Category Archives: In the News

Death Row Inmate Freed After Bite Mark Evidence Discredited

A Mississippi man that sat on death row for over a quarter of a century has been freed and exonerated after the bite mark evidence that was used to convict him was discredited.

The Crime

In 1992, 84-year-old Georgia Kemp was found dead in her home in Lowndes County, Mississippi.  Her autopsy revealed that she had died from two stab wounds.  Kemp also had injuries consistent with rape, but no visible bite marks.

Prosecutors retained Dr. Michael West as an expert witness.  West is a forensic dentist known for his analysis of bite marks.  Over a period of 15 years, West testified in 71 trials in 9 states.  Dr. West examined Kemp’s body with ultraviolet light and found bite marks, which he testified matched the teeth of Eddie Lee Howard.

Court Proceedings

Howard was indicted on the charge of capital murder with the underlying felony of rape.  He was convicted in 1994 and sentenced to death.  In 1997, Howard’s conviction and sentence were reversed and remanded for a new trial.

In May 2000, Howard’s second trial began.  Dr. West testified again, stating that he was certain to a reasonable degree of medical certainty that Howard had left the bite marks found on Kemp’s body.  Howard was convicted of capital murder and sentenced to death.  The conviction was upheld in numerous appeals and post-conviction relief proceedings.

Exoneration

In December 2010, the Mississippi Supreme Court allowed Howard to file another post-conviction petition for relief due to new DNA testing of physical evidence that had excluded Howard as a source.

The court reviewed the DNA evidence and also Dr. West’s bite-mark testimony. Dr. West’s techniques have come under criticism for overstating his findings and testifying on subjects where he had limited expertise.  Dr. West’s practices were investigated and he was eventually suspended by the American Board of Forensic Odontology.  Dr. West has also stated in a 2012 deposition that he no longer believes in bite-mark evidence and that it should not be used in court cases.

The court noted that there has been a change in the scientific understanding of the reliability of identification through bite marks since Howard’s conviction.  Today, bite mark testimony would be inadmissible evidence.  The court also concluded that Dr. West’s identification of Howard was the most important evidence presented at trial.  Given the inadmissibility of bite mark evidence and the fact that that the DNA of another man was present on the murder weapon, the court found that a jury would probably not find Howard guilty beyond a reasonable doubt.

In August 2020, the Mississippi Supreme Court vacated Howard’s conviction and sentence and remanded his case for a new trial.

In December 2020, Howard was released from death row and on January 8, 2021, Howard was officially exonerated.   Lowndes County District Attorney Scott Colom decided not to retry Howard’s case, noting that there was not enough evidence to convict Howard “beyond a reasonable doubt” and stating that “My ethical and legal responsibility requires that I dismiss the case.”

 

Court

Judge Rules Gender Equality Expert’s Opinion is Credible and Reliable

An Iowa federal judge has ruled that a gender equality expert’s opinion is both credible and reliable and has temporarily blocked the University of Iowa from cutting its women’s swimming and diving program.

The Dispute

On August 21, 2020, the University of Iowa announced its decision to eliminate women’s swimming and diving as a varsity intercollegiate sport for the 2021-22 academic year.  Six students, Sage Ohlensehlen, Christina Kaufman, Alexa Puccini, Kelsey Drake, Miranda Vermeer, and Abbie Lyman, who are female student-athletes on the women’s swimming and diving team were torn between remaining at the school and pursuing their athletic careers elsewhere.

The students filed a class-action lawsuit against the University of Iowa, its president, and its athletic director, claiming that the University failed to provide equal participation, equal treatment, and equal scholarship opportunities for female athletes as required under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.

District Court

The students filed their lawsuit in the U.S. District Court for the Southern District of Iowa. On December 3, 2020, the plaintiffs filed a motion for a temporary restraining order and preliminary injunction.  The court denied emergency injunctive relief, but ordered that the matter proceed on an expedited basis.  The court reviewed each party’s written briefs, affidavits, and documentary evidence and held a hearing on the matter.

The Equity in Athletics Disclosure Act requires universities that receive federal funding to submit an annual report detailing the total number of full-time male and female undergraduate students enrolled at the university, the varsity intercollegiate athletic teams it sponsors, and the number of participants on each team on the date of that team’s first competition.

According to the information that the University provided in response to the Equity in Athletics Disclosure Act, the University of Iowa has been increasing its percentage of women undergraduate students over the past 10 years.  Currently, the University offers 24 intercollegiate athletic programs; 13 are women’s teams and 11 are men’s teams.

At issue is whether the University of Iowa will comply with Title IX after eliminating the women’s swimming and diving team alongside three men’s teams.  The students retained Dr. Donna Lopiano, Ph.D., to testify on their behalf.  Dr. Lopiano reviewed the participation data and compared it with University-sponsored website rosters and raw competition data and opined that she was confident to a high degree of certainty that women’s intercollegiate athletics at University of Iowa was likely to lack sufficient proportionality to female student enrollment.

The University dismissed Dr. Lopiano’s opinions as “unduly speculative” and characterized them as “conspiracy theories.”  The University made a motion that Dr. Lopiano’s opinions should be stricken from the record.

Upon review, U.S. District Court Judge Stephanie Rose determined that Dr. Lopiano was a highly credible expert and that her opinion was “exceedingly reliable.”  Judge Rose noted that Dr. Lopiano is a highly accomplished expert on gender equity in intercollegiate athletics and Title IX compliance.  Her opinion demonstrated that the students had a fair chance of demonstrating that the University is not in compliance with Title IX by providing its female athletes with athletic participation opportunities substantially proportionate to their representation in the student body.

