Category Archives: General

Expert Witness

Experts Battle Over Legitimacy of Retrograde Extrapolation

Two toxicology experts are battling over the use of retrograde extrapolation in the trial of a former EMT who is on trial for vehicular homicide.

The Accident

On July 3, 2018, 37-year-old former EMT and Hamilton County reserve deputy Justin Whaley was driving the wrong way on Highway 111 in Tennessee. Whaley’s vehicle crashed into another car head-on. The crash claimed the life of James Brumlow, who was driving the other car.

The police and EMS arrived on the scene within minutes; however, Whaley’s blood draw was not conducted for four hours after the police arrived on the scene.

Investigators said that Whaley was driving in the early morning hours after a night of drinking with a friend. Whaley was arrested and charged with vehicular homicide, reckless driving, two counts of failure to yield, failure to maintain lane, speeding, failure to exercise due care, and driving under the influence.

The Extrapolation Controversy

Because the blood was taken from Whaley four hours after the incident, the state had to extrapolate the results of the test to determine what his blood alcohol level would have been at the time of the accident. Whaley’s defense attorney, Lee Davis, asked for the results of the blood draw to be suppressed, arguing that the extrapolation was unreliable.

Prosecutor Chris Post retained East Tennessee State University professor Kenneth Ferslew of the William L. Jenkins Forensic Center to explain why the blood draw results should be admitted.

Professor Ferslew explained that “the body begins breaking down and processing alcohol from the moment it enters the body, but that as a person drinks, the amount of alcohol being broken down is outpaced by the amount coming in. When people drink more, then that’s when their blood alcohol content goes up. But after alcohol is no longer consumed, then the blood alcohol level goes down in a linear fashion.”

Professor Ferslew testified that, based on the time that the blood was drawn, the Tennessee Bureau of Investigation was “99.73 percent confident by statistical analysis that blood [had] a 0.02 gram percent concentration in it.” Professor Ferslew told the judge that if the police had waited even 15 minutes longer to draw the blood, the results would have been unusable. However, Professor Ferslew testified that the blood taken from Whaley could appropriately be used to determine that he was intoxicated when the crash occurred.

Defense attorney Davis brought in his own toxicology expert to explain why extrapolating the blood draw results would be unreliable. Jimmie Valentine, Ph.D., holds a degree in medicinal chemistry from the University of Mississippi and served as a professor of pharmacology at the University of Arkansas College of Medicine for 19 years.

Dr. Valentine testified that “Using this retrograde extrapolation is just not very scientific at this juncture. It’s best used when you have multiple samples from different times, so you can be sure.” Dr. Valentine pointed out that in other states, two or three samples would be taken over the course of several hours.

Judge Steelman, who is presiding over the case, announced that he would take both experts’ testimony into consideration and would make a decision about what the jury will hear when the case goes to trial in September.

Pennsylvania Justice

Pennsylvania Supreme Court Considers Court’s Gatekeeper Role

The Pennsylvania Supreme Court has decided a product liability case that required it to reexamine the state’s standards for the admission of expert witness testimony.

Walsh’s Death

Thomas Walsh served as the groundskeeper and superintendent at several Pittsburgh area golf courses for almost 40 years. His work involved the regular application of pesticides. On October 5, 2008, Walsh was diagnosed with Acute Myelogenous Leukemia. On February 2, 2009, died. His oncologist, James Rossetti, D.O., opined that Walsh’s extensive exposure to pesticides raised a high degree of suspicion that the exposure played a significant role in the development of his AML.

Trial Court

Walsh’s executor initiated a wrongful death and survival action against the manufacturers of the various pesticides that Walsh had applied over his career. The lawsuit raised claims in strict products liability, negligence, and breach of warranty. The trial court granted summary judgment in favor of a large number of manufacturers based upon a lack of expert testimony identifying their pesticides as substantial contributing factors in Walsh’s death.

The remaining manufacturers filed Frye motions to exclude two of the executor’s expert witnesses, Nachman Brautbar, M.D, and April Zambelli-Weiner, Ph.D. The motions claimed that Drs. Brautbar and Zambelli-Weiner failed to apply methodologies generally accepted in the relevant scientific communities. Following a review of depositions and briefs filed by each party, the trial court granted the Frye motions. Following the trial court’s grant of the Frye motions, the parties stipulated to summary judgment in favor of all remaining defendants.

Superior Court

The executor appealed to the Superior Court. On appeal, the superior court reversed the trial court’s grant of the Frye motions. The court ruled that the expert opinions that pesticides in general could cause cancer in general were admissible under Pennsylvania’s Frye framework for evaluating expert testimony, and sufficient to preclude summary judgment as to the pesticide products of fourteen different manufacturers.

