Category Archives: General

Expert Witness Featured in Movie Concussion

The movie Concussion opened on Christmas Day. Concussion tells the story of Dr. Bennett Omalu’s impact on professional football. Dr. Omalu (played in the movie by Will Smith) is a forensic pathologist who is credited with discovering chronic traumatic encephalopathy (CTE), a degenerative brain disease that afflicts people who have experienced multiple concussions and other forms of repeated brain trauma. Known colloquially as “gridiron dementia,” CTE causes memory loss, aggression, depression, and other personality changes. It may also lead to premature death.

Notably, one of the movie’s first scenes depicts Dr. Omalu testifying as an expert witness in a murder trial. Board certified in neuropathology and forensic pathology, Dr. Omalu has testified in hundreds of civil and criminal cases since 2009. Much of that testimony has resulted from Dr. Omalu’s position as the Chief Medical Examiner of San Joaquin County, California.

Concussion spotlights Dr. Omalu’s successful quest to force the NFL to take concussions seriously. Due in part to his pioneering work, other expert witnesses are playing vital roles in civil cases that involve brain injuries caused by repetitive concussions.

CTE Lawsuits

Concussions occur in a variety of contexts, including falls and car accidents. The plaintiffs in all of those cases may require a neurologist or other medical expert to prove the extent of the injury.

Multiple concussions in sporting events, however, are the only known cause of CTE. In addition to football, athletes who participate in boxing, wrestling, and hockey are at risk of developing CTE. Soccer, a game played without protective headgear, is not a contact sport, but collisions frequently lead to concussions.

Experts are playing a critical role in developing the link between sports and CTE. In addition to conducting research, experts have testified or assisted in court cases that have revolutionized injury management in athletic competitions.

Five thousand former NFL players joined a lawsuit accusing the league of hiding the risks of concussion from them. A federal judge approved a settlement of that lawsuit that authorizes multimillion dollar payments to former players who are suffering from severe neurological disorders, including CTE. The total outlay by the NFL may exceed one billion dollars. The settlement will not become final, however, until appeals are resolved.

The lawsuit motivated the NFL to implement new safety measures to protect players from CTE. Starting with the 2013-14 season, the NFL agreed to have an independent neurologist on the sidelines of every game to evaluate players who may have suffered a concussion.

The family of hockey player Steve Matador recently sued the NHL on similar grounds. Matador, a former defenseman for the Chicago Blackhawks, died at the age of 35. An autopsy revealed that he suffered from an extensive case of CTE. His family alleges that “the league did not do enough to warn them of the long-term effects of repeated blows to the head or protect them from the hits.”

Matador’s lawsuit is only the latest to accuse the NHL of concealing the risk of concussions from players. A potential class action involving 60 former NHL players is pending. Depositions of expert witnesses in that case are expected to begin soon.

Expert testimony will likely be the key to Matador’s lawsuit and to the class action. The NHL’s commissioner maintains that “from a medical and science standpoint, there is no evidence yet” that playing in the NHL leads to CTE. While neurosurgeon and CTE researcher Julian Bailes agrees that much about CTE remains to be discovered, he points out that the “only known risk factor for CTE is having had multiple concussions and cranial impacts in contact sports.”

Student Athletes

While concussions sustained by professional athletes have fueled research by experts like Dr. Omalu, student athletes who have sustained repeated concussions have also been found to suffer from CTE. A recent study suggests that CTE may afflict a significant percentage of amateur athletes who play contact sports.

Medical and statistical experts who assisted in crafting the settlement of a class action concussion lawsuit against the NCAA concluded that college athletes who play contact sports have about the same risk level as NFL players to have symptoms related to CTE. The settlement includes $70 million for medical monitoring while permitting injured athletes to bring individual claims for compensation for concussion-related injuries.

Lawsuits by students often focus on coaches and training staff who clear a player to return to the field after violent contact without adequately screening the player to determine whether a concussion occurred. Players who sustain a second concussion after returning to play are at substantially greater risk of developing permanent brain damage.

Lawsuits have also claimed that schools fail to provide needed treatment that would prevent brain injuries. A school district in Iowa paid a million-dollar settlement to a permanently disabled football player whose complained of headaches to a school nurse after being tackled. The student continued to practice and play despite his complaints. He eventually fell into a coma.

In all of these lawsuits, expert witnesses play a vital role. In addition to providing testimony about the likely cause of an athlete’s brain injury, experts testify about the adequacy of a school’s protocol for evaluating athletes and returning them to play after they may have experienced a concussion. The failure to develop or to follow protocols is often the kind of negligence that leads to concussion-related lawsuits against educational institutions.

Accident Reconstruction Experts Testify in Wrongful Death Trial

Accident reconstruction experts who testified in a wrongful death trial provided differing opinions about responsibility for a 2012 traffic accident that claimed the life of an 84-year-old man in Anniston, Alabama. A lawsuit filed by William Curry’s estate claimed that a speeding police officer negligently caused the crash. Attorneys for the city argued that the accident was Curry’s fault.

