Category Archives: In the News

Supreme Court Building in DC

Federal Advisory Committee Considers Significant Change to Rule 702

After the Supreme Court’s Daubert decision, judges may only admit expert testimony that is based on a reasonable methodology. A question that divides federal courts is whether expert opinions should be admitted if a jury could reasonably regard the expert’s methodology as reasonable even if the judge doesn’t. A federal advisory committee may soon propose a change in the rule that resolves that question in favor of judges rather than juries.

A Brief History of Rule 702

Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. The first version of the rule, adopted with the other Rules of Evidence in 1973, allowed qualified witnesses to express expert opinions if their “scientific, technical, or other specialized knowledge” would “assist the trier of fact to understand the evidence or to determine a fact in issue.” The rule made the expert’s qualifications a matter of “knowledge, skill, experience, training, or education.”

The rule said nothing about the judge’s role in determining whether the expert’s opinions were reliable. When Rule 702 was adopted, federal courts followed the Frye standard of admissibility. Using that standard, courts admitted expert opinions based on scientific techniques that were, in the judge’s opinion, “generally accepted” as reliable in the relevant scientific community.

The Frye standard prevented juries from hearing opinions that were based on new or novel theories that, while reliable, were not yet generally accepted. The standard therefore kept juries from hearing reliable evidence that might help them decide the case. At the same time, the Frye standard allowed juries to hear unreliable testimony because courts had been ruling for years that the testimony was “generally accepted” as reliable. The Frye standard was particularly harmful in criminal cases. Unreliable forensic evidence, including bite mark and hair comparisons, has contributed to the widespread phenomenon of wrongful convictions.

In 1993, the Supreme Court purported to cure the deficiencies of the Frye standard by creating a new rule. The Daubert standard (named after the case in which it was adopted) expands the judge’s “gatekeeper” role in deciding whether evidence is sufficiently reliable to be admitted.

The Daubert decision held that Rule 702 was inconsistent with the Frye standard. The Court noted that the drafting history of Rule 702 did not mention Frye and concluded that “a rigid ‘general acceptance’ requirement would be at odds with the ‘liberal thrust’ of the Federal Rules and their ‘general approach of relaxing the traditional barriers to opinion testimony’.”

The Daubert court jettisoned the Frye standard. To fill the void, it created a new rule that, as interpreted by some judges, is incompatible with the “liberal thrust” of Rule 702 and its goal of relaxing barriers to expert testimony.

The Daubert standard broadened the admissibility of expert opinions by making reliability, rather than general acceptance, the dominant consideration in the judge’s analysis. At the same time, the standard narrowed the admissibility of expert opinions by requiring the judge to exclude expert opinions unless they are based on a reliable methodology that the expert applied to adequate facts in a reliable way.

Rule 702 was amended in 2000 to reflect the Daubert holding. The rule was amended again in 2011 to clarify its language. The current rule states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) The testimony is based on sufficient facts or data;

(c) The testimony is the product of reliable principles and methods; and

(d) The expert has reliably applied the principles and methods to the facts of the case.

Criticisms of Current Rule

The Daubert standard as embodied in the current version of Rule 702 has been criticized for its lack of clarity. Some judges view the Daubert standard as expanding the admissibility of expert testimony. Those judges typically leave it to juries to decide whether to accept or reject expert opinions that could reasonably be regarded as reliable. Other judges view their role as determining reliability according to their own strenuous standards without regard to how a jury might view the evidence.

Critics who believe judges too often allow juries to evaluate expert testimony are advocating another change in the rule. Echoing the views of the insurance defense industry, those critics claim that judges are failing to exercise their role as the “gatekeepers” of reliability.

The critics cite anecdotal evidence to create the illusion of a widespread problem. One journalist, relying on his distant memory of an expert witness who gave allegedly inconsistent testimony in two different cases, recently wrote that he “wouldn’t believe a word from an ‘expert’ witness.” The journalist did not seem to appreciate that experts base opinions on facts and that different facts in different cases lead to different opinions.

Unfortunately, the reporter’s perspective advances the strange but popular belief that expert opinions do not reflect objective reality but are simply what the expert chooses to regard as true. That belief is encouraged by political assertions that objective facts are “fake news” and by attacks upon scientific experts who warn the public about dangers (such as global warming) that politicians would prefer to ignore. Attacks on expertise have given birth to a subculture that rejects expert opinions in favor of biased opinions on the ground that an unsupported opinion is just as valid as one based on facts, experience, education, and sound reasoning.

Some critics have suggested that judges should restrict expert testimony in civil cases to prevent “runaway juries” from deciding cases based on emotions rather than facts. Since those critics rarely express concern that juries convict innocent defendants because of emotional reactions to evidence of victimization, the critics seem to be more interested in protecting businesses from the consequences of their carelessness or misconduct than in protecting the right of litigants to have disputed facts resolved by juries.

