Category Archives: In the News

a doctor and a child

Another Shaken Baby Conviction Based on Unreliable Evidence is Reversed

 

A Mississippi jury convicted Joshua Clark of murdering his four-month-old daughter, Kyllie Clark. That tragic death spawned a tragic prosecution that was based on the discredited diagnosis of shaken baby syndrome.

The alleged “syndrome” has been debunked, a reality that too many prosecutors refuse to acknowledge. Prosecution experts continue to testify that they can confidently diagnose the cause of a baby’s death from evidence that is inherently ambiguous. Fortunately, the Mississippi Court of Appeals recently recognized that convictions based on discredited expert testimony are inconsistent with the right to a fair trial.

Facts of the Case

Kylie died in 2008, a time when (as the court noted) criminal charges based on shaken baby syndrome were common. Clark had no criminal record. Clark’s wife knew he was a good father. Although several people lived in Clark’s home, no witness had ever seen Clark shake or mistreat his baby. For that matter, no witness ever saw Clark mistreat any of his children.

Clark’s wife left the home in the middle of the afternoon to run errands. Clark stayed home to watch their children. About ten minutes before his wife returned, Kyllie (who had been fussy all day) made a gasping sound and went limp.

Clark’s wife returned as Clark was getting dressed so he could take Kyllie to a doctor. Clark’s wife attempted CPR. Clark and his wife then rushed Kyllie to the hospital. As she was entering the hospital, Clark’s wife bumped Kyllie into the hospital door.

Kyllie did not respond to aggressive medical efforts to revive her. Doctors at the hospital thought that Kyllie probably experienced sudden infant death syndrome.

Medical staff took Kyllie to a children’s hospital. More efforts were made to revive her. Kyllie was diagnosed with rib fractures, retinal and subdural hemorrhages, and brain swelling. She was declared brain dead and removed from life support.

Dr. Karen Lakin, a pediatrician, concluded that tests showed older bleeding of the brain followed by a new bleed. A police investigation later revealed potential causes of an earlier brain injury, none of which were associated with Clark.

Dr. Lakin noted her opinion in the medical records that Kyllie died from shaken baby syndrome. A social worker reviewed that record and made a child abuse report to the police. Because Kyllie was in Clark’s exclusive care when she began to experience breathing difficulties, the police decided that Clark must have injured her. The murder charge followed.

Trial Court Proceedings

Clark’s lawyer, perhaps fearing Clark would be sentenced to death if convicted, advised Clark to plead guilty to a reduced charge of depraved-heart murder. The lawyer did not consult an expert witness and was apparently unaware of the controversy surrounding a diagnosis of shaken baby syndrome. Clark entered the plea and was sentenced to life imprisonment.

The trial court later granted a postconviction motion to withdraw the plea. The judge decided that Clark’s lawyer breached the duty to provide effective assistance to a client. In the court’s view, an effective lawyer would investigate the medical evidence and would retain an expert witness to challenge a prosecution witness who alleged that death was caused by shaken baby syndrome.

The case went to trial. Dr. Lakin, having learned that shaken baby syndrome is a discredited diagnosis, now referred to the diagnosis as abusive head trauma. Nothing about the diagnosis, other that the term used to describe it, actually changed. Given the adverse publicity surrounding shaken baby syndrome, some child abuse pediatricians who cling to the belief that the syndrome can be infallibly diagnosed have tried to avoid controversy by giving the syndrome a different name.

Clark’s new lawyer filed a motion to exclude Dr. Lakin’s testimony on the ground that abusive head trauma is not a medically accepted diagnosis in the absence of external evidence of an injury. Although the motion was supported by a wealth of scientific literature, the trial court allowed Dr. Lakin to testify.

Dr. Lakin testified that someone killed Kyllie by shaking her. She also testified to an absolute certainty that trauma was inflicted within the three hours during which Kyllie was in Clark’s exclusive care. On cross-examination, however, Dr. Lakin admitted that she could not determine the exact time at which Kyllie’s brain injury occurred.

