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Apple vs Samsung Expert Witness

Can an Expert Witness in a Criminal Case Give Remote Testimony?

As the COVID-19 pandemic continues to take lives, courts have been cautious about protecting trial participants from the risk of infection. Many trials have been delayed. When a criminal defendant is detained while awaiting trial, however, judges must weigh the defendant’s right to a speedy trial against the dangers of holding a trial.

Criminal trials are moving forward in many jurisdictions. Courtrooms have been reconfigured to allow mask-wearing jurors to practice social distancing. The number of observers allowed in the courtroom is typically limited. Yet problems arise when witnesses are unwilling to risk an infection by traveling during the pandemic.

Remote Testimony

In civil cases, many courts have permitted remote testimony of witnesses. In some instances, the testimony is taken in the form of a videotaped deposition prior to trial that is then played to the jury. In other cases, witnesses give live testimony through videoconferencing technology.

Remote testimony can be frustrating for a number of reasons. Low bandwidth can cause the audio or video feed of live testimony to freeze, interrupting the flow of direct or cross-examination. It is also more difficult for juries to assess the credibility of a witness on a television screen than a witness who is testifying from the witness chair.

Confrontation Clause Issues

Constitutional considerations come into play when remote testimony is requested in criminal cases. For example, suppose the prosecution wants to call a crime lab analyst as an expert witness. If the analyst has a health condition that increases the expert’s vulnerability an infection, the expert might ask to testify remotely. A court will likely be forced to deny that request.

In Crawford v. Washington, the Supreme Court held that the Confrontation Clause allows a defendant to insist that testimony be given in person. In Melendez-Diaz v. Massachusetts, the Court held that the results of forensic testing cannot be introduced in the form of a report unless an expert witness gives live testimony about the results.

The Supreme Court has not decided whether and when live testimony given from a remote location satisfies the Confrontation Clause. However, the Court decided in Coy v. Iowa that child witnesses could not be permitted to sit behind a screen while testifying because the Confrontation Clause demands face-to-face cross-examination. Although a later case carved out a narrow exception that permits a child witness to be shielded from the defendant while testifying in person, that exception applies only when a child witness would be traumatized by exposure to the accused.

When the prosecution wants to call an expert witness, the decisions in Crawford and Coy suggest that the witness will need to testify in person unless the defendant agrees to remote testimony. Expert witnesses are not children who will be traumatized by testifying in the defendant’s presence. The Confrontation Clause arguably gives defendants the right to look experts in the eye while the expert testifies.

Lower courts are nevertheless divided as to whether remote testimony in criminal cases is permissible under at least some circumstances. Courts generally agree that only circumstances implicating important policies would permit a prosecution witness to testify outside the presence of a defendant. Some courts have been willing to find that any circumstance more compelling than convenience can serve as an “important policy,” including protecting the health of a seriously ill witness.

The risk of a COVID-19 infection affects everyone who enters the courtroom, including the defendant. Since a prosecution expert will not usually be at greater risk than anyone else, it should be rare that a court will allow a prosecution expert to give remote testimony. Whether the rule is different for a defense expert witness was an issue that recently came before a judge in Yolo County, California.

Defense Expert Refuses to Testify in Person

Keith Whelan is charged in Yolo County Superior Court with multiple counts of having sex with a minor. The alleged victim reported in 2019 that the sexual contact had occurred regularly since 2016.

Whelan’s public defender asked to call two witnesses remotely. One was a social worker who had contact with the alleged victim after she made her allegations. The social worker lived in New York and did not want to travel to California to testify.

The public defender also wanted to call William O’Donohue from the University of Nevada as an expert witness. O’Donohue’s testimony was needed to respond to the anticipated testimony of Blake Carmichael, a prosecution expert who is expected to testify about child sexual abuse accommodation syndrome. O’Donohue has published research that criticizes the controversial syndrome as “junk science.”

O’Donohue advised the defense that he was willing to testify by Zoom but would not travel to testify in person. O’Donohue noted that he is an older man at high risk of becoming seriously ill if he is exposed to the novel coronavirus. O’Donohue also takes care of his developmentally delayed daughter and was concerned that travel would interfere with his parental responsibilities.

The judge initially noted that he had rejected the prosecution’s request for remote testimony in a different case, in part to avoid violating the Confrontation Clause. But the Confrontation Clause protects defendants, not the government.

The prosecutor argued that O’Donohue had provided an 80-page expert report and expressed concern about the ability to cross-examine him effectively over Zoom, given the anticipated length of his testimony. The judge expressed sympathy for that position, advising the public defender that while the court could be “accommodating to him given his age, we are socially distancing and we are all masking, all jurors, lawyers, and staff.”

Court’s Ruling

The judge asked the defense to file a formal motion and delayed making a final decision until a subsequent hearing. When court next convened, the prosecutor renewed her objection, claiming that “it will be impossible for the People to conduct cross-examination in a fair way to preserve our right to a fair trial and our right to due process.”

The prosecutor may have been confused. The Constitution protects the right to due process when a person’s life, liberty, or property may be taken by the government. The Constitution was designed to protect individuals from the government, not to protect the government from defense attorneys. The defendant’s constitutional right to a fair trial must always trump the government’s interest in a fair trial.

While continuing to express reservations, the judge made a conditional ruling that O’Donohue should be allowed to testify remotely. The judge recognized the importance of having a defense expert who could counter testimony given by the prosecution expert. Given the limited pool of experts and O’Donohue’s legitimate concerns about traveling during a pandemic, the court concluded that Whelan should be entitled to benefit from remote testimony.

The court left open the door for requiring in-person testimony if technical obstacles to remote testimony cannot be overcome. The court instructed the lawyers to contact the IT departments in their respective offices to determine whether the prosecution’s complaints about the limitations of Zoom can be overcome.

Perhaps using software that is specifically designed for courtroom video testimony would be a better option. The judge might also want to become familiar with best practices for using video conferencing in the courtroom. In any event, obstacles that can be overcome with even modest success should not prevent the defense from offering critical expert testimony in a criminal prosecution.



Prosecutor Receives Qualified Immunity for Flawed Investigation of Bitemark Evidence

While expert evidence about bitemarks is widely discredited as unreliable, it has played an unfortunate role in assuring the wrongful convictions of innocent defendants. A defendant in Pennsylvania whose conviction was overturned because, (among other reasons) it was based on bitemark evidence, sued the police and prosecutors for building a case against her that they knew to be baseless. The Court of Appeals for the Third Circuit was recently asked whether the prosecutor was immune from liability for the role he played in directing the bitemark evidence investigation.

Facts of the Case

In 2001, police officers in Connellsville, Pennsylvania found the body of Curtis Haith on a sidewalk. Haith had been beaten and shot. The police asked Nancy Vernon, the District Attorney for Fayette County, to come to the scene and direct the investigation.

Police investigators learned that Haith had hosted a party and attended other parties the night before his body was discovered. They found evidence of drug use in Haith’s apartment.

Interviews with people who attended Haith’s party prompted the investigators to contact Crystal Dawn Weimer. She appeared to have minor injuries. The investigators noticed mud and blood on her clothing.

Weimer told the police that she had given Haith a ride from one party to another. She then spent the rest of the night with her mother and sisters. They confirmed spending the night with Weimer, as did her boyfriend, Michael Gibson.

Weimer explained that the blood on her clothing came from a fight with Gibson. A DNA test confirmed that the blood came from Gibson. None of Weimer’s blood was found at the crime scene, although blood was discovered that came from an unidentified male.

Nearly two years later, a man Weimer had dated before Gibson, Thomas Beal, told the police that Gibson and Weimer killed Haith. Beal claimed that Weimer admitted that the blood on her clothing came from Haith. Since DNA testing had confirmed that the blood was not Haith’s, the police had little reason to believe Beal’s statement.

