo by NASA on Unsplash

Water Treatment

Judge Pauses Trial After Hearing Expert Testimony About Fluoridation of Drinking Water

Conspiracy theories sometimes overcome facts in the minds of those who are inclined to believe them. Few public policies have been attacked by conspiracy theorists as persistently as fluoridation. Yet modern science raises legitimate questions about the risks and benefits of fluoridating water.

During the 1950s and into the 1960s, a popular conspiracy theory convinced many believers that fluoridation was a Communist plot. An equally far-fetched theory insisted that fluoride is a mind control chemical that governments rely upon to control their populations.

Fluoridation of public drinking water is intended to prevent tooth decay. While conspiracy theories have no basis in fact, legitimate scientific debates have long addressed the balance between the public health benefits and the risks of fluoridation.

Critics have also complained that fluoridation deprives individuals of freedom to choose whether or not to expose themselves to fluoride. That isn’t quite true, because people are free to forego municipal water and to drink fluoride-free bottled water, albeit at their own expense.

The government often requires people to do things they don’t like (paying taxes, for example) in order to serve the greater good. Debates about the wisdom of public programs that depend on a cost-benefit analysis should be driven by facts. In the case of fluoridation as well as other public health issues, facts are supplied by experts because they have knowledge and experience that the rest of us lack.

Fluoride and IQ

Responding to evidence that fluoridation can have an impact on cognitive development, the Department of Health and Human Services in 2015 recommended that water utilities reduce the amount of fluoride added to tap water from 1.2 parts per million (ppm) to 0.7 ppm. The Centers for Disease Control and Prevention released a statement in 2018 that endorsed fluoridation of community water supplies to reduce the health risks associated with tooth decay.

Dr. Phillipe Grandjean, an Adjunct Professor of Environmental Health at the Harvard T.H. Chan School of Public Health, authored a 2019 review of studies that addressed the relationship between fluoride intake and IQ levels. Dr. Grandjean concluded that “elevated fluoride intake during early development can result in IQ deficits that may be considerable.”

Dr. Granjean concluded that the impact of fluoride on IQ is dose dependent. In other words, greater exposure is likely to have a greater impact on IQ. He also found that “tentative benchmark dose calculations suggest that safe exposures are likely to be below currently accepted or recommended fluoride concentrations in drinking water.”

Fluoridation Lawsuit

Everyone agrees that too much fluorine in drinking water would be unsafe. Experts dispute whether the permitted level of fluorine creates an unreasonable risk to the public.

The Environmental Protection Agency (EPA) does not require municipalities to add fluorine to public water supplies, but it does limit the amount that they can add. Since a “safe” amount of exposure is difficult to establish with certainty, opponents of fluoridation argue that it should be not permitted at all.

The Toxic Substances Control Act (TSCA) allows citizens to petition the EPA to address unreasonable risks posed by toxic chemicals. In November 2016, a group of organizations, including the American Academy of Environmental Medicine, the Fluoride Action Network, and Moms Against Fluoridation, petitioned the EPA “to protect the public and susceptible subpopulations from the neurotoxic risks of fluoride by banning the addition of fluoridation chemicals to water.”

The EPA denied the petition on February 17, 2017. It concluded that the studies supplied by the petitioners did not prove that any person had actually suffered neurotoxic harm because of fluoride exposure. The petitioners then sued the EPA for breaching its statutory duty to protect the public from unsafe toxins.

While most administrative decisions are reviewed deferentially by federal courts, the TSCA entitles petitioners to a de novo proceeding and to prove the need for regulation by a preponderance of the evidence. After denying summary judgment motions that had been filed by both parties, the case proceeded to trial.

Petitioners’ Expert Evidence

The petitioners relied on the expert opinions of Howard Hu, Bruce Lanphear, Philippe Grandjean, and Kathleen Thiessen. The EPA and other government agencies have in the past relied on each of those experts for guidance. Their qualifications as experts were not seriously contested.

The petitioners’ experts pointed to evidence that fluoride passes through the placenta into the brain of the fetus. They opined that babies who are bottle fed with fluoridated water are being exposed to fluoride at the most vulnerable point in their lives, while their brains are still developing.