Pennsylvania Supreme Court

The defendants appealed to the Pennsylvania Supreme Court, asking it to review the following:

(1) Did the Superior Court majority commit reversible error in concluding that, when evaluating scientific evidence under the Frye standard, trial courts are not permitted to act as “gatekeepers” to ensure the relevance and reliability of scientific studies offered by experts to support their opinions by scrutinizing whether those studies actually support their opinions?

(2) Did the Superior Court majority commit reversible error in concluding that trial courts may not review experts’ opinions extrapolating from a broad class of products and injuries to a specific product and injury, thereby eliminating plaintiff’s burden to show product-specific causation of plaintiff’s specific injury?

(3) Did the Superior Court majority commit reversible error in concluding that the trial court erred without explaining how it abused its discretion because of manifest unreasonableness, partiality, prejudice, bias, ill-will or such lack of support from the evidence or the record so as to be clearly erroneous?

Addressing the first “gatekeeping” issue, the Pennsylvania Supreme Court affirmed the Superior Court’s decision, but did not give a clear ruling about the trial court’s role as gatekeepers. The court stated that “the trial court must be guided by scientists in the relevant field, including the experts retained by the parties in the case and any other evidence of general acceptance presented by the parties.”

For the second extrapolation issue, the Supreme Court ruled that the record did not show that the plaintiff’s experts used extrapolation in the way that the defendants claimed. It stated, “while both experts employed the Bradford Hill criteria to establish a causal link between cancer (or AML) and long-term exposure to pesticides, neither expert opined that this link wholly constituted product-specific causation between cancer and long-term exposure to the Appellants’ specific pesticide products.”

For the third abuse of discretion issue, the court ruled that it is an abuse of discretion for a trial judge “to make its own bald judgments about which studies relied upon by [an expert] were scientifically acceptable, relevant and/or supportive of [the expert’s] conclusions.”

The court then affirmed the order of the Superior Court and remanded the matter to trial court for the defendants to renew their Frye motions in line with the Supreme Court’s opinion.

 

Fingerprint Experts Question Fingerprint Science

Fingerprint Expert’s Testimony Held Insufficient to Support Conviction

Drawing a distinction between “the sufficiency of credible evidence” and “the credibility of sufficient evidence,” an Illinois appellate court recently held that a fingerprint examiner’s expert testimony, no matter how credible it might have been, was insufficient to support a burglary defendant’s conviction. The opinion underscores the need for criminal defense lawyers to counter every prosecution expert with the testimony of a defense expert when there is any possibility that the prosecution expert’s testimony is based on bad science.

Facts of the Case

Tom Slowinski returned home to find that his home had been burglarized. Among other missing items, Slowinski noticed that headphones had been removed from a case. An evidence technician lifted four latent fingerprints from the case.

For reasons that the appellate opinion does not explain, a police detective questioned John Cline about the burglary. Cline denied having been inside the Slowinski home or in his neighborhood. Cline and Slowinski both stated that they did not know each other.

Daniel Dennewitz, a police officer who had been trained in the area of fingerprint examination and identification, examined the fingerprints taken from the headphone case and compared them to Cline’s fingerprints.

Dennewitz determined that three of the four lifted fingerprints lacked sufficient detail to make a comparison. Dennewitz identified the fourth as having come from Cline’s finger. On the strength of Dennewitz’s opinion, Cline was arrested and charged with burglary.

The Science of Fingerprint Comparison

Dennewitz testified about his training and experience in examining and identifying fingerprints. His credentials were not seriously challenged. The court determined that he was qualified to testify as an expert.

Dennewitz explained the stages that he followed in comparing the fingerprints. The first stage compares the ridge pads, the flow of the ridges, and the pattern. If the first stage does not exclude the latent print as being consistent with the known print, the analyst compares unique details in the ridge pads that are the same in both the known print and the latent print.

The final stage determines whether the unique details are in the same position. If they coincide, the examiner proclaims them to be from the same source.

Dennewitz identified nine points of comparison on the latent print. He compared them to a print of Cline’s right middle finger and decided they came from the same source.

On cross-examination, Dennewitz admitted that the latent print showed only one side of the finger. He assumed that since the parts he could see were the same on both the latent and known print, the parts he could not see would also be the same.

Inadequate Methodology

The appellate court concluded that Dennewitz did not follow the “standard analytical procedure” for comparing fingerprints. Components of the standard “ACE-V” examination include Analysis, Comparison, Evaluation, and Verification.