Judge Rose granted the motion for a preliminary injunction, which prevents the University of Iowa from eliminating the women’s swimming and diving team or any other women’s intercollegiate athletic team until there is a full trial on the merits.

Vote Here

Expert Witnesses Have Failed to Offer Convincing Opinions in Support of 2020 Election Challenges

Challenges to the 2020 presidential election have been based on a variety of legal claims. Some lawsuits have argued that states followed incorrect election procedures or that state legislatures failed to authorize changes that permitted voters to cast ballots more easily and safely during the pandemic. Others have alleged that ballots or counting procedures were fraudulent.

No challenge to date has altered the election outcome in any state. As judges have repeatedly commented, it is not the function of the courts to choose the president. Only convincing evidence coupled with a sound legal theory will convince a court to review election results after votes have been cast.

In several cases, expert witnesses have weighed in on the election. The expert evidence presented by election challengers has not been viewed with favor.

Nevada Experts

An election contest in Nevada was based largely on the assertion that voting machines did not accurately tabulate the votes that were cast. The challenge relied in part on the opinions of three expert witnesses. The court ruled that the expert testimony was insufficient to prove that the results were inaccurate.

To prove that votes were cast illegally, Michael Baselice conducted a telephone survey of voters. Surveys are only valid if participants consist of a sufficiently large group of randomly chosen voters who are representative of all voters. Since Baselice failed to identify the source of his survey data and “conducted no quality control of the data he received,” the court rejected his conclusions.

Jesse Kamzol concluded that votes were cast illegally based on his analysis of commercial databases of voters. Kamzol did not collect or verify the data, did not know how it was collected, and could not say whether his methodology accounted for false positives. The court concluded that the analysis was unreliable.

Scott Gessler concluded that mail voting was fraudulent. The court rejected that opinion because it was based on a small number of affidavits that Gessler made no effort to corroborate. The court faulted Gessler for failing to support his conclusions with verified facts.

Matthew Braynard

A Georgia election challenge relied on a telephone survey of absentee voters conducted by Matthew Braynard, a former employee of the Trump campaign. After the election, Braynard was hired as an expert witness and paid $40,000 to prepare an expert report. Braynard claims expertise in “the voter data and election administration field.”

Braynard alleged that his staff telephoned people chosen at random and asked them whether they requested and returned an absentee ballot. The answers were then compared to names in a statewide database of voters. Braynard extrapolated his comparisons and concluded that more than 200,000 absentee ballot were cast that were not requested by the voter or that the voter did not return.

Journalist Spenser Mestel explains why election surveys like Braynard’s are often based on bad science. More to the point, when Braynard was confronted with evidence that people he identified as illegal voters had in fact cast legal ballots, he admitted he made no effort to verify whether people listed in the database as having voted were the same people who told him that they had not voted. The election challenge was voluntarily dismissed soon after Braynard’s expert report was filed.

Braynard’s reports were filed in other election challenges, as well. A response to Braynard’s report filed in federal court by Stephen Ansolabehere, a professor of government at Harvard, contended that there was “no scientific basis for drawing any inferences or conclusions from the data presented.” His response identifies errors in Braynard’s data collection methodology and in his survey design and concludes that Braynard’s undescribed “list matching” technique was likely riddled with error.

Russell J. Ramsland Jr.

Attorney Lin Wood Jr. filed a lawsuit challenging the Georgia election. He relied in part on the expert opinions of Russell J. Ramsland Jr., a cybersecurity worker. Ramsland filed an affidavit that purported to identify inconsistencies in electronic voting machines. The New York Times reported that the alleged inconsistencies occurred in Michigan, not Georgia.

Nor were the claims accurate as to Michigan. The same Times report found that the “affidavit also listed a number of towns and counties in which Mr. Ramsland’s analysis ostensibly showed that the number of votes cast exceeded the number of eligible voters. But most, if not all, of the places Mr. Ramsland listed appeared to be townships and counties in Minnesota, not Michigan.

Ramsland filed a subsequent affidavit in a Michigan lawsuit that managed to focus on Michigan jurisdictions. Ramsland claimed that voter turnout in six Michigan precincts exceeded 100%. An investigation of those assertions judged them to be “wildly inaccurate.”

A federal judge who was appointed by President Trump rejected the Georgia challenge. The judge questioned the absence of reliable evidence to support the claim of fraud but ultimately decided that the plaintiff lacked standing to bring the suit. The Michigan lawsuit was dismissed because it was based on “theories, conjecture and speculation” rather than evidence.

Joshua Merritt

Sidney Powell has filed multiple election challenge lawsuits. Before filing in Michigan and Arizona, Powell famously told the media that she would “release the Kraken.” Her lawsuits in those states, as well as her lawsuits in Wisconsin and Georgia, were quickly dismissed.

Powell identified an expert witness in her complaints by the code name “Spyder” (sometimes “Spider”). Powell described Spyder as a former Military Intelligence expert. In a declaration filed in four states, Spyder opined that server traffic data proved that voting systems in the United States were “certainly compromised by rogue actors, such as Iran and China.”

The Washington Post reported that Spyder is Joshua Merritt, an information technology consultant. While he is an Army veteran who once enrolled in an entry-level military intelligence training program, he failed to complete the program. The military denies that he ever served as an intelligence analyst. Records show that he spent most of his military career as a truck mechanic.

Whether the judges who dismissed Powell’s lawsuits were aware that Merritt’s credentials have been stated incorrectly is unclear. The judges were likely unimpressed by a “secret expert witness” whose opinions were speculative and unsupported by reliable facts.