Bitemark Evidence

The state police then joined the investigation. They saw what they believed to be a bite mark on a photograph of Haith’s hand. A local dentist compared the photograph to the teeth of Gibson and Weimer and said she could not tell which of them bit Haith.

A bite-mark “expert” then compared the photograph to dental impressions from Gibson and Weimer. The expert opined that Weimer caused the bite mark. When a question later arose about the timing of the bitemark, the “expert” proclaimed that the bite occurred seven to ten minutes before Haith’s death. He offered that opinion without conducting any additional research.

Beal later changed his story, implicating a man who was in prison at the time of the murder. The District Attorney nevertheless decided to pursue a murder charge against Weimer based on Beal’s first story and the opinions offered by the bite-mark analyst.

A prison witness surfaced who claimed that the murder was committed by Weimer, Gibson, and Beal. That witness implicated another prisoner, Joseph Stenger, who supposedly wrote a statement confessing his participation in the crime. Stenger denied writing the statement.

Weimer’s Trial

The evidence against Weimer was obviously so inconsistent that no conscientious prosecutor would have believed that it proved guilt beyond a reasonable doubt. Three years after Haith’s death, police officers nevertheless prepared a criminal complaint charging Weimer with his murder. Vernon approved the complaint, leading to Weimer’s arrest.

According to the appellate court, “the case against Weimer fell apart almost immediately.” At a preliminary examination, Beal admitted that the police had coached him to give testimony implicating Weimer. A judge dismissed the charges because of that recantation.

Undeterred, the police again approached Stenger, hoping to obtain new evidence against Weimer. Stenger agreed to testify against Weimer in exchange for a reduced sentence. A jailhouse snitch who testifies in exchange for a reward should never be viewed as a credible witness, but Weimer was recharged on the strength of that evidence.

Stenger and the state’s bitemark expert provided the only significant evidence against Weimer at her trial. A jury found her guilty in 2006.

Weimer’s Exoneration

In 2015, a judge determined that police and prosecutors acted improperly to obtain Weimer’s conviction. By that time, having obtained the benefit of his lie, Stenger was willing to admit that he knew nothing about Haith’s murder and that his testimony was prepared by the police.

Other jailhouse informants testified that they never asked for or received deals in exchange for their testimony. Weimer’s new lawyers discovered letters in the prosecutor’s file proving that the informants had, in fact, offered to trade favorable testimony for favors.

Critically, the bitemark expert also disavowed his trial testimony. The expert admitted that bitemark identification is junk science.

A defense expert reviewed Haith’s autopsy and photographs of Weimer’s injuries. The expert concluded that Weimer’s injuries were consistent with her statement that they occurred a few days before Haith’s death.

Based on the new evidence, a judge granted Weimer a new trial. The prosecution then dropped the charges.

Weimer’s Civil Rights Lawsuits

Weimer sued the county and city, several police officers, and Vernon for violating her civil rights. The legal theories she asserted against Vernon included malicious prosecution and the failure to intervene to prevent the police from violating her civil rights.

Vernon moved to dismiss the complaint on the ground that prosecutors are absolutely immune from liability for their official conduct in prosecuting a case. The trial judge agreed that Vernon could not be sued for actions taken in the prosecution phase of the case, but concluded that Vernon was not absolutely immune for actions she took when she directed the police in their investigation of Weimer.

The judge dismissed the malicious prosecution claim except to the extent that it was premised on the bitemark investigation. The judge allowed Weimer to amend her complaint to allege more specific facts about the role Vernon played in directing the investigation of the bitemark.

After Weimer amended her complaint, Vernon renewed his motion to dismiss. The trial judge denied the motion. The judge ruled that Weimer alleged sufficient facts that, if proved, would demonstrate that Vernon allowed the police to build a case that Vernon knew was meritless. Vernon appealed, contending that he was entitled to absolute or qualified immunity from liability.

Appellate Opinion

The Court of Appeals for the Third Circuit agreed that a prosecutor’s absolute immunity only extends to actions that are closely associated with the judicial phases of a prosecution, such as presenting evidence in court. Administrative or investigative actions do not entitle a prosecutor to absolute immunity.

The court agreed that Vernon’s conduct at the crime scene was investigative in nature. Vernon was also engaged in investigative duties while overseeing a police investigation that produced and relied upon conflicting statements. Vernon was not entitled to absolute immunity for those actions. He was, however, immune from liability for his decision to prosecute Weimer based on such shaky evidence.

The court nevertheless found that Vernon had qualified immunity from liability based on the claim that he failed to intervene in the police investigation. Qualified immunity is a controversial doctrine that shields government employees from liability for constitutional violations when the specific conduct for which they are sued has not been clearly established as the violation of a constitutional right. The court concluded that the right to have a prosecutor intervene to protect a defendant from a meritless prosecution had not been clearly established.

The appellate court also disagreed with the trial judge that Vernon had a clearly established duty not to tell the police to rely on the junk science of bite mark identification. Vernon realized that the mark on Haith’s hand might not have occurred on the day of his murder, so he asked the police to obtain expert evidence about the timing of the bitemark. The police returned to the expert who, without reviewing any new evidence, claimed to know that that the bitemark was caused shortly before his death.

The appellate court decided that defendants have no clearly established constitutional right not to have prosecutors direct an investigation based on junk science. The court noted that during the 2002 to 2006 timeframe, prosecutors often presented bitemark evidence in support of prosecutions. According to the court of appeals, the unreliability of bitemark evidence was not widely accepted until a few years later.

Prosecutors fought (and continue to fight) vigorously against the recognition of bitemark evidence as junk science. Their resistance to science that gets in the way of convictions explains why it took courts so long to agree that bitemark evidence is useless. Their success in convincing courts and juries to accept unreliable science shielded Vernon from liability for telling the police to obtain bitemark evidence from an expert who now concedes that his opinion was groundless.

Fortunately, Weimer will be able to continue her case against the police officers who allegedly coerced witnesses to change their stories and hid exculpatory evidence from the defense. When and if the case will settle or go to trial is yet unknown.


North Carolina

Internist Is Qualified to Give Expert Testimony About Hospitalist’s Standard of Care in North Carolina

Many states have adopted laws that limit the universe of potential experts who are permitted to testify about the standard of care in a medical malpractice lawsuit. The question before the North Carolina Supreme Court in Da Silva v. WakeMed was whether an internist is qualified to give expert testimony about the standard of care that should be exercised by a hospitalist. The court ruled that North Carolina law permits the testimony.

Facts of the Case

Before she was admitted to a WakeMed hospital, 76-year-old Dolores Pierce was taking prednisone, a prescription drug that treated her inflammatory disorder. She was admitted to the emergency room with symptoms that were diagnosed as a urinary tract infection.

Concerned that the infection had induced sepsis, a hospitalist ordered the antibiotic Levaquin to be administered intravenously. A known side effect of Levaquin is the increased risk of tendon ruptures in patients over the age of 60 and in patients who are taking prednisone or other cortical steroids.

Three hospitalists treated Pierce over the next few days. All three continued to prescribe Levaquin. They were all aware of Pierce’s age and they all continued to administer her daily dose of prednisone.

After a few days, Pierce was discharged to a rehabilitation facility. The hospitalists prescribed Levaquin and prednisone during the first four days of her stay in that facility, after which the Levaquin was discontinued. A few days later, Pierce completed her recovery and was discharged.

About a week after her discharge, Pierce ruptured her Achilles tendon. The rupture required a surgical repair, but Pierce never fully recovered. She died from pneumonia about ten months after the rupture.

Expert Testimony

The hospitalists who prescribed Levaquin for Pierce were board certified in internal medicine. The supreme court described hospitalists as “physicians who specialize in internal medicine in a hospital setting and care for hospitalized patients.”

