Category Archives: General

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-glock pistol 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 characterizations or 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.

 

Memories

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 employs experts to refute that testimony, often by pointing out the uncertain foundations upon which it is built.

Would You Be a Good Expert?

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

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

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

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

Expert Witnesses Are Not Hired Guns

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

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

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

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

Only an Expert Can Testify that a Patented Invention Was Obvious

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

Facts of the Case

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

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

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

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

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

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

Appellate Opinion

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

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

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

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

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

 

Expert Witness in Criminal Case

Expert Opinion in Patent Case Rejected as Conclusory

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

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

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

Cisco’s Expert Testimony

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

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

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

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

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

Lessons Learned

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

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

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

 

side view of empty hospital bed

Mississippi Rejects Standard of Care Expert Testimony

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

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

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

Standard of Care Evidence

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

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

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

Daubert in Mississippi

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

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

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

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

Court’s Daubert Analysis

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

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

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

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

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

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

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

 

Prison, Barbed Wire

Judge Excludes Expert Testimony in Prison Sexual Relations Case

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

The Alleged Misconduct

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

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

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

The Proposed Expert Testimony

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

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

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

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

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

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

 

Texas flag and gavel

Texas Supreme Court Reverses Decision that Expert’s Standard of Care Opinion Was Conclusory

Appellate courts often arrive at conflicting conclusions about the sufficiency of expert testimony to identify a standard of care and its breach in a medical malpractice lawsuit. The recent case of Windrum v. Kareh in Texas illustrates the danger of taking the evaluation of expert testimony away from juries, which have primary responsibility for deciding whether expert evidence establishes a physician’s breach of a standard of care.

Facts of the Case

Lance Windrum was in a parking lot when he suddenly became disoriented and confused. His speech was slurred and he was having problems with his balance. An ambulance took him to a medical center, where he had a CAT scan and an MRI. Windrum reported that he had suffered from two similar but milder episodes in recent weeks. He also reported that he suffered from encephalitis when he was six years old.

The MRI suggested that Windrum had aqueductal stenosis, a narrowing of the aqueduct that carries cerebrospinal fluid through the brain. Aqueductal stenosis can cause hydrocephalus, a condition in which excess cerebrospinal fluid builds up within cavities inside the brain, potentially increasing pressure within the skull.

There are various kinds of hydrocephalus. A neurologist, Dr. Harpaul Gill, diagnosed Windrum’s condition as compensated obstructive hydrocephalus. That condition is characterized by partial or full blockage of the aqueduct, causing the brain to compensate for the increased pressure. The condition is usually treated by inserting a shunt to relieve the pressure.

Dr. Gill recommended surgery to insert a shunt. He referred Windrum to Dr. Victor Kareh, a neurosurgeon. The next day, Dr. Kareh met with Windrum, who was no longer experiencing any symptoms. Dr. Kareh did not review Windrum’s medical history, but decided to insert a ventricular drain rather than a shunt and to monitor Windrum’s intracranial pressure for the next 24 hours.

Windrum was released from the hospital after 24 hours of monitoring because the pressure did not redevelop during that time. About two months later, he had additional symptoms. A new MRI revealed that his aqueductal stenosis had worsened. Dr. Gill did not inform Dr. Kareh of that result.

About a week after the MRI, Windrum died in his sleep. An autopsy attributed his death to complications of hydrocephalus due to acqueductal stenosis.

Lawsuit and Appeal

Windrum’s wife, on her own behalf and on behalf of her children, sued Dr. Gill and Dr. Kareh for Windrum’s wrongful death. A jury found that both doctors were negligent. The jury assigned 20% of the fault to Dr. Gill and 80% to Dr. Kareh. The jury awarded Windrum’s wife and children more than one million dollars in damages.

Dr. Kareh appealed, arguing that the expert evidence was insufficient to establish that he breached the applicable standard of care by failing to install a shunt in Windrum’s brain. The Texas Court of Appeals agreed, reversing the judgment against Dr. Kareh. Over four dissenting votes, the court refused to grant en banc review of its decision. The Texas Supreme Court granted review of the lower court’s decision to determine whether the experts’ opinions regarding breach of the standard of care were, as the court of appeals concluded, “conclusory.”