Critics who complain that judges are inadequate gatekeepers often represent or work for industries that are sued for harming the public with dangerous products or environmental hazards. Those critics tend to brand experts as unscrupulous, but only when they testify for plaintiffs. The critics argue that Daubert was meant to limit expert testimony offered by plaintiffs despite the Supreme Court’s recognition that “relaxing the traditional barriers to opinion testimony” was the very purpose of Rule 702.

Proposed Revision of Rule 702

A recent report from the Advisory Committee suggests a change in Rule 702 that the committee may ask the Supreme Court to adopt. The change results from the concern that “in many cases expert testimony is permitted because the judge thinks that a reasonable jury could find the methods are reliable.” Judges do so because they respect the jury’s role in evaluating evidence.

Judges, after all, are not scientists. There is no reason to believe that judges are any more capable than jurors of understanding and evaluating expert testimony. As a Fourth Circuit decision reminded us in 1934, “Questions of fact are questions for the jury; and they do not become questions for the court merely because their solution may require scientific knowledge or expert opinion.”

Some members of the committee, however, have concluded that only judges have the wisdom to decide whether an expert’s methods are reliable. Their argument that judges should substitute their view of an expert’s reliability for a reasonable view that a jury might take is consistent with a disturbing trend to remove cases from juries — a trend that some scholars decry as reflecting a pro-business bias. Their apparent goal is to change gatekeepers into gate closers.

The report proposes “an amendment to Rule 702 that would clarify that expert testimony should not be permitted unless the judge finds by a preponderance of the evidence that each of the prerequisites are met.” In other words, even if a jury could reasonably find that an expert’s methodology was reliable, a judge who feels otherwise can prevent the jury from making that determination. The proposal represents one more effort to chip away at the American ideal that juries, not judges, should decide cases.

As Judge Kathleen O’Malley recently wrote, the jury is a vital tool in deeply divided country that “protects all of us from overreach by the other two branches of government.” In Judge O’Malley’s view, “If two minds are better than one, nine or twelve are better still.” Judge O’Malley is confident that jurors acting collectively are just as capable as judges of evaluating expert testimony, and that it is arrogant for judges to suggest otherwise.

The advisory committee meets again in June 2021. Whether and when the committee will decide to propose a revision of Rule 702 is unclear. Equally uncertain is whether the Supreme Court would agree that it is wise to undermine expert testimony by giving judges more power to prevent juries from considering expert opinions that jurors might reasonably regard as being based on a reasonable methodology.

Fee Agreement

Lawyers Claim that Prosecution Expert Threatened Witnesses

The lawyers who represent one of the Minneapolis police officers charged in the death of George Floyd claim that an outside expert prosecution witness coerced the state medical examiner to change his opinion on what killed Floyd.

George Floyd’s Death

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 for more than nine minutes  as he said he couldn’t breathe. Chauvin and the other three officers who were present were fired and charged with various crimes in connection with Floyd’s death.

Chauvin has been convicted of second-degree murder, third-degree murder, and second-degree manslaughter.

The three other officers, Thomas Lane, J. Alexander Kueng, and Tou Thao, were charged with aiding and abetting Chauvin.  The trials of the three officers have been pushed back until March 2022.  Judge Peter Cahill cited federal charges against the three officers that trump the state charges. He also said that he wants to put distance between the state trial and the publicity that surrounded Chauvin’s murder trial.

The Claims

Defense attorneys for former Minneapolis police officer Officer Tou Thao have filed court documents claiming that Dr. Roger Mitchell, the former chief medical examiner in Washington, D.C., blackmailed Dr. Andrew Baker, who conducted George Floyd’s autopsy, into changing his opinion.

The court records claim that Dr. Baker originally told prosecutors that his May 26, 2020 autopsy done the day after Floyd died, “revealed no physical evidence suggesting that Mr. Floyd died of asphyxiation. Mr. Floyd did not exhibit signs of petechiae, damage to his airways or thyroid, brain bleeding, bone injuries, or internal bruising.”

The criminal complaint filed against Derek Chauvin three days later “stated that the full report of the ME was pending, but that the preliminary findings ‘revealed no physical findings that support a diagnosis of traumatic asphyxia or strangulation.’”

Thao’s lawyers claim that sometime before June 1, 2020, Dr. Mitchell called Dr. Baker and challenged his findings, telling Mitchell that he didn’t think “neck compression” caused Floyd’s death.

Thao’s lawyers claim that Dr. Mitchell called Dr. Baker back and told him he would publish an op-ed in the Washington Post criticizing Baker.  Dr. Mitchell reportedly told Dr. Baker, “You don’t want to be the medical examiner who tells everyone they didn’t see what they saw. You don’t want to be the smartest person in the room and be wrong.” Thao’s lawyers say Dr. Mitchell told Dr. Baker that “neck compression has to be in the diagnosis.”

