Category Archives: In the News

District Court’s Grant of Preliminary Injunction Reversed Because Court Took Expert Opinion Out of Context

An online car-sharing service called Turo allows car owners to rent out their cars to others. The company, based in San Francisco, advertises that its customers can skip the line at car rental services by asking the owner to deliver the car to an airport or hotel.

The City of Los Angeles views Turo as a car rental service. It believes that Turo should pay the same fee that Hertz, Avis, and other car rental companies pay to conduct business at the Los Angeles International Airport (LAX). It asked Turo to enter into an agreement to operate an airport concession, as do off-airport rental companies that arriving passengers typically access through shuttle services.

Unlike traditional car rental businesses, Turo does not have a counter in the airport or a shuttle service that transports arriving passengers to a nearby rental facility. Turo argues that it is not a rental company. It views itself as a technology company that provides an app to connect rental customers to private owners.

Lacking a physical presence at LAX, Turo maintains that it is not subject to the regulations that require rental companies doing business at LAX to enter into a concession agreement. Turo sued the city in federal court seeking a declaration that the city cannot enforce its regulations against Turo.

The city counterclaimed and asked the judge to enter an injunction to prevent Turo from delivering cars to LAX while the lawsuit was pending. Turo responded with expert testimony to establish that its car deliveries were not causing any harm to LAX.

Notwithstanding the expert testimony, the district court judge entered an injunction against Turo. On appeal, the Ninth Circuit faulted the judge for cherry-picking the expert opinions.

Preliminary Injunction Standard

A preliminary injunction is a court order that typically prohibits a party from engaging in specified conduct until a lawsuit has been decided. To obtain a preliminary injunction in federal court, a party must prove that (1) the party seeking the injunction will probably win the lawsuit, (2) the party seeking the injunction will be irreparably damaged if the injunction is not granted, (3) granting the injunction is more fair to the party seeking it than it is unfair to the party opposing it, and (4) the injunction would serve the public interest.

The city asked for an injunction against Turo to prevent Turo from allowing car owners to deliver cars to LAX while the lawsuit was pending. The key issue was whether LAX was being irreparably harmed by the delivery of cars on airport premises.

The judge found that traffic in LAX is congested, a finding that comes as no surprise to anyone who has ever driven into LAX. The judge also found that congestion worsened after the city began a construction project to modernize the airport. That project reduced the number of available traffic lanes within the central terminal area.

To reduce congestion, the city requires arriving passengers at LAX to take a shuttle to a remote area to access ground transportation, including taxis, ride-sharing services, and rental cars. The city argued that Turo deliveries interfere with its efforts to reduce congestion.

Evidence Supporting Injunction

The district court decided that the city would probably prevail in its claim that Turo was trespassing by conducting unauthorized business at LAX. It was also satisfied that Turo’s continuing conduct of business was causing irreparable harm to the city by contributing to traffic congestion.

The court noted the conclusory nature of the city’s assertion that Turo vehicle deliveries aggravate traffic congestion. Turo’s expert witnesses pointed out that, on average, only 127 vehicles are handed off daily at LAX. The court used that expert opinion against Turo, finding that Turo’s “own declarations demonstrate that their operations are in fact specifically impacted traffic flow at LAX — at least to some degree.” Since an award of damages cannot lessen traffic flow, the court concluded that the vehicle deliveries constituted an irreparable harm.

Appellate Analysis

Notably, Turo’s experts provided the only factual foundation for the district court’s finding of irreparable harm. The city’s claim that Turo had an impact on traffic flow amounted to little more than conjecture.

The Court of Appeals for the Ninth Circuit faulted the district court for taking the expert opinions out of context. While the experts pointed out that 127 cars are delivered to LAX daily, the experts compared those deliveries to the volume of daily traffic at LAX. Other transportation companies, including Uber and Lyft, taxis, and limousine services, made more than 30,000 daily pickups and deliveries at LAX. Counting private drivers who pass through LAX, often to drop off or pick up passengers, about 100,000 vehicles pass through the central terminal every day.

Turo’s experts expressed the opinion that Turo’s contribution to traffic congestion was “unnoticeable” in the overall volume of terminal traffic. Those expert opinions were unrefuted. The district court’s cherry-picking of the opinions ignored the opinions as a whole, and those opinions did not establish that LAX would be irreparably harmed if Turo’s operations were not enjoined. The court of appeals therefore reversed the preliminary injunction.

 

Bloody tear of Themis

NY Attorney General Criticized for Presenting Expert Testimony to Grand Jury in Daniel Prude Death Investigation

New York Attorney General Letitia James made an unusual decision to include the testimony of a defense expert when she presented the prosecution’s case against Rochester police officers who allegedly caused the death of Daniel Prude. Despite evidence that Prude stopped breathing while being restrained by the police, a grand jury refused to indict the officers who restrained him. James now faces criticism for her choice of expert witnesses.

