Category Archives: General

9th Circuit Roundup: A Case of Contaminated Water and Medical Expert’s Failed Methodology

The 9th Circuit handed down two recent decisions to provide guidance on the treatment of expert witnesses by trial judges. The attention expert witnesses receive from the federal circuit serves as a point of emphasis on how important it is to have experts who can pass judicial scrutiny prior to offering their testimony.

9th Circuit Revives Expert Testimony in Contaminated Water Case

Earlier this month, the 9th Circuit overturned a lower court’s dismissal of expert testimony by pointing out that judges do not have the authority to question an expert’s conclusions. When evaluating whether or not an expert witness is permitted to testify, a judge must follow the Daubert standard and focus on the expert’s qualifications and the methodology he used to support his testimony.

Pomona, California filed a lawsuit against SQM North America Corporation (SQMNA) for contaminating water by importing Chilean materials into the town several decades ago. To support its claim, Pomona called Dr. Neil Sturchio, the director of the Environmental Isotope Geochemistry Lab at the University of Illinois at Chicago. Dr. Sturchio conducted a study of Pomona’s water using a “stable isotope analysis” and determined that sodium nitrate from Chile’s Atacama Desert, used by SQMNA in fertilizer, was responsible for contaminating the town’s water.

A lower federal court determined that Dr. Sturchio’s conclusions were outside of the scientific mainstream, and therefore he was not permitted to testify at court. On appeal, the 9th Circuit pointed out that Dr. Sturchio’s expert testimony was supported by a methodology that was published in a 2011 manual for the Department of Defense, and therefore was built on a sufficiently sound foundation. During the publishing process, Dr. Sturchio’s methodology was reviewed by two other laboratories, giving the process further credence as a collaborative work. In its conclusion, the 9th Circuit pointed out that when an expert witness is supported by scientifically sound methodology, the validity of his conclusions are facts that are reserved for a jury, not for a judge.

9th Circuit Requires Closer Scrutiny of Medical Expert

In April, the same 9th Circuit court kicked back an asbestos lawsuit because the plaintiff’s expert witness was not sufficiently evaluated by the lower court judge before being allowed to testify. At trial, the judge refused to conduct a Daubert review of a medical expert witness, allowing him to take the stand despite objections from the defense over his credentials and methods employed during pre-trial investigative studies.

In Barabin v Asten Johnson, Inc, the plaintiff and his wife alleged that he developed mesothelioma from asbestos exposure while working at the defendant’s paper mill. A medical expert witness was called to connect fibers found in the mill’s dryer felts to the asbestos exposure that caused the plaintiff’s condition, and, with his assistance, the plaintiff was successful. On appeal, the 9th Circuit Court determined that the lower court had failed to properly evaluate the expert’s methodology, which involved tests performed in different conditions than present at the paper mill, and sent the case back for a re-trial that involved a Daubert review to scrutinize the medical expert’s qualifications.

Medical expert witnesses, who are critical in toxic tort cases, must pass close scrutiny to ensure that testimony presented to a jury is reliable and supported by sound scientific investigation. In Barabin, the trial judge failed to properly scrutinize a key expert witness, leading to the 9th Circuit reversing the trial’s outcome.

As the use of expert witness testimony becomes more commonplace, decisions like these from high ranking federal jurisdictions will provide emphasis on the importance of properly evaluating experts before allowing them to speak at trial.

Technology and Economics Experts Play Key Role in Apple-Samsung Patent Infringement Lawsuit

Apple and Samsung, who have been waging a high stakes patent battle over smartphone and tablet technology for years, continued to place significant value on expert witness testimony throughout their recent patent infringement lawsuit. In the latest case, Apple filed suit for violations of five patents while Samsung counter-sued for violation of two of its patented technologies. Both companies have used technology and business expert witnesses in an effort to convince the jury that their competitor not only infringed on patented designs, but profited as a result.

Apple Expert Witnesses Claim Patent Infringement

Both Apple and Samsung relied almost exclusively on expert witness testimony in an effort to clarify how the jury should rule on the variety of patent claims in dispute. Early in the case, Apple produced several computer science expert witnesses to support the company’s claim that Samsung had committed patent infringement by using Apple technology to build Samsung smartphones and tablets. Professors from esteemed universities, including the University of California and Carnegie Mellon University, provided expert witness testimony on behalf of Apple to identify the similarities in technology between the company’s iPhones and tablets and the Samsung counterparts.