Dr. Lakin testified that her opinion was supported by research findings that were endorsed by the American Academy of Pediatrics (AAP). On cross-examination, she admitted that she was unaware of the AAP’s updated position, which acknowledges that no simple test distinguishes between accidental and intentional causes of brain trauma. Dr. Lakin was also unaware that the AAP no longer advises pediatricians to presume that child abuse occurred when subdural hematoma, retinal hemorrhages, and brain swelling are found.

Dr. Lakin admitted that she did not examine Kyllie for a neck injury. She also admitted that Kyllie’s rib fractures were healing and acknowledged that healing does not start until a week after the injury occurs. Notwithstanding the notation she made in her medical records, she testified that she didn’t mean to imply that Clark had anything to do with Kyllie’s rib injuries.

Defense Expert Evidence

Testifying as a defense expert, forensic pathologist Dr. Mark Shuman told the jury that Kyllie’s brain injury was probably caused by a blunt head injury or impact head injury, not by being shaken. Dropping a baby or dropping something on a baby’s head are examples of accidents that could produce a blunt head injury or impact head injury. Relying on biomechanical engineering studies, Dr. Schuman testified that the absence of any neck injury ruled out any likelihood that Kyllie was shaken.

Dr. Schuman explained that the onset of symptoms of a brain injury can be delayed. He therefore disagreed with Dr. Lakin that symptoms always develop immediately after a brain injury and that Kyllie must therefore have been injured while she was in Clark’s exclusive care. Dr. Schuman also cited studies proving that retinal hemorrhages can have many causes, including efforts to revive a baby.

According to Dr. Schuman and a pathologist who testified for the prosecution, the best way to place a date on a brain injury is to prepare a histology slide of the dura (the connective tissue that forms a membrane surrounding the brain). They also agreed that the histology slides created under the supervision of a state-contracted doctor were poorly prepared, and none could be used to place a date on the brain bleeding.

In general, Dr. Schuman explained that forensic pathologists focus on science-based conclusions. While many pediatricians believe that shaken baby syndrome is a valid diagnosis, Dr. Schuman noted that no scientific study has ever established that it is possible to shake a baby hard enough to cause a primary brain injury. Nor does any study explain how a baby shaken that hard could avoid having a neck injury.

Clark testified that he did not abuse Kyllie. No witness saw him abusing Kyllie. The jury nevertheless found him guilty. The judge sentenced Clark to forty years in prison.

Appellate Analysis of Daubert Motion

The Mississippi Court of Appeals concluded that the trial court should not have admitted Dr. Lakin’s testimony. Both the Daubert hearing and Dr. Lakin’s trial testimony made it plain that Dr. Lakin’s shaken baby syndrome diagnosis was not grounded in a reasonable scientific methodology.

The appellate court noted that Dr. Lakin has testified for the prosecution in other cases, but noted that an expert’s opinion in each individual case must be grounded on a reliable methodology and based on adequate facts. Whether Dr. Lakin met that standard in the past does not determine whether her present opinions are admissible. In addition, newer research debunking a diagnosis of shaken baby syndrome undermines the continuing reliability of that diagnosis.

A prosecution-friendly dissent argued that Dr. Lakin is a qualified expert. The majority did not take issue with Dr. Lakin’s qualifications. Rather, the majority focused on whether she based her opinions in Clark’s case on a reliable methodology.

The court noted that “Dr. Lakin needed to establish that a qualified pediatrician can reliably diagnose a child with Kyllie’s injuries (subdural hemorrhages and retinal hemorrhages) as a child suffering from injuries caused by [shaken baby syndrome].” Dr. Lakin also needed to establish the time at which the injuries occurred because timing was the sole evidence against Clark. She did neither of those things.

Dr. Lakin admitted that many articles in a variety of specialties, from biomechanics to neuropathology, conclude that shaken baby syndrome is not a reliable diagnosis. She does not know the error rate associated with the diagnosis and has not conducted any research of her own to determine whether other causes, such as a fall from a short height, might cause the same symptoms. She could cite no supporting evidence for her opinion that brain injuries always cause immediate symptoms. She thought there might be literature from the AAP to support her opinion but the prosecution failed to produce it, despite promising to do so at the Daubert hearing.