Death Investigation

James began an investigation of Prude’s death in July 2020. The results of her investigation are summarized in a report that she released prior to the grand jury vote.

Prude’s brother called 911 to report that Prude was suicidal, had used PCP, and had run from the brother’s home on a freezing night without putting on shoes or a coat. Prude’s brother hoped that the police would locate and help Prude.

Prude tossed a brick through a window and later told a tow truck driver that he needed help. The driver called 911 after Prude ran away. The driver reported that Prude was covered with blood. Prude removed all of his clothing while he was being recorded by a bystander.

Officers of the Rochester Police Department arrived at the scene. Officer Vaughn told Prude to get on the ground and put his hands behind his back. Prude complied and Vaughn handcuffed him. Other officers arrived. While awaiting an ambulance, Prude began to spit, so officers placed a spit sock over his head. The spit sock made Prude even more agitated.

The officers believed that Prude was trying to stand. Officers Taladay and Santiago forced him to the ground and held him there using a stabilization technique known as “segmenting.” They learned that technique in their training. The report explains that “the segmenting involved PO Vaughn holding Mr. Prude’s head to the side and applying downward pressure while PO Taladay placed a knee along Mr. Prude’s lower back / belt line.”

An ambulance arrived with a paramedic and an EMT. The report suggests that they acted with a lack of urgency. Neither the paramedic nor the EMT checked on Prude’s condition as he was being restrained. The paramedic considered using a sedative to calm Prude while the EMT brought a gurney from the ambulance.

Prude vomited, then fell silent. At some point, Vaughn noticed that Prude was no longer breathing. He rolled Prude onto his side. The EMT could not find a pulse so he asked the paramedic for assistance. The paramedic directed the EMT to begin CPR. After several minutes, Prude recovered a heartbeat, but he never recovered consciousness. Prude was removed from life support about a week later.

Autopsy Report

The county medical examiner performed an autopsy. She ruled the death a homicide. She identified the causes of death as:

  • Complications of asphyxia in the setting of physical restraint
  • Excited delirium
  • Acute phencyclidine intoxication

“Excited delirium” is a controversial diagnosis that refers to “the abrupt onset of aggression and distress, typically in the setting of illicit substance use, often culminating in sudden death.” The nonprofit Brookings Institution cautions that the diagnosis “is not recognized by the vast majority of medical professionals.”

Many experts regard excited delirium as junk science. The medical examiner who autopsied Prude noted that the condition is “quite rare.” It is almost exclusively diagnosed when a death occurs while a suspect is being restrained by the police.

The finding of more than one cause of death is not unusual. People often die for multiple reasons. If one person stabs another in the heart, heart failure will be a cause of death, but so will stabbing.

The question in Prude’s case was whether he would have died in the absence of police restraint. If not, police restraint was a cause of his death. The medical examiner concluded that neither PCP ingestion nor excited delirium would have caused Prude’s death if he had not been restrained. She therefore concluded that restraint was a cause of his death.

Retained Experts

The Attorney General’s office retained Dr. Gary Vilke to review the official autopsy results. Dr. Vilke is an emergency room physician in California who has testified in more than one hundred cases involving deaths in police custody. In each case, he was retained by the police officer who was accused of causing the death.

Dr. Vilke agreed with the medical examiner that Prude’s ingestion of PCP caused him to experience excited delirium. Vilke determined that Prude died from cardiac arrest. He described people who are in a state of excited delirium as being particularly vulnerable to heart attacks.

James has been criticized for hiring Dr. Vilke, an expert who has “a consistent track record of deflecting blame from police when people die in their custody — including with regard to excited delirium and restraint leading to asphyxia, two hotly debated concepts that loomed large in Prude’s death.” Perhaps an expert whose career suggested greater objectivity about deaths in police custody would have been a better choice.

James also hired Geoffrey Alpert, an expert in use of force. Alpert generally concluded that the officers acted within the boundaries of acceptable police practices. He concluded that placing the spit sock over Prude’s head, taking him to the ground, and performing the “segmenting” maneuver were all reasonable decisions. He did fault the officers for failing to roll Prude over after he vomited to prevent him from choking on his vomit.

Grand Jury Proceedings

James’ office presented evidence about Prude’s death to a grand jury. It asked the grand jury to indict the officers. The grand jury refused to do so.