Terpsichore “Tore” Maras-Lindeman

Another secret witness for Powell claimed expertise as a “trained cryptolinguist.” That witness was recently identified as Terpsichore “Tore” Maras-Lindeman, a pro-Trump podcaster whose Navy experience lasted less than a year. Maras-Lindeman has a history of overstating her military credentials. Three years ago, she was fined for soliciting funds for a concert to benefit three homeless shelters and diverting those funds for her own purposes.

Michigan Audit

Claims that vote tabulating machines manufactured by Dominion switched votes to favor Biden have been widespread in social media. In response to a lawsuit founded on those claims, a Michigan judge gave an election challenger access to forensic images of logs prepared by the vote tabulation machines. The judge did not endorse those claims, but authorized the audit based on a voter’s claim that a Dominion machine incorrectly counted a vote on a village proposal to allow a marijuana dispensary.

The audit was authorized in Antrim County, where a clerk’s failure to update media drives for certain vote tabulators initially resulted in an incorrect vote count. An AP fact check found that the clerk’s subsequent correction of the error caused election challengers to argue that the error was caused by the Dominion vote tabulators when it was actually caused by human error.

The audit was conducted by Allied Security Operations Group. Its report was signed by Russell Ramsland, the same expert whose opinions were rejected in Georgia and an earlier Michigan case. The report does not identify or provide credentials of the people who prepared it. Whether they are experts is therefore unclear.

The report alleges that Dominion machines are “intentionally and purposefully designed with inherent errors to create systemic fraud and influence election results.” Dominion denies that allegation.

The AP fact check notes that some of the report’s assertions, including the claim that the county had a “68% error rate,” are largely unexplained. According to the AP, the report contains a “slew of other debunked claims about Dominion.”

After the audit was completed, Antrim County completed a hand recount of the presidential ballots. The recount confirmed that Trump won the county by less than 3,800 votes. The difference in the machine count and the hand recount amounted to about a dozen votes, a minor error rate that is common in elections. It is difficult to believe that a court will credit an audit that is undermined by an actual count of the votes.

NRA Files Motion to Exclude “Mouse Brain” Expert

The NRA has filed a motion to exclude a developmental neuroscience expert in a gun rights suit, arguing that the expert on “mouse brains” is not qualified to offer testimony in this case.

The Lawsuit

The National Rifle Association (“NRA”) filed a lawsuit against Pam Bondi, the Attorney General of Florida, and Rick Swearingen, Commissioner of the Florida Department of Law Enforcement, based on their administering and enforcing Florida laws relating to the sale of firearms.  The NRA sought declaratory and injunctive relief. The NRA wanted a declaration that Florida’s law banning adult, law-abiding citizens under the age of 21 from purchasing firearms was unconstitutional under the Second and Fourteenth Amendments. It also wanted an injunction that prevented Florida from enforcing that law.

Proposed Expert Testimony

The Florida Department of Law Enforcement retained Dr. Pradeep G. Bhide to testify on its behalf.  Dr. Bhide is a Professor and Jim and Betty Ann Rodgers Eminent Scholar Chair of Developmental Neuroscience and Director of the Center for Brain Repair at Florida State University College of Medicine.

Dr. Bhide’s proposed testimony included the statement that “Modern neuroscience establishes what parents have known for generations, that ‘on average 18-year old individuals are more likely to engage in behaviors that are impulsive, emotional, risky and that offer immediate or short time reward compared to 21-year old individuals, on average.’”

The NRA filed a motion in limine to exclude Dr. Bhide’s testimony.  In its motion, the NRA argued that Dr. Bhide had not offered any hard evidence that young adults from age 18 to 20 are more likely to commit criminal violence with a purchased firearm than other adults. The NRA claimed that Dr. Bhide’s opinion would consist only of “secondhand pseudoscience.”

The NRA argued that Dr. Bhide failed to meet the requirements of Daubert.  Specifically, it claimed that while Dr. Bhide may be an expert in the broad area of neuroscience or brain development, this was not a substitute for expertise in the area of adolescent brain development. The NRA argued that even if Dr. Bhide had academic credentials in neuroscience and taught in that area, it did not demonstrate that he was competent to give an expert opinion in every area of neuroscience.

The NRA argued that Dr. Bhide was not qualified to give the opinion that 18-to-20-year-olds were more likely to commit crimes with purchased firearms because he had not personally studied human brain development. iWhen questioned whether he had published any peer-reviewed articles that distinguished between the development of a teenage brain and an adult brain, Dr. Bhide responded that he had not written articles about the human brain, he had only written about mouse brain development.

The NRA also argued that Dr. Bhide should be excluded as an expert because his opinions were not based on any reliable methodology. Dr. Bhide’s opinion was not based on his own research, his opinion was based upon the research of others that did not relate to the risk of firearm purchase by 18-to-20-year-olds.

The motion in limine is currently under advisement in the United States District Court for the Northern District of Florida.

 

Court

Court Relies on Expert Witnesses in Affirming Dismissal of Challenge to Harvard Affirmative Action Policy

The controversy surrounding university admissions policies that consider race has been fueled by lawsuits alleging that the policies discriminate against Asians. In a recent appellate victory for Harvard, the court considered competing expert witness testimony in ruling that Harvard’s admissions policy did not violate the law.

Students for Fair Admissions (SFFA) sued Harvard University, alleging that its admissions policies discriminated against Asian Americans. The SFFA has initiated similar suits against the University of Texas at Austin and the University of North Carolina as part of a national litigation strategy to overturn U.S. Supreme Court rulings that permit a very limited form of affirmative action to promote racial diversity in student populations.