Trial testimony unfolded over 5 days in Calhoun County Circuit Court. A few fundamental facts were uncontested. Officer Thomas Anthony Gassaway, who subsequently left the employment of the City of Anniston, observed a car driving at 62 mph on a street that had a 35 mph speed limit. Gassaway pursued the speeding car.

As Gassaway traveled through an intersection, he collided with Curry’s car. Curry died 78 days after the collision.

Disputed Facts

Most of the critical facts concerning the cause of the accident were disputed. A key issue was whether Gassaway activated his lights and siren. An Alabama law requires police officers to use their flashing lights and sirens when they exceed the speed limit while pursuing a suspect. Gassaway claimed he flipped the switch that activated the lights and that an airbag struck him as soon as he did so.

Gassaway’s testimony seemed to find support in photographs of the accident scene showing the switch for the lights and siren in the “on” position. However, none of the witnesses to the accident saw the squad car’s lights or heard its siren.

Roy Bennett, Anniston Police Department’s lead traffic homicide investigator in 2012, took the pictures. He testified that he did not touch the switch after the accident and said he had “no reason to believe” that anyone else did so.

Video from the squad car’s dash camera might have shed light on the facts surrounding the accident, but no video was available. Gassaway testified that he was “informed that during the accident, the sudden loss of power corrupted the video.” The conveniently erased video, combined with evidence that the squad car’s lights and siren did not activate even though the switch was in the “on” position, may have caused the jury to doubt the credibility of the city’s accident investigation.

Curry’s Expert

In addition to eyewitnesses, lawyers for the Curry estate relied on the expert testimony of Georgia State Patrol Sgt. Tommy Sturdivan, who operates an accident reconstruction business. Sturdivan used digital technology to recreate the accident scene. He gathered data from modules in each vehicle that recorded the speeds at which they were traveling.

Sturdivan testified that Curry would have had ample time to cross the intersection if Gassaway had been driving at the speed limit. According to Sturdivan, it would not have been necessary for Curry to yield to Gassaway if Gassaway had been traveling at 35 mph.

Data from the module in the squad car revealed that Gassaway was driving at 61 mph, slowing to about 50 mph as he approached the intersection. The lawyers for Curry’s estate argued that Curry had no way to know that Gassaway was traveling so fast since Gassaway neglected to activate his lights and siren when he began to chase the speeder.

Sturdivan testified that an officer’s lights and siren are meant to protect the public by providing a warning that an officer is traveling above the speed limit. Sturdivan also testified that Gassaway was exceeding the speed limit for at least 6 seconds before he entered the intersection. According to Sturdivan, that have Gassaway ample time to warn cross-traffic by activating his lights and siren.

Sturdivan questioned whether a power loss during the crash would have wiped the digital recording made by the dash cam computer. He testified that camera data is written to a hard drive and then transferred to removable storage after the lights are turned off. Even if the removable disk was blank, the data should still have been on the hard drive. When he asked to inspect the hard drive, however, he discovered that all of the recording equipment had been removed from the car. The city apparently failed to preserve that evidence for use in the trial.

City’s Expert

Testifying as a reconstruction expert for the city, Pam Stirling told the jury that Curry caused the accident. Based on her review of the information in the module attached to Curry’s car, Stirling concluded that Curry “gunned it” (accelerated quickly) as he tried to cross the intersection. She inferred from that data that Curry saw Gassaway coming and tried to beat him across the intersection. She testified that Curry should instead have yielded to Gassaway.

Stirling acknowledged that Gassaway’s high rate of speed contributed to the severity of the crash, but she denied that it caused the crash. She also expressed the opinion that any violation of the state law requiring Gassaway to activate his lights and siren was not relevant to the accident.

The Verdict

Even if Curry’s negligent conduct contributed to the accident, the jury was instructed that it could overlook that negligence if Gassaway engaged in wanton behavior. The attorneys for Curry’s estate argued that Gassaway’s failure to comply with state law by activating his lights and siren before speeding constituted wanton behavior.

The city relied heavily on its expert in arguing that Gassaway was in the process of activating his lights and siren and that the accident would not have occurred if Curry had not tried to beat Gassaway across the intersection. The jury evidently found the testimony of the estate’s expert to be more persuasive. It returned a verdict in favor of Curry’s estate for $500,000.

Experts Are Key to Animal Cruelty Charges Against Terrence Cody

Terrence Cody, the former nose tackle for the Baltimore Ravens, is facing animal cruelty charges in Baltimore County. The Ravens released Cody from his contract on the day he was indicted by a grand jury.