Dr. Baker’s autopsy findings were released on June 1, 2020. Neck compression was concluded in the autopsy report.  Thao’s lawyers claim that the autopsy report “was contrary to Dr. Baker’s conclusion before speaking with Dr. Mitchell twice.”

Thao’s lawyers claim that Dr. Mitchell’s conduct violated Minnesota’s laws against coercion. They want the case against Thao to be dismissed.

The prosecutors dispute these claims and stated that they plan to file a motion to rebut them. Given that Dr. Baker testified under oath about his findings in Chauvin’s case and that other doctors agreed with his findings, it seems unlikely that a court would find that outside encouragement to tell the truth constitutes blackmail.

Virginia court gavel

Challenge to Expert Testimony Rejected in Lawsuit Against Unite the Right Organizers

A Unite the Right rally in Charlottesville during August 2017 brought together several white nationalist groups, much to the dismay of Charlottesville residents who support the American values of diversity and equal rights for all. The groups made Charlottesville a target because city leaders planned to remove a statute of Robert E. Lee.

Hundreds of white nationalists carried torches while chanting anti-Semitic, homophobic, and racially offensive slogans. Dozens of people were injured by mob violence. One participant in the rally drove a car into a group of counter-protestors, killing a 32-year-old woman and injuring more than 30 others. He was later convicted of federal hate crimes and sentenced to life in prison.

In the aftermath of the rally, ten injury victims sued individuals and organizations who organized the rally. The lawsuit was filed in federal court in the Western District of Virginia. The suit alleges that the defendants “joined together for the purposes of inciting violence and instilling fear within the community of Charlottesville and beyond.” The lawsuit is premised on a conspiracy to violate the civil rights of the plaintiffs. The case has been set for trial in October 2021.

Expert Opinions

The plaintiffs intend to call two expert witnesses to testify about strategies used by white supremacist organizations as a shield against accountability. The experts, Kathleen Blee and Peter Simi, are sociology professors who study white supremacy. The plaintiffs want to educate the jury with expert opinions about strategies of “double-speak” or “just joking” that white supremacist organizations and their adherents use to create “plausible deniability when conveying certain racist or violent messages.” The experts also “intend to testify that certain communications between Defendants and online comments they made were consistent with those strategies.”

In the words of plaintiffs’ counsel, Blee and Simi drew upon their research and scholarship “to describe a distinct white supremacist culture that, throughout its lengthy history, has informed the (often coded) language, tactics, and symbols of those who are immersed in that culture.” As summarized by the court, the experts drew these conclusions:

  • The white supremacist movement (WSM) “has consistently utilized, supported, and glorified violence as a strategy to promote its message and secure white supremacy.”
  • The defendants “were active in and knowledgeable about the culture and networks of the WSM prior to [Unite the Right].”
  • Unite the Right “was organized to promote the agenda of the WSM.”
  • The defendants organized Unite the Right by using “the cultural symbols, rituals, slogans, language, and references to historical figures that are the hallmarks of the WSM.”
  • The defendants “shaped and made use of WSM culture and networks to recruit participants and to plan and execute [Unite the Right].”
  • The “coordinated race-based violence facilitated and committed by Defendants at [Unite the Right] is emblematic of WSM tactics.”
  • The defendants employed a coordinated strategy to obfuscate their aims through the use of “double-speak, front-stage/back-stage behavior, and a discrete and new-age communication platform.”

Some of the defendants moved to exclude the expert testimony. The district court judge denied that motion.

The court was puzzled by the defendants’ failure to articulate a clear theory for excluding the expert testimony. They did not challenge the qualifications of Blee and Simi to form the proffered opinions. They did not challenge the methodology employed by the experts or the reliability of their conclusions. Instead, they raised three challenges that, in the district court’s view, lacked merit.

Double-Speak

Blee and Simi explained that “double-speak” is a way of communicating coded meaning to members of the WSM through messages that appear to have an innocuous meaning to outsiders. They cited Pepe the Frog as an example. Pepe the Frog is an internet meme that was used on blog and internet forums to communicate surprise, anger, and other emotions. Blee and Simi explained that the WSM appropriated Pepe the Frog “to signify the ideas of racism and anti-Semitism,” though “outside of white supremacism, Pepe lacks those connotations.”

Blee and Simi also explained that certain organizations, including the American Identity Movement and Patriot Front, used rebranding strategies to conceal their true agenda, allowing them to recruit more freely on college campuses and among mainstream college campuses. They cite the replacement of swastikas with business suits as an example.

Relying on social science research, Blee and Simi explain how jokes are circulated among the WSM to communicate ideas to movement members, including the advocacy of violence, that are obscure to outsiders. The ability to say “just joking” preserves the ability to deny the advocacy of race-based violence.

