Category Archives: General

Expert Witness

Expert Accused of “Side Switching” Is Allowed to Testify

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

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

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

Expert’s Alleged “Side Switching”

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

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

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

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

“Side Switching” Concerns

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

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

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

“Side-Switching” Tests

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

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

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

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

Application of the Tests

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

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

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

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

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

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

California Law Legal System Concept

California Appellate Court Hikes Burden for FEHA Expert Fees

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

The Dispute

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

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

The Appeal

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

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

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

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

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

Court Dismisses Expert Witness Lawsuit Against Professional Association

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

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

Jeff Wood’s Felony Murder Conviction

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

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

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

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

Dr. Death’s Role at Sentencing

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

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

Wood’s habeas petition alleges:

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

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

Jeff Wood’s Future

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

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

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

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

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

Kentucky

Experts Testify in Walker Murder Trial

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

The Murder

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

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

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

The Trial

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

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

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

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

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

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

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

Verdict

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

Wisconsin Justice

Administrative Agency Must Consider an Expert Witness’ Inconsistent Prior Testimony

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

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

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

Inconsistent Expert Evidence

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

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

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

Appellate Court’s Decision

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

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

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

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

Professional Cycling

Parties Argue over Experts in Government Fraud Case against Lance Armstrong

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

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

US Government Pursues Fraud Lawsuit against Lance Armstrong

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

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

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

Federal Government Presents Experts on Sponsorship Value

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

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

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

Lance Armstrong Submits Expert Witnesses in Federal Fraud Lawsuit

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

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

a judge's chair

Can an Expert Witness Serve Two Masters: Thorny Expert Issue Reaches the US Supreme Court

It’s rare that cases involving expert witness testimony make it all the way to the United States Supreme Court, and rarer still that such cases raise fascinating issues of interest to the public as well as lawyers and experts.

James McWilliams was tried in Alabama in 1986 for the 1984 rape and murder of a convenience store clerk. His court appointed lawyer asked the trial court to appoint a mental health expert* to assist them because McWilliams appeared to have psychiatric problems that could impact issues of guilt and sentencing.

Court Appoints Single Expert for Prosecution and Defense

Despite the biblical warning that no one can serve two masters, the judge trying the case appointed a single psychiatrist to serve as the expert for the court, the prosecution, and the defense.

A jury found McWilliams guilty of the crimes after a trial. At the sentencing phase of the original trial, the prosecution argued that the judge should impose the death penalty, presenting three aggravating circumstances it argued warranted the death penalty. The defense tried to establish as a mitigating circumstance that McWilliams suffered from a psychiatric condition that the judge should take into account when imposing the sentence.

A report from the court appointed psychiatrist, presented to the defense just two days before the sentencing hearing, stated McWilliams suffered from organic brain disorder and had genuine neuropsychological problems. However, based on a report from prison mental health workers, the trial judge concluded McWilliams had been faking, was not suffering from a psychiatric condition sufficient to warrant a lesser sentence, and sentenced McWilliams to death.

Two Is More Expensive Than One

After a series of countless appeals and motions in numerous state and federal courts, the case was argued on April 24, 2017 in the United States Supreme Court. The central issue: Is a criminal defendant in a capital case entitled to have a mental health expert separate from one appointed by the court for the prosecution?

One factor lurking in the background is, of course, the issue of cost. At the oral argument, recently appointed Justice Neil M. Gorsuch said he was worried that a ruling in Mr. McWilliams’ favor would open the door to all kinds of court-appointed experts, saying “Where’s the stopping point?” “Is it just psychiatry? Would we also have to apply the same rule in other kinds of medicine, perhaps? Forensic science?”

Justice Gorsuch also noted “Experts widely disagree on everything,…. That’s why you hire them. And why they cost so very much.”

Hiring a separate psychiatrist likely would have been relatively expensive. Based on the most current data from ExpertPages 2016 Expert Witness Fees & Practices Survey, the average nationwide hourly rate charged by physicians (including psychiatrists) is $458 per hour, while non-physician mental health experts (such as psychologists) charge an average of $308 per hour. The average assignment for both categories currently costs a bit in excess of $6,400. As the state would have been paying the bill because McWilliams was indigent, clearly that is a factor that impacts the willingness of judges to appoint independent experts. Yet with the decades of post-conviction legal work and appeals that resulted because he did not allow the defendant to hire a separate expert, the trial court’s failure to provide one for McWilliams undoubtedly cost the state of Alabama many times more in legal bills than what an expert witness would have charged.