Expert witnesses will play a key role in establishing that Cody’s Canary Mastiff starved to death. The defense is unlikely to question the cause of the dog’s death, but is denying that Cody intended for the dog to die.

Charges Against Cody

Cody was charged with two felony counts of aggravated animal cruelty. Each count carries a maximum potential prison sentence of three years. Cody was also charged with five misdemeanor counts of animal abuse or neglect, each carrying a potential maximum jail sentence of ninety days.

The indictment alleges that Cody tortured the dog and intentionally killed it in a cruel manner. Unlike Michael Vick, Cody has not been accused of dog fighting.

In addition to accusations concerning his dog, Cody was charged with illegal possession of an alligator and with five counts of abuse or neglect of the alligator. Those offenses are all misdemeanors. Cody is also charged with misdemeanor possession of marijuana and drug paraphernalia.

Cody’s girlfriend, Kourtney J. Kelley, has also been charged. Kelley claims that the animals belonged to Cody and that she was not responsible for them.

At the time of Cody’s indictment, Cody’s lawyer told the media that Cody was a “quality young man who’s a true animal lover.” Asserting that Cody would never hurt a fly, much less his pet, the attorney also said that the dog was Cody’s favorite animal. Perhaps due to expert witness testimony, Cody’s lawyer has changed his approach to the defense.

Expert Testimony

Cody brought the dog to an animal hospital in Reisterstown for treatment. At that point, it was too late to save the dog, who died from malnutrition a few hours later.

Reisterstown veterinarian Dr. Eddie Molesworth treated the dog but was unable to save its life. He testified that he thought the dog was dead when Cody brought it to the animal hospital. The dog weighed about 50 pounds, less than half the weight of a healthy Canary Mastiff.

Another expert witness for the prosecution, forensic veterinarian Dr. Martha Smith-Blackmore, testified that the dog had probably been neglected for at least four weeks. She confirmed that starvation was the cause of the dog’s death.

Cody’s Defense

Probably realizing that the expert testimony was unassailable, Cody’s defense attorney conceded in his opening statement that Cody neglected the dog. That concession will likely assure a conviction on one or more of the misdemeanor counts.

Cody’s defense to the felony is that his neglect of the dog did not rise to the level of intentional abuse. Pointing out that Cody paid $4,000 for the dog and another $4,000 to bring the dog to the United States from Spain, Cody’s lawyer told the court that Cody did not intend the dog’s death.

Cody’s attorney also pointed out that Cody brought the dog to the veterinary hospital for treatment. That action is arguably inconsistent with an intent to cause the dog’s death.

On cross-examination, Dr. Molesworth testified that Cody put his head down and cried when he was told of his dog’s death. The defense will likely use that testimony to bolster its argument that Cody cared about the dog and had no intent to harm it.

Perhaps because animal cruelty is such an emotional issue, both defendants waived their right to a jury trial. Whether the prosecution can establish Cody’s guilt on some or all charges will be decided by the judge who is presiding in the trial.

Four Qualities That Made Ben Carson an Effective Expert Witness

Donald Trump may have celebrity status, but Ben Carson is the current frontrunner in a poll of GOP primary voters. The reasons that underlie his popularity as a presidential candidate, including the ability to gain the trust of his audience, also explain Dr. Carson’s success as an expert witness.

Before he began to campaign as a presidential candidate, Dr. Carson was the director of pediatric neurosurgery at Baltimore’s Johns Hopkins hospital. He gained professional recognition as the first surgeon to perform a successful separation of twins who were conjoined at the head. Dr. Carson’s status as a renowned neurosurgeon made him a logical choice to testify as an expert witness in high dollar cases.

According to an article in The New York Times, Dr. Carson served as an expert in 20 to 30 cases, charging $500 to $750 per hour to review records and prepare opinions and $2,500 for a half day of testimony. Lawyers, judges, and jurors credit his testimony for successful verdicts.

Reading the Times story for its portrait of a Dr. Carson as an expert witness rather than a politician sheds light on the characteristics that make an expert effective. Four qualities that the article spotlights are gravitas, clarity, objectivity, and empathy.

Gravitas

The best experts radiate a sense of professionalism, authority, and integrity. Their manner of testifying assures jurors that they are both knowledgeable and honest.

Trial participants who heard Dr. Carson testify attribute those qualities to him. Even a plaintiff who sued paramedics, claiming they had worsened injuries that were inflicted by the police, admitted to being a little in awe when Dr. Carson testified on behalf of the paramedics. Dr. Carson’s testimony, attributing the cause of the plaintiff’s spinal injuries entirely to the force used by the police, was the key to a verdict that imposed no liability upon the paramedics.

Jurors in that case shared the plaintiff’s respect for Dr. Carson, as did the judge, who told the Times that it is “rare to see that kind of gravitas given to an expert witness.” The judge noted that the jury paid “rapt attention” to Dr. Carson’s testimony. One juror told the Times that the jury thought Dr. Carson “was the cat’s meow.”