The petitioners’ experts cited animal studies that, according to EPA experts, produced mixed results. The petitioners’ experts also relied on birth cohort studies that found associations between early life exposures to fluoride and a reduction of IQ by about five points.

EPA Expert Evidence

The EPA argued that there is too much uncertainty about safe dosage limits to support an outright ban on fluoridated water. It relied on two toxicologists employed by Exponent, an engineering and scientific consulting firm.

Joyce Tsuji and Ellen Chang testified that the scientific literature does not support a clear connection between fluoridated water at the current maximum dose and adverse health effects. Accordingly, they contended that fluoride at 0.7 ppm is not a neurotoxin.

The EPA contended that the law requires it to balance risks and benefits when it decides whether a risk is unreasonable. There is undeniably a benefit to reducing tooth decay. While that goal can be achieved more efficiently in other ways, fluoridation assures that everyone who drinks from a public water supply receives some protection against tooth decay.

The EPA uses expert staff members to determine whether the benefit of a chemical is outweighed by an unreasonable risk of toxicity. The EPA called its employee, Kris Thayer, as a fact witness to testify about that process. It did not, however, call Dr. Thayer as an expert witness and therefore did not ask her to assess the scientific literature regarding fluoride exposure. The petitioners asked the court to infer that she was not called as an expert because her testimony would have been unfavorable to the EPA.

The petitioners also pointed to the opinion of Joyce Donohue, an EPA staff scientist, who agreed that studies by the National Institute of Health warrant a reassessment of all existing fluoride standards.

Trial Paused

Having listened to the expert testimony, the presiding judge pressed the pause button and asked the EPA to reconsider its position. The judge noted that cohort studies are the gold standard of scientific evidence in cases involving toxic chemicals. The cohort studies that the petitioners relied upon had not been published when the petition was filed.

After suggesting that the EPA applied the wrong causation standard, the judge asked whether it would be productive for the petitioners to file an amended petition citing the new studies so that the EPA could make a new determination using the correct standard. He also suggested that the EPA could reconsider its ruling in light of new evidence.

Neither party supported the judge’s solution. The EPA noted that it has no authority to reconsider a petition that it has denied. It also contended that it has no ability to review an amended petition within 90 days as required by the TSCA. The latter argument, amounting to “we don’t have the resources to obey the law,” did not impress the judge.

The petitioners contend that the EPA is entrenched in its position, perhaps for political rather than scientific reasons, and that it is unlikely to budge. The petitioners suggested that giving the EPA a “do-over” would be a waste of time.

The judge postponed proceedings to give the parties an opportunity to negotiate a proposed path forward. If they are unable to come to an agreement by August 6, the judge may decide to make a ruling based on the arguments and expert testimony presented at the trial.


dollar bills

Expert Testimony Required to Prove Breach of Fiduciary Duty by Lawyers

State courts are in general agreement that plaintiffs who sue for professional malpractice must present expert testimony to establish the applicable standard of care and the professional’s breach of that standard. While most of the litigation establishing that rule has involved claims of medical malpractice, the rule typically applies to claims of professional negligence by other professionals, including accountants, lawyers, and psychologists.

Expert opinions are generally required to prove professional negligence because juries lack the knowledge to determine the standard of care by which professionals must govern their conduct. Exceptions to the need for expert testimony may nevertheless arise when the negligence is obvious. When a doctor operates on the wrong knee or when a lawyer fails to file a lawsuit before the limitations period expires, a lay jury can easily determine that the professional was negligent in absence of expert testimony.

The Court of Appeals for the Ninth Circuit was recently asked whether the rule requiring expert testimony can be circumvented by characterizing a claim of legal malpractice as a claim for breach of a law firm’s fiduciary duty to its client. The court essentially held that a malpractice claim by any other name is still a malpractice claim that must be established by expert testimony.

Malpractice Claim

The plaintiffs in Chastain v. Poynter Law Group were Alaska Airlines flight attendants. Represented by Poynter Law Group, they brought a mass tort claim in a California state court against Twin Hill Acquisition Company Inc. They alleged that the uniforms provided by Twin Hill caused skin irritation, hives, respiratory problems, and headaches, among other injuries.