Given the oft-repeated observation that any prosecutor can get a grand jury to indict a ham sandwich, the grand jury’s decision not to indict has raised questions about the Attorney General’s commitment to the case. While she expressed disappointment in the grand jury’s decision and concern about the rate at which black men are killed by police officers, a state Attorney General generally sides with the police — and routinely relies on police witnesses — in criminal prosecutions.

While James blamed the system for the grand jury’s decision, an attorney for the Prude family is asking why James’ office presented testimony from Dr. Vilke, an expert who routinely testifies in support of police officers. James is, after all, part of “the system.” Perhaps “the system” should not rely on an advocate of the controversial “excited delirium” theory when it seeks homicide indictments.

James might have been concerned that the defense would call a witness like Dr. Vilke at trial and wanted to test that defense before the grand jury. Yet presenting defense evidence to a grand jury is exceedingly uncommon. Prosecutors generally have no obligation to present evidence of innocence to a grand jury, although they may choose to do so in the interest of fairness. Whether it was “fair” to present controversial evidence about “excited delirium” to the grand jury is a matter of opinion.

 

Georgia

Georgia Supreme Court Rules State Can Pay Expert Witness Costs for Pro Bono Defense Lawyers

The Georgia Supreme Court has ruled that the state can pay expert witness costs for indigent defendants who are using pro bono private defense lawyers.

The Crime

In October 2005, Tara Faye Grinstead went missing. Her disappearance remained unsolved for two years until Bo Dukes reported that his friend Alexander Duke had confessed to the murder. Dukes eventually confessed to authorities that he was responsible for the murder. He was indicted for malice murder, felony murder, aggravated assault, burglary, and concealing a death in connection with Grinstead’s death.

The Expert Witness Funding Dispute

Duke was initially represented by a public defender from the Tifton Judicial Circuit’s Public Defender’s Office. Seventeen months later, the public defender withdrew and new defense counsel filed an entry of appearance, indicating that they were representing Duke pro bono.

Defense counsel filed motions seeking funds from the county to hire an expert in false confessions and an investigator. The trial court denied those motions, ruling that the Indigent Defense Act did not require local government to fund such requests.

Duke’s attorney’s appealed and the Georgia Supreme Court heard oral argument on the issue in January 2021. Duke’s attorneys argued that he is entitled to receive funding under the United States Constitution, the Georgia Constitution, and the Indigent Defense Act (IDA) in order to protect his Sixth Amendment rights to counsel and a fair trial. The State argued that indigent defendants do not have a constitutional or statutory right under the IDA to state-funded investigators or experts.

The Georgia Supreme Court Ruling

The Georgia Supreme Court found that the trial court erred by adopting the Georgia Public Defender Council (GPDC) and circuit public defender’s interpretation that Duke is not indigent under the IDA because he is represented by pro bono counsel. It also found that the trial court erred by concluding that the IDA did not provide a mechanism for an indigent defendant represented by pro bono counsel to obtain state funds from the GPDC or the circuit public defender.

The court noted that the IDA defines an indigent person as “[a] person charged with a felony who earns or, in the case of a juvenile, whose parents earn, less than 150 percent of the federal poverty guidelines unless there is evidence that the person has other resources that might reasonably be used to employ a lawyer without undue hardship on the person, his or her dependents, or, in the case of a juvenile, his or her parents or the parent’s dependents.”

The trial court had agreed with the GPDC’s and circuit public defender’s interpretation that Duke had “other resources that might reasonably be used to employ a lawyer” because he had obtained a pro bono attorney. The Georgia Supreme Court determined that this was incorrect. The plain meaning of “other resources” when used in content would mean resources other than earnings that would be usable to pay for a lawyer. In contrast, a pro bono attorney is one who represents a client without pay. The fact that a defendant has pro bono counsel does not mean that he has “other resources that might reasonably be used to employ a lawyer” for the purpose of determining indigence.

The court also noted that the IDA requires the director of the GPDC to “work with and provide support services and programs for circuit public defender offices and other attorneys representing indigent persons in criminal or juvenile cases in order to improve the quality and effectiveness of legal representation of such persons.”

The Georgia Supreme Court remanded the case to trial court to allow Duke to seek access to state-funded ancillary services from the GPDC or the circuit public defender.

Police Brutality

Expert Witnesses in the Derek Chauvin Trial

Derek Chauvin is on trial in Minnesota for second degree felony murder, third degree murder, and second-degree manslaughter. The charges arise out of George Floyd’s death under circumstances that sparked nationwide protests regarding the use of force against unarmed suspects. Cellphone and bodycam videos establish that Chauvin knelt on Floyd’s neck and that Floyd repeatedly told Chauvin, “I can’t breathe.”