Clarity

Part of Dr. Carson’s success as a witness, according to the Times, stemmed from his ability to explain difficult medical concepts in clear language the lay jurors could understand. For example, he described the “spinal dura” to a jury as “a leather-like covering over the brain and spinal cord.” That metaphorical description made it easy for the jurors to picture something they had never seen.

At the same time, Dr. Carson did not “dumb down” his testimony in a way that jurors might have regarded as condescending. Using words like “laudatory” and “capacious” during his testimony sent a clear message that he was an articulate and intelligent witness who respected the jury’s ability to understand his rich vocabulary.

Objectivity

In his book America the Beautiful, Dr. Carson wrote that he tried to be “very cooperative, accommodating, and pleasant to the opposing attorneys” while exposing “the folly of their argument before the jury.” Avoiding the appearance of taking sides is a key to earning a jury’s trust.

Dr. Carson usually testified for defendants, but he testified for the plaintiff in some egregious cases of medical malpractice. Testifying for both plaintiffs and defendants in civil cases, and for the prosecution and defense in criminal cases, helps an expert avoid being pigeonholed as a “hired gun” for one side or the other.

Dr. Carson told the Times that he has good relationships with health care professionals and with injury victims. His willingness to testify “for whoever is right” enhanced his credibility with juries.

Empathy

Objectivity is not the same as detachment. Jurors have difficulty connecting with experts who come across as aloof. Jurors like to know that experts care about the people they’ve chosen to stand up for in the courtroom.

As a surgeon, Dr. Carson prided himself on becoming close to his patients. His empathy comes across to juries. Empathy makes him effective as a doctor, as an expert witness, and as a politician. Even a former patient who sued Dr. Carson for malpractice said that she would still vote for him. By the same token, juries based their votes on Dr. Carson’s testimony, in part because they viewed him as an expert who cared.

 

Photo Credit: “Ben Carson” by iprimages is licensed under CC BY-ND 2.0.

Jury Considers Expert Opinions in Awarding Sexual Assault Damages

A Los Angeles jury apparently accepted the testimony of one expert and rejected that of another in awarding $3 million to each of two boys who were sexually abused by their third grade teacher. The school district that employed the teacher admitted responsibility for the sexual assaults.

Negligent Hiring and Supervision

Paul Chapel III was fired by a different school district in 1987 for making sexual jokes to students and showing them a sexually explicit video. Chapel lost a civil lawsuit as the result of that conduct. The Los Angeles Unified School District (LAUSD) nevertheless hired Chapel in 1988.

Several years after he began working for the LAUSD, Chapel was prosecuted for molesting an 8-year-old during a sleepover. His teaching credentials were suspended and Chapel was transferred to an administrative position. His trial on the molestation charge ended with a hung jury. The District gave Chapel a new teaching position after his teaching credentials were reinstated.

Chapel was eventually arrested for sexually abusing four of his students. He was charged with thirteen counts of committing lewd acts against them. A judge sentenced him to 25 years in prison.

Two of those students sued the school district for negligence in hiring, retaining, and supervising Chapel. The lawsuit alleged that the school district ignored complaints it received from parents and other teachers about Chapel’s inappropriate conduct with students and failed to warn parents about those complaints.

The school district admitted its negligence. It contended, however, that the two students had already suffered psychological injury from other sources. It offered the parents of each child less than a half million dollars to settle their claims. The case went to trial when the plaintiffs rejected that offer.

Expert Testimony

The peril of using expert testimony to blame the mental health problems of sexual assault victims on other causes was highlighted by the LAUSD trial. In an attempt to minimize the emotional damage that the boys experienced, the school district relied upon a psychologist who is an expert in child trauma. Janine Shelby, an associate professor at the Harbor-UCLA Medical Center, interviewed the two boys. She blamed the psychological problems that plague one of the boys on his exposure to domestic violence between his parents, his mother’s postpartum depression, racism, and the death of a stepfather. The boy had behavioral problems in pre-school and was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) in grade school.

During closing arguments, the attorneys for the boys criticized the district for attacking the boys with evidence of their prior disabilities. The jury may well have concluded that any trauma the boys experienced before they were molested made them more vulnerable to psychological damage caused by the molestations. Jurors may also have resented the implication that sexual assault victims who have suffered previous trauma deserve less compensation than victims who have not been previously traumatized.

Shelby also cited research to support her opinion that half of all trauma victims recover within three months. She admitted on cross-examination, however, that the research addressed adult responses to trauma and was not confined to sexual abuse victims.