Apple also called the engineers who invented the slide-to-unlock iPhone feature and the company’s quick link search technology, two of the patents at issue, to testify that their designs were used directly and copied by Samsung. Finally, Apple called an economist expert witness to explain to jurors that Samsung’s infringement cost Apple an average of $33 per infringing smartphone and tablet sold – concluding that Apple is due over $2 billion in total.

Samsung Expert Witnesses Deny Apple’s Claims

Samsung countered with its own set of computer science expert witnesses to attack Apple’s claims on three fronts:

  1. Apple’s patents are limited, and Samsung did not infringe;
  2. There is no evidence customers purchased Apple products because of the patented technologies; and
  3. Apple’s patents were invalidly granted by the US Patent Office.

Computer science professors from MIT and UNC took the stand to testify to the differences between Apple’s patented technology and the software that Samsung employed. Samsung attorneys made sure the computer experts were able to offer clear reasons why Apple’s claims were not justified, asking the professors to identify distinctions between the technologies and the limitations on Apple’s patents.

Samsung also called a Google engineer as a technology expert witness to testify that Google’s Android platform, the operating system in Samsung phones and tablets, invented much of the technology in question before Apple patented it. Finally, in response to Apple’s damage claim, Samsung countered with its own economist expert witness to argue that even if Samsung did infringe, the damages would average 35 cents per device – entitling Apple to only $38.4 million.

Expert Witnesses Key in Patent Cases

As the jury deliberates the latest Apple v Samsung trial, they will need to consider which side made best use of its expert witnesses. The latest chapter in the high stakes legal battle provides example of the need for experts from a variety of different fields to not only argue whether or not a patent was infringed, but also to provide analysis that helps jurors determine the value of a damage award. Both Apple and Samsung relied on technology and economic expert witnesses to cover all aspects of their legal case, and the lawsuit demonstrates how experts are used at the top level of civil litigation.

In trials involving highly complex questions about technology patents and the economic impact of patent infringement, jurors rely on expert witnesses who can clearly explain difficult to understand material.

 

New York Case Demonstrates Effective Challenge of Expert Witnesses

The use of expert witnesses has become commonplace across the American legal landscape, and attorneys must develop the ability to challenge opposing experts during the course of the trial process. In an effort to keep experts away from juries, most attorneys will attempt to preclude opposing expert witnesses from providing testimony by either challenging the expert’s credentials or calling into question the methods the expert used to develop his or her testimony. In the New York lawsuit, Valente v. Textron, a defendant in a personal injury case successfully used both tactics to prevent two plaintiff expert witnesses from testifying.

Qualifying an Expert Witness for Trial

When questioning the qualifications of an expert or the soundness of his conclusions, courts will rely on the Daubert standard. Under Daubert, an expert may only testify if he satisfies the requirements under Federal Rule 702, and if his testimony is both relevant to the issue at trial and based on reliable scientific evidence and knowledge.

Central to a judge’s decision is whether or not the testimony is derived from a scientific methodology – a determination that can be made based on a variety of factors, including:

  1. Whether the theory has undergone empirical testing
  2. Whether the theory has been subjected to peer review and publication
  3. The existence of professional standards in the industry
  4. The degree to which the theory is generally accepted by the scientific community

In addition to the scientific knowledge requirement, an expert must be qualified to reliably apply the principles and methods to her analysis of the case. In Valente, the plaintiff was unable to provide experts who were able to both demonstrate their qualifications and prove that their testimony was based on scientifically reliable methodology.

Challenging Expert Witness Credentials

The Valente plaintiff, 18-year old Matthew Valente, suffered a devastating and permanent injury after he lost control of the E-Z golf cart he was driving. Valente sued the manufacturers of the golf cart, E-Z Go company, alleging that the break system was faulty and the vehicle lacked appropriate safety equipment or adequate warning about improper use. Plaintiff expert witness Bruce Gorsak, who has a bachelor’s degree in mechanical engineering and used to work for manufacturer E-Z Go, intended to testify that the E-Z golf cart was unsafe because it had a 2-wheel break system and lacked a safety belt. However, the defendant argued he was unqualified as an expert witness.