The defendants argued that the expert opinions usurped the jury’s function by telling the jury how to interpret the intent underlying the defendants’ communications. The court rejected that argument. It noted that courts “routinely admit expert testimony explaining the meaning of complex, obscure, or coded language to juries.” Expert testimony about coded language is particularly common in criminal trials, where police officers who base opinions on considerably less social science research purport to explain drug jargon and gang references.

Expert testimony is also admissible to explain “the history, structure, leaders, or operations of an unfamiliar organization or subculture.” While court discussions discussing that testimony have again focused primarily on criminal gangs and terrorist organizations, the decisions are equally applicable to the obscure organizations that comprise the WSM.

The defendants also argued that the expert opinions were not relevant to any issue. The court determined that the testimony was relevant because it was directly tied to the facts of the case. Bree and Simi provided a detailed explanation of how Unite the Right organizers used double-speak in public communications to attract individuals with a violent agenda to their rally while using private communications (including “burner phones”) to coordinate violent and illegal activities in secret. Bree and Simi explained how public expressions of the right to exercise self-defense were part of a false narrative that was used as a pretext for violence. They also explained how “joking” references to violence and the use of the Confederate flag as a recruiting symbol communicated a violent purpose underlying the rally.

Because the proffered testimony is “not only helpful but necessary for jurors to have an informed understanding of language” used by the defendants, it is admissible. The testimony does not tell the jury how to decide the case. The testimony might, if believed by jurors, guide the jury’s understanding of the defendants’ intent, but the defendants are free to introduce evidence of alternative explanations. “The fact that Plaintiffs’ experts’ interpretation may be different from Defendants’ does not render it improper.”

References to White Supremacist Movement

The defendants argued that the experts should not be allowed to use the phrase “white supremacist movement.” In their view, the term implied an organized effort or a conspiracy. The court noted that the defendants did not invent the phrase WSM. Their characterization of the beliefs and goals that unite the defendants is relevant to the plaintiffs’ conspiracy allegations. The defendants are free to dispute the characterization, but they made no convincing argument that expert testimony using the phrase would be unfair to them.

The defendants also objected to “testimony regarding certain traits, methods, or characteristics shared by various white supremacist groups,” including the embrace of violence to achieve a white-dominant society. The experts’ proposed testimony provided a context that would help the jury understand the shared beliefs of WSM adherents. The expert testimony was therefore relevant to prove that the defendants intentionally conspired with each other to violate the civil rights of nonwhites.

Nor would it be unfairly prejudicial to the defendants to discuss belief systems that jurors might find abhorrent. If abhorrent beliefs motivated the conspiracy, it isn’t unfair to discuss those beliefs at trial.

Comments Upon Credibility

Finally, the defendants argued that the expert testimony would improperly comment upon the credibility of the defendants, some of whom may characterize the Unite the Right rally in non-conspiratorial terms. The plaintiffs advised the court that the experts would not comment upon the credibility of any defendant.

The court noted that the defendants are free to deny participating in a conspiracy to violate civil rights. The jury will then decide whether the defendants’ behavior suggests their joint support of the WSM. Expert testimony about the beliefs and goals of WSM adherents is not a comment upon the credibility of the defendants. The expert testimony is therefore admissible.

 

Medical Malpractice Sex Assault Case Fails for Lack of Expert

A patient who claims that her medical provider touched her inappropriately during an exam lost her medical malpractice suit because she didn’t have an expert witness to testify about the appropriate standard of care.

The Alleged Assault and Battery

In September 2016, Erica Vipond had a medical appointment with Lance Beebout, a physician’s assistant with Heartland Orthopedics Specialists.  Vipond had been experiencing knee pain, shooting pain in her back and legs, and numbness and tingling.

Vipond claims that during the examination, Beebout instructed her to remove all of her clothing from the waist up, including her bra, to examine her for scoliosis.  Vipond claims that Beebout did not leave the room while she undressed and that he instructed her to bend over and straighten her back several times, while her clothes were removed.  After she was fully clothed and on the exam table, Vipond claims that Beebout examined her spine and lower body.  Allegedly, the exam included Beebout touching Vipond on the front of her pelvic bone and on the inside of her leg near her pelvic area.

Minnesota District Court

Vipond sued Beebout in Douglas County District Court, alleging that Beebout had committed tortious assault and battery against her during the examination.

Vipond submitted an affidavit from expert witness Mark R. Halstrom, M.D.  The affidavit stated that Dr. Halstrom had read the complaint, that he was “familiar with the standard of care” for such situations, and that Beebout had “deviated from the applicable standard of care and by that action caused injury to Vipond.”

Beebout filed a motion to dismiss, arguing that the affidavit did not meet the specificity requirements of Minn. Stat. § 145.682.  The district court agreed and dismissed Vipond’s claims.