Harvard Admissions

Harvard selects about 1,600 students each year from a pool of about 35,000 applicants. Since it cannot give a position to each applicant who is likely to achieve academic success, academic excellence is only one of several factors that guide its admissions decisions.

Harvard recruits students who have good grades and high college admission test scores without regard to their race. To expand its applicant pool, Harvard also recruits minority students who did not do as well on standardized tests. Whether Harvard recruited a student, however, is not a factor that Harvard considers when it makes admission decisions.

Applications provide Harvard with a wealth of information, including the applicant’s standardized test scores, transcripts, extracurricular and athletic activities, awards, teacher and guidance counselor recommendations, intended field of study, a personal statement, and other information an applicant would like Harvard to consider. Applicants can reveal their race but are not required to do so.

Consideration of Race in Admissions Decisions

Admissions officers give applications a numerical rating in various categories of achievement: academic success, extracurricular pursuits, athletic pursuits, school support (as measured by the strength of teacher and guidance counselor recommendations), and a personal rating that considers the positive effect the student might have on the Harvard community. The personal rating considers the applicant’s perceived leadership, maturity, integrity, personality, ability to overcome setbacks, concern for others, and whether the applicant is “a good person to be around.”

Experiences pertaining to race, such as an applicant’s struggle to overcome discrimination, might inform the personal rating. However, race does not play a direct role in the personal rating and Harvard instructs admissions officers not to consider the race of applicants when assigning a personal rating.

Finally, admissions officers assign an overall rating. They can consider “tip factors” when assigning an overall rating. Tip factors include legacy status and athletic ability. About 30% of Harvard’s students are legacy applicants, the children of donors, the children of faculty members, or recruited athletes. Applicants in those categories have a significantly higher chance of being admitted than applicants outside of those categories.

Other tip factors include race and ethnicity, geographical location, and economic background. Apart from legacy status (which often rewards alumni who contribute to the school) and recruited athletes, one goal of tips is to achieve a racially, ethnically, geographically, and economically diverse student body. Harvard also considers an applicant’s intended field of study to assure adequate student interest in the classes that it offers.

Expert Testimony

A good bit of the trial addressed the legal validity of Harvard’s policy of promoting racial diversity in its student body. Supreme Court precedent prohibits racial quotas or “racial balancing” in admissions. It also prohibits race from being a mechanical factor that gives applicants a decisive advantage. Precedent nevertheless allows schools to consider race as one of many factors for the purpose of promoting diversity, which the Court recognizes as a compelling educational interest. However, race can only be considered if no race-neutral alternative is available that would achieve the same diverse student body.

The trial and appellate courts were persuaded by expert testimony that race was not a decisive factor in Harvard admissions. Even SFFA’s expert witness admitted that Harvard rejects most Hispanic applicants, and almost half of African American applicants, who are “among the top 10% most academically promising applicants to Harvard in terms of standardized test scores and GPA.” Harvard’s admissions process is so competitive that it admits only highly qualified students, regardless of race.

The expert evidence did not suggest that Asians who were rejected were any more likely to succeed at Harvard than black and Hispanic applicants who were accepted. In fact, the evidence established that ancestry enhanced the opportunity of some Asian applicants to be accepted.

The district court rejected SFFA’s racial balancing claim. It determined that Harvard treats every applicant as an individual and that every applicant competes for every seat. The court of appeals accepted that finding after noting that SFFA presented no expert evidence to support its claim that Harvard denies the applications of Asian American applicants in order to promote admissions of non-Asian applicants.

A statistical analysis presented by Harvard’s expert witnesses established that “the share of Asian American applicants admitted to Harvard has increased roughly five-fold since 1980 and roughly two-fold since 1990.” Expert analysis also demonstrated that the annual admission of Asian applicants varies more than the number of applications submitted by Asians, a finding that undercuts the claim that Harvard engaged in racial balancing.

Expert testimony established that the elimination of race as a factor in Harvard’s admissions policy would reduce the African American share of Harvard’s student body from 14% to 6% and would reduce the Hispanic share from 14% to 9%. Experts examined race-neutral alternatives proposed by SFFA, such as strengthening recruiting and financial aid, eliminating standardized testing, and eliminating tip factors. The expert witnesses concluded that none of those alternatives were viable means of assuring racial diversity.

Discriminatory Intent

The SFFA relied on the expert testimony of Peter Arcidiacono, an economics professor at Duke University, in its effort to prove that Harvard intentionally discriminated against Asians. Harvard countered with the expert testimony of David Card, an economics professor at UC-Berkeley. Both experts relied on statistical models that used regression analysis to explain how one variable (race) affected admissions while controlling for all other variables (such as grades and test scores).

The models suggested that Asian applicants tended to receive better scores than other applicants based on academic criteria but slightly worse scores based on personal factors. While the personal rating was correlated with race, the court of appeals agreed with the district court that correlation does not prove causation. In other words, the expert evidence did not establish that race influences the personal rating. The court regarded the statistical evidence of intentional discrimination as inconclusive and therefore held that SFFA failed to prove that Harvard violated the law by intentionally discriminating against Asian applicants.

 

dollar bills

Expert Witness Helps Gambler Deduct Losses

People who gamble and win are required to report their winnings as income on their tax returns. Gamblers frequently attempt to offset that income by reporting their gambling losses. The IRS allows filers to report losses up to, but not in excess of, their winnings.

Gamblers sometimes try to offset winnings with losses they can’t easily substantiate. For example, a taxpayer might report $7,000 in winnings from bets placed in casinos. The taxpayer might then claim $7,000 in losses from casino betting. Significant casino winnings are documented in a W-2G form but no comparable tax form is issued to document losses.