In challenging Mr. Gorsak’s ability to testify in the case, E-Z Go pointed out that none of his analysis nor understanding of the cart’s safety features were based on peer reviewed scientific studies, and his claims that the safety warning was inadequate were made without actually knowing what the golf cart’s warning said. By proving that Gorsak was unable to support his testimony with the factors articulated in Daubert, E-Z Go’s defense team was able to convince the judge that he would not present reliable testimony and was therefore unqualified as an expert witness.

Challenging Expert Witness Testimony

Typically more effective is to challenge the methodology used by the expert to generate his opinions, and the E-Z Go defense was able to disqualify forensic engineer Kristopher Seluga in this manner. After stipulating to Seluga’s qualifications as an engineering expert familiar with rear-wheel braking systems, the E-Z Go attorneys turned their focus to the method Seluga used to evaluate the accident scene and arrive at his conclusions about the case.

Mr. Seluga inspected the accident scene, took various measurements of acceleration, and used a computer simulation program to determine that the golf cart’s brake system caused it to enter a dangerous spin and tip, causing Mr. Valente’s injuries. Upon analyzing Mr. Seluga’s computer simulation, the court found that he had written the code himself and did not have the process reviewed by other experts in his field. Further, Seluga’s model was designed for vehicles larger than golf carts, and was not commercially available for use and critique by others.

Under the Daubert standard, the court determined that Mr. Seluga’s simulation model was not validated by proper scientific method and therefore was “wholly inadmissible.” Without a proper scientific basis for his methodology, Seluga’s testimony was disallowed as being unreliable. The Valente case provides a demonstration of two effective means of challenging and disallowing opposing expert witnesses, both relying on the Daubert standard of qualifying experts for trial.

Dueling Experts and the Oscar Pistorius Case

On Valentine’s Day, 2013, noted South African Olympian Oscar Pistorius, who gained fame for competing in the 2012 London Olympics despite not having legs below his knees, fired four gunshots through his bathroom door to kill his live-in girlfriend, model Reeva Steenkamp.  Now, from halfway across the globe, the ensuing murder investigation has captured the attention of the American public and kept legal experts and laymen wrapped up in the twists and turns of the trial.

As the case unfolds, expert witnesses have emerged as important characters in the drama by providing factual analysis to support or contradict Pistorius’ claim that he fired the shots in self-defense under the belief that the person behind his bathroom door was an intruder.  A recent two-week adjournment provides opportunity to pause for analysis of the impact the critical expert witnesses have had.

Experts for the South African Prosecution

Lead South African prosecutor Gerrie Nel notably called experts in ballistics and pathology to help contradict Pistorius’ claim that he fired on what he suspected was a home invader.  Police ballistics expert Chris Mangena and pathology expert Gert Saayman were both called by Nel in order to call into question Pistorius’ testimony about the evening and the fatal encounter.

Ballistics expert witness Mangena: Of critical issue to Pistorius’ claim that he was unaware that the person behind his bathroom door was Steenkamp is the order in which the bullets hit her. Both sides agree that the fatal wound was administered by a shot to the head that would have caused instant death, and the prosecutor’s ballistic expert witness testified that the head-shot was the third and final bullet to make contact. Mr. Mangena further testified that Steenkamp was struck with two other bullets – one in the hip and one in the arm – both of which would have caused pain and given cause for the victim to scream prior to being killed with the third shot. Mr. Mangena also claimed that the pattern of wounds on the body would make Pistorius’ story that he fired two rapid “double taps” impossible, meaning that he would have had the opportunity to hear her scream and identify her before firing the fatal shot.

Pathology expert witness Saayman: Gert Saayman’s testimony of the gruesome wounds suffered by Ms. Steenkamp was highlighted by the defendant vomiting in court at the graphic description. However, his most contested claim was in regards to something far less serious: the contents of the victim’s stomach. Pistorius has told the court that he and Steenkamp were in the bedroom by 10 PM, and asleep shortly after, and that he thought she was still sleeping next to him when he discharged the firearm against the suspected intruder. However, according to Saayman, Ms. Steenkamp had probably eaten around 1 a.m. – meaning that the two were not together in bed from 10 p.m. until the time of the shooting.

The prosecution’s use of expert witnesses was well crafted, and targeted key points of Pistorius’ story of how the shooting took place. Defense attorney Barry Roux aggressively questioned both, and shaped his own expert witness list to directly challenge their findings.