Minnesota Court of Appeals

Vipond appealed.  On appeal, the Minnesota Court of Appeals noted that Minn. Stat. § 145.682 requires an expert witness affidavit to “contain specific details of the plaintiff’s claims, including (1) identification of any experts expected to testify, (2) ‘the facts and opinions to which the expert is expected to testify,’ and (3) ‘a summary of the grounds of each opinion.’”

Vipond argued that no expert testimony was required at trial to make a finding of malpractice because her claims fell “within the general knowledge or experience of laypersons” or that Dr. Halstrom’s affidavit was sufficient.  The court disagreed.

The court ruled that an expert affidavit was necessary because all of the alleged conduct occurred during a medical examination and an average layperson would not be equipped to know whether this examination fell outside the standard of care.  The court also ruled that Dr. Halstrom’s affidavit was insufficient to satisfy the disclosure requirements of Minn. Stat. § 145.682 because he failed to state what the applicable standard of care is or how it was violated.  He also failed to identify any facts that he used to formulate his opinion, aside from referencing that he read the complaint.

The Minnesota Court of Appeals affirmed the dismissal of Vipond’s complaint.

Pills

Scope of Health Expert Testimony in Dispute in Opioid Trial

The scope of a health expert’s testimony is a matter of heated contention between the parties in a landmark federal opioid trial.

The Dispute

The Cabell County Commission and the City of Huntington in West Virginia claim that three wholesale drug companies, McKesson, Cardinal Health, and AmerisourceBergen, should be held accountable for the costs of opioid addiction in West Virginia communities. The government entities claim that the three wholesalers compounded the opioid crisis by saturating the region with opioids.

According to the Cabell County Commission and the City of Huntington, the drug companies distributed nearly 100 million opioid pills in Cabell County over a 10-year period. A West Virginia drug overdose death report states that 7,200 West Virginians died with at least one opiate in their system between 2001 and 2015. Cabell County attorney Paul Farrell Jr. has stated that there have been about 1,100 opioid-related deaths and 7,000 overdoses in the past decade in Cabell County alone.

The lawsuits claim that the distributors breached their duty to monitor, detect, investigate, refuse, and report suspicious orders of prescription opioids coming into West Virginia over the past several years.

The Expert Witness Dispute

As the case is finally proceeding to trial after a long delay due to COVID-19, the drug companies filed objections to the proposed expert testimony of health official witnesses, who walk the line between fact and opinion witnesses. The drug companies argued that health official witnesses were interviewed without knowledge, which means they are experts expressing their opinion on the matter instead of just the facts.

The main dispute is over the testimony of Dr. Rahul Gupta. Dr. Gupta served as the Commissioner of Public Health and West Virginia State Health Officer from 2015 to 2018 and as the executive director of the Kanawha-Charleston Health Department for the five years before that. The Washington Post recently reported that Dr. Gupta is a leading candidate to head the Office of National Drug Control Policy under President Joe Biden.

The drug companies wanted to limit Dr. Gupta’s testimony to what he experienced and observed during his time dealing with the communities that have been affected by the opioid epidemic. They argued that, “Gupta’s high-level involvement in opioid-related projects do not give him carte blanche to opine as a hybrid expert on any and all issues related to the opioid epidemic in West Virginia.”

The drug companies hoped to prevent Dr. Gupta from testifying about whether opioids are a gateway to illegal street drugs, whether oversupply of prescription drugs led to overdose deaths, how the opioid epidemic affected the foster care and education systems, and the nature of addiction.

Gavel and scales

Maryland AG Invites Public to Comment in Review of Chief Medical Examiner’s Cases

The Maryland Attorney General’s Office has invited the public to comment as part of the review of in custody death investigations that were conducted by the office of Dr. David Fowler, who served as the chief medical examiner of Maryland.

The Controversy

Dr. David Fowler was a key defense witness in the trial of Derek Chauvin, the ex-Minneapolis police officer who was convicted in the murder and manslaughter of George Floyd. Dr. Fowler testified that Floyd died of a sudden heart rhythm problem due to his heart disease while being restrained by the police. He testified that Floyd’s cause of death was “undetermined” and not a homicide. Dr. Fowler’s testimony was contradicted by several other experts who said that Floyd died due to a lack of oxygen.

Following Dr. Fowler’s testimony at Chauvin’s trial, the former medical director of Washington, D.C., Roger A. Mitchell wrote a letter to Maryland Attorney General Brian Frosh, saying that Dr. Fowler’s testimony and conclusions were so far outside the bounds of accepted forensic practice that all his previous work could come into question.  This letter was signed by 431 doctors from around the country.

The letter stated, “Dr. Fowler’s stated opinion that George Floyd’s death during active police restraint should be certified with an ‘undetermined’ manner is outside the standard practice and conventions for investigating and certification of in-custody deaths. This stated opinion raises significant concerns for his previous practice and management.”