None of the crimes require proof that Chauvin intended to cause Floyd’s death. Second degree murder requires proof that Chauvin caused Floyd’s death, without intending to do so, while Chauvin was committing a felony — in this case, third degree assault. Third degree murder requires proof that Chauvin acted with a depraved state of mind and that his conduct was imminently dangerous to Floyd. That standard is essentially one of reckless behavior coupled with not caring about the harm the behavior might cause. Third degree manslaughter requires proof that Chauvin’s negligent actions caused Floyd’s death.

Each crime requires proof that Chauvin’s actions were a substantial cause of Floyd’s death. Chauvin’s actions need not have been the only cause of death. Chauvin can be held responsible for Floyd’s death if Floyd would not have died in the absence of Chauvin’s conduct. Expert witnesses for the prosecution and Chauvin will debate whether kneeling on Floyd’s neck contributed to his death.

Forensic Pathologists

The official autopsy report by the Hennepin County Medical Examiner’s Office concluded that Floyd died from cardiopulmonary arrest — in simple terms, his heart stopped beating effectively. The autopsy determined that neck compression while restraining Floyd in handcuffs was a cause of the cardiopulmonary arrest. The medical examiner classified the death as a homicide.

Defense experts are likely to focus on other potential causes of death, including Floyd’s hypertensive heart disease and his ingestion of fentanyl and methamphetamine. Experts might opine that excited delirium caused by drug abuse was the cause of Floyd’s death, although “excited delirium syndrome” is controversial and the mechanism of death is not well understood.

Defense experts may also call attention to the absence of evidence of strangulation. A pathologist who isn’t connected to the case has explained that compression of the neck can prevent oxygen from reaching the brain by blocking the airway. Neck compression caused by kneeling would not leave the same ligature marks caused by strangling someone with a rope or wire. That pathologist suggests that Floyd’s underlying health conditions were not the cause of his death. Floyd was, after all, living with those conditions before he encountered Chauvin.

The prosecution has identified five forensic pathologists who may testify for the state. Three of those witnesses are employed by Hennepin County. The defense will apparently rely on the testimony of Dr. David Fowler, a Baltimore pathologist who has testified for both the prosecution and defense in multiple homicide prosecutions.

Defense Experts

In addition to Dr. Fowler, the defense has identified a forensic toxicologist, a forensic psychiatrist, and a doctor of emergency medicine as medical experts. The defense has also identified Barry Brodd as a use of force expert.

Brodd’s resume indicates that Brodd is a former police officer who has served as an expert witness in use of force litigation since 1995. Use of force experts generally testify about the policies and practices that determine when an officer’s use of force is justified, including the degree of force that officers are allowed to use under different circumstances.

Whether Brodd will be allowed to testify that it was reasonable for Chauvin to kneel on Floyd’s neck for nine minutes is unclear. Experts are often allowed to explain whether an officer’s conduct is objectively reasonable. However, some courts have held that only a jury can determine whether an officer’s use of force was reasonable in light of the facts that the jury accepts as true. Those courts view an expert’s opinion about whether the officer’s use of force was justified as intruding on the jury’s function.

Forensic Psychologist Excluded

The prosecution intended to call forensic psychiatrist Dr. Sarah Vinson as an expert witness. The prosecution wanted Dr. Vinson to explain how people in Floyd’s position react to traumatic events. In particular, she would have testified that “Floyd’s behavior as officers attempted to put him into the squad car was consistent with any reasonable person’s anxiety or panic during a traumatic event.” The testimony was meant to foreclose or counter the argument that Floyd was resisting arrest.

Worried that Dr. Vinson’s testimony might open the door to evidence of Floyd’s similar emotional reaction to an arrest in 2019, the court ruled Dr. Vinson’s testimony inadmissible. The court also excluded most evidence regarding Floyd’s behavior during that arrest.

 

Will Lawyers Continue to Depose Experts Remotely After the Pandemic Ends?

Zoom has become a way of life for businesses that conduct interviews or meetings during the pandemic. Courts have used Zoom to conduct hearings remotely to avoid unnecessary gatherings that might spread the virus. Lawyers have relied on technology to take depositions without bringing lawyers, clients, witnesses, and court reporters together in the same conference room.

Rule 30(b)(4) of the Federal Rules of Civil Procedure allows depositions to be taken remotely by stipulation or by court order. As a judge in the Southern District of New York observed, remote depositions have become “the new normal.” The judge concluded that a remote deposition in a “document intensive” case would not be prejudicial because documents can be shared in advance.