The attorneys for the LAUSD criticized the plaintiffs’ expert, Beverly Hills psychiatrist Brian Jacks, for allegedly disregarding the research that Shelby cited. The district’s attorneys claimed that Jacks relied on his own “speculative” judgments about the impact of the sexual abuse on the young victims’ lives rather than research findings. While it is unclear how much weight the jury gave to the respective expert opinions, the size of the verdicts suggests that Jacks’ opinion, based on his assessment of the two boys, was more influential than opinions that Shelby based on research concerning the ability of other trauma victims to recover from their experiences.

False Confession Expert Witness Testifies During Child Abuse Trial

Earlier this week a false confession expert witness took the stand in the trial of Wisconsin man accused of violently shaking his infant son and causing the boy’s death.  The expert testimony represents a growing trend of psychology experts applying their research and testimony to criminal courts across American jurisprudence.

Wisconsin Man on Trial for Child Abuse

David Allen Sr. of Milwaukee, Wisconsin is on trial for child abuse and homicide for the 2013 death of his infant son, David Allen Jr.  In October of 2012 Allen and Junior’s mom brought the infant to the hospital after he stopped eating and suffered from a noticeable change in activity.  Physicians at the Children’s Hospital in Milwaukee diagnosed the child with bleeding between the brain and the skull and brain swelling.  According to doctors, these injuries are common signs of child abuse, and David Sr. was arrested and charged with abuse.  Junior died in foster care the following April and murder was included in David’s charge.

Although the prosecutors have some available physical evidence of child abuse, the key component to their case against David Allen is his confession given to police while in custody following his 2012 arrest for abuse.  During a two-day interrogation period covering more than 3 ½ hours Allen finally admitted to police investigators that he had shaken his son and dropped him onto a concrete floor.  The prosecution built their case on the strength of Allen’s confession, but during trial attorneys for the defendant argued that he had been coerced to providing a false story to the police.

False Confession Expert Takes the Stand in Child Abuse Trial

To bolster the defendant’s claim that he was coerced into providing a false confession, attorneys called Dr. Lawrence White who is a professor psychology at nearby Beloit College and specializes in false confession research.  White began his expert testimony by explaining the field of false confession research generally, telling jurors that recent research has demonstrated situations in which regular people can be coerced into providing false confessions.  White also told jurors that of the 300 offenders exonerated of serious crimes by DNA evidence 25{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of them had falsely confessed to crimes – even heinous crimes – they did not commit.

White then turned his false confession expert testimony to the particulars of David Allen’s interrogation and ultimate confession to Milwaukee police investigators.  White testified that police detectives used several tactics that provide opportunity for suspects to issue false confessions: isolation over three days, constant interviewing, and talking to Allen when he was clearly mentally and emotionally tired.  Investigators also provided Allen with a narrative – that he lost control and shook his son – and threatened that both Allen and the boy’s mother would suffer maximum jail sentences without a confession.

White concluded by pointing to explanations from the police’s report about the child’s injuries that Allen had adopted directly into his confession as evidence that investigators drove the conversation to fit their narrative of the incident.  On cross examination, prosecutors took the defense false confession expert to task for not really knowing how common coerced confessions are.

Prosecutors Question Validity of False Confession Expert Witness

On cross-examination prosecutors asked White about the actual incidence of false confessions, and the expert admitted that most confessions are true.  White was also unable to provide statistics on how frequently false confessions occur because there are not accurate numbers.  Prosecutors also pointed out that many of the conditions of false confessions – such as mental impairment, youth, and 12-hour or longer interrogations – were not present in David Allen’s case.  White agreed that some factors were not present, but maintained that the situation had characteristics of false confessions.

Allen’s trial, which also features medical expert witnesses to challenge the initial diagnosis of child abuse, will last until the end of the week.

Delaware Pill Mill Doctor Convicted with Help from Expert Witness Testimony

Last week a Delaware physician was convicted on more than 100 counts of illegally prescribing narcotics and filing false insurance claims in a high profile pill mill criminal prosecution. Prosecutors presented evidence from a medical practices expert witness who told jurors that suspect bookkeeping and lack of records strongly suggested the defendant was guilty.

Delaware Pill Mill Doctor Charged with Illegal Prescription Sales

Dr. Lawrence Wean, 61, operated a private practice in Chadds Ford, Delaware before being arrested last December for allegedly providing patients with narcotics without properly evaluating them.  Investigators posing as patients were able to receive prescription narcotics such as Percocet and Oxycodone without being examined or asked for a medical history. During trial, the police investigators told jurors that they were given prescription medication in exchange for cash on multiple visits to Wean’s office.

In addition to police investigators, patients of Wean’s told jurors that they were able to receive power pain medication with very little effort providing they paid for their medication in cash.  Wean’s employees informed the court that the doctor kept very few records and often had hundreds or thousands of dollars in cash around the office.  In order to pull all the evidence together, prosecutors called an expert in prescription pain medication to inform jurors that Dr. Wean’s behavior was indicative of illegal prescription medicine sales.