The case went to trial. According to Twin Hill’s press release, the judge dismissed the case because no evidence established that the flight attendants’ symptoms were caused by the uniforms. The court evidently reached that conclusion after relying on expert testimony and an evaluation of the uniforms by the National Institute for Occupational Safety and Health.

The plaintiffs then sued Poynter Law Group in a California state court, alleging that the firm mishandled their claims. They alleged that Poynter failed to prepare expert witnesses to testify and otherwise neglected to manage the litigation wisely. They also alleged that Poynter breached its fiduciary duty to the plaintiffs by failing to give them proper advice.

Poynter removed the case to federal court. After a federal judge dismissed both claims, the plaintiffs appealed to the Ninth Circuit.

Need for Negligence Expert

The district court granted summary judgment on the malpractice claim because the plaintiffs offered no expert testimony regarding the standard of care the attorneys should have followed. The appellate court recognized that California law does not require expert testimony to prove obvious acts of negligence but held that the exception did not apply.

According to the Ninth Circuit panel, the strategy a lawyer should follow to prove a mass tort claim is not within the knowledge of an ordinary juror. The court also held that the standard for preparing an expert witness to testify about causation is beyond the ken of ordinary jurors. Since negligence was not obvious, the failure to supply expert testimony was fatal to the malpractice claim.

Breach of Fiduciary Duty

The plaintiffs argued that even if expert testimony is required to prove professional negligence, their claim for the law firm’s breach of its fiduciary duty was not governed by the same standard. That claim alleged that the firm breached its fiduciary duty by failing to give adequate advice to the plaintiffs, by “generally mishandling” the case, and by failing to manage the litigation in a “prudent manner.”

The district court dismissed the fiduciary duty claim because it duplicated the malpractice claim. The appellate court noted that no California precedent expressly disallows claims brought under different legal theories that might duplicate each other. The court also noted the federal rule that alternative claims are permitted in federal complaints.

The appellate court agreed with the plaintiffs that California law requires expert testimony to prove a professional malpractice case but does not necessarily require expert testimony to prove a claim for breach of a fiduciary duty. In many cases, a fiduciary’s failure to act in a client’s best interests can be established without the assistance of an expert. For example, a claim that a fiduciary improperly diverted a client’s money into the fiduciary’s pocket — an act that would breach a fiduciary’s duty of loyalty — might readily be proved without expert testimony.

In this case, however, the breach of fiduciary duty claim was based on strategic considerations about how to present the case in court or what legal advice would best serve the client. The plaintiffs, for example, alleged that they wanted to testify but the law firm refused to allow them to do so.

While the plaintiffs claimed that the firm’s advice violated the duty of loyalty, whether a client should testify is a matter of trial strategy. The appellate court decided that making an honest strategic decision does not breach a duty of loyalty. If the decision is wrong, the claim is one of malpractice and must be proved with expert testimony.

Recharacterizing a malpractice claim as a claim for breach of a fiduciary duty cannot circumvent the requirement to prove malpractice claims with expert testimony. The lesson to learn is that plaintiffs should be prepared to call an expert witness whenever a claim rests on a professional’s departure from an expected standard of care.


dollar bills

Louisiana Bill Seeks to Change Lawyer Advertising Rules

A new bill by the Louisiana Senate would outlaw lawyer ads that it finds to be deceptive — ads that state how much a client received as a settlement or judgment, without deducting for things like attorney fees, expert witness fees, or court filing costs.

Louisiana Senate Bill 395

The bill enacts R.S. 51:1429, which provides in pertinent part, that, “No person in any advertisement shall make, or permit to be made, a false, misleading, or deceptive statement about a monetary result obtained on behalf of a client or fail to disclose information necessary to prevent the information supplied in an advertisement from being false, misleading, or deceptive.”

The law defines “false, misleading, or deceptive statement” as “any communication that states or infers that a person actually received an amount of money that they did not actually receive.” The law defines “actually received” as “the net amount of money received by a person, calculated by deducting from the person’s gross recovery all expenses including but not limited to attorney fees, broker fees, expert witness fees, interest, court costs, costs of collection or recovery, and all other expenses related to litigation.”