The IRS has developed detailed recordkeeping requirements for taxpayers who want to deduct gambling losses. Taxpayers who don’t follow those rules typically learn that the IRS assumes one of two things are true: undocumented losses did not occur or undocumented losses were offset by unreported winnings.

While the IRS usually wins those disputes, a taxpayer recently made use of an expert witness to convince the Tax Court that his gambling losses exceeded his winnings. The case is a reminder that the creative use of expert witnesses can make the difference in difficult cases.

John Coleman’s Gambling

John Coleman retired in 2004. He earned a modest income after retirement from an insurance consulting business.

Coleman was a compulsive gambler. He began gambling on card games in high school. He played slot machines in Atlantic City and gambled closer to home when casinos opened in Maryland. After his retirement, he gambled more frequently.

As is true of most compulsive gamblers, Coleman’s gambling interfered with his life. He became delinquent on property taxes and utility bills. In 2019, he began treatment for a gambling disorder.

During 2014, Coleman gambled away a good bit of a $150,000 insurance settlement he had received. Four casinos gave Coleman W-2G forms that documented about $350,000 in gambling winnings. He won that money by playing slot machines. Casinos must issue a W-2G form when a gambler wins a slot machine jackpot of $1,200 or more.

Two of the casinos made no record of Coleman’s slot machine losses. Nor did those casinos keep track of Coleman’s smaller slot machine winnings that they were not required to report on W-2G forms.

At the other two casinos, Coleman sometimes signed into slot machines using player cards that the casinos issued. Those cards tracked all winnings and losses. However, Coleman did not always use those cards. Sometimes he didn’t have his card with him when he decided to enter the casino. Sometimes he stopped using the card because he thought his luck might change if he didn’t sign into a machine.

Coleman established that he regularly withdrew $2,000 to $3,000 per day from his bank account to fund his gambling. He also established that he made ATM withdrawals and received credit card advances while he was gambling.

Coleman’s Expert Witness

Coleman failed to file a 2014 tax return. After the IRS estimated his income, Coleman challenged the estimate and attempted to file a return that the IRS refused to accept. By the time the case came to tax court, the IRS agreed that Coleman’s reported income and deductions were correct in most respects. The IRS disagreed that Coleman was entitled to offset his gambling winnings with an equal amount of gambling losses.

At trial, the IRS maintained that Coleman could not prove his gambling losses because he had not kept a daily record of his losses at each casino. To overcome his poor recordkeeping, Coleman presented the expert testimony of Mark C. Nicely.

The Tax Court recognized Nicely “as an expert in mathematics, the casino gaming industry, and casino gaming equipment, particularly slot machines.” Nicely worked as a computer software engineer who specialized in algorithm development before focusing his career on the gaming industry. He has testified as an expert witness in a variety of cases that involve gambling.

Nicely made mathematical calculations of Coleman’s probable losses based on the frequency with which he gambled and the expected win percentage of the slot machines in the casinos where he gambled. He based his conclusions on the mathematical likelihood that Coleman lost more often than he won.

Slot machines in Maryland and Delaware are programmed to return 87% to 95% of gamblers’ bets as winnings. A gambler might beat the odds by placing a bet, winning, and going home, but a gambler who continues to gamble on slot machines over a significant period of time is statistically destined to lose more money than the gambler will win. Based on Nicely’s calculations, the odds that Coleman could have won more than he lost over the course of 2014 were about 140 million to one.

Tax Court Decision

While noting that deductions must be supported by evidence, the court recognized that not all gamblers keep meticulous records of their losses. In the absence of those records, the Tax Court can estimate losses, but only if the estimate can be substantiated by reliable evidence.

In Coleman’s case, Nicely’s expert testimony provided that evidence. The court found that Nicely’s testimony was consistent with evidence that Coleman made substantial cash withdrawals to support his gambling habit. In addition, Coleman’s lifestyle and debt problems suggested that Coleman did not spend gambling winnings on anything other that continued gambling. The Court was satisfied that Nicely’s expert methodology confirmed that Coleman’s gambling losses offset his winnings.

Don’t Try This at Home

Coleman benefited from playing slot machines that have a fixed ratio of wins versus losses. Nicely was able to calculate Coleman’s probable losses based on that ratio. When gambling depends on skill as well as luck — poker, for example — an expert may not be able to save a taxpayer who did not keep adequate records.

Gamblers on horse racing sometimes try to claim losses by gathering losing tickets that other gamblers have discarded. Since they are so easily acquired, the IRS will not accept losing tickets as evidence of gambling losses. For the same reason, the Tax Court is unlikely to so.

Taxpayers rarely win disputes with the IRS about their gambling losses. The safest practice is to avoid disputes by keeping a daily log of money spent gambling and by supporting that log with bank records and other documentary evidence. Under some circumstances, however, the Coleman case demonstrates that expert testimony can help gamblers avoid substantial tax liability.

 

a doctor and a child

Rising Trend of Experts Questioning Legitimacy of Shaken Baby Convictions

A growing number of experts are challenging the existence and symptoms of Shaken Baby Syndrome/Abusive Head Trauma — a medical diagnosis that has sent many people to prison over the years.  This is leading to a rise in appeals and overturned convictions.

The Science

In the early 1970s, pediatric neurosurgeon A. Norman Guthkelch first hypothesized Shaken Baby Syndrome/Abusive Head Trauma as a way to explain infants who had bleeding on the brain but showed no external signs of trauma.