Pierce’s estate sued the hospitalists for malpractice. They identified Dr. Paul Genecin as an expert witness regarding the applicable standard of care. Dr. Genecin is an internist who is licensed in Connecticut.

Dr. Genecin testified in a deposition that the hospitalists deviated from the standard of care by administering Levaquin to an elderly patient who was taking prednisone. A hospitalist’s standard of care, according to Dr. Genecin, would have required the hospitalist to understand the risk of an adverse drug interaction and to prescribe a different antibiotic. Dr. Genecin also testified that Pierce’s tendon rupture was caused by the interaction of prednisone and Levaquin.

The hospitalists urged the court to disqualify Dr. Genecin as an expert witness because he is an internist rather than a hospitalist. The trial court agreed with their strained interpretation of North Carolina law and disqualified Dr. Genecin. It then entered summary judgment against the estate because, with no expert witness to prove standard of care, the estate could not prove that the hospitalists were negligent.

The North Carolina Court of Appeals reversed the trial court in an unpublished decision. The hospitalists then asked the North Carolina Supreme Court to decide whether internists are qualified to give expert testimony about the standard of care that applies to hospitalists.

North Carolina Law

As is true in many states, North Carolina passed a law that makes it difficult for injured patients to find expert witnesses who will testify on their behalf. Rather than allowing a court to apply the traditional test of an expert’s qualifications — whether the expert has sufficient knowledge, skill, training, or experience to help the jury understand an issue in the case — many states narrow the range of experts who are allowed to testify in medical malpractice cases.

A North Carolina statute specifies that an expert who testifies in a lawsuit against a specialist must either specialize in the same field of medicine or “in a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients.”

To satisfy North Carolina law, the expert must also have, within the prior year, devoted the majority of his or her time to the active clinical practice of the same or similar specialty as the defendant or to teaching students in that specialty.

Appellate Decision

Dr. Genecin was board certified in internal medicine, as were the hospitalists. Dr. Genecin testified that a hospitalist is a doctor who is hired to practice the specialty of internal medicine on a full-time basis in a hospital. According to Dr. Genecin, “hospitalist” is merely a job title that describes an internist who works in a hospital.

The defendants presented no evidence to contradict Dr. Genecin’s testimony. The supreme court declined to determine whether hospitalist and internist are two terms that describe the same specialty, but the court had no difficulty concluding that the terms describe similar specialties.

Dr. Genecin explained that when internists treat hospitalized patients, they are doing the same work as hospitalists. Dr. Genecin regularly performs the same duties as hospitalists, including treating hospitalized patients, reviewing the patient’s history, interpreting test results, making referrals to other specialists, prescribing medications, and checking for adverse medication interactions.

Dr. Genecin serves as an attending physician in a hospital for two months each year. He admits and discharges patients and performs all of the other duties that hospitalists perform.

Dr. Genecin also testified that dozens of times each year, he treats hospitalized women in their 70s who suffer from serious infections, including urinary tract infections. The undisputed evidence established that Dr. Genecin had performed the procedures that, according to the complaint, were performed negligently by the hospitalist defendants. Since that evidence was undisputed, the court concluded that Dr. Genecin’s practice included the treatment of patients who were similar to Pierce.

It is difficult to understand why the trial court thought that the description of a doctor who practices internal medicine as a hospitalist rather than as an internist was a reason to disqualify Dr. Genecin as an expert witness. The supreme court determined that Dr. Genecin satisfied the requirements of North Carolina law. It therefore reversed the summary judgment against Pierce.

Lesson Learned

Finding a doctor who will testify against another doctor is always challenging. State laws protect doctors from the consequences of their negligent acts by imposing expert witness requirements that enhance the challenge of finding a suitable expert.

The court’s decision provides relief for plaintiffs’ lawyers in their search for medical malpractice experts. In a state like North Carolina, lawyers should look beyond the job titles of the defendant doctors and ask what duties they perform. A physician with a different job title might be qualified to act as an expert witness under state law if the expert performs those same duties as the defendant, particularly if the expert and the defendant doctor are board-certified in the same field of medicine.


a doctor and a child

Judges Disagree Whether Expert Testimony Established that Vaccinations Caused SIDS

The U.S. Court of Appeals for the Federal Circuit recently considered the testimony of two expert witnesses who disagreed whether vaccinations caused a baby’s death. A majority of the panel that heard the case agreed with the Court of Claims that the parents’ expert witness failed to establish causation. A dissenting judge questioned whether the burden should instead be placed on the government to prove that the vaccinations did not cause the death.

Vaccine Injury Compensation

The National Vaccine Injury Compensation Program (VICP) is administered by the Department of Health and Human Services (HHS). The VICP is described as “a no-fault alternative to the traditional legal system for resolving vaccine injury petitions.” The government, rather than the vaccine manufacturer, pays compensation to individuals who are injured by a vaccination.

The “no-fault” label means that injury victims need not prove that the vaccine manufacturer was negligent. Victims must nevertheless prove that the vaccine caused an injury before compensation can be paid.

Congress created the VICP in the 1980s to protect the pharmaceutical industry from lawsuits that allegedly threatened to cause vaccine shortages. Congress intended VICP to assure adequate supplies of vaccines. Government production of vaccines would be an alternative to allowing drug companies to reap profits while taxpayers absorb risks, but substituting the government for a profit-making enterprise was not a politically palatable option.

In the last few years, the VICP has “paid out an average of $229 million a year to patients and their families.” That statistic is often quoted by conspiracy theorists who promote false claims about the dangers associated with vaccinations.

Facts of the Case

Individuals who believe they have been harmed by a vaccine can file a claim with the VICP. After reviewing the claimant’s medical records, a team of doctors will recommend that compensation be paid or denied. A denial can be litigated in “vaccine court,” the colloquial term given to the U.S. Court of Claims when it hears cases under the VICP. The court appoints a Special Master to recommend that the claim be approved or rejected.

Baby J.J. received several vaccinations during a well-baby examination at the age of four months. The next morning, J.J.’s parents discovered that J.J. was unresponsive. J.J. was rushed to the hospital, where he was pronounced dead.

According to the appellate opinion, the undisputed cause of J.J.’s death was Sudden Infant Death Syndrome (SIDS). As the dissent pointed out, SIDS is not a cause of death. It is “an announcement that the cause is unknown.”

J.J.’s parents petitioned for vaccine injury compensation. The case was eventually assigned to a Special Master who held an entitlement hearing. To receive compensation, J.J.’s parents needed to prove that a vaccine caused J.J.’s SIDS.

To prove causation, J.J.’s parents needed to present (1) a medical theory showing that one of the vaccines J.J. received is capable of causing SIDS; (2) “a logical sequence of cause and effect showing that the vaccination was the reason for the injury”; and (3) evidence that SIDS occurred in close proximity to the vaccination.

Expert Testimony

J.J.’s parents relied on the expert testimony of Dr. Douglas Miller. The claim was opposed by HHS, which relied on the expert testimony of Dr. Christine McCusker. Both doctors are well qualified, and both have testified in other VICP proceedings.

Dr. Miller relied on a medical theory known as the Triple Risk Model. It was undisputed that J.J. satisfied the first two prongs of that theory. J.J. was a vulnerable infant, in part because he had a defective brainstem. J.J. died during a critical developmental period of life.

The third prong of the Triple Risk Model requires evidence of an exogenous stressor. An exogenous stressor is an external factor that is capable of causing the patient’s injury. Dr. Miller testified that vaccines can cause SIDS by inducing the immune system to produce proteins known as cytokines, which impair the brain’s ability to rouse the body from sleep in response to elevated levels of carbon dioxide.