The judge also noted that widely available video technology permits documents to be viewed by all parties to a deposition. While sophisticated technology may be more difficult to master than Zoom, a judge in the Southern District of California rejected the notion that lawyers are incapable of learning anything new. The judge wrote: “There are numerous resources and training opportunities available throughout the legal community to assist Sodexo’s counsel in the operation and utilization of the new technology.” Even lawyers who are set in their ways can be expected to learn new tricks — or to ask their paralegals for help.

Advantages of Remote Expert Witness Depositions

Conducting an expert witness deposition remotely has advantages that extend beyond protection from a contagious disease. Experts are more likely than fact witnesses to live some distance from the place where the lawsuit was filed. Plaintiffs sometimes find that the most suitable expert for a case lives in a different state. Defendants sometimes hire expert witnesses who live on the other side of the country to drive up the cost of litigation as a tactic to encourage settlement for less than a claim’s full value.

Taking depositions remotely is thus a cost saving tool. Deposing an expert who lives far away forces lawyers to travel or to pay the expert’s travel expenses. Depositions can also be scheduled more easily if lawyers and witnesses don’t need to consider travel time when they look for availability on crowded schedules. Witnesses and lawyers may also perform more capably if they haven’t been exhausted by travel.

Clients might choose not to expend the funds or time to attend the deposition of a distant expert witness. If the deposition is taken remotely, the client can watch the deposition in the lawyer’s office and may be able to share informative notes with the lawyer as the expert testifies. Remote depositions therefore have value in keeping clients engaged in the litigation.

Disadvantages of Remote Expert Depositions

Remote depositions are always subject to technical glitches caused by slow connections or unfamiliarity with software. As lawyers have become more familiar with the technology, those glitches have become a less frequent annoyance.

A larger problem with remote depositions is the limited scope of images captured by cameras. An expert isn’t supposed to look at documents unless the questioner asks the expert to do so, but it is difficult to be sure that the expert isn’t consulting notes if the expert isn’t testifying in person.

Reading body language is difficult when a camera is focused on the expert’s face. While the camera should capture facial expressions, more subtle nonverbal clues — including sweating when questions become uncomfortable — may not be readily apparent.

The Future of Remote Expert Depositions

As the pandemic winds down, will remote depositions of experts become less frequent? Lawyers have mixed feelings about remote depositions. Attorneys who hire distant experts solely to increase the burden of litigation may want to resume in-person depositions as soon as they can. Lawyers with deep-pocket clients who enjoy traveling (and billing for travel time) may also encourage a return to in-person depositions.

Lawyers who are advancing the cost of depositions, hoping to be repaid from settlement or verdict proceeds, will likely advocate for the continued use of remote depositions. Lawyers who have been placed on a tight budget by clients may also want to reduce expenses by deposing experts remotely.

When lawyers disagree about taking depositions remotely, the federal rules and most state rules allow the judge to order that the deposition be taken remotely. Judges who might once have accepted the argument that video depositions are a poor substitute for live depositions might now decide, based on their own experience in conducting court hearings over Zoom, that questioning a witness remotely isn’t significantly different from questioning the witness in person.

In the end, lawyers will need to weigh the advantages and disadvantages of remote expert depositions in each case. The experience that lawyers and judges have gained during the pandemic, however, make it likely that distant experts will routinely be deposed by video.

Expert Witness Allowed to Testify in Lawsuit for Infringement of “King Cake Baby” Copyright

Jonathan Bertuccelli and Studio 3 designed King Cake Baby, the “terrifying” and “creepy” mascot of the New Orleans Pelicans. Bertucelli and Studio 3 sued Universal City Studios in the Eastern District of Louisiana for infringing its copyright when it featured a “mask of a cartoonish baby face in the 2017 feature film Happy Death Day and its sequel, Happy Death Day 2U.”

The King Cake Baby creators proposed to support their case with the testimony of two expert witnesses: James T. Berger and Edward R. Griffor. Berger analyzed the perceptions of individuals who viewed side-by-side comparisons of King Cake Baby and the Happy Death Day mask. Griffor used artificial intelligence facial algorithms to predict perceptions of similarity between the two baby faces.

Universal moved to exclude the testimony on several grounds. Universal argued that the experts are not qualified to testify about copyright infringement issues, that whether the two images are “substantially similar” is not a proper subject of expert testimony, and that the experts did not correctly apply the “substantial similarity” test as it has been developed in the Fifth Circuit. The district court denied the motion.

Substantial Similarity

Any work of art is based on the artist’s experience, including the artist’s exposure to other works of art. Artists are often influenced by the art they have experienced, but they create original art by expressing themselves in a new way. That expression identifies the difference between copying art and creating something new.

Since ideas cannot be copyrighted, the fact that two artists create similar works that have their genesis in the same idea does not necessarily give rise to a copyright infringement claim. Only the expression of an idea, not the idea itself, can be copyrighted.