Throughout the 1970s and 1980s, pediatricians published numerous studies on Shaken Baby Syndrome, finding that it could be diagnosed through three distinct symptoms: subdural or subarachnoid hemorrhages (bleeding on the brain), cerebral edema (brain swelling), and retinal hemorrhaging (bleeding in the eye). By the mid to late 1990s, Shaken Baby Syndrome was a widely accepted medical diagnosis.

Pediatricians and researchers hypothesized that caregivers would become frustrated with a baby’s crying, then pick up the child and shake him or her back and forth.  This motion would cause the brain and retina to bleed, brain swelling, and then death.

The American Academy of Pediatrics has released numerous consensus statements on Shaken Baby Syndrome/Abusive Head Trauma over the years. It advised, “While physical abuse has in the past been a diagnosis of exclusion, data regarding the nature and frequency of head trauma consistently support a medical presumption of child abuse when a child younger than 1 year of age has intracranial injury.” It has also advised that short falls are incapable of producing the same symptoms.

Dr. Michael Baxter, a Tulsa child abuse pediatrician, assistant professor of pediatrics at University of Oklahoma in School of Community Medicine in Tulsa and medical director of the Children’s Advocacy Center, has said that, “There’s been multiple consensus statements done — Abusive Head Trauma is an accepted medical diagnosis.”  On average, Dr. Baxter sees between six and eight cases of Abusive Head Trauma per year and two to three cases involving a death.

Questions Regarding Legitimacy

However, a growing number of experts has begun to question the legitimacy of Shaken Baby Syndrome/Abusive Head Trauma diagnosis.  These experts have offered other explanations to explain the symptoms that were previously found to be only attributable to Shaken Baby Syndrome/Abusive Head Trauma.

Dr. John Plunkett, a forensic pathologist who initially supported the theory, published a paper showing that retinal hemorrhaging was present in four out of six children whose eyes were examined after people witnessed them suffering short falls.

As opposition to the Shaken Baby Syndrome/Abusive Head Trauma diagnosis rises, so does the number of appeals for those who have been convicted of this offense.

Andrea Miller, legal director of the Oklahoma Innocence Project, has said that child abuse pediatricians who testify in Shaken Baby cases often make claims for which there is no scientific backing. She said, “You often hear in the prosecution of these cases that a head injury like this could only be caused in a car accident going 70 miles per hour or a drop from a 20-story building — all of which is unprovable because you can’t subject a 2-month-old to any of those circumstances.”

In recent years, the Oklahoma Innocence Project has taken up multiple shaken baby case appeals.  There have been several recent shaken baby cases nationwide that have been overturned on appeal, including at least five cases in Oklahoma and one death penalty case in Texas.

dollar bills

Expert Testimony Causes Monsanto to Ask Ninth Circuit to Dismiss $20M Verdict

Agrochemical and agricultural giant Monsanto has asked the Ninth Circuit to overturn a $20 million jury verdict, arguing that the district court judge allowed the jury to hear from an unreliable expert witness.

The Injury

Ed Hardeman and his wife spent many years living in Sonoma County on 56 acres of land. In the 1980s, Hardeman began using Roundup products to treat the poison oak, overgrowth, and weeds on his property. Hardeman continued to use Roundup products regularly until 2012.

In February 2015, Hardeman was diagnosed with B-cell non-Hodgkin lymphoma (NHL). The following month, the International Agency for Research on Cancer (IARC) classified glyphosate, one of the key ingredients in Roundup, as a “probable human carcinogen.”

The District Court Case

In 2016, Hardeman filed a lawsuit against Monsanto in federal district court, claiming that Roundup was a substantial factor in causing his non-Hodgkin lymphoma. Numerous other plaintiffs also filed similar suits against Monsanto. These cases were consolidated. The judge presiding over the cases, Judge Vince Chhabria, chose Hardeman’s case as the lead case in this matter.

Monsanto disputed Hardeman’s claims, arguing that his non-Hodgkin lymphoma was more likely caused by his prior history with Hepatitis C, cirrhosis of the liver, and two different forms of skin cancer.

At trial, Hardeman’s attorney’s presented expert witnesses to strengthen his case. Monsanto challenged the admissibility of these experts. Following a week of hearings, Judge Chhabria ruled that three of Hardeman’s experts on the causal connection between glyphosate and cancer were “shaky but admissible.”

One of Hardeman’s witnesses was Dr. Dennis Weisenberger, a Southern California pathologist who specializes in cases of non-Hodgkin lymphoma. Dr. Weisenberger testified that the lack of protective gear combined with heavy Roundup use for almost three decades meant that Hardeman had high exposure to Roundup, which increased his risk for developing non-Hodgkin lymphoma. Dr. Weisenburger testified, “Roundup was a substantial contributing cause for him with regard to his developing non-Hodgkin lymphoma.”

A six-person jury awarded Hardeman about $5 million in compensatory damages and $75 million in punitive damages. Judge Chhabria later reduced the punitive damages award by $50 million, finding it to be excessive.

The Appeal

Monsanto appealed the decision to the Ninth Circuit Court of Appeals. On appeal, Monsanto argues that Dr. Weisenberger should not have been allowed to testify because he failed to meet the standard set in Daubert v. Merrell Dow Pharmaceuticals.

A three-judge panel heard argument on the matter. Attorney for Monsanto, Seth Waxman, argued that the trial should have never taken place. He argued that Judge Chhabria applied a more lenient standard than other circuits. Waxman noted that 70% or more of non-Hodgkin’s lymphoma cases have no known cause.