Expediency of Limiting Cost Should Not Outweigh Constitutional Requirements

Having served as an expert on both civil and criminal matters, I know from personal experience how vital it can be for each side to have its own independent expert provide input to enable the lawyers to develop a case as well as testify. Experts sometimes become a de facto member of the litigation team, and assist the lawyers in terms of strategy and tactics, even if they don’t testify. That’s not going to occur when there is a single expert appointed by the court.

While a court may be interested in what a presumably totally impartial expert would have to say, and such an expert might assist the judge to better understand the issues and sift through the parties’ experts’ reports and testimony, basic human nature suggests a joint expert is unlikely to help both sides present their own optimal case. Further, it’s wholly inconsistent with the adversarial system of justice.

Certainly a shared expert would be far less expensive than multiple experts. As a taxpayer, I appreciate how judges might be loathe to spend precious state resources on psychiatrists and other experts for criminal defendants who lack the financial resources to hire lawyers and experts on their own.

As a lawyer I would find it hard to imagine how the same person who was also working for the other side could adequately assist me in the “evaluation, preparation and presentation” of my case.

As a former prosecutor, I fully subscribe to the concept that no responsible prosecutor should ever bring charges or prosecute a person unless the prosecutor is personally convinced as to the defendant’s guilt and also is of the belief that the evidence is sufficient for a reasonable jury to convict.  Prosecutors are there not solely to obtain a conviction, but to see justice done.

Prosecutors bridle at delays, and many judges come from the ranks of former prosecutors. Yet to maintain our system of justice and assure basic fairness, we have to do far more than a character in Joseph Heller’s brilliant Catch 22, a satirical novel set during World War II, suggested: “I know what I’d like to do with him. I’d like to take him outside and shoot him. That’s what I’d like to do with him. That’s what General Dreedle would do with him.”

Fortunately for criminal defendants nationwide, the prosecutor’s wishes are not the last word. The United States Constitution – as interpreted by the United States Supreme Court – controls. Thus the Supreme Court’s decision in the McWilliams case is likely to have a major impact on both the criminal justice system and the availability and use of experts nationwide.

 

* The request for appointment of a mental health expert was pursuant to a 1985 decision of the United States Supreme Court that ruled that an indigent criminal defendant is entitled to meaningful expert assistance for the “evaluation, preparation and presentation of the defense.”

A judge

Mistrial Declared After Expert Witness Assists Stricken Juror

Too often, expert witnesses are unfairly disparaged as “hired guns” or (in the words of Missouri’s Gov. Eric Greitens) “shady witnesses that act as experts while peddling junk science” — particularly when they testify on behalf of victims of corporate wrongdoing. But most experts are good people who do their best to help the legal system by offering their knowledge for the benefit of jurors who are searching for the truth.

Dr. Mark Solomon demonstrated that he is more than a hired gun by coming to the aid of a stricken jury during a Risperdal trial in Philadelphia. The trial will need to begin again with a new jury, but Dr. Solomon did the right thing by putting the juror’s health ahead of his role as an expert witness.

Risperdal Trials

Risperdal is an antipsychotic medication that is sometimes prescribed to treat schizophrenia and bipolar disorder. Some doctors also administer Risperdal to autistic children to combat symptoms of irritability.

Some experts, including Dr. Solomon, have linked Risperdal to breast growth in males who take the drug. Thousands of lawsuits are pending across the country which allege that the manufacturer of Risperdal failed to warn consumers about the risk of breast growth.

When thousands of men who take the same drug suddenly grow breasts, the link between the drug and the medical condition (gynecomastia) might seem obvious, but causation in pharmaceutical liability cases is notoriously difficult to prove. Experts like Dr. Solomon, a plastic surgeon, try to help jurors understand why the obvious cause is the actual cause, while experts for the pharmaceutical company explain to jurors why there might be alternative explanations for the propensity of males to grow breasts after taking Risperdal.

Several trials have ended in favorable verdicts for plaintiffs, including a $70 million verdict in 2016. Johnson & Johnson, the company that owns the drug manufacturer, has settled other cases. Johnson & Johnson also “paid more than $2.2 billion to resolve civil and criminal investigations by the U.S. Department of Justice into its marketing of Risperdal and several other drugs.”