Challenge to Expert Testimony

As is true in other states, a medical malpractice plaintiff in Texas must prove that a negligent medical professional caused harm by breaching the standard of care that the professional should have followed while treating the plaintiff. The standard of care is what an ordinarily prudent doctor would have done under the same circumstances.

Expert testimony is nearly always required to prove the standard of care. Texas court decisions require specific expert evidence of what the defendant should have done differently. Conclusory opinions that the defendant did something wrong do not establish a breach of the standard of care.

An expert’s opinion is conclusory if it has no basis or explanation. The medical expert’s role is to justify an opinion that the standard of care was breached by reference to specific facts accompanied by an explanation of why the defendant’s breach caused the patient’s injury. There must also be evidence of the specific facts upon which the expert relies.

Dr. Robert Parrish, a neurosurgeon, testified as an expert on behalf of Windrum’s family. Dr. Parrish reviewed Windrum’s medical records, the autopsy report, and the deposition testimony of Windrum’s treating physicians. Dr. Parrish also reviewed information in medical textbooks and literature. He testified that he based his conclusions on that information as well as on his experience treating patients with hydrocephalus and other conditions causing pressure inside the skull.

Dr. Parrish concluded that Windrum’s MRI revealed “classic symptoms” that called for the insertion of a shunt. He therefore opined that inserting a shunt was the appropriate standard of care and that Dr. Kareh’s failure to do so was a breach of that standard.

The court of appeals faulted Dr. Parrish because he cited no specific medical literature stating that inserting a shunt is the appropriate standard of care for treating the specific symptoms that Windrum exhibited. The court decided that Dr. Parrish’s opinion was conclusory because it was merely his opinion rather than an opinion that could be found in medical literature

The Expert’s Role in Explaining a Standard of Care

The Texas Supreme Court rejected the court of appeals’ narrow view of the facts upon which a medical expert must rely in defining a standard of care. Medical experts are entitled to rely on their training and experience when they form an opinion. Dr. Parrish testified that he instructs medical students in neurosurgery and that the recognition and treatment of hydrocephalus, including the use of a shunt, is part of his hospital’s teaching program.

Dr. Parrish explained the structure of the brain, the way in which aqueductal stenosis causes obstructive hydrocephalus, and the potential consequences of not treating the condition with a shunt. Dr. Parrish explained why he disagreed with defense expert opinions that there was no evidence of pressure on Windrum’s brain, including testimony that there was no evidence of pressure on Windrum’s optic nerve.

While Dr. Parrish could point to no medical literature supporting his view that the absence of pressure on the optic nerve could easily be explained by scar tissue preventing the pressure from reaching the back of the eye, he testified that it is widely known in the medical field that the absence of evidence of pressure on the optic nerve cannot be taken as proof that no intracranial pressure exists. Dr. Parrish’s experience qualified him to opine about facts that are widely known in the profession, even if those facts do not appear in textbooks.

Substantial portions of Dr. Parrish’s opinions, if not his ultimate conclusion as to the standard of care, were expressly supported by medical literature. He also explained why alternative causes of death (including a “brain-eating virus”) suggested by defense experts were unlikely. His explanation referred to specific symptoms that would accompany those conditions that Windrum did not have.

Dr. Parrish ultimately relied on evidence that Windrum had slurred speech, was staggering, and had MRI results that revealed aqueductal stenosis. The totality of the symptoms and test results, in Dr. Parrish’s view, would have convinced a prudent neurosurgeon that Windrum was suffering from obstructive hydrocephalus that needed to be relieved with a shunt.

Supreme Court Reinstates Verdict

The court of appeals made the mistake of concluding that an opinion as to a standard of care is only valid if the standard has been described by researchers or medical textbook authors. The reality is that the various combinations of symptoms that doctors treat are so vast that each potential standard of care will not always be discussed in medical literature.

Dr. Parrish articulated his reasoning and the facts upon which he based his opinion. He did not make the unsupported statement that “I know what the standard of care is and Dr. Kareh breached it.” Nor did he testify that “this injury would not have happened if Dr. Kareh had not been negligent” with nothing more.