Attorney for Hardeman, David Wool, argued that Dr. Weisenberger was uniquely qualified to testify about causation because of his work studying the cause and effect of non-Hodgkin lymphoma as it relates to pesticides for over 30 years. Wool noted that Daubert does not require that an expert prove causation beyond a reasonable doubt. Wool argued that Dr. Weisenberger’s testimony would pass any interpretation of Daubert’s expert standard. He noted, “We had statistically significant, fully adjusted epidemiology showing an odds ratio of over 2.0, which Monsanto concedes is sufficient infer specific causation.”

The panel took the arguments under submission.

Judge in courtroom

Judge Refuses to Hear Expert Testimony in FTC’s Deceptive Practices Lawsuit

To satisfy the Daubert test, some judges require expert witnesses to explain their reasoning in exhaustive detail. When experts fail to support their conclusions with a high level of detail, parties risk the exclusion of expert testimony.

The Federal Trade Commission (FTC) sued Innovative Designs, Inc. for violating a federal law that prohibits using “unfair or deceptive acts or practices” in commerce. The FTC supported its claim with the expert testimony of David Yarbrough. At the conclusion of a bench trial, the court decided that Yarbrough’s testimony failed to satisfy Daubert because Yarborough did not explain potential deficiencies in his reasoning. The court struck the testimony and later dismissed the case.

Facts of the Case

Innovative Design sells a product called Insultex. The product is marketed as a house wrap that is installed just behind the exterior walls of homes. House wraps are intended to prevent rain from penetrating a home and to allow water vapor to escape so moisture does not accumulate inside the walls.

Innovative Design advertised Insultex as an energy saving product. Its advertising claimed that Insultex products have specific R-values. An R-value is a measurement of a product’s ability to restrict the loss of heat. The FTC argued that Innovative Design overstated the product’s R-value and thus misrepresented the energy-saving properties of its product.

The heart of the dispute at trial concerned the measurement of R-value. The FTC maintained that a particular ASTM standard is the “consensus standard” to measure R-value. ASTM standards are developed by an international organization that creates voluntary technical standards that various materials and products should meet. The court agreed that the ASTM standard for R-value measurement is the prevailing industry standard.

Innovative Design advertises the submitted products as having an R-rating of R-3 and R-6. Innovative Design submitted Insultex for testing to two laboratories in 2009. Using standard testing, the laboratories rated the products as R-0.2 and R-0.3, far less than their claimed R-values.

Innovative Design then paid a different laboratory to build a modified testing device. The new device incorporated air gaps that aren’t present in the standard testing device. A third-party accreditation company inspected the device and accredited it to determine an R-value.

Using the modified device, the testing lab certified that Insultex Products had an R-3 or R-6 value. The certificates of analysis stated that the testing complied with ASTM testing guidelines. Whether a testing device that departs from the ASTM standard by incorporating air gaps is reliable was a disputed question at trial.

Pretrial Rulings Regarding Experts

Innovative Design argued Yarborough’s testimony should be excluded because Yarborough had an employment relationship with a company that Innovative Design once hired to test Insultex. Since Insultex did not provide Yarborough with any confidential information, the court disagreed that he was disqualified from acting as an expert witness.

The FTC also disclosed Anastassios Mavrokefalos as an expert witness and Jonathan Malen as a rebuttal expert. Mavrokefalos had been disclosed as an expert witness for Innovative Design. When the FTC took his deposition, however, he changed his opinions. Innovative Design then withdrew Mavrokefalos as an expert witness. The FTC disclosed that it might use Mavrokefalos’ deposition as evidence in support of its case. The judge denied Innovative Design’s motion to exclude that evidence.

Innovative Design designated Donald Garlotta as an expert witness. The court denied the FTC’s Daubert motion to exclude his testimony after finding that the motion should be treated as a challenge to Garlotta’s credibility. The court said it would determine Garlotta’s credibility at trial. However, Innovative Design did not call Garlotta, or any other witness, to provide expert testimony.

Yarborough’s Testimony

Yarborough testified that an experienced lab technician tested Insultex under his supervision. Applying the relevant ASTM standard, Yarborough concluded that, regardless of the thickness of the specific product, Insultex’s R-value was “negligible at best.” Yarborough also testified that, given the structure of Insultex, the claimed R-values are not theoretically possible.

On cross-examination, Yarborough testified that the lab technician’s testing device was calibrated with a fiberglass board, not with a material that is similar to Insultex as the ASTM standards require. Yarborough explained that testing modifications were necessary because Insultex is an unusual material. If no material with a known R-value is similar to Insultex, it is obviously impossible to calibrate the machine using a similar material.

Examining these and other difficulties with Yarborough’s methodology, the court decided that Yarborough’s explanation of his departure from standardized testing methods was conclusory. While the court recognized that nonstandard testing techniques may be necessary when nonstandard materials are tested, the court concluded that departures “need to be well explained.” The court was not satisfied that Yarborough’s explanation of his decision to calibrate the machine with a fiberglass board established the reliability of his methodology.

The FTC argued that Yarborough employed methods used by other testing labs. The court was not persuaded by that argument because the FTC did not establish that the methods used by other labs are generally regarded as acceptable by the relevant scientific community. The court therefore concluded that Yarborough’s testimony did not satisfy Daubert and declined to rely upon it.

Mavrokefalos’ Expert Testimony

At trial, the FTC contended that Innovative Design engaged in deceptive advertising by promoting values of R-3 or R-6 when standard testing never found a value above R-0.3. The FTC hoped to persuade the court that Innovative Design was trying to game the system by creating a modified testing device that would return the results it wanted without revealing the modification in its advertising.