Five trials have proceeded to verdict (all in favor of the plaintiff) in Philadelphia, where a mass tort program was developed to deal with Risperdal cases. A judge unexpectedly dismissed the sixth trial, however, after finding that Dr. Solomon’s testimony was insufficient to prove causation. The plaintiff was a boy from Texas and the judge applied Texas law in reaching that decision. The dismissal has been appealed.

Judge Declares Mistrial After Dr. Solomon Helps Juror

In the latest Philadelphia trial, Dr. Solomon was called as an expert witness at the beginning of the second week of trial. As he was testifying, one of the jurors was “suddenly stricken by a medical emergency.”

Dr. Solomon left the witness stand and walked to the jury box, where he examined the woman while court personnel called for emergency assistance. Dr. Solomon attended to the woman until paramedics arrived to transport her to a hospital.

Dr. Solomon did what any good physician would have done. Unfortunately, the circumstances forced the judge to grant a mistrial. The judge was concerned that the jury would consider Dr. Solomon’s actions when weighing his credibility as a witness. “Dr. Solomon is now a hero to this jury,” the judge said.

A lawyer representing the plaintiff said, “Dr. Solomon did a great thing by helping to rescue the ailing juror.” He described the mistrial as a “hiccup” in light of the 13,000 plaintiffs his firm represents in Risperdal cases.

The trial began again the following week. A new jury was selected that presumably will not be tainted by perceptions of Dr. Solomon’s heroism.

Expert Testimony in the Curtis Lovelace Murder Trial

Expert Testimony in the Curtis Lovelace Murder Trial

Curtis Lovelace was arrested in August 2014 for the murder of Cory Lovelace on Valentine’s Day in 2006. His first trial ended in a hung jury. After hearing testimony from 24 prosecution witnesses and 8 defense witnesses, the jury in his second trial returned a not guilty verdict in Lovelace’s favor. Expert witnesses played a crucial role for both sides in the trial.

Facts of the Case

Curtis Lovelace was something of a celebrity in Quincey, Illinois. He was a star football player at the University of Illinois. He returned to Quincey after earning his law degree and became a prosecutor. He was also a member of the local school board.

Media accounts describe Corey Lovelace, Curtis’ first wife, as a “gregarious former cheerleader and honors student from a prominent family.” Eight years after Curtis reported finding his 38-year-old wife dead in their bedroom, he was arrested for murdering her.

Curtis told the police that he took the children to school, returned home, took a shower, and worked on the computer. When he went into the bedroom to check on his wife, he discovered that she was dead.

The paramedics who arrived on the scene noted that Cory’s body was still warm but that rigor mortis was setting in. Curtis told the paramedics that Cory had been sick in bed with the flu. Other witnesses confirmed her illness.

Neighbors testified that they often heard “yelling and screaming” coming from the Lovelace residence. One neighbor testified about the Lovelace’s daughter pounding on the door after they locked her out. Another neighbor complained that Curtis confronted him angrily after he made a noise complaint to the police. A neighbor who confirmed that loud arguments were common in the Lovelace household testified that the loudest voice was Cory’s.

A police detective testified that Cory’s mother told him that Cory had a drinking problem and suffered from bulimia. Cory’s mother denied speaking to the detective. Other witnesses confirmed Cory’s alcohol abuse.

The accusations of murder were based largely on the work of a newly promoted Quincey police detective who was reviewing old cases and became intrigued by the possibility that Cory was murdered. The defense argued that Cory died of natural causes and that the detective was trying to make a name for himself.

Lovelace’s first trial ended in a hung jury in 2016. His second trial began with a new defense team and the assistance of the University of Chicago Exoneration Project.

Prosecution Experts

A number of lay witnesses testified that Cory’s arms were “drawn up by her chest” or that her hands were “near her shoulders” when authorities responded to a 911 call. Because Cory’s hands were elevated a few inches above her body, the prosecution speculated that her hands were laying on a pillow when rigor mortis set in, and that the pillow had been used to suffocate her.

That speculative theory was undermined by prosecution witnesses who disagreed about the degree to which rigor mortis had taken hold of the body. The original investigating detective, for instance, testified that it was still possible to move Cory’s arms, which was consistent with a recent death.

Dr. Jessica Bowman, a pathologist who was not called to testify, performed an autopsy and identified the cause of death as “undetermined.” The coroner then asked Dr. Scott Denton, a forensic pathologist, to review the autopsy report. Dr. Denton expressed the opinion that Cory died of suffocation but said he could not rule out poisoning. The two potential causes of death are so wildly different from each other that the jury may have discounted Dr. Denton’s opinion entirely.