Attorney General Response

After receiving this letter, Maryland Attorney General Brian Frosh made the decision to review all cases from 2003 to 2019, which fell under Dr. Fowler’s tenure.

Frosh’s office released the following statement, “My office, in consultation with Governor Hogan’s Chief Legal Counsel, has begun working to develop the process and timeline for the audit of in-custody death determinations made by the Office of the Chief Medical Examiner (OCME) during the tenure of Dr. David Fowler.”

Frosh continued, “We are committed to overseeing a professional and independent audit that adheres to the highest standards of impartiality and integrity. We will be consulting experts, examining similar audits in other jurisdictions, and doing a preliminary review of OCME data and protocols. Our intent is to appoint a panel of independent subject matter experts to perform the audit, and at the conclusion of the review, to release a public report on its findings.”

The Maryland AG’s office also indicated that it was taking steps to wall of those in its office representing the Office of the Chief Medical Examiner and any of its current and former employees from those who are involved in the review of the office’s reports.

The Invitation to Submit Public Comments

Maryland Attorney General Frosh invited input from members of the communities affected by the focus of the audit or interest or expertise in the work of the Office of the Chief Medical Examiner. Members of the public who would like to provide a comment are encouraged to do so by June 7, 2021 through email to OCMEaudit@oag.state.md.us or via mail to the office of the Attorney General, 200 St. Paul Place, Baltimore, MD 21202.

young man swearing an oath, crossing his fingers in his back

Maryland Investigating All Police Custody Deaths Examined by Chauvin Expert Witness

Dr. David Fowler gained national attention — most of it unfavorable— when he testified as a defense expert in Derek Chauvin’s trial. Chauvin was convicted of murdering George Floyd by kneeling on his neck for more than nine minutes, preventing an adequate supply of oxygen from reaching his heart. Prosecution experts testified that Chauvin’s actions caused Floyd’s heart to fail.

Fowler offered an alternative explanation. He suggested that it was impossible to pinpoint a cause of death, but attributed the death to a variety of circumstances, including preexisting heart disease, Floyd’s ingestion of fentanyl and methamphetamine, and carbon monoxide poisoning from vehicle exhaust.

The jury rejected Fowler’s explanation when it found that Chauvin caused Floyd’s death. But Fowler has frequently rendered expert opinions that favor police officers when a suspect dies in their custody. Whether Fowler based his opinions on medical facts or a pro-police bias is now under investigation.

Lawsuit Against Fowler

Fowler was recently sued by the family of Anton Black, a young man who died under circumstances described as “chillingly similar” to Floyd’s death. During a police encounter, officers in a Maryland town took Black to the ground and pressed against his neck.

An autopsy concluded that “the stress of his struggle” with police contributed to Black’s death, along with bipolar disorder and underlying heart issues, but found no evidence “that restraint by law enforcement directly caused or significantly caused or significantly contributed” to the death. Fowler gave final approval to the conclusion that the death was accidental.

The lawsuit accuses Fowler “of obstructing the officer-involved death investigation by delaying the release of an autopsy for months, being improperly influenced by police and clearing the path for police to ‘develop a narrative that absolved the involved officers of their wrongdoing’.” The autopsy was released to Black’s family only after Maryland’s governor intervened.

Maryland Investigation

Now Fowler is facing an investigation in Maryland, where he was the state’s chief medical examiner from 2002 to 2019. The investigation was announced by the Maryland attorney general and the governor’s office. It will ask independent experts to probe all investigations of deaths in police custody that were overseen by Fowler.

The investigation followed a letter signed by 432 doctors around the country who accused Fowler of advancing an expert opinion for Chauvin that was “outside the standard practice and conventions for investigating and certification of in-custody deaths.” The letter states that professional disagreement with Fowler’s opinion in Chauvin’s case was not a matter of opinion but a question of ethics.

Fowler argues that his opinion in the Chauvin trial was “formulated after the collaboration of thirteen other highly experienced colleagues in multiple disciplines” and that his evaluation “set an ethical standard for the work needed in sensitive litigation.” Other experts disagree with Fowler’s claim of professionalism.

Families Complain About Fowler’s Conclusions

Fowler’s pattern of exonerating the police when deaths occur in police custody is not limited to his opinions concerning the deaths of Anton Black and George Floyd. The families of Karreem Ali and Tyrone West have spent years asking authorities to review Fowler’s conclusions.

Witnesses saw West die after police officers beat him and attacked him with pepper spray. Fowler decided that West, age 44, died of a heart condition that was exacerbated by the summer heat and the stress of his police encounter. The city of Baltimore settled the family’s wrongful death claim for $1 million, a settlement that suggests the city’s lack of confidence in Fowler’s opinion.

Ali died after the police shocked him with a Taser 16 times. Fowler attributed the death to “schizophrenia induced agitated delirium,” a condition that, in the view of most medical authorities, doesn’t exist. Montgomery County paid $450,000 to settle a wrongful death suit brought by Ali’s family.