Dr. McCusker testified that Dr. Miller’s theory was unsupported by the current state of medical knowledge regarding the production, transportation, and effect of cytokines. She also testified that Dr. Miller’s theory was undermined by the fact that J.J. had a defective brainstem. She concluded that a normal brainstem is necessary for cytokines to affect the brain. Dr. Miller offered no alternative explanation for J.J.’s death.

The Special Master found that Dr. Miller failed to establish that a transport mechanism exists that would carry cytokines to the brain. The Special Master also agreed with Dr. McCusker than a normal brainstem would be required for Dr. Miller’s theory to operate.

Claims Court Decision and Appeal

The Claims Court reviews the decision made by the Special Master. In this case, the Special Master recommended a denial of compensation because J.J.’s parents did not prove that the vaccinations caused SIDS. The Claims Court accepted that recommendation. The court found that the Special Master made reasonable determinations regarding the credibility and reliability of the expert witnesses and applied the law correctly. It therefore dismissed the claim.

The Court of Appeals for the Federal Circuit noted that Dr. Miller had relied in an earlier case on the same Triple Risk Model to link vaccinations to SIDS. In that case, the court faulted the Special Master for accepting an “unsound and unreliable theory that constitutes a significant extension of the Triple Risk Model.”

The court rejected the argument that medical knowledge supporting a relationship between SIDS and vaccinations had advanced in the short time that passed between the court’s earlier rejection of Dr. Miller’s theory and his reliance on that theory in J.J.’s case. The court also accepted the Special Master’s finding that J.J.’s defective brainstem undercut Dr. Miller’s theory.

The court concluded that the Special Master acted reasonably in deciding that Dr. Miller failed to prove that a transport mechanism exists that allows cytokines to cross the blood-brain barrier. The Special Master gave greater weight to Dr. McCusker’s testimony than to Dr. Miller’s. Since the Special Master was in a better position to judge the credibility of the two experts, the court of appeals deferred to the Special Master’s findings.

Finally, the court acknowledged that suspicious timing — a SIDS death less than 24 hours after receiving vaccinations — raised a concern that the vaccinations caused the death. The court noted the “significant medical uncertainty surrounding SIDS” and acknowledged the possibility that vaccinations could have caused J.J.’s death. But possibilities and suspicions, the court held, do not meet the standard of proof required by the VICP.

Dissenting Opinion

The dissenting judge read the VICP to shift the burden of proof to the government when it is reasonably possible that a vaccination caused a harm. A healthy baby’s death within hours of receiving vaccinations creates a reasonable possibility that the vaccinations caused the death.

The dissent concluded that the purpose of the VICP (to award quick and generous compensation to victims of vaccine-related injuries) would best be advanced by requiring the government to prove that the vaccinations did not lead to J.J.’s death. In the dissent’s view, the statute requires the government to prove an “unrelated cause” of death when the claimant offers evidence of a causal relationship between the vaccination and a subsequent injury. Dr. McCusker offered no other cause to explain a healthy baby’s sudden death.

While scientific advances in the understanding of SIDS are encouraging, the dissenting judge recognized the continuing lack of concrete knowledge as to the specific mechanisms that cause the unexplained deaths of babies. The judge concluded that it is inconsistent with the purpose of the VICP to expect an expert to testify about the specific ways in which vaccines cause SIDS.

It is enough, in the dissenting judge’s view, for an expert to determine that the vaccine caused the death, an opinion that can be based on the absence of any other likely cause for a death that quickly follows the administration of a vaccine. If the government expert cannot establish a different cause of death, the claimant should prevail.

The unfortunate fact is that medical experts, for all their value, can only base opinions on the current state of medical knowledge. It may be that, some years from now, the opinions of either Dr. Miller or Dr. McCusker will be vindicated by further research. In the meantime, whether the burden should be on claimants to prove the specific means by which a vaccination caused a death, or on the government to prove that a vaccine did not cause a death that quickly followed a vaccination, is a question that will continue to divide judges unless and until it is resolved by the Supreme Court.


Maryland Adopts Daubert

In 1978, the Maryland Court of Appeals (Maryland’s highest court) decided Reed v. State. That decision adopted the Frye standard as Maryland’s approach to determining the admissibility of expert testimony. The issue before the Maryland Court of Appeals in the recent case of Rochkind v. Stevenson was whether to abandon the Frye-Reed standard in favor of the Daubert standard.

Frye Versus Daubert

The “Frye standard” is the shorthand used to describe the holding of Frye v. United States, a 1923 decision of the Court of Appeals for the D.C. Circuit. The court in Frye decided that helpful expert testimony should be admitted into evidence if it is based on principles that are generally accepted by other experts in the same field.

In the years following the Frye decision, critics pointed out that the Frye standard only allows the admission of opinions that are rooted in the past. Opinions based on new or novel theories that have not yet gained general acceptance might be excluded from evidence despite their validity. Despite its shortcomings, the Frye standard was adopted by most courts in the years that followed.

In 1992, the U.S. Supreme Court decided that the federal rules of evidence created a new standard. Again named after the case that created it, the Daubert standard opens the door to expert opinions that are grounded in reasonable methodologies even if those methodologies have not yet gained general acceptance.

The Daubert standard has also been criticized. Much of the criticism stems from the inconsistent roles that federal judges play as gatekeepers when they decide whether expert opinions are admissible. Some judges view Daubert as broadening the admissibility of evidence. In their view, if a jury could view the expert’s methodology as reasonable, even if new or novel, the jury should decide whether the expert’s opinion should be credited.

Other judges view the Daubert standard as protecting juries from questionable expert opinions that, in the judge’s view, are based on unsound methodologies. Those judges tend to view themselves as more capable than jurors of deciding whether an expert opinion is consistent with valid principles of science.

Some scholars conclude that whether a court uses Frye or Daubert has little impact on the ultimate decision whether to admit expert testimony. In any event, there is little doubt that adopting Daubert comes with a price. Challenges to admissibility under Daubert often trigger evidentiary hearings that delay trials and increase the cost of litigation. On the other hand, courts that once routinely admitted expert evidence in criminal cases that was based on generally accepted but unsound methodologies may be less receptive to flawed science when they use the Daubert standard.

Facts of the Case

Against that background, the Maryland Court of Appeals has repeatedly been asked to join the trend of replacing Frye with Daubert. It finally did so in the Rochkind decision.

More than two decades ago, Charlena Montgomery moved into a home with her 10-month old daughter, Starlena Stevenson. She rented the home from Rochkind.

Starlena lived in that property for 15 months. Paint was chipping from the walls. Tests revealed that Starlena had an elevated level of lead in her blood. She had a lower level of lead in her blood two months after moving out of the property. Testing at Rochkind’s property revealed the presence of lead-based paint on multiple surfaces.

Starlena suffered from learning disabilities and psychological disorders since childhood. At the age of 20, she sued Rochkind, alleging that her difficulties were caused by the ingestion of lead-based paint chips. The evidence convinced multiple juries that Rochkind was negligent in failing to remove flaking lead-based paint from the walls before leasing the property to tenants.

Expert Testimony

Starlena relied on the expert opinion of Cecilia Hall-Carrington, a pediatrician. Dr. Hall-Carrington prepared a report concluding that Ms. Stevenson was poisoned by lead and that her lead poisoning was a significant contributing factor to her neuropsychological problems.

The trial court rejected a motion to exclude Dr. Hall-Carrington’s testimony that the lead Starlena ingested came from Rochkind’s property. The court ruled that her opinion was based on reliable sources of information and was therefore admissible under Maryland law.

The court also rejected a motion to exclude opinion testimony that lead consumption caused Starlena’s behavioral problems. The court ruled that Dr. Hall-Carrington’s opinions were admissible because they were based on generally accepted science regarding the relationship between lead and neuropsychological impairments.