Copying a copyrighted work of art violates the law. Creating something new that is inspired or influenced by an existing work of art does not violate copyright law. The huge gray area between copying an existing work and being inspired by an existing work gives birth to most copyright lawsuits. To what degree must a copyrighted work be changed to avoid a copyright infringement? In other words, how much copying is too much?

The “substantial similarity” test is meant to answer that question. It does not do so with precision, but it does offer guidance. Unfortunately, different courts define the test in different ways. In the Fifth Circuit, which includes Louisiana, the test asks whether an “ordinary observer” would conclude that the artist copied so much of a copyrighted work that the artist took something that belonged to the artist who holds the copyright.

Whether an expert may testify about how an “ordinary observer” would view two works of art is the subject of some controversy. Courts that have adopted the “ordinary observer” test generally allow expert testimony if it will help the jury decide whether an infringement occurred, but only if the expert analyzes copyrightable expressions of an idea rather than the idea itself.

Expert Qualifications

Berger is a principal in a firm that provides marketing services to businesses. He has “extensive experience with intellectual property surveys with respect to similarity between brands and trademarks.” His experience includes “the evaluation of intellectual property perception in the public.” Berger has published extensively in the fields of intellectual property and marketing, communications, and trademark surveys. The court determined that he is qualified to testify about perceptions of similarity between copyrighted images.

Giffor holds a position with the National Institute of Standards and Technology. He has a doctorate in mathematics. Giffor has “experience with algorithmic reasoning for artificial intelligence-enabled driving systems, including facial recognition technology and is considered an expert in the field of facial target recognition.” The court decided that he is qualified as an expert in facial recognition.

Reasonable Methodology

Giffor conducted an “artificial intelligence assisted facial recognition analysis of the King Cake Baby and Happy Death Day mask.” The court concluded that “the use of mathematics and target facial recognition algorithms comparing the two works” could provide reliable evidence of whether “human perception would view the works as substantially similar.”

The court’s discussion of reliability is cursory. It gave no attention at all to whether Berger’s survey methodology was reasonable. Of more significance, perhaps, is the court’s observation that potential deficiencies in the expert’s analysis are best explored on cross-examination. The judge was apparently satisfied that a jury could reasonably find the expert opinions to be reasonable. Since the opinions met that threshold, it was up to the jury, not the judge, to decide whether the opinions are persuasive.

Police Expert Witness

Experts Examine Cause of Tiger Woods’ Crash

Forensic car accident experts have offered theories on how the recent car crash involving famed golfer Tiger Woods took place.

The Accident

Tiger Woods, 45, was traveling north outside of Los Angeles when his 2021 Genesis SV80 SUV left its lane, crossed the median into the southbound lane, went off the road, hit a tree, then rolled over. Woods broke multiple bones in his right lower leg and his car sustained major frontal damage. He was alone at the time of the incident.

The Experts

Jonathan Cherney, a former police detective who provides car accident analysis as an expert witness in car cases, examined the Woods’ crash site in person. Cherney told USA Today Sports that, “To me, this is like a classic case of falling asleep behind the wheel, because the road curves and his vehicle goes straight.” Cherney continued, “It’s a drift off the road, almost like he was either unconscious, suffering from a medical episode or fell asleep and didn’t wake up until he was off the road and that’s where the brake application came in.”

Los Angeles County Sheriff Alex Villanueva said that there were no skid marks on the road to indicate braking. He said that he didn’t know the vehicle’s speed yet, but it may have been a factor. Inattentiveness may have also been a factor. Villanueva said, “This stretch of road is challenging, and if you’re not paying attention, you can see what happens.” He noted that the crash was “purely an accident” and that there was no evidence of impairment or medication. Woods was “lucid” at the time a sheriff’s deputy arrived at the scene.

Felix Lee, an accident reconstruction expert, noted that Woods’ vehicle did have anti-lock brakes, so “you wouldn’t necessarily see tire marks” at the crash scene even if Woods did slam on the brakes. Lee also noted that the vehicle did not change direction when it entered the curve. Lee opined, “My feeling is that speed wasn’t that much of an issue… It was just some kind of inattention that caused the curb strike.”

Rami Hashish, a principal at the National Biomechanics Institute, a company that analyzes the cause of accidents, said that the fact that Woods’ vehicle went about 400 feet before stopping without evidence of steering input suggests a “very delayed response” or that Woods was not paying attention at all. Hashish noted that Woods’ injuries would have been greater if he had been traveling at excessive speed. The speed limit at the site of the crash was 45 mph. Hashish said, “You can walk away with a broken leg from 45 to 50 mph… If you’re hitting 60, 65 and you’re hitting a stationary object, your likelihood of death increases exponentially.” If he was going 80 mph, “he wouldn’t be having an open fracture in this leg, he’d be dead.”