Expert Accountability

A website that supports medical examiner and death investigation reform has compiled resources that address the lack of accountability for medical professionals who offer cause-of-death opinions in court. The website contends that 66% of deaths in police custody during 2015 were misclassified by medical examiners and coroners. Most pathologists report that they have felt pressure to change their findings in death investigations.

The county coroner system is particularly problematic. The website reports that 43% of forensic pathologists have had a cause of death changed by a coroner who prepared a death certificate. Many county coroners have no medical training at all.

Proposed reforms include:

  • Assuring that medical examiner offices are independent of law enforcement offices. When medical examiners see themselves as working to help the police, they may feel a need to justify the actions of officers who cause deaths.
  • Implementing systems that allow medical examiners to report attempts to pressure them to exonerate police or to influence death investigations. The system should include protection against retaliation for making a report.
  • Eliminating elected county coroners who have no medical training yet pronounce a cause of death.
  • Requiring all autopsy reports to be prepared by certified pathologists.

When pathologists testify as expert witnesses, accountability needs to come from licensing bodies. Experts may legitimately disagree with other. It isn’t unethical to express an honest opinion that others do not share. It is unethical to slant an opinion in favor of the party who is paying the expert to testify.

The review of Fowler’s work by independent experts is a belated attempt to bring accountability to expert opinions that are far outside the mainstream. Ideally, every suspicious death in police custody should be subjected to independent review when a medical examiner exonerates the police.

 

Forensic Pathologist and Other Expert Witnesses Help Innocent Woman Avoid a Return to Prison

Kimberly Long was convicted of murder in 2005. It took years for lawyers, with the assistance of forensic experts, to establish her innocence.

Long spent seven years in prison before she was released. The prosecution’s appeal of the order granting her a new trial left her wondering whether she would return to prison for a crime she didn’t commit. Fortunately, her freedom is now assured.

Facts of the Case

Long returned to her home in Corona, California, where she found the body of her boyfriend, Oswaldo Conde. Lacking any obvious suspects, the investigating officers in the Corona Police Department focused their investigation on the belief that Long had murdered him. They based that belief on the fact that Long was in an intimate relationship with Conde, she admitted having an argument with him before he died, and she called the police to report finding his body.

Long passed a polygraph test. Polygraph results are inadmissible in court, but the police like to use them to confirm their own suspicions. When the polygraph does not confirm their suspicions, they tend to dismiss the results.

A man named Jeff Dills told the police that he dropped Long off at her home 49 minutes before she called 911. Long told the police that she called 911 immediately after she discovered Conde’s body. The police viewed the discrepancy between Dills’ and Long’s timelines as evidence that confirmed Long’s guilt. Dills was also a suspect until he offered to cooperate with police.

Long was charged with murder based on Dills’ statement. Dills testified at a preliminary hearing but he died before Long’s trial. His preliminary hearing testimony was introduced as evidence at Long’s trial.

The first jury to hear the case hung, with nine jurors voting for acquittal. The second jury found her guilty. The verdict surprised the trial judge, who said that he would have acquitted her if the case had been tried to the court. California’s appellate courts nevertheless affirmed the conviction.

Federal courts that reviewed the conviction declined to vacate it, in part because federal statutes governing habeas corpus review severely restrict the power of federal judges to do justice in state criminal prosecutions. A district court judge said it was “unfortunate” that Long was convicted on the basis of preliminary hearing testimony given by a witness who died before trial. An appellate judge opined that it would have been nearly impossible for Long to commit the murder and eliminate all evidence of her involvement in the 49 minutes that she was allegedly with Conde before she called 911.

New Forensic Evidence

Eleven years after her conviction, Long asked for a new trial based on expert evidence that her trial lawyer failed to present. A forensic pathologist determined that Conde died hours before the time that Dills claimed he brought Long home. That evidence destroyed the prosecution’s weak theory of Long’s guilt.

Long also presented an expert opinion that Conde’s blood would have splattered onto his killer. Crime scene photos showed that blood had splattered in all directions from Conde’s body. No blood was found on Long’s clothing or body.

Finally, DNA evidence was detected at the crime scene that had not been previously analyzed. The DNA belonged to an unknown male.

The trial judge decided that Long’s attorney failed to provide Long with effective legal assistance. The lawyer should have retained experts and presented the evidence that Long identified eleven years later. The lawyer should also have discovered and presented evidence of death threats that Conde received from his ex-girlfriend.

Rather than conceding that it prosecuted an innocent person, the state appealed the judge’s order granting Long a new trial. The court of appeals decided that the performance of Long’s attorney was not deficient.

Supreme Court Decision

Long appealed to the California Supreme Court. The supreme court reversed the court of appeals’ decision.