Pain Medication Expert Witness Testifies in Pill Mill Prosecution

Before resting their case against Dr. Lawrence Wean, prosecutors called Dr. Eric Lipnack as a pain medication expert witness who reviewed 30 of Dr. Wean’s patient medical files to identify potential bookkeeping discrepancies that would suggest illegal distribution of pain medicine.  On the stand Lipnack told jurors that Wean’s record keeping habits were “disgraceful” and “irresponsible” and evidence of a narcotic distribution system that failed to live up to legally required standards.  Lipnack pointed out pain medication prescriptions being given to patients who did not have medical histories, charts that indicated they had been evaluated by Wean, or regular appointments.  Further, Lipnack pointed to Wean’s practice of repeatedly welcoming patients back who he had previously dismissed for suspected pain medication addiction as evidence that the doctor was running a for-profit pill mill out of his private practice.

Defense attorneys forced Lipnack to admit that he had not spoken to any of Wean’s patients or discussed their pain medication needs, but the prosecution’s expert witness maintained that his review of Wean’s business and medical records was sufficient to notice irregularities.  Telling jurors that when a doctor doesn’t record visits in writing then they didn’t happen, Lipnack testified that lack of written records about patient examinations suggested the defendant didn’t conduct any medical review before prescribing pain medication.  During closing arguments, prosecutors pointed to the testimony of their lead expert witness to argue that Wean’s poor record keeping and lack of written records about patient visits was strong evidence that the defendant was running an illegal prescription pill operation.

Pill Mill Doctor Convicted of Illegal Pain Medication Sales

After three days of deliberations, jurors convicted Wean on 99 counts of illegally prescribing controlled substances, and more than a dozen counts of insurance fraud for claims that the doctor filed with patient insurance companies.  Dr. Lipnack’s pain medication expert testimony helped prosecutors convince jurors that Dr. Wean’s lack of written records was evidence of illegal activity and not simply a case of absent-minded record-keeping as the defendant claimed.  Wean will face a sentencing hearing on December 2nd.

Man Accused of Killing Adrian Peterson’s Son Uses Medical Experts During Trial

Earlier this week a jury in South Dakota convicted the man accused of killing the son of National Football League Star Adrian Peterson of 2nd degree murder despite testimony by several defense experts that attempted to cast doubt on the cause of death.  Throughout the trial both prosecutors and defense attorneys presented several medical expert witnesses who disputed the cause of death and culpability of the defendant.

Expert Witnesses Used in Trial of Man Accused with Killing Adrian Peterson’s Son

Joseph Patterson, 29, was found guilty of 2nd degree murder for killing 2-year-old Tyrese Robert Ruffin, the young son of NFL star Adrian Peterson.  In 2013 Patterson was the boyfriend of Ruffin’s mother and was accused of murder after the child died of blunt force trauma to his head.  Prosecutors alleged that Patterson had violently abused Tyrese, delivering four blows to the boy’s head that caused the fatal trauma.

To support their contention, prosecutors called medical expert witness Donald Habbe, a forensic pathologist, to explain the results of Ruffin’s autopsy to the jurors.  Habbe told the jurors that the four wounds on Tyrese Ruffin’s head were consistent with blunt force trauma.  Habbe went on to testify that bleeding in the brain and back of the eye which caused Ruffin’s death were likely the result of the blows that left the marks on the boy’s skull.  According to Habbe’s expert opinion, the cause of the boy’s death was not accidental, but was a homicide caused by child abuse.

Defense attorneys for Patterson responded with medical experts to counter the prosecution’s claims that Ruffin was murdered by introducing other possible causes of the injuries the boy suffered.

Defense Attorneys for Joseph Patterson Present Expert Testimony

In response to the prosecution’s allegations that Patterson delivered the fatal blows to Tyrese Ruffin, defense attorneys called medical experts to present alternative theories of the boy’s death.  Dr. Waney Squire, a neuropathologist from Oxford, England who specializes in injuries to children, took the stand after examining Ruffin’s brain samples.  According to Dr. Squire, Ruffin’s brain samples did not indicate a traumatic injury suffered directly to the skull, and the blood in the boy’s brain was not nearly at the levels she would expect if the 2-year-old had been struck or shaken.  Instead, Dr. Squire suggested the forensic evidence was consistent with evidence of a child choking to death while being given CPR – supporting Patterson’s claim that he had attempted to revive the boy who was choking on a fruit snack.

Dr. Roland Auer, a neurologist at the University of Saskatchewan in Canada, took the stand to directly refute a prosecution expert who had concluded that brain hemorrhaging is a clear sign of trauma.  According to Dr. Auer, the physical markings evident on the boy’s body were not severe enough to support the type of injuries that would have been sufficient to cause fatal brain trauma.  Like Dr. Squire, Dr. Auer told jurors that the prosecution’s medical experts had been too hasty when coming to the conclusion that Tyrese Ruffin’s death was the result of deliberate and abusive blunt force trauma administered by the defendant.