Since Dr. Parrish’s opinion was not conclusory, it was up to the jury to evaluate it. When medical experts disagree about a standard of care, it is the function of the jury, not the judge, to resolve that disagreement. Since the jury was entitled to believe Dr. Parrish and to reject the opinions of the defense experts, the court of appeals erred in reversing the judgment. The Supreme Court accordingly reinstated the jury’s award of damages.

Fire

Fire Marshal Testifies in Ghost Ship Warehouse Trial

The former assistant fire marshal for the city of Oakland offered expert testimony in the Ghost Ship warehouse trial.

The Ghost Ship Warehouse Fire

The Ghost Ship warehouse fire occurred at 1309 31st Avenue in Oakland’s Fruitvale district late on the night of December 2, 2016. The building was a former warehouse that had been turned into an artist collective that was known as the Ghost Ship.

At the time of the fire, the collective was hosting a music concert at the warehouse featuring artists from the house music record label 100% Silk. During the party, a fire occurred and 36 people were killed.

Criminal Charges

The Alameda County District Attorney’s office investigated the cause of the fire. The investigation revealed emails from 2014 that allegedly described serious electrical problems in the building.  On June 5, 2017, the master tenant Derick Almena and his assistant and creative director Max Harris were charged with 36 counts of felony involuntary manslaughter in connection with the deaths.  Both pleaded no contest; however, the judge overseeing the case discarded the plea deal and the case continued to trial.

At trial, Alameda County prosecutor Casey Bates alleged that the two are criminally liable for the fire because there was no time and no way for the people to escape the party, as the warehouse lacked important safety features such as fire extinguishers, smoke alarms, and exit signs. Bates also claims that Almena and Harris violated the terms of the warehouse lease by turning it into a living space and throwing underground parties there.

To defend Harris and Almena, their attorneys, Curtis Briggs and Tony Serra, claim that the fire was an act of arson that could not have been prevented.

Expert Witness Testimony

Alameda County prosecutor Bates proposed Cesar Avila to testify as an expert at trial. Avila was formerly the assistant fire marshal for Oakland and is currently an Alameda County Deputy Fire Marshal serving the city of Emeryville. Almena’s lawyer Tony Serra objected to qualifying Avila as an expert because he had never previously testified as an expert.

Alameda County Superior Court Judge Trina Thompson certified Cesar Avila to testify as an expert witness at trial on the topics of the implementation of fire and building codes for the purpose of conducting experiments. 

Alameda County prosecutor Bates questioned Avila as to whether it was permissible for the warehouse at 1309 31st Avenue to have RVs and trailers that were used as living spaces. Avila answered, “Absolutely not.” 

Avila explained that the governing building code does not allow RVs in warehouses because they are a potential fire hazard. He told the court that the fuel and propane tanks in RVs can cause fires to burn more intensely. He said, “There are a lot of fluids that could augment a fire.” Additionally, Avila noted that RV batteries “are another potential augmentation” for fires.

The trial of Harris and Almena is expected to last at least several months.

Fertilizer Plant

Appellate Court Affirms Exclusion of Toxicologist’s Opinion Linking Respiratory Disease to Pollutants from Fertilizer Plant

Rhonda Williams sued Mosaic Fertilizer, claiming that her lung diseases and other health conditions were related to toxic substances emitted by Mosaic’s plant. Mosaic made a Daubert motion to exclude the expert testimony that linked Williams’ health problems to Mosaic’s emissions. A federal district court granted the motion and the Court of Appeals for the Eleventh Circuit affirmed its decision on appeal.

Williams’ Claim

Williams has lived her whole life in Tampa, about three miles from a Mosaic factory. She alleged that Mosaic uses a number of toxic chemicals in its manufacturing process. She further alleged that Mosaic produces toxic emissions, including arsenic, cadmium, chromium, lead, manganese, nickel, phosphorous, and zinc.

Government agencies have found that sulfur dioxide in their air near Mosaic’s plant exceeded national and state standards. Measurements of particulate matter (inhalable particles that are 10 micrometers or smaller) exceeded the national standard in Williams’ neighborhood. Particulate matter is a respiratory irritant.