This means that Louisiana lawyers who run billboards, print and digital ads, or television and radio spots will need to say how much of a total settlement went to attorneys’ fees, court costs, and expert witness fees.

Any violation of this law would be prosecuted under the state’s Unfair Trade Practices and Consumer Protection Law by the Louisiana Attorney General’s Office.

The Louisiana Senate gave final approval to the bill on June 1 with a 37-0 vote. The state House of Representatives voted 78-23 on the bill on May 29.

The bill’s sponsor was Senator Heather Cloud (R), who argued that lawyer advertisements that make false promises of substantial payouts encourage people to sue businesses without understanding that they may only receive a small fraction of the settlement or final verdict amount.

Co-sponsors of this bill included: Sen. Michael Fesi, Sen. Sharon Hewitt, Sen. Ronnie Johns, Sen. Barry Milligan, Sen. Robert Mills, Sen. Beth Mizell, Sen. Mike Reese, Sen. Mack White, Rep. Beryl Amedee, Rep. Tony Bacala, Rep. Rhonda Butler, Rep. Dewith Carrier, Rep. Raymond Crews, Rep. Phillip DeVillier, Rep. Rick Edmonds, Rep. Julie Emerson, Rep. Gabe Firment, Rep. Larry Frieman, Rep. Raymond Garofalo, Rep. Jonathan Goudeau, Rep. Lance Harris, Rep. Dodie Horton, Rep. Mike Johnson, Rep. Danny McCormick, Rep. Charles Owen, Rep. Thomas Pressly, Rep. Troy Romero, Rep. Rodney Schamerhorn, Rep. Alan Seabaugh, Rep. John Stefanski, and Rep. Polly Thomas.

All sponsoring senators and representatives are Republicans.

Ramifications of Law

According to the legislative analysis, the Louisiana Attorney General’s office expects about six investigations each year would result from the new law. Complaints about deceptive advertising would be required to start an investigation and would be handled by existing staff within its Public Protection Division. The Public Protection Division is staffed by a total of 34 employees, including 13 attorneys. The Louisiana AG’s office received 2,910 consumer complaints in 2017; 3,120 consumer complaints in 2016; and 2,696 consumer complaints in 2015.

The state should also expect litigation based on First Amendment challenges to the law. The Supreme Court has upheld attorney advertising from efforts to prevent lawyers from making truthful statements about their services. Saying that a jury awarded a specific amount is truthful, and it does not imply that the lawyer earned no fee or that the client received the full amount awarded. Forcing lawyers to add information to their advertising that they view as unnecessary may result in constitutional challenges.

The bill is now headed to Governor John Bel Edwards (D). The new rules would take effect August 1, 2020.



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

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

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

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

Demonstrative Evidence

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

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

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

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

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

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

Appellate Analysis

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

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

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

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

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

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

Lessons Learned

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

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

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

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


Statue of justice

Conviction Reversed Because Expert Witness Vouched for Credibility of Accuser

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

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

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

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

Vouching Testimony Regarding Credibility of Alleged Victims

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

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

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

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

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

Vouching Testimony Regarding Interview Techniques

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

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

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

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


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

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

Facts of the Case

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

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

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

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

Damages Experts

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

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

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

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

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

Value of a Statistical Life

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

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

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

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

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


Expert Witness Report Alleges Negligence in Prison Death

Expert Opinions Offered in Support of Challenges to Death Penalty Protocols

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

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

Expert Testimony in Death Penalty Challenge

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

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

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

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

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

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

Court’s Analysis of Expert Evidence

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

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

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

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

Expert Opinions Sway the Governor

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

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

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


Growing Trend of Using Rap Lyrics as Evidence in Court

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

The Shooting Death

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

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

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

Darrell Caldwell/Drakeo’s Trial

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

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

Hip-Hop Culture Expert

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

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

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

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

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

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



Are You Thinking About Becoming an Expert Witness?

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

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

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

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

Would You Be a Good Expert?

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

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

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

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

Expert Witnesses Are Not Hired Guns

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

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

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

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