Ultimately, jurors were not convinced by the efforts of Patterson’s defense expert witnesses and convicted the defendant 2nd degree murder for Tyrese Ruffin’s death.  Patterson’s conviction carries a mandatory life sentence, which he will begin serving after the formal conclusion of his criminal proceedings.

Joseph Patterson Prosecutors Question Cost of Expensive Expert Witnesses

Throughout the course of the Patterson prosecution more than 12 medical expert witnesses had testified about the disputed cause of death of 2-year-old Tyrese Ruffin, raising concerns about the rising costs of expert witnesses.  Prosecutors told the media that they generally use doctors or forensic examiners who had directly interacted with the victim during treatment or after death, but defense teams are more likely to use high priced experts to examine the evidence of the crime well after it happened.  State attorneys prosecuting Patterson have an annual budget of $2,500 per year to pay experts which limits their ability to hire the same type of outside expert witnesses that defense lawyers have access to.

Even public defender expert witness budgets can dwarf prosecution allocations, allowing for the pursuit of high priced experts to take the stand for defendants.  In the Patterson case, Dr. Squire received more than $10,000 for her work while Dr. Auer was paid at a rate of $400 per hour to investigate and testify about Tyrese Ruffin’s death.  Such an inequitable balance in ability to hire expert witnesses leads to concerns that defense attorneys can solicit high priced hired guns to sway jurors with elite credentials that prosecution experts cannot match.

While the highly credentialed medical experts testifying on behalf of Joseph Patterson were not enough to sway the jury in this case, the budget discrepancy that allows defense attorneys to pursue higher priced experts is a concern shared by prosecutors across the country who struggle to find experts who fit their budget.

Mother Convicted for Leaving Infant in a Hot Car uses Psychology Expert Witness

An El Paso woman was recently convicted of criminally negligent homicide for the 2013 death of her infant daughter who was left in a hot car for 8 hours.  Jurors issued the guilty verdict despite hearing testimony from a psychiatrist expert witness who explained that the defendant suffered from “forgotten baby syndrome” which was presented as a condition that causes parents to leave their kids in cars unintentionally.

Texas Woman Charged with Death of Infant Left in Car

In May 2013 Wakesha Ives returned to her car after a long day teaching at an El Paso middle school to find that her 5-month-old daughter Janay Aliah Ives had spent the entire day locked inside the hot car.  Despite frantic efforts by school staff and paramedics to revive the baby at the scene, Janay was taken to a local medical center and pronounced dead with an internal temperature of 105 degrees.  Janay died of environmental heat exposure suffered due to being confined in her mother’s vehicle for an entire day, and Wakesha was subsequently arrested and charged with criminally negligent homicide for leaving her infant in her car while she was at work.

Throughout the investigation and trial Wakesha maintained that she mistakenly believed that she had dropped Janay off at day care prior to arriving at the school for work.  During her trial, a tearful Wakesha took the stand to tell jurors that she was devastated by her daughter’s death, and loved Janay as any mother would.  Wakesha explained that she was suffering from memory lapses due to her blood pressure medicine and on the day in question forgot that she had not dropped Janay off at day care like she typically did.

Wakesha’s attorneys told jurors that the defendant was experiencing significant levels of stress at her job and was suffering from chest pains, light-headedness, and memory loss because of high blood pressure medication that she was taking at the time.  In an effort to further demonstrate that Ives was not criminally culpable for her daughter’s death, the defense presented testimony from a psychology expert witness who explained that Wakesha showed signs of Forgotten Baby Syndrome which could have explained her inattentiveness to Janay.

Expert Witness Explains Forgotten Baby Syndrome

Attorneys for Wakesha Ives called to the stand Dr. David Diamond, an expert witness specializing in neuroscience and memory at the University of Florida, who discussed a condition he called Forgotten Baby Syndrome.  Dr. Diamond told jurors that, “Forgotten Baby Syndrome is when normal, attentive, loving parents forget their kids in the car,” and can be distinguished from cases of neglect or abuse when parents are known to be slow, sluggish, or suffering from memory loss in the time prior to the incident.

Dr. Diamond’s expert testimony explained that because our memories are frail and prone to easy lapses, simple factors like a break in normal routine or a series of unusual events could lead a parent to overlook the fact that their child was left behind in a hot car.  According to Ives’s husband, she had not slept well the night before, and that he had placed the baby bag in back seat that morning rather than its usual spot in the front of the car.  Dr. Diamond explained that this seemingly innocent break in routine could trigger Forgotten Baby Syndrome, suggesting that Ives forgot about her daughter and was not acting negligently or maliciously by leaving Janay in the car.