Williams’ lung-related health problems included pulmonary hypertension, obstructive pulmonary disease, asthma, and lower lung scarring. She also attributed her fatigue, abdominal pain, and diabetes to the pollutants or to the side effects of treating her lung conditions.

Expert Evidence

To prove that her health conditions were caused by Mosaic’s pollution, Williams relied on the expert opinion of Dr. Franklin Mink, a toxicologist. Dr. Mink opined that Williams had been exposed to a lifetime of pollutants and hazardous materials generated from Mosaic’s operations, including mining, processing, storage, transportation, and waste handling. Mink also concluded that Williams developed adverse health effects from her exposure to those pollutants and materials, and from the therapeutic agents used to treat those diseases.

Dr. Mink appended a list of sources to his report that included environmental studies and regulatory documents. However, he did not make specific references in his report to the cited sources that supported each of his conclusions. One lesson to learn from this case is that experts should carefully cite the specific sources they rely upon in support of each fact or opinion stated in an expert report.

In granting Mosaic’s Daubert motion, the trial court concluded that Dr. Mink failed to address “the hallmark of the science of toxic torts — the dose-response relationship.” The dose-response relationship is a means of proving that a toxic substance caused a particular health outcome by demonstrating that increasing exposure to the substance correlates with an increased risk that the outcome will occur.

The trial court also faulted Dr. Mink’s methodology because he:

  • “unjustifiably” relied on regulatory standards to determine the dose that would cause harm to health;
  • inferred facts from studies that contradicted his conclusions;
  • failed to consider background risks for Williams’ conditions;
  • failed to rule out other potential causes for Williams’ conditions; and
  • speculated about Williams’ exposure to the toxic substances.

Since the court deemed Dr. Mink’s methodology to be unreliable, the court concluded that his opinions were inadmissible.

Causation Standards

Without deciding whether Williams failed to prove general causation (in other words, to prove that the pollutants emitted by Mosaic are capable of causing the harmful health conditions from which Williams suffered), the Court of Appeals for the Eleventh Circuit agreed that Williams failed to demonstrate specific causation. To establish that her health conditions actually were caused by Mosaic’s toxic discharges, Williams needed to establish a level of exposure that was necessary to produce those effects, and to prove that Williams was exposed to that level. The court concluded that her expert’s failure to do so was fatal to her proof of specific causation.

Dr. Mink did not independently measure the level of pollutants in Williams’ environment, but relied on academic studies measuring the ambient concentration of air pollutants in Williams’ neighborhood. He also relied on Environmental Protection Agency (EPA) air quality standards to determine the threshold exposure to those pollutants that could produce Williams’ health problems.

The court of appeals concluded that Dr. Mink’s analysis was “methodologically problematic,” in part because one of the studies upon which he relied concluded that the concentration of pollutants emitted by fertilizer plants in the Tampa Bay area was below the level that would present a health risk to the public. Dr. Mink explained that he relied on the study’s data, not on its conclusions, but the court of appeals held that Dr. Mink never “clearly explained” until after his opinion was deemed inadmissible why he disagreed with the study authors’ conclusions.

Unfortunately, the appellate opinion does not tell the reader what explanation Dr. Mink gave that prompted the district court’s ruling, making it impossible for the reader to evaluate the clarity of that explanation. Nor does the opinion explain why Dr. Mink was less qualified to draw opinions from the data than the authors of the study.

The court also faulted Dr. Mink for relying on EPA standards to establish causation. The court noted that regulatory standards are protective, in that they might build in a “cushion” to protect sensitive people from exposures that would not adversely affect most people. According to the court, relying on EPA standards is a poor methodology because the standards, unlike the dose-response relationship, cannot predict how many people will be affected by a particular level of contamination.

The court rejected the argument that the EPA standards are, in fact, based on the dose-response relationship. The court noted that EPA cautions that its data cannot predict future risk with precision. Yet the burden in a civil case is not to prove facts with precision, but to prove that they are more likely than not true. While the court stated that it does not require experts to produce “precise numbers,” it faulted the expert’s methodology because the methodology was not based on precise numbers.