The case went to trial. Dr. Hall-Carrington testified about studies that, in her view, linked lead consumption to Attention Deficit Hyperactivity Disorder (ADHD). Since ADHD was Starlena’s primary diagnosis as a child, Dr. Hall-Carrington opined that the lead consumption caused that condition. She also noted that Starlena was treated with Adderall, which studies link to depression and hallucinations. Dr. Hall-Carrington testified that treatment of her ADHD with Adderall was the underlying cause of Starlena’s depression and delusional behavior.

Starlena prevailed and was awarded more than $1 million in damages. The court ordered a new trial on damages. After a second trial, Starlena was again awarded more than $1 million. That verdict was reversed on appeal because Dr. Hall-Carrington did not adequately explain why she concluded that an Environmental Protection Agency study supported her belief that lead consumption causes ADHD.

Prior to the third trial, the judge ruled that Dr. Hall-Carrington could give essentially the same testimony but could not mention the term “ADHD.” The court declared a mistrial when the doctor uttered the forbidden phrase. During the fourth trial, Dr. Hall-Carrington did not use the terms “ADHD” but linked Starlena’s attention deficit, hyperactivity, and impulsivity to the consumption of lead. This time the jury awarded $3 million. Rochkind again appealed.

Appellate Opinion

The court of appeals concluded that the Frye-Reed standard “holds a confusing grip on Maryland bench and bar.” The court notably avoided blaming itself for causing the confusion. Nor did the court explain why Daubert is any less confusing. Given the varying interpretations of Daubert, one could argue that judicial disagreement about how to apply a standard for admitting expert testimony causes more confusion than the standard itself.

The court noted that Maryland law has drifted in the direction of Daubert, adding language from Daubert and its progeny to the state’s Frye-Reed standard. Maryland courts, for example, began to exclude opinions when the expert could not close the “analytical gap” between the data that the expert relied upon and the conclusion that the expert drew.

Maryland also loosened the Frye-Reed standard to permit evidence based on novel scientific processes that had not been generally accepted if the processes were based on generally accepted principles of science. Conversely, Maryland courts concluded that general acceptance of scientific processes (such as comparative bullet lead analysis) was insufficient to support admissibility if there was no general acceptance of the scientific principles upon which the processes were founded.

In addition to nudging the Frye-Reed standard in the direction of Daubert, Maryland courts decided that the state evidence code, which required expert opinions to be based on sufficient facts, also required opinions to be based on a reliable methodology. Daubert makes reasonably clear that facts and methodology are two distinct elements that underlie expert opinions. Maryland courts took an aggressive step in the direction of Daubert by interpreting “sufficient facts” to mean “sufficient facts plus a reliable methodology.”

The court decided that the time had come to jettison its drifting precedent and to adopt Daubert outright. It therefore remanded Starlena’s case for yet another trial, but only if the court determined that Dr. Hall-Carrington’s testimony satisfied the Daubert standard.

The Dissent

Three judges dissented. They did not believe that this was the right case in which to “pick a side” between Frye-Reed and Daubert. They noted that Rochkind appealed after the second trial, that the trial court relied on the Frye-Reed standard on remand, and that Starlena again prevailed. Her case has gone to verdict three times. According to the dissent, changing the standard of expert witness admissibility in a case that has been appealed once before, after the trial judge applied the standard dictated by the appellate court, “would undermine the finality and predictability of the court system.” Fairness to Starlena, however, did not seem to be uppermost in the mind of the court’s majority.

The dissent also pointed to studies demonstrating that application of the Daubert standard “disproportionately and negatively affects claimants of color.” The dissent concluded that the discriminatory impact of Daubert should be studied and that any change in the admissibility of expert opinions should be adopted by rule with prospective application, after placing litigants on notice of the rule that will apply in their case.

Finally, the dissent noted that the trial court concluded that Dr. Hall-Carrington based her opinion on sufficient data and a reliable methodology. Dr. Hall-Carrington relied on a variety of records to support her conclusion that Starlena suffered from attention deficit problems, hyperactivity, and impulsivity. She also relied on research showing a causal link between lead exposure and cognitive deficits as well as disorders relating to attention, impulsivity, and hyperactivity.

It is unclear how the outcome would be any different using a Daubert analysis. The trial judge generally made findings that are required by Daubert and may well decide to admit Dr. Hall-Carrington’s testimony again. If so, there will be a fourth trial and, unless the jury differs from the first three juries to consider the evidence, Starlena will likely prevail again.



Improper Expert Testimony About Fabricated Sexual Assault Allegations Leads to New Trial

Montana is the latest state to reject the prosecution’s attempt to use expert witnesses to vouch for the credibility of accusers in criminal prosecutions. The Montana Supreme Court recently reversed a sexual assault conviction because an expert witness testified about the percentage of accusers who make false accusations.

Facts of the Case

Philip Grimshaw was accused of sexually assaulting his step-cousin, identified in the appellate opinion as “T.G.” Grimshaw invited T.G. to a party where she participated in drinking games. After the party ended, Grimshaw and T.G. drove around and drank more alcohol, as they had done many times before. They then returned to Grimshaw’s home, where T.G. went to sleep on the couch.

Grimshaw and T.G. differed in their account of what happened next. T.G. testified that she woke up to find Grimshaw pulling down her pants. She testified that she said “no” and that he had sex with her anyway. Grimshaw testified that T.G. consented to their sexual contact.

Grimshaw and T.G. exchanged text messages the next day. Grimshaw texted an apology. He said he loved T.G. and knew she would probably never want to talk to him after what happened. T.G. responded “It’s ok, I love you too.” They chatted a bit more before each again texted “I love you” to the other.

Almost two weeks later, T.G. visited a hospital for treatment of a migraine. While she was in the hospital, she told her mother that she had been raped. She then gave a statement to a police detective.

The detective interviewed Grimshaw, who initially denied having a clear memory of events. He then said he remembered cuddling with T.G., remembered that they touched each other sexually, and remembered apologizing to her later for having sex with her.

Grimshaw told the detective that he thought T.G. wanted to have sex with him at the time, although she had earlier told him that they couldn’t have sex because they were step-cousins. According to the detective, Grimshaw also admitted that he raped T.G. by doing something she didn’t want and doing it “forcibly.”

Expert Testimony

The prosecutor called Sheri Vanino as an expert witness. Vanino is a psychologist. She testified about the reasons a sexual assault victim might delay reporting the crime and why she might remain friends with the man who assaulted her.

Vanino did not claim to have met T.G. or to have personal knowledge of her accusation. According to the prosecutor, the only purpose of Vanino’s testimony was to explain that certain “myths” about the behavior of rape victims do not accurately describe the behavior of every victim.

Vanino identified one of those myths as the belief “that women tend to run around and falsely accuse men of rape, or cry rape all the time.” Because that testimony did not go to the behavior of rape victims, but of women who make accusations of rape, Grimshaw’s attorney objected.

Grimshaw’s lawyer argued that statistical evidence about whether false reporting is common or uncommon was barred by Montana precedent that prohibits experts from vouching for an accuser’s credibility. The court overruled the objection on the theory that it was permissible to give testimony that is couched in terms of exposing a myth.

Vanino then testified, over objection, that only 16% to 20% of sexual assault victims ever tell anyone about the assault and that only 19% of sexual assault victims fight back. She also testified that only 2% to 8% of sexual assault accusations are false. According to Vanino, women who make false accusations usually have something to gain or are truly psychotic.

Grimshaw called a psychologist, Bowman Smelko, as a rebuttal expert. Smelko testified that the 2% to 8% figure is commonly used in the literature but explained that the studies from which those figures are derived relied on small sample sizes. He also explained the difficulty of verifying false reporting statistics. A false report that is accepted by authorities as true will be statistically recorded as a true report even if it is false.