The detective who reopened the case admitted that he tried to get Dr. Bowman to change her autopsy report to reflect that the cause of death was “homicide” rather than “undetermined.” When she refused to do so, he sent emails saying he was “done with Bowman” and began to search for a pathologist who would support his homicide theory. Six pathologists told him that there was no basis for pursuing homicide charges until he found Dr. Jane Turner.

Dr. Turner, a forensic pathologist, testified that she had no doubt that Cory was suffocated with a pillow. She attributed a cut inside Cory’s upper lip to a pillow being pushed against her mouth. She also testified that Cory’s arms would have been at her sides if she had died a natural death. Dr. Turner thought the death may have occurred twelve hours before it was reported to the police.

Cory’s children, however, told the police that they saw Cory standing at the top of the stairs before they left for school. Their statements, made long before any suspicion fell on their father, refuted the theory that Cory died twelve hours before paramedics arrived at the home. Dr. Turner testified that the children “might not be remembering things correctly” when they told the police that they saw their mother alive before they left for school.

A more likely possibility was that Dr. Turner’s opinion about the time of death was mistaken. Presumably, the children would have “correctly” remembered whether their mother was alive or dead when they last saw her. In addition, Dr. Denton reported that the cut inside Cory’s lip was already healing and could not have occurred on the day of her death. The inconsistency between Dr. Turner’s theory and the testimony of the children, as well as Dr. Denton’s report, may have caused the jury to view Dr. Turner as an advocate for the police rather than a neutral witness.

Another forensic pathologist, Dr. Werner Spitz, testified that Cory had eight “fingernail marks” on her neck. He said the position of her arms when she was found dead was “unnatural for a sleeping person.” Dr. Spitz opined that Cory died of suffocation, although he acknowledged that her death didn’t match the “textbook definition” of homicidal smothering.

New York forensic pathologist Dr. Michael Baden testified for the prosecution in the first trial, but the prosecutor decided not to have him testify in the retrial.

Defense Experts

Dr. Shaku Teas, a forensic pathologist, testified that Cory died from natural causes brought on by a fatty liver that resulted from chronic alcoholism. She told the jury that suffocation by a pillow causes blood vessels to hemorrhage and there was no evidence of that on Cory’s face. She said the “fingernail marks” that Dr. Spitz identified were actually moles. She believed that Cory died shortly before the death was reported to the police. She did not view the position of Cory’s arms to be significant because they were not “defying gravity.”

Forensic pathologist Dr. William Oliver testified that Cory died from complications of alcohol withdrawal and fatty liver disease. He said the cut inside Cory’s mouth could not have come from being smothered with a pillow because no blood was found in the mouth. He also suggested that the position of Cory’s arms could have been caused by resting on a comforter that was removed by paramedics.

Not Guilty

In the end, the defense witnesses carried the day. After only two hours of deliberation, the jury found Curtis not guilty.

The defense attributes the verdict in part to Curtis Lovelace’s decision to testify. While many defendants wisely conclude that it is better not to face a cross-examination that might elicit harmful testimony, Curtis gave convincing testimony about his innocence.

Given the quick verdict, it seems likely that the jury attached little importance to the testimony of the prosecution’s forensic experts. The jury probably considered the defense experts to be more credible because they did not need to stretch the factual evidence to fit their testimony. In any event, it seems likely that the defense experts helped establish the reasonable doubt that resulted in Curtis Lovelace’s acquittal.

Little sad boy hugging mom

AAP Revises Standards for Pediatric Expert Testimony

Professional associations often create standards governing the conduct of their members, including guidelines for testifying as an expert. Sometimes the guidelines appear to be based on the concern that an expert might testify against other members of the same profession in a lawsuit that alleges professional malpractice. Guidelines should never discourage experts from giving honest testimony in order to shield other professionals from responsibility for their mistakes.

The American Academy of Pediatrics (AAP) recently revised its guidelines for expert witnesses. It is to the organization’s credit that it recognizes the need for pediatric experts to lend their knowledge, experience, and best judgment” to the judicial system, regardless of the side of the dispute for which they testify.

It is also to AAP’s credit that the organization recognizes that pediatric experts have given testimony in alleged “shaken baby” cases that may be responsible for sending innocent parents to prison. The revised guidelines specifically address that issue.