Pistorius Calls Pathology Expert Jan Botha

First to testify for Pistorius was pathology expert witness, Dr. Jan Botha. Dr. Botha opened by calling into question the methodology used by Dr. Saayman when he determined that Steenkamp had eaten only two hours prior to the shooting, calling the claim to be questionably supported by facts. Dr. Botha then turned his attention to the claim that Pistorius would have had the opportunity to hear the victim scream before firing the fatal shot. Although he did not speak to the order in which Ms. Steenkamp’s wounds were caused, Dr. Botha did testify that the pain caused by the impact of the bullets would have caused her body to go into shock – making it highly unlikely that she would have cried out unless there was significant time between the shots.

Pistorius Recent Defense Expert Creates Confusion

The most compelling expert presented in the case has been Pistorius’ forensic expert witness, and apparent jack-of-all-trades, Roger Dixon, whose contradictory account of the shooting led prosecutor Nel to question his qualifications and create doubt about the defendant’s version of the incident.

Dixon, hired by Pistorius as an expert witness to support his version of the shooting, is a former police forensics investigator who now teaches geology. During a dramatic three-day affair, Dixon initially testified to confirm Pistorius’ account that the room was too dark for him to recognize that Ms. Steenkamp was no longer in bed with him. He then contradicted ballistic expert Chris Mangena’s testimony that the victim was in a defensive position – indicative of an argument between her and Pistorius – when the shooting started by testifying that she was leaning towards the door handle in preparation to come out of the bathroom – supporting Pistorius’ account that he reacted to an unfamiliar noise. Finally, Dixon conducted visual and audio tests to dispute testimony from Pistorius’ neighbors that called into question the timing of the gunshots and the position the shooter was in.

Sparks began to fly when Mr. Dixon was cross-examined by prosecutor Nel for having a confessed “laymen’s understanding” of ballistics, for not taking Pistorius’ height into account when recreating the scene, and for contradicting the defendant’s own testimony of what the scene looked like during and after the shooting. Because Dixon is a geologist, and not actively conducting forensic investigations, he was taken to task for being unqualified and for providing testimony that could prove unreliable – calling his entire expert witness credentials into question.

Judge Thokozile Masipa, who is solely responsible for determining Pistorius’ guilt in South Africa’s non-jury system, has delayed the trial for two weeks following the up and down testimony of Mr. Dixon. The defense will resume on May 5th, and will likely attempt to reconcile Mr. Dixon’s testimony with Pistorius’ version of the events with another independent forensic expert witness.

 

expert on police interrogation

Nebraska Judge Weighs Qualifications of Police Investigation Expert

A judge in a lawsuit against Gage County, Nebraska must determine if an expert witness’s testimony is sufficiently supported by scientific study before trial can begin. As reported by the Beatrice Daily Sun, the civil trial brought against Gage County by the so-called “Beatrice 6” – six people exonerated after wrongful convictions for a 1985 murder – will require the judge to rule on the qualifications of the plaintiff’s expert witness. The Beatrice 6, through their attorneys, have asked Dr. Richard Leo to testify about the police tactics that were used during the investigation which led to wrongful conviction. Dr. Leo, a law professor who is an expert on police interrogation tactics and psychological coercion, testified in a similar trial that interrogation and investigation tactics used by police resulted in false confessions and wrongful convictions. It is likely Dr. Leo will offer similar analysis of the police tactics used to convict the Beatrice 6, something the plaintiffs will rely on to collect damages from Gage County.

Gage County attorneys have argued against Dr. Leo’s testimony by claiming his methods fail to satisfy the Daubert test for expert witness qualification because his “science is incomplete, controversial, and lacking in objectively verifiable methodology.” Under the Daubert qualification test, a judge can only admit an expert witness if his methods are supported by established study or professional practice – something Gage County officials claim Dr. Leo lacks. Qualifying an expert witness is critical because juries, who are often unfamiliar with the subject matter, can be swayed by an expert regardless of whether or not his testimony is supported by respected methods. Judges are required to act as gatekeepers for expert witness testimony, and in the case of the Beatrice 6 vs Gage County, the decision on Dr. Leo’s expert qualifications could be critical in deciding the outcome.