Appellate Analysis

Montana allows qualified experts to give opinion evidence if the opinions are relevant and beyond the knowledge of a lay juror. However, in Montana and most other states, an expert is not permitted to express an opinion about the credibility of another person. Most states prohibit vouching for the credibility of an accuser.

The Montana Supreme Court concluded that Vanino’s assertion that only 2% to 8% of sexual assault accusations are false was improper. The testimony necessarily sent the message that there was a 92% to 98% probability that T.G. was telling the truth.

The jury likely understood Vanino’s testimony as an opinion that T.G. was telling the truth because, in her expert opinion, most accusers tell the truth. For that reason, the expert testimony improperly vouched for T.G.’s credibility.

The relevance of the testimony is also questionable. The case against Grimshaw depended on whether the jury believed that T.G. was telling the truth. Whether other alleged victims have been truthful in other cases sheds no light on whether T.G.’s accusation against Grimshaw was truthful. Even if it is true that 92% to 98% of sexual assault accusations are truthful, that fact does not help the jury decide whether T.G. was one of the 2% to 8% of accusers who make false accusations.

Criminal convictions must be based on evidence that the defendant is guilty, not on evidence of statistical probabilities regarding groups of defendants and their accusers. The supreme court concluded that using statistical probabilities to prove guilt would “turn the presumption of innocence on its head.”

The court’s opinion does not engage in a Daubert analysis. It is not clear whether Grimshaw made a Daubert challenge to the testimony. A strong argument can be made that it is impossible to verify whether accusations are true or false and that unverifiable data is, by its nature, unreliable.

An expert in study design might have cast doubt on whether the “two to eight percent” statistic is based on reliable data or a reasonable methodology. However, since experts cannot vouch for the credibility of accusers, the court did not need to address admissibility under Daubert.


Court Rejects Expert Testimony in Support of Ranked-Choice Voting Challenge

In 2016, Maine became the first state to adopt a ranked-choice voting system for congressional offices. A few states use rank-choice voting in presidential primary elections, while several municipal governments use rank-choice voting in local elections.

The Maine system has been tested by a series of lawsuits. The latest challenge relied on an expert’s testimony that the system disenfranchises older and less educated voters. A federal judge recently rejected that challenge and declined to enter a preliminary injunction to block Maine’s use of the law in the November congressional election.

What Is Ranked-Choice Voting?

Ranked-choice voting is a system that allows voters to rank their preferences among candidates for an office. Rather than voting for a single candidate, voters mark their ballots for their first choice, second choice, and so on.

In a ranked-choice voting system, a candidate who is ranked first by more than 50% of voters wins the election. If no candidate meets that threshold, the candidate who has the fewest first-choice votes is eliminated. Voters who ranked that candidate first then have their second choice re-ranked as their first choice.

If a candidate gains more than 50% of the re-ranked votes, that candidate wins. If no candidate crosses the 50% threshold during the second count, the process continues until a candidate receives more than 50% of original or re-ranked first choice votes.

The Ranked-Choice Controversy

In a traditional voting system (sometimes known as cardinal or plurality voting) the candidate with the most votes wins, even if most voters voted against that candidate. For example, the winner of a four-candidate contest might receive only 35% of the total vote, with the other 65% spread among the other three candidates.

Supporters of ranked-choice voting argue that the system is more democratic because it prevents a candidate from winning automatically when most voters preferred a different candidate. They also suggest that plurality voting discourages candidates from running because they worry that voters might split their votes between two candidates who hold similar positions. Potential candidates may opt not to run because they fear that vote-splitting will allow a candidate to win who holds less popular positions.

Opponents contend that ranked-choice voting creates “a complex and confusing process that threatens to reduce voter participation and distort election outcomes.” They point out that the system might not improve democratic outcomes because it can produce a winner who was the first choice of a comparatively small number of voters.

Challenges to Maine’s Ranked-Choice Voting Law

Maine’s ranked-choice voting law was enacted by referendum in 2016. The Maine Supreme Court reviewed the law in 2017 and decided that it violated the Maine Constitution as it applied to general elections for statewide offices. When the state legislature attempted to delay the law’s application to congressional elections, the attempt was vetoed in a new referendum.

In 2018, Democrat Jared Golden defeated Republican Rep. Bruce Poliquin in a congressional race. Poliquin was leading with a plurality of votes after the first count, but when votes given to independent candidates were re-ranked, Golden emerged as the victor.

Poliquin then filed a federal lawsuit challenging the constitutionality of Maine’s ranked-choice voting law. That lawsuit contended that congressional elections must be decided by a plurality vote. Judge Lance Walker ruled that the Constitution gives states the authority to decide how to run elections.

This year, four Maine voters — three Republicans and one independent —filed another federal lawsuit to block the law. That lawsuit was primarily based on the testimony of an expert witness.

Voting Expert’s Testimony

Nolan McCarty, a professor of political science at Princeton, testified on behalf of the plaintiffs. McCarty cited his own research findings that some voters are confused by rank-choice voting and are disenfranchised because they do not fill out their ballots completely.

McCarty based his testimony on a statistical analysis of ranked-choice voting. The analysis primarily considered voting in municipal elections in other states. McCarty’s data showed that some ranked-choice voters made only one choice and others left their ballots entirely blank.

Since the law does not require any voter to mark a ballot or to vote for more than one candidate, McCarty needed to explain why the decision to vote for one or no candidate reflected confusion rather than choice. McCarty found that older and less educated voters were more likely to vote for only one candidate. He concluded that those voters failed to rank-order their preference for candidates because they didn’t understand how the system works.

Court’s Analysis of Expert’s Testimony

Judge Walker heard the new lawsuit. He decided that McCarty’s data did not support his conclusion that ranked-choice voting disenfranchises older or less educated voters.

Judge Walker rejected McCarty’s data as “wobbly.” The judge observed that McCarty’s analysis was “equal parts inductive reasoning and condescension.” Ranking candidates by order of preference is not a difficult concept to understand, and there is no reason to assume that older voters are less capable than younger voters of filling out a ranked-choice ballot.

Voters may have many reasons for choosing only one candidate. They might not want to rank other candidates because they don’t care who holds the office if their favored candidate doesn’t win. They may cast an unmarked ballot as a protest against all the candidates. Judge Walker concluded that McCarty had no basis beyond guesswork for deciding that incomplete ballots reflect confusion rather than deliberate choice.

In the absence of convincing evidence that the ranked-choice voting system disenfranchises voters, Judge Walker declined to enter a preliminary injunction. For the moment, ranked-choice voting will continue to be used in Maine primary and congressional elections.

Baby powder

New Jersey Court Reverses Order Excluding Causation Experts in J&J Baby Powder Case

Brandi Carl and Dianna Balderrama sued Johnson & Johnson after discovering that they suffered from ovarian cancer. Carl and Balderrama attributed their cancer to their use of Johnson & Johnson Baby Powder. After losing several trials, J&J has stopped marketing the product while continuing to insist that it is not carcinogenic.

Carl and Balderrama’s cases were selected as the first two cases to be tried in multi-county litigation in New Jersey. Johnson & Johnson moved to exclude the opinions of their two causation experts. The trial court granted that motion and then entered summary judgment in favor of J&J. The Appellate Division of the Superior Court of New Jersey reversed the judgment.

The court’s opinion is noteworthy not just for its careful analysis of the evidence, but for its thorough discussion of the admissibility of expert testimony in toxic tort cases. While the insurance industry has condemned nearly all expert testimony offered by plaintiffs in toxic tort cases as “junk science” — and while some judges have echoed that hostility to plaintiffs’ experts — the Appellate Division’s dispassionate analysis is a model for how courts should apply the Daubert decision in cases involving allegedly dangerous substances.

Daubert in New Jersey

In 2018, the New Jersey Supreme Court analyzed the state’s rules of evidence governing the admissibility of expert testimony in civil cases. The court adopted the Daubert factors for assessing the reliability of expert testimony and incorporated them into New Jersey law.