During the analysis stage, the examiner determines whether there is sufficient ridge detail to compare the latent fingerprint and the known fingerprint. The comparison stage requires the examiner to perform a visual or measured comparison of unique details in the known and latent prints.

The examiner makes an evaluation by deciding whether there are a sufficient number of unique details of sufficient quality to support an opinion that the two prints came from the same source. Finally, the verification stage requires another examiner to repeat the process and come to the same conclusion.

The court decided that the ACE-V examination method is the “gold standard” that should be followed by fingerprint examiners. Without using the language of the Daubert decision, the court essentially concluded that the ACE-V method is the only reliable methodology for comparing fingerprints.

The court faulted Dennewitz for skipping the verification stage. That stage is critical because courts and analysts have declined to agree upon an objective standard for determining whether “sufficient” unique details justify the conclusion that two prints came from the same source. Since examiners may have conflicting opinions, the verification step helps avoid the bias of witnesses (in this case, a law enforcement officer) who might be tempted to arrive at a conclusion that favors the government.

On appeal, the prosecution argued that Dennewitz could not have testified about any verification that might have been done because that testimony would have been hearsay. The prosecution’s understanding of the hearsay rule as it pertains to an expert who relies on the opinion of a second expert is doubtful, but the appellate court noted that the problem could have easily been resolved by having the second examiner testify.

Improper Assumptions

The court also faulted Dennewitz for making assumptions about the portions of the latent fingerprint he could not see. Dennewitz admitted that the partial fingerprint did not show all of the characteristics of Cline’s fingerprint because the partial fingerprint was incomplete. Dennewitz testified that he based his comparison on the assumption that the missing portion of the fingerprint would have matched the full fingerprint.

The appellate court cited the rule that key elements of a prosecution may not rest on assumptions. If Dennewitz had not testified that he made an assumption, but had said he based his analysis on the information before him, his testimony might not have been so easily challenged.

Using the language of Daubert, however, the question is whether a partial print supplied Dennewitz with adequate data upon which to base a comparison. Dennewitz testified that he found nine unique characteristics in the same location in each print. In 1924, New Scotland Yard decided that 16 points of comparison should be required for a valid determination that two prints came from the same source.

Apparently believing that an objective standard for comparing fingerprints got in the way of giving testimony that is favorable to prosecutors, FBI fingerprint examiners abandoned the notion that a fixed number of points of comparison must exist before deciding that two prints are from the same source. By 1968, the FBI had rejected an objective standard in favor of the examiner’s subjective impression that “enough” points of comparison exist. Subjectivity is, of course, the enemy of science.

When objective standards are feasible, subjective standards undermine the scientific value of expert opinions. One examiner’s subjective belief that “sufficient” points of comparison exist may be contradicted by the subjective opinion of an equally qualified examiner.

In any event, reliable opinions must be based on adequate data. A partial print that permits only nine points of comparison is arguably inadequate to support a conviction, particularly when the partial print is the only evidence of guilt that the prosecution can muster. A police officer’s subjective opinion that “nine is enough” is a questionable basis for convicting a suspect of a crime.

Lesson Learned

While defense counsel cross-examined Dennewitz about the inadequacies of his examination, juries tend to believe that police officers know what they are doing. The Cline case should remind defense attorneys of the value of hiring their own experts.

In a case like Cline’s, it isn’t necessary to have an expert testify that the latent print and Cline’s print were not made by Cline’s finger. An independent expert may or may not have been able to draw that conclusion.

An independent expert could instead have testified that Dennewitz based his opinion on a single partial print that lacked sufficient points of comparison to permit a reliable conclusion to be drawn. That testimony may have been sufficient to inject reasonable doubt and to avoid the need for an appeal.

 

Alleged Attempt to Intimidate Defense Experts Does Not Warrant a New Trial

Salomon Melgen was charged with operating a scheme to defraud Medicare. The charges were based on allegations that he deliberately misdiagnosed his patients so he could bill the government for unnecessary treatment. A jury found Melgen guilty of 67 counts of fraud. The court sentenced Melgen to 17 years in prison.

On appeal, the defense argued that attempts by a government expert to intimidate two defense experts should result in a new trial. The Court of Appeals for the Eleventh Circuit rejected that argument and affirmed the conviction.

Facts of the Case

Melgen was an ophthalmologist. He focused his practice on age-related macular degeneration. That disease comes in two forms: “wet” and “dry.” The dry version is much more common and is essentially untreatable. The wet version afflicts no more than 15{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of patients who suffer from macular degeneration, almost all of whom are white.

The government became suspicious because 97{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of Melgen’s billings to treat macular degeneration were for the wet version of the disease. That in itself might not be unusual, since only the wet version is treatable. However, all of Melgen’s billings for macular degeneration treatment of African American patients were for the wet version of the disease. The wet version rarely affects African Americans.