The LA Sheriff’s Department has said, “The traffic collision investigation is ongoing, and traffic investigators have not made any conclusions as to the cause of the collision.”

Discrimination

Pratt & Whitney Wants Experts Disqualified in $1 Billion Soil Toxins Suit

An aerospace and defense company wants a Florida federal judge to disqualify the expert witnesses presented by property owners who have accused it of contaminating their water supply and devaluing their homes.

The Lawsuits

Five married couples who have children who are members of a pediatric brain tumor cluster designated by the Florida Department of Health and two property owners who claim their land is far less valuable because of soil contamination filed two consolidated suits against United Technologies Corporation, which does business as Pratt & Whitney. The parties claim that the company sent toxic and carcinogenic chemicals into the porous underground aquifer that their properties share.

The cases are Cotromano et al. v. United Technologies Corp. et al., case number 9:13-cv-80928, and Adinolfe et al. v. United Technologies Corp., case number 9:10-cv-80840, in the U.S. District Court for the Southern District of Florida.

The total claims are estimated at $1 billion.  The cases were initially dismissed by the trial court, but were reinstated by the Eleventh Circuit, which ruled that the trial court had erred in requiring excessive factual proof at the dismissal stage of litigation.

The Experts

The plaintiffs retained numerous experts to help them prove their claim. Pratt & Whitney filed motions arguing that each of those experts should be excluded.

The plaintiffs presented Dr. Marco Kaltofen as an expert to testify that there is evidence that the plaintiffs had been exposed to contaminants that originated at the Pratt & Whitney facility. Pratt & Whitney argued that Dr. Kaltofen’s testimony should be excluded because he failed to apply or identify a methodology that would allow him to conclude that there was radioactive contamination in the property. Pratt & Whitney also claimed that Dr. Kaltofen’s testimony failed to identify any actual source of materials or address how the materials were allegedly transported to the plaintiffs’ properties.

The plaintiffs presented toxicologist Dr. William Sawyer to support their claims. Pratt & Whitney argued that Dr. Sawyer’s opinions should be excluded as lacking in fit because they are “fundamentally unreliable.” Pratt & Whitney noted that Dr. Sawyer had not issued an expert report in support of the plaintiffs’ property claims; instead, the plaintiffs relied upon Dr. Sawyer’s previously-disclosed cause opinions from three personal injury cases. Pratt & Whitney argued that because none of the other personal injury cases dealt with the cancer cluster designation, Dr. Sawyer’s opinions were not relevant here. Pratt & Whitney also argued that Dr. Sawyer’s methodology was unreliable. The company noted that for two plaintiffs, Dr. Sawyer had no calculation of the alleged dose of Thorium-230 to which they were exposed. For another plaintiff, Dr. Sawyer relied upon a flowed dose calculation that was based on samples taken from her spine years after she was diagnosed with brain cancer.

The plaintiffs presented Dr. Bernd Franke as a radiological researcher to support their claims. Pratt & Whitney argued that Dr. Franke’s testimony should be excluded because there was no fit between his analyses and any issue to be resolved at trial, he relied upon improper and unjustified assumptions, and his methodology was not reliable. Pratt & Whitney noted that Dr. Franke’s testimony was only related to one individual who was not part of the cancer cluster identified by the FDOH.

The parties participated in a seven-hour hearing on the issues, but the matter remains unresolved. The hearing was continued and the parties were instructed to contact the court with their available dates in the next two weeks.

Texas flag and gavel

Texas Law Firm Claims Allstate Uses Unqualified Experts to Drive Up Litigation Costs

A Texas law firm has filed a class-action complaint, claiming that Allstate Fire and Casualty Insurance Company has been using unqualified expert witnesses to drive up litigation costs.

The Complaint

The Estes Law Firm is a Texas law firm that practices personal injury law.  Estes Law claims that Allstate has been putting forth unqualified expert witnesses, “knowing they will put out fraudulent information with the intention of preventing justice for the injured citizens of Texas.” Estes Law alleges that Allstate is knowingly conspiring with unqualified “experts” that have repeatedly demonstrated that they have given untrue and fraudulent information.

Estes Law argues that Allstate has the intent to drive up the cost of litigation for Texas citizens and to enhance its own profitability at the expense of injured people.

Estes Law brought its complaint on behalf of itself and all law firms in the state of Texas who represented clients in cases against Allstate and Allstate’s counsel and spent time and resources responding to improper controverting affidavits filed by Allstate’s unqualified experts. Estes Law believes that the number of members in this proposed class exceeds $10,000.