After Yarborough’s testimony was excluded, the only expert evidence that the FTC introduced in its case-and-chief consisted of Mavrokefalos’ deposition testimony. The FTC wanted to use the deposition because it was more favorable to the FTC’s position than the report Mavrokefalos wrote on behalf of Innovative Design.

After reviewing Yarborough’s report, Mavrokefalos investigated the modified testing device and concluded that it did not always return reliable results. Mavrokefalos believed that the modified device used to test the R-value of Insultex distorted the results by “incorporating the value of the air gaps into every reading.”

Based on his own testing, Mavrokefalos expressed the belief that the Insultex’s R-value was less than R-1. He essentially changed his mind about the reasonableness of Innovative Design’s R-value claims after conducting his own testing.

Court’s Ruling

Since Innovative Design moved for pretrial judgment before putting on any evidence, the court did not consider Malen’s expert opinions when it addressed the motion after the trial concluded. Since Malen had been designated as a rebuttal expert, his opinions could not be used to bolster the FTC’s case-in-chief.

While the FTC claimed that Innovative Design misrepresented the R-value of its product, the court concluded that the claim could only be proved by expert testimony. Since Yarborough’s opinions did not satisfy Daubert and Malen’s could not be considered, the FTC was left with only the expert opinion of Mavrokefalos.

The court declined to credit Mavrokefalos’ testimony because he relied on non-standard testing and failed to give a satisfactory explanation of his departure from the standard testing. Moreover, Mavrokefalos had no experience with the tests that he employed. He did not explain whether those tests are relied upon by the scientific community to determine an R-value. He did not explain whether the tests had a known error rate and did not testify that his methods had been peer-reviewed.

The court faulted some of the tests because they were performed on components of Insultex rather than the product as a whole. Finally, the court found that Mavrokefalos’ credibility was impaired by writing a report that favored Innovative Design and then changing his opinions.

A different court might have deemed Mavrokefalos’ credibility to have been enhanced by his willingness to admit that he was wrong, even after he was paid to give an opinion that favored Insultex. While experts are often condemned for being “hired guns,” Mavrokefalos’ opinions were clearly not influenced by money.

Lessons Learned

Although the laboratories that used standard tests found that Insultex has a minimal R-value, the FTC did not introduce those test results as expert evidence. Since the court did not know whether the testing comported with ASTM standards, the earlier tests could not be relied upon as proof that Innovative Designs made deceptive representations.

The FTC was apparently confident in the opinions formed by Yarborough. However, this case stands as a reminder that even the most competent expert must explain opinions in detail.

When an expert departs in any way from an accepted methodology, the expert must be prepared to justify the departure by explaining why the departure was necessary and why it returned reliable results. The failure to elicit that testimony may result in a trial loss even when the evidence in support of a party’s position seems compelling.

 

Judge Rules “Mask Experts” Unqualified to Testify

A Connecticut judge has ruled that a psychologist and ophthalmologist lacked the expertise required to testify as expert witnesses on the use of masks.

The Mask Mandate

In June 2020, the State of Connecticut Department of Education released a publication titled, “Adapt, Advance, Achieve: Connecticut’s Plan to Learn and Grow Together.” The publication was Connecticut’s comprehensive plan for returning to in-school, full-time instruction for the 2020-21 academic year.

The plan required students to be educated and engaged in new health practices and protocols to prevent the spread of diseases.The publication specifically mentioned social distancing, frequent hand washing and the use of hand sanitizer, the use of face coverings that completely cover the nose and mouth, respiratory and cough etiquette, and enhancing cleaning and disinfection of surfaces.

CT Freedom Alliance Lawsuit

In August, four families and the CT Freedom Alliance filed a suit against the State of Connecticut Department of Education and Miguel Cardona, the commissioner of the Department of Education.  The plaintiffs alleged that the mask requirement was a violation of Conn. Gen. Stat. § 4-168(a), Article Eight of the Connecticut Constitution, the right to due process of law, and a form of negligence.

The complaint asked the court to order the Department of Education to rescind all requirements regarding the use of face coverings, masks, and face shields by students in schools. The plaintiffs also requested the court to issue an order stating that no educational agency or school within the State of Connecticut can require the wearing of face masks at any time during the school day, during after-school programs, or during transport to and from school property.

Proposed Expert Testimony

The CT Freedom Alliance presented two experts to testify on its behalf, psychologist Andrew Kaufman and ophthalmologist James Meehan Jr. Attorney for the state, Darren Cunningham, challenged the qualifications of the proposed experts, arguing that their work made them “ideological advocates for one side of the issue rather than experts on whether masks can cause harm.”

Superior Court Judge Thomas Moukawsher held a hearing on the issue. At the hearing, Kaufman testified that he believed that viruses do not exist and that COVID-19 is a hoax. It was revealed that Meehan had authored a blog post that stated that herd immunity will protect the vulnerable members of society and prevent pandemics.

Judge Moukawsher determined that the two proposed experts lacked specific expertise and held anti-science views that made them unsuitable to testify in this case. He stated that while Meehan is an expert ophthalmologist, he was not credible to testify on anything related to COVID-19. Judge Moukawsher ruled that Kaufman was not qualified because he could not allow an expert testimony “on a matter of life or death” from “a man who defies science so firmly established as to be beyond rational dispute.”

Judge Moukawsher gave the CT Freedom Alliance one week to come up with new experts.  CT Freedom Alliance proposed two new experts, epidemiologist Knut Whittkowski, Ph.D., Sc.D., and psychiatrist Mark McDonald, M.D.  The court has scheduled a future hearing to determine if these two proposed experts are qualified to testify in this matter.