Jury Convicts Texas Mother for Death of Infant Daughter Left in Hot Car

Despite emotional testimony from Wakesha Ives and analytical expert witness testimony about Forgotten Baby Syndrome by Dr. Diamond, the jury of 10 women and 4 men found the defendant guilty of criminally negligent homicide for Janay’s death.  The jury acquitted Ives of the more serious charge recklessness causing serious bodily harm due to omission – which carries a maximum sentence of 20 years – suggesting that jurors put some degree of stock into the defendant’s case and her expert witness’s contributions.

Ives will return to court in early October for a sentencing hearing, and faces up to two years in jail for her conviction.  Dr. Diamond’s expert witness testimony on Forgotten Baby Syndrome may not have been fully successful, but it seems that jurors incorporated his position into their decision by selecting the lesser available charge.  Forgotten Baby Syndrome is relatively unheralded in the legal community, but with the attention it has received in the Ives case more defendants may look for experts like Dr. Diamond who provide explanation why parents would leave infants unattended in hot cars.

Expert Witnesses Do Not Always Need a College Degree

Many experts have advanced degrees in specialized fields, but other experts gained their knowledge through experience. Rule 702 of the Federal Rules of Evidence permits expert testimony that will help the jury if the expert is qualified “by knowledge, skill, experience, training, or education.” Most states follow a similar rule.

Experience in the kitchen was enough to qualify a cookie expert to testify in a case from Hawaii that an attorney recently discussed in The Ukiah Daily Journal. The case involved a lawsuit that Big Island Candies, Inc. brought against The Cookie Corner, alleging that The Cookie Corner improperly copied its cookie design. In its defense, The Cooker Corner presented sworn statements from a number of cookie experts, including Wally Amos, better known to cookie lovers as Famous Amos.

The Cookie Design Dispute

According to the court decision, Big Island marketed “a rectangular macadamia-nut shortbread cookie with ‘bull-nose’ (i.e., rounded) corners that is diagonally dipped in chocolate.” The court expressed no opinion whether the cookie is as delicious as it sounds.

Big Island did not accuse The Cookie Corner of copying the cookie’s recipe, but of stealing the cookie’s design. According to Big Island, covering only half the cookie in chocolate along a diagonal line that ran from corner to corner, along with its rectangular shape and bull-nose corners, gave the cookie a distinctive appearance that it was entitled to protect. The Cookie Corner’s version of the cookie was nearly identical, except that its cookie was slightly larger.

The case turned on whether the cookie’s design was inherently distinctive and therefore protectable by intellectual property laws. If Big Island’s cookie was a generic design, The Cookie Corner had as much right to use it as Big Island and Big Island was not entitled to claim that its design had been copied.

A generic design is one that relies upon basic product features that are common to most similar products. The size and shape of cookies, for example, are usually basic design features because most cookies share similar sizes and are made in one of a few common shapes. A design is deemed generic when it is so common that consumers do not identify it with a particular manufacturer. A distinctive design, on the other hand, is not only unique but is intended to make consumers associate the design with a particular brand.

Expert Cookie Opinions

To apply these rules to chocolate-covered macadamia nut shortbread cookies, the court turned to the expert evidence that Big Island and The Cookie Corner supplied. Big Island offered expert survey evidence from researchers who showed the cookie to consumers and asked if they knew who made the cookie. Roughly a quarter of the consumers associated the cookie with Big Island, but that evidence did not persuade the court that consumers thought the cookie design’s primary significance was its ability to help them distinguish Big Island cookies from other brands. Besides, consumers could see the name “Big Island Candies” on the cookie wrapper, which likely helped them identify the manufacturer more than the cookies’ design.

Big Island also offered expert evidence from a seller of cookie-making machines who testified that he “could not recall” seeing other brands of shortbread cookies that were half-covered with chocolate on a diagonal. Since that failure of recollection did not refute the testimony provided by The Cookie Corner’s experts, the court held that it did not establish the distinctiveness of the Big Island design.

The Cookie Corner, on the other hand, offered the opinions of several experts “with extensive training and experience in the baking and cookie industries.” Those experts (including Wally Amos) offered opinions that the size, shape, and diagonal chocolate coating of Big Island’s cookie were widespread design features that are commonly used in the cookie industry. The court ruled in favor of The Cookie Corner because its expert evidence was essentially unrefuted.

Cookie Expert Qualifications

Big Island argued that The Cookie Corner’s experts were not qualified to provide expert evidence because they did not have adequate credentials. In particular, Big Island asked the court to discount Wally Amos’ opinion because he “did not graduate from high school and because he does not have a degree in a culinary field.”

The court noted that Rule 702 does not require experts to have formal degrees. Expertise can be acquired by on-the-job experience. Wally Amos founded the Famous Amos Cookie Company, has traveled extensively to meet with cookie makers and bakers, and has acquainted himself with hundreds of cookie recipes. The court had no trouble accepting Amos as a cookie expert based on his extensive experience in the cookie industry.