The firm is suing for actual and punitive damages.

The Proposed Experts

Estes Law takes issue with three specific experts that Allstate has hired for its cases: Marc Chapman, Jana Schieber, and Rhonda Guitreau.

Marc Chapman has a background as a reimbursement manager at a hospital and runs a consulting firm. Chapman is not a doctor. Allstate has repeatedly hired Chapman to prepare controverting affidavits and offer opinions that medical bills for plaintiffs are too high. Chapman has only sent out bills for hospitals in the Austin area. He has no experience in billing outside of hospitals or experience billing in any other city in Texas. Estes Law listed 13 cases as an example of a few of the cases that have stricken Chapman as an unqualified expert. Estes Law claims that Allstate continues to hire Chapman to prepare controverting affidavits to harass and delay lawyers who represent plaintiffs.

Jana Schieber worked as a nurse in the Dallas area in the 1990s. Allstate has retained Schieber to opine about billing rates for orthopedic surgeons, orthopedic doctors, primary care doctors, chiropractors, radiologists, diagnostic testing facilities, and other medical providers. Estes Law listed 10 cases as an example of the many cases where Schieber’s opinion has been stricken. Estes Law notes that all of Schieber’s controverting affidavits are nearly identical and they rely upon an online database called “Context4 Healthcare.” Estes Law claims that Allstate continues to hire Schrieber to harass and delay lawyers for plaintiffs.

Rhonda Guitreau is a former hospital administrator from the Dallas area who Allstate has presented as an expert medical billing consultant. Guitreau had no experience billing outside of the hospital setting or working in any area outside of Dallas. Estes Law listed 10 different cases where Guitreau’s affidavit was stricken. All of Guitreau’s controverting affidavits are nearly identical and rely upon an online database called “Context4 Healthcare.” Estes Law argues that the only reason that Allstate continues to hire Guitreau is to harass and delay the lawyers who represent plaintiffs.

Police Brutality

Police Captain Who Testified at Rodney King Trial to Testify in George Floyd Case

The retired Los Angeles police captain who testified that the officers did not use excessive force in the Rodney King trial is set to testify as a defense expert in the upcoming George Floyd trial.

George Floyd Case

On May 25, 2020, George Floyd, who was a black man in handcuffs, died after Derek Chauvin, a Minneapolis police officer pressed his knee against Floyd’s neck as he said he couldn’t breathe. Chauvin and the other three officers who were present were fired and are scheduled to stand trial.

Chauvin is charged with unintentional second-degree murder and second-degree manslaughter.  The three others, Thomas Lane, J. Alexander Kueng, and Tou Thao, are charged with aiding and abetting both counts.

Each of the former police officers will be tried separately.

Use-of-Force Expert

Former Minneapolis police officer Thomas Lane is represented by attorney Earl Gray. Gray filed a notice that he plans to call Greg Meyer as a use-of-force expert at his client’s trial.

Greg Meyer is a retired Los Angeles police captain who was employed by the Los Angeles Police Department from 1976 to 2006. Meyer is also an expert on police training, intervention, detention, and arrests.

Meyer offered testimony at the Rodney King federal civil trial in 1994. In 1991, Los Angeles police officers were trying to stop an unarmed King from speeding when he fled. After a high-speed chase, the officers used stun guns and beat King with batons. Bystander video of the incident led to increased concern over the effect of race on policing.

At the trial, Meyer testified that the officers did not use excessive force when they beat Rodney King in 1991. Meyer testified that the officers had not used excessive force because of police policy. Jurors awarded King $3.8 million in damages, but declined to award punitive damages.

Meyer has been critical of bans of neck restraint holds and upper-body control holds or “chokeholds.”

Meyer wrote an opinion piece for the L.A. Times in 1994. In his piece, Meyer blamed the City Council and board of police commissioners for stopping the use of chokeholds. Meyer explained that an upper-body control hold applies pressure to the carotid artery in the neck to render the subject unconscious. When chokeholds were banned, some warned that the next level of force would be the baton.

Meyer noted that after the chokehold ban, injuries to suspects had risen 661% and injuries to officers had risen 521%.

Meyer wrote;

“Police officers and jailers will continue to have violent confrontations with persons who choose to resist. And the public will grow tired of making millionaires out of convicted criminals and others who resisted arrest. The public must insist on a re-evaluation of police policy in a more rational policy-making process than Los Angeles experienced in the early 1980s. Law-enforcement leaders must adopt a more humane use of force on a scale governed by the severity of injuries that result from any given tactic.”

He continued, “If we can put a man on the moon and return him safely to Earth, why can’t we put a man on the ground and take him safely to jail?”