The court recognized that an effective attorney would have consulted a time-of-death expert. The prosecution’s case depended entirely on the assumption that Long killed Conde less than an hour before she called 911. Given that fact, it was important for the defense to determine whether Conde actually died within that limited window.

The only expert consulted by Long’s lawyer was an accident reconstruction expert. That expert was an engineer who had no medical training that would allow him to determine a time of death.

A law professor with years of experience as a criminal defense lawyer testified that a reasonable lawyer would consult with a pathologist to obtain time-of-death evidence when time of death is critical to the prosecution’s case. Relying on an engineer was unreasonable.

The supreme court agreed with the trial court’s decision to grant Long a new trial. Facing a complete lack of evidence that Long murdered Conde, the prosecution recently announced that it would not retry Long. Whether the police will make a belated attempt to identify the actual killer is unclear.

Lessons Learned

The defense attorney testified that he didn’t do more because he assumed that time of death estimates cover a wide range of time and that the range would not have excluded Long as a possible killer. The supreme court pointed out that the lawyer made that assumption without consulting an expert witness.

The supreme court acknowledged that time-of-death estimates are often inexact. Yet the lawyer had no reason to believe “that any range derived from the available evidence would necessarily encompass the prosecution’s time frame — a time frame that tended to rule out the possibility that someone other than Long committed the crime.” The supreme court held that it was unreasonable to “write off the possibility that a time of death estimate would help exculpate Long” without first consulting with an expert.

Lawyers can make a reasonable judgment not to call an expert witness, but only an informed judgment is reasonable. The supreme court’s decision is a reminder that defense attorneys must consult with experts whenever an expert opinion might assist the defense. Lawyers should not assume that an expert witness will be unhelpful without consulting with an expert to determine whether an expert opinion might help create a reasonable doubt about a client’s guilt.

 

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Epic Games CEO Calls Apple’s Expert Witness’ Claims “Baloney”

The legal battle between Epic Games and Apple has heated up with the Epic Games CEO calling the Apple expert witness’ testimony “baloney.”

The Dispute

Epic Games is the creator of the popular online game Fortnite.  In August, Epic set up its own in-game payments system, which effectively circumvented Apple’s App Store payment system.  This avoided the 30 percent surcharge that Apple collects on App Store purchases.  Apple removed Fortnite from its iOS App Store for violating its rules.

The Legal Battle

Epic filed an antitrust lawsuit against Apple, climbing that Apple’s App Store was an effective monopoly. Specifically, Epic challenged Apple’s restrictions on apps from having other in-app purchasing methods separate from the one offered by Apple’s App Store. Apple defends itself by arguing that its rules are necessary because Apple has chosen to take responsibility for the safety, security, and privacy preservation of its users. Apple argues that consumers are free to select a mobile smartphone platform that takes a different approach from Apple.

Contested Expert Testimony

Apple presented Professor Daniel L. Rubinfeld, Ph.D. as one of its expert witnesses. Rubinfeld testified that Apple’s choice to not allow third-party payment processing was valid. He stated, “Apple’s design choice to not facilitate sideloading, i.e., to create a ‘walled garden,’ was made before the first iPhone was sold and before Apple created the App Store, supporting my view that this design choice is procompetitive. The vertical restraints that Epic challenges are crucially responsible for enabling the growth of the iOS ecosystem and the benefits that flow from it. They are procompetitive, prevent opportunistic behavior and free riding, and foster interbrand competition.”

Rubinfeld claimed that the App Store’s policies and rules are necessary to “keep users safe and secure, to give users the confidence to take advantage of the powers of the iPhone and its apps, and to ensure that the iOS platform itself stays healthy and thrives in the face of increasingly well-funded and sophisticated bad actors who would — whether by design or as collateral damage — cause harm to iPhone users.”

Rubinfeld testified that the Apple’s Developer Program License Agreement “is procompetitive because it enables millions of developers to combine their complementary assets, skills, knowledge, and intellectual property with the revolutionary capabilities of Apple’s iPhone on a platform that protects users and gives them confidence to freely and fully explore and take advantage of those developers’ contributions.”

Rubenfeld also testified that allowing alternative app stores would require Apple to redesign its hardware and software. “The duty upon Apple is more than the usual duty to deal; it would include a duty to redesign its hardware and software — both of which are covered by Apple’s intellectual property — to make the iPhone interoperable with alternative app stores and with apps that would not qualify under Apple’s app-review guidelines for distribution through the App Store.”

Epic’s Response

Tim Sweeney, the CEO of Epic Games, took to Twitter to blast Rubinfeld’s testimony. He wrote, “That’s baloney! iOS already has a mechanism for users to install apps from the web – the Apple Enterprise Program. Only contractual limitations prevent it from being used for consumer software distribution.”

The trial is scheduled to begin on May 3 in United States District Court for the Northern District of California before Judge Yvonne Gonzalez Rogers.

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 own evidence 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.