Toxic tort cases have become monstrously difficult to prove because appellate courts have set the bar for expert testimony so high that, without investing huge sums of money to establish precise dose-response relationships, experts are unable to use the “exacting” methodologies that industry-friendly judges believe Daubert requires. The unfortunate result is that jurors never get a chance to apply the less-than-exacting civil burden of proof to decide whether a company’s pollution probably caused a plaintiff’s injury. Whether that’s good or bad depends on how judges and legislators balance a company’s interest in being shielded from judgments against society’s interest in compensating victims of toxic torts.

Other Potential Causes of Harm

Finally, the court faulted Dr. Mink for failing to rule out other potential causes of Williams’ health conditions, such as “obesity, allergies, lifestyle, exposure to secondhand smoke, or possible genetic predisposition.” Dr. Mink testified that the probability of those factors causing Williams’ health condition was low.  The court faulted that testimony because it was unsupported by “probability studies.” That complaint arguably goes to Dr. Mink’s credibility. If Dr. Mink was testifying based on his knowledge and experience, whether he can cite supportive probability studies is an issue that could be explored on cross-examination to attack his credibility.

Credibility is generally for the jury to determine. While the court held that “[t]he law does not require the District Court to take [the expert] at his word,” the law does allow juries to do so by assigning credibility determinations to juries rather than judges. In addition, the district court declined to hold a Daubert hearing and thus gave Dr. Mink no opportunity to discuss probability studies that he did not mention (and apparently was not asked about) during his deposition.

Different courts view the elusive border between credibility and the “reasonableness” of testimony in very different ways. This case is a further example of the importance of having experts prepare reports that document every single fact upon which the expert relies in forming an opinion, even if the fact seems blindingly obvious to the expert.

Perjury

Former Cop and Expert Witness Pleads Guilty to Perjury and Theft

A former Flagstaff Police Officer and expert witness for the Northern Arizona Healthcare’s Safe Child Center has pleaded guilty for perjury and theft of between $4,000 and $25,000.

The Investigation

Carli Moncher was retained as an expert witness to testify in cases involving children, including cases of child abuse for the Northern Arizona Healthcare’s Safe Child Center.

The Arizona Department of Public Safety led an investigation into Moncher’s actions. The department determined that Moncher would falsify her reports to the Safe Child Center and the courthouses where she worked, allowing her to be paid twice for one job. According to her indictment, Moncher received $8,148.15 from the Safe Child Center while also doing private work.

Moncher was fired from her position in April 2017 when Northern Arizona Healthcare confronted her with evidence of her “violation of Northern Arizona Healthcare’s ethical standards and unprofessional conduct.”

The investigation revealed that Moncher had forged official subpoenas to support her employer’s expense and travel reimbursements.

Guilty Plea

Moncher pleaded guilty to one count of theft and one count of perjury. Those crimes carry a penalty of anywhere from 1 to 5 years in prison. Her plea deal showed that 22 of Moncher’s original 24 charges were dropped as a result of her plea deal. The charges that were dropped include one count of fraud, one count of perjury, and 20 counts of forgery.

Moncher submitted a sealed statement that detailed her history of sexual and physical abuse by her stepfather, her lack of paid leave after several surgeries related to her Cushing’s syndrome, and an instruction from her bosses to reduce the services she provided to the surrounding counties as her motivation for turning to theft and the alleged forgery and fraud.

At her sentencing hearing, Moncher admitted wrongdoing for her crimes and said, “I deeply regret my actions, and any fallout that may have occurred from them.” She also said that, “This is where my child abuse history influenced my judgement and created a skewed view of the situation and how to handle it.”

La Paz County Judge Matthew Newman sentenced Moncher to four months in prison and three years of supervised probation. Newman explained that this mitigated sentence was because “I believe your remorse is real. … I don’t believe anything this court could do to you can possibly measure up to or accomplish what you [can do to yourself].”

The Fallout

Because Moncher testified as an expert witness in many cases, her perjury charge may allow the defendants in those cases to reopen their convictions. Attorneys in the cases where Moncher testified may try to utilize her perjury plea to try to overturn or appeal convictions.

A report from the Department of Public Safety shows that Moncher has testified in cases in multiple northern Arizona counties and in federal courts. Katie Conner, a spokeswoman for the Arizona Attorney General’s Office, said the plea would affect “a number” of cases in which Moncher was involved.