In addition to billing for treatment for those who did not have a treatable disease, the government alleged that Melgen billed for treatment of patients who had healthy eyes or patients who were legally blind. The government presented evidence that Melgen billed for 96 treatments of a prosthetic eye.

Melgen also administered an expensive drug to patients that could slow or stop the progress of the wet version of the disease. The drug was ineffective if the patient had the dry version. The government produced evidence that Melgen gave the drug to patients who would not benefit from it.

The government argued that Melgen not only administered an unnecessary medication that costs $2,000 per vial, but that he improperly administered three doses from a vial that contains only a single dose. That evidence suggested that Melgen thus tripled his medication reimbursement requests and pocketed the difference.

Finally, the government contended that Melgen used laser surgery to correct the wet version of the disease. The government argued that medication is an effective treatment and that laser surgery is almost never medically necessary.

Expert Witness Intimidation

Among the other arguments made on appeal, Melgen complained that the government’s expert witness intimidated two defense experts during breaks in the trial. While the appellate opinion does not elaborate on the nature of those encounters, a news report indicates that the prosecution’s expert “harangued” the defense experts during a confrontation in a parking lot. The prosecution expert allegedly “intimidated one of the defense witnesses by saying his reputation would be ruined for testifying in favor of Melgen.”

If the reports were true, the government expert’s conduct would certainly be unprofessional. The role of an expert witness is to provide information to the party that hires the expert and to testify about relevant opinions the witness has formed. Berating the other side’s experts is not part of the job description.

The appellate court noted that there was “contact between a government witness and two defense witnesses” but did not discuss the circumstances of that “contact.” Instead, it was satisfied that the district court “conducted a brief hearing before deciding that the contacts had not been prejudicial in the end because no testimony had been altered.”

In the end, the appellate court found no abuse of discretion in the district court’s refusal to grant a remedy for the alleged attempt to intimidate the defense experts. The district court declined to order a new trial or to conduct an evidentiary hearing to find out exactly what happened in the parking lot. The appellate court was satisfied with the district court’s decision not to explore the facts because the defense could produce no evidence that the intimidation changed the content of their experts’ testimony. “No harm, no foul” appears to be the legal standard that governed the outcome.

Lessons Learned

An attempt by government witnesses to intimidate defense experts should result in more that a “brief hearing.” In some circumstances, it may require the kind of inquiry that leads to a criminal prosecution for witness tampering. Unfortunately, since the decision to bring criminal charges is up to the government, they are generally lodged against people who intimidate government witnesses, not against government witnesses who attempt to intimidate defense experts.

One lesson to learn from the Eleventh Circuit decision is that “it’s good to be the government.” Had defense witnesses tried to intimidate government witnesses, the court would likely have taken a firmer stand to protect the integrity of the proceedings.

A more important lesson is that no expert should attempt to intimidate an opposing expert. Witness intimidation is a crime. The best practice for experts is to avoid any contact at all with an opposing expert during a trial. Keeping a safe distance from opposing experts will avoid even the appearance of an improper contact.

 

Expert Testimony Not Needed to Prove Hurricane Damage

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

The Damage to the Church

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

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

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

District Court

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

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

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

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

Eleventh Circuit

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

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

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

Photo by NASA on Unsplash

Water Treatment

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

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

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

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

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

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

Fluoride and IQ

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

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

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

Fluoridation Lawsuit

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

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

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

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

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

Petitioners’ Expert Evidence

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

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

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

EPA Expert Evidence

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

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

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

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

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

Trial Paused

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

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

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

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

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

 

dollar bills

Expert Testimony Required to Prove Breach of Fiduciary Duty by Lawyers

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

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

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

Malpractice Claim

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

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

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

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

Need for Negligence Expert

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

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

Breach of Fiduciary Duty

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

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

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

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

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

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

 

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Louisiana Bill Seeks to Change Lawyer Advertising Rules

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

Louisiana Senate Bill 395

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

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

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

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

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

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

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

All sponsoring senators and representatives are Republicans.

Ramifications of Law

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

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

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

 

Fake

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

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

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

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

Demonstrative Evidence

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

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

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

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

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

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

Appellate Analysis

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

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

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

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

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

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

Lessons Learned

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

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

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

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

 

Statue of justice

Conviction Reversed Because Expert Witness Vouched for Credibility of Accuser

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

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

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

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

Vouching Testimony Regarding Credibility of Alleged Victims

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

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

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

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

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

Vouching Testimony Regarding Interview Techniques

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

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

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

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