The Appellate Division emphasized that the reliability of a methodology does not depend on whether the trial judge agrees with the expert’s conclusions. The focus is on “the level of intellectual rigor” that the expert displays. If the expert’s methodology is based on sound principles and the expert applies those principles to relevant data in a reliable way, the expert’s testimony is admissible, whether or not the judge is persuaded by the expert’s opinions.

Application of Daubert to Epidemiology

The precise cause of a disease can rarely be determined with certainty, but certainty is not the standard of proof in civil cases. The plaintiffs only needed to prove that asbestos contaminating the talc in baby powder probably caused their ovarian cancer.

Experts typically determine whether exposure to an agent caused a disease by reference to epidemiological studies. Courts regard epidemiological studies as reliable when they reveal an association between an agent and a disease and when the association is probably not the result of a limitation in the study, such as a sampling error.

All of the experts in the case agreed that valid epidemiological studies include cohort studies, which compare exposed and unexposed people over a period of time, and case-control studies, which compare the exposure of people who have acquired a disease to a control group of people who did not. Both types of studies can yield relevant information and neither is necessarily superior to the other. Statistical methods, including a pooled analysis or meta-analysis, may help experts draw conclusions when individual studies are in apparent conflict.

To raise an inference of causation, a study must produce a relative risk (or odds ratio) of more than 1.0, which implies that the association is greater than chance would produce. Study results must also be statistically significant.

When studies permit an inference of causation, experts then decide whether the association reflects an actual causal connection. Experts often rely on the Bradford Hill criteria to distinguish mere association from causation. The appellate court’s thorough review of those factors ends with Hill’s admonition that absolute certainty should never be required to demonstrate causation because science by its nature is based on incomplete knowledge. Experts offer their best understanding, not a perfect understanding.

The Appellate Division noted that experts should be advocates for the truth, not for a party. Experts must therefore consider the entire body of scientific research rather than cherry-picking research results that support the expert’s opinion. Experts are entitled to reject significant evidence that does not support their opinion but they must offer a reasonable explanation for doing so.

Daniel Cramer’s Expert Opinion

A lengthy section of the court’s opinion reviewed the scientific literature upon which the experts for both parties relied. The court noted that neither party claimed the studies were based on unsound methodologies, that they misstated the results, that they evidenced bias, or that they were otherwise unworthy of consideration by the scientific community.

The court then discussed the opinions offered by the plaintiff’s experts. Daniel Cramer, a professor of obstetrics, gynecology, and reproductive biology at Harvard Medical School, has studied the relationship between genital powders and ovarian cancer for many years.

Based on his literature review and his own research, Cramer concluded that the odds ratio for women who used talc-based powders and those who did not was 1.29. He concluded that the odds ratio was statistically significant.

Cramer applied the Bradford Hill criteria and explained his disagreement with other experts about the application of certain factors. He acknowledged shortcomings in the literature, including the inability to standardize a measurement of the amount of powder that women applied or the amount that entered the body. He concluded that recent literature approximated that information by asking subjects about the frequency with which they used powder. That information permitted a dose response analysis that some courts consider to be critical evidence of causation in cases involving unsafe drugs and products.

In addition to expressing the opinion that talc-based powders can cause ovarian cancer (general causation), Cramer assessed the likelihood that talc-based powder caused the ovarian cancers with which Carl and Balderamma were diagnosed. He considered specific risk factors, including obesity, genetic history, and use of oral contraceptives. He assessed the two women in light of studies that most closely matched the factors associated with each woman. While acknowledging the possibility of alternative causes, he identified the use of talc-based powders as the most likely cause of the ovarian cancer that each woman acquired.

The Court’s Correct Understanding of Relative Risk

Cramer explained his disagreement with industry opinions that a relative risk of less than 2.0 is insufficiently strong to create an inference of causation. He noted that no scientist has ever expressed that opinion. As long as bias and other causes of error can be ruled out, there is no magic odds ratio that creates a threshold for inferring causation.

Cramer’s opinion, it should be noted, is contrary to the position adopted by some courts, including a significant number of federal courts. Those courts have concluded that a relative risk of less than 2.0 cannot prove that causation is “more likely than not.” Those courts often confuse general causation, which asks only whether a substance can cause an illness, and specific causation, which asks whether the substance probably caused the plaintiff’s illness.

As a paper for the National Academies of Science explains, judicial insistence on a relative risk of at least 2.0 is based on false assumptions, proving once again that science should be left to scientists. Even a low risk is a risk. General causation does not ask whether a substance probably caused a disease but whether it is capable of causing the disease. The “more likely than not” standard of proof is relevant to specific causation but not to general causation.

Other Expert Opinions

The court evaluated the expert opinions of Graham Colditz, an epidemiologist, on general causation. His expert report reviewed the literature and concluded that genital talc use can cause ovarian cancer.

Colditz carefully explained why he gave greater weight to studies that took a stronger analytic approach than studies that were analytically flawed. Colditz agreed with Cramer that the magnitude of risk need not reach 2.0 to support an inference of general causation.

The court also considered the expert opinions of John Godleski, a Harvard Medical School professor of pathology. He analyzed tissue samples from Carl and Balderrama. He concluded that the tissues contained substantial amounts of talc.

Curtis Omiecinski, a professor of molecular toxicology at Penn State, explained how talc in baby powder can migrate from the perineum to the ovaries. He also explained how talc can cause inflammation that triggers the development of cancer.

Daubert Analysis

The court’s thorough review of the expert reports and the underlying literature convinced it that the trial court erred in excluding the testimony of the plaintiffs’ experts. The experts based their opinions on a significant number of reliable studies. They provided reasonable explanations for giving greater weight to some studies than others. They did not misinterpret the studies or give undue weight to a small subset of studies.

The experts anchored their opinions on reasonable scientific evidence that provides a plausible explanation of the mechanisms by which talc in baby powder enters the body and causes ovarian cancer. They carefully applied the Bradford Hill criteria in reaching opinions about general causation. They met the defendants’ objections to their reasoning with reasonable answers.

The court concluded that the methodologies used by the plaintiffs’ experts were reasonable. The cumulative data used in the studies upon which they relied was sufficient to support their opinions. Attacks on the quality of that data raised questions of credibility which were for the jury to assess.

The trial court erred by weighing the defense evidence against the plaintiffs’ evidence. Competing expert opinions should be weighed by juries, not judges. The trial judge’s preference for cohort studies over case control studies did not find evidentiary support in the record and was contrary to New Jersey precedent.

The trial court’s contention that the plaintiffs’ experts relied on a “made for litigation methodology” missed the point. The question is whether the methodology is reliable. The plaintiffs’ experts used methodologies that are generally accepted as reliable by scientists in their field and based their analysis on sufficient data. That is all that Daubert requires.

Since the trial court overstepped its role by accepting the opinions of defense experts as more credible than those of the plaintiffs’ experts, the court erred by excluding the plaintiffs’ expert testimony. Since summary judgment was based on the exclusion of that evidence, the summary judgment was reversed and the case was remanded for trial.


Human brain

Do Jurors Have an Anti-Science Prejudice Against Expert Witnesses?

Expert witnesses justly wonder whether they will need to overcome skepticism that juries may harbor toward witnesses who have special expertise. The view that all opinions are created equal and that expert opinions are “elitist” has gained the acceptance of a surprising number of people. Coupled with the insurance industry’s campaign to disparage legitimate opinions as the product of “junk science,” it can be difficult for experts to gain the respect of jurors.