Ethical Guidelines for Expert Witnesses

One always hopes that expert witness guidelines are meant to encourage ethical behavior, not to discourage professionals from testifying against other professionals. Professional guidelines are sometimes motivated by unfair criticism of expert testimony, such as the following comment in an article written by a doctor:

But, there is an ethical conflict for the expert who is paid to testify; promoting the outcome of a legal case by testifying leads to increased visibility and marketability of the expert; potentially leading to more income.

One might just as easily say that there is an ethical conflict for doctors who are paid to practice medicine, because those who obtain a good outcome for their patients will be able to market themselves more effectively and earn extra income. The doctor’s comment might be taken as evidence that doctors should stick to practicing medicine, not to opining on the legal or ethical standards that apply to courtroom testimony.

Being paid does not create an ethical conflict. Slanting testimony in exchange for money is unethical (as is pretending to cure an incurable disease in exchange for money), but there is nothing unethical about giving honest testimony (or medical treatment) in exchange for a payment. That’s how capitalism works.

To his credit, the doctor who wrote that article recognized that “[a]rguably, ethical conflicts may also exist for professional associations who discipline their members” because the disciplinary bodies may want to “protect [their members] from lawsuits.” It may be more than “arguable” that some professional organizations are more focused on protecting their members than on promoting the ethical behavior of expert witnesses.

As long as an expert is competent to render an opinion and does so honestly and reasonably in light of all the facts, the expert is behaving ethically. And since the legal system depends on experts to hold members of a profession accountable for their mistakes — and to exonerate them when they made justifiable mistakes or none at all — no ethics code should ever be used to discourage an expert witness from giving honest and reliable testimony.

AAP Announces Revised Guidelines

The new guidelines announced by AAP recognize that “pediatricians have ethical and professional obligations to assist in the civil and criminal judicial processes” and that they serve the public interest by providing “scientifically sound and unbiased expert witness testimony.” The policy statement “bolsters the requirements for expert testimony and provides new guidance on ways to prevent irresponsible testimony in medical liability proceedings as well as in child abuse cases.”

Expert testimony in child abuse cases has been questioned because experts have often attributed injuries to “shaken-baby syndrome” that may have been caused by accidents that were unrelated to abuse. Recognizing that many of the experts who claimed to recognize “shaken-baby syndrome” had not researched other potential causes of the brain injuries they observed, the AAP policy statement suggests that pediatricians should not testify about child abuse unless they have been trained in that subspecialty.

The policy also requires retired pediatricians to keep current on medical literature if they testify as expert witnesses. That requirement is particularly important in child abuse cases since recent studies have concluded that “there is no solid scientific evidence that a specific pattern of head injuries is incontrovertible evidence on its own of child abuse.” Retired physicians who don’t keep up with the literature may be unaware of those studies.

Whether the AAP’s policy will be enforced remains to be seen. Many pediatricians continue to testify about shaken-baby syndrome and, while some UK experts have faced disciplinary proceedings for doing so, AAP does not have a significant record of policing pediatricians who give unreliable testimony that causes innocent people to be convicted of crimes.

Standards of Testimony

In most respects, the AAP’s standards for testifying should be uncontroversial. They provide reasonable, common-sense rules that experts should easily be able to follow, including:

  • Experts should give the same truthful testimony and objective analysis of the facts regardless of whether they testify for the prosecution/plaintiff or only for the defense.
  • Experts should base their conclusions on all available medical records and should call attention to any gaps in the medical documentation.
  • Experts should not ignore or disregard relevant evidence for any reason “and certainly not to create a perspective that favors” either party.
  • Experts should use their best judgment to form opinions based on their knowledge and experience and should not express opinions as to matters that are outside of their expertise.

Other common-sense standards suggest that experts should not exaggerate their credentials in advertising or in testimony, should not agree to work for a contingent fee, and should make sure that their insurance covers expert testimony.

Troublesome Standards

More problematic is the requirement that an expert contact his or her employer “to ascertain the organization’s policy” regarding expert testimony. An expert might want to do that to avoid being fired, but how an employer feels about expert testimony says nothing about the ethics of the witness.

Also problematic is the requirement that experts charge fees that are “reasonable and commensurate with the time and effort involved at the prevailing market value.” If an attorney agrees to pay a requested fee, that agreement establishes the market value of the expert’s services. The assumption is apparently that experts will slant their testimony if they are paid too much, but that is a cynical view. Like everyone else, experts charge what the market bears, and it should be rare for a fee to be deemed “unreasonable” simply because it is higher than other experts might charge.