Antipathy toward experts is exemplified by individuals who refuse to accept that human behavior causes climate change or who claim that the COVID-19 pandemic is a hoax. Evidence that 97% of climate scientists agree that humans cause global warming is dismissed because a source with a differing view —often someone who is funded by the fossil fuel industry — expresses an opposing opinion. Evidence that the American death rate from COVID-19 vastly exceeds the death rate caused by even the worst flu season is dismissed as the product of a partisan conspiracy to inflate the number of deaths caused by the pandemic.

Infectious disease expert Dr. Anthony Fauci has expressed concern that respect for demonstrable facts has been hindered by an “anti-science bias.” Adrian Bardon, a philosophy professor at Wake Forest University, laments the circumstance that “Americans increasingly exist in highly polarized, informationally insulated ideological communities occupying their own information universes.”

Are Potential Jurors Really Anti-Science?

Fortunately for expert witnesses, most people tend to trust experts in most contexts. Naomi Oreskes, a professor of the history of science at Harvard, observes that people trust their car mechanics and dentists. Consumers accept that mechanics have superior knowledge of internal combustion engines and that dentists know more than they do about diseases that affect teeth and gums.

Professor Oreskes’ research suggests that jurors are most likely to distrust experts when they don’t like the implications of their findings. A segment of society is skeptical about climate change because addressing the problem might require a change of lifestyle. Denying the problem is easier than giving up a gas guzzling vehicle or weatherizing a home. By the same token, it is easier to deny the reality of the pandemic than to give up socializing at taverns or nightclubs.

In addition, expert opinions are more likely to be doubted when they address questions that have become politicized. Rejection of expert opinions concerning the number of COVID-19 deaths, the utility of wearing masks to keep the virus from spreading, and the impact of human behavior on climate change has been encouraged by some political and institutional leaders for reasons that have nothing to do with the validity of those opinions. The government’s effort to solve a big problem by relying on expert opinions, for example, might undermine a political philosophy that rejects big government.

Effective Expert Testimony

Professor Oreskes’ research might reassure expert witnesses and the lawyers who hire them. Most experts do not testify about topics that are debated in the political sphere. In most cases, jurors have no personal stake in the subject matter of an expert’s testimony. Jurors do not serve their own interests by rejecting the principles of physics that accident reconstruction experts rely upon when they express expert opinions about the location or cause of a car crash. When a roofer testifies that a leaky roof was caused by improper installation of shingles, accepting that testimony will have no implications for the juror’s lifestyle.

Some experts may need to overcome bias instilled by insurance industry campaigns to brand as “junk science” the basis for opinions that experts rely upon. Yet evidence suggests that judges rather than jurors have been influenced by those claims. The Daubert standard, if properly understood and correctly implemented, screens out junk science, at least in civil cases where judges tend to apply it more rigorously than in criminal cases.

As applied by some judges, the Daubert standard may also screen out opinions that jurors could reasonably regard as well founded. In those  areas (such as toxic tort litigation) where the insurance industry regards expert testimony as particularly controversial, it is more likely that experts will need to overcome the animosity of judges than the bias of jurors.

There is good reason to believe that jurors evaluate expert testimony on its merits. Research shows that jurors ask whether an expert is competent and whether his or her testimony is consistent. Jurors value opinions from experts who demonstrate their integrity by honestly discussing the strengths and weaknesses of the data and methodologies upon which they rely.

While lawyers and expert witnesses might be concerned about anti-science bias, judicious use of voir dire can usually screen out jurors who, for political or philosophical reasons, choose to reject the validity of science as a whole. In mainstream cases, a lawyer’s initial focus should be on finding a well-trained expert whose integrity cannot be questioned. After the expert is retained, the focus should be on preparing the expert to communicate opinions effectively and to withstand cross-examination. A strong expert who is prepared to testify is the best antidote to anti-science bias.


Historian Gives Expert Testimony in Suit Seeking Protection of Confederate Statue

A six-story tall statue of Robert E. Lee overlooks Richmond, the capital of Virginia. Unlike other statues of Confederate figures that once lined Monument Avenue, the Lee statue stands on state property. Virginia’s governor, Ralph Northam, announced in June that he would order the statue removed. Richmond’s mayor, Levar Stoney, agreed with the decision, remarking that “Richmond is no longer the capital of the Confederacy.”

Northam’s decision is consistent with a nationwide response to protests against systemic racism. After the death of George Floyd, Mayor Stoney ordered the removal of several confederate statues on Monument Avenue. Confederate statutes have been removed — by official action or by protestors — from Charleston, Norfolk, Alexandria, Louisville, Jacksonville, Mobile, and other cities.

Northam’s order to remove the statue has nevertheless been challenged in a lawsuit filed by William C. Gregory. The Virginia resident claims to be a descendant of two landowners who deeded the property to the state on which the statue stands. He contends that removing the monument would breach the state’s promise to his ancestors to “faithfully guard” and “affectionately protect” the statue.

What Do Confederate Monuments Commemorate?

Exactly what the monuments commemorate is a subject of debate. To those who view the Civil War as a war of northern aggression rather than the Union’s use of necessary force to preserve constitutional government, the monuments are part of southern heritage. The Daughters of the Confederacy argues that Confederate monuments “honor the memory” of “fallen forebears.”

To many others, the monuments honor traitors who tore the country apart in order to preserve the institution of slavery. Annette Gordon Reed, a professor of legal history at Harvard Law School, told an interviewer that thousands of members of the Armed Forces, black and white, gave their lives to overcome the Confederate rebellion. She believes “it dishonors them to celebrate the men who killed them and tried to kill off the American nation.”

The removal of monuments in seven former Confederate states has been hampered by laws that limit or prevent local governments from displacing them. Governor Northam’s pledge to remove the Lee statue from state property in Richmond has been challenged by a lawsuit that is making its way through state courts.

Gregory’s Lawsuit

The Lee monument was created by a popular French sculptor and appears on the National Register of Historic Places. As the state explains however, at least in Virginia, a Register listing “results in no special protection or requirements on what a property owner may do with a property.”

Gregory’s lawsuit contends that the circular plot on land on which the monument stands was deeded to the Lee Monument Association in 1887. The Association erected the monument and deeded the land to the Commonwealth of Virginia in 1890. The deed was signed by the governor pursuant to a joint resolution of the general assembly.

The deed states that the commonwealth accepted the gift with the guarantee that it would hold the statue, pedestal, and circle of ground “perpetually sacred to the Monumental purpose to which they have been devoted and that she will faithfully guard it and affectionately protect it.”

The lawsuit alleges that Gregory’s ancestors signed the deed on behalf of the Lee Monument Association. The lawsuit claims that Gregory would be irreparably harmed if the monument were removed, apparently because he takes pride in his family’s connection to the monument.

Historian Testifies as Expert Witness

Descendants of Virginia slaves might just as easily argue that they are irreparably harmed by the existence of a “sacred” monument to a Confederate general who fought to preserve the institution of slavery. To put the monument in its historical context, the state called historian Edward Ayers as an expert witness.

Ayers testified that the drive to fill public spaces with Confederate statues was designed to rehabilitate the image of the Confederacy. Ayers noted that the monuments were erected during an era when white politicians in the South were taking action to stifle the political power of African Americans.

Ayers expressed the belief that the Lee monument is not just a tribute to Lee. By its very size and dominance of a public space, the monument sends a message about the legitimacy of the Confederate cause. Ayers testified that the monument portrays Lee as “a great man” who fought for a just cause — “a new nation based on slavery.”

The court is unlikely to pass upon the political wisdom of maintaining monuments to leaders of an insurrection. The two competing legal issues that the judge must confront are whether Gregory’s family connection to a member of the group that deeded the statue allows him to challenge the monument’s removal, and whether the governor has the power to order the statue’s removal without the legislature’s consent. The judge will likely make that decision in the near future.

Update: In an August 3, 2020 decision, the court dismissed the lawsuit and ended the temporary injunction that prevented the monument’s removal.

Photo via Good Free Photos