In contrast to Dr. Lakin, Clark produced overwhelming medical evidence at the Daubert hearing to establish the unreliability of a shaken baby syndrome diagnosis. The court recognize that evidence-based medical experts are increasingly abandoning the belief that the diagnosis is sound.

The trial judge evaluated none of that evidence. The judge simply decided that Dr. Lakin was qualified to testify. Because the judge failed to carry out the judicial gatekeeping function imposed by Mississippi’s adoption of the Daubert rule, the appellate court reversed Clark’s conviction.

Surprisingly, the court remanded the case for a new trial. It did so after finding that the only evidence of Clark’s guilt was improperly admitted. Disregarding Dr. Lakin’s expert evidence leaves no admissible evidence at all upon which the jury could find Clark guilty. Since the admissible evidence fails to prove guilt beyond a reasonable doubt, Clark should have been acquitted. The prosecution should not have a second chance to convict him.

Lessons Learned

Clark’s case is a further reminder that expert evidence for the prosecution should always be challenged. In Daubert states, a careful motion that is supported by a defense expert can lead to the exclusion of unreliable evidence. Defense attorneys who consult with experts in order to challenge prosecution experts can save defendants from a wrongful conviction.

 

Gavel and scales

Expert Designation Issue Loses Med-Mal Case

 

A California appeals court has affirmed the decision of a trial court in a case where the patient sued a doctor for malpractice, but was unable to present testimony from the doctor who successfully treated her because the doctor was not designated as an expert witness.

The Unsuccessful Treatment

From 2014 to 2016, Lyudmila Lerner was treated by Stanley Cowen, M.D. for a wound on her leg.  During the time Lerner was treated by Dr. Cowen, her wound grew in size and her discomfort increased.

In March 2016, Lerner suffered heavy bleeding from the wound.  She was admitted to Cedars-Sinai Hospital for an emergency procedure.  Dr. Suzuki treated Lerner at Cedars-Sinai.  Dr. Suzuki’s treatment resulted in fast and positive results.  Lerner was discharged from the hospital within two weeks and has not suffered a relapse since.

Trial Court Proceedings

In October 2016, Lerner filed a complaint against Dr. Cowen. Lerner argued that Dr. Cowen’s “breach of the applicable standard of medical care” exacerbated her wound and increased her pain and suffering during the time of treatment.  The case was scheduled for trial on January 14, 2019.

Dr. Cowen filed a motion in limine, arguing that the court should exclude the proposed testimony of Dr. Suzuki because he was an undesignated expert witness.  Dr. Cowen argued that the opinion of a physician who was not designated as an expert is irrelevant in a medical malpractice action.  Dr. Cowen pointed out that Lerner had taken the deposition of Dr. Suzuki without providing him with any notice. Because of her failure to properly provide notice, Dr. Cowen was unable to attend or participate in the deposition in any way.

Dr. Cowen also noted that Lerner served an expert designation in December 2017 which listed one retained expert and one non-retained expert.  This expert designation did not list Dr. Suzuki as either a retained or non retained witness.  However, at the time of the trial, she indicated that she intended to call Dr. Suzuki as a witness at trial.

Lerner filed an opposition to Dr. Cowen’s motion in limine, arguing that as a treating physician, Dr. Suzuki “was permitted to testify to his understanding of the standards of medical care and their application to the plaintiff’s treatment.”  Lerner also argued that Dr. Cowen should have been aware of Dr. Suzuki’s role as a treating physician and had been given a copy of the deposition.

The trial court heard argument on the issue and granted Dr. Cowen’s motion in limine, preventing Dr. Suzuki from testifying at trial.  The jury returned a defense verdict.

The Appeal

Lerner appealed.  On appeal, she argued that the trial court had abused its discretion in excluding the testimony of Dr. Suzuki.  The California Court of Appeals for the Second District reviewed the relevant case law as to whether a treating physician must be designated as an expert in order to testify.

The court of appeals determined that the trial court was correct.  It wrote, “testimony from a treating physician such as Dr. Suzuki is not admissible in a medical malpractice trial unless the physician is designated as an expert. (County of Los Angeles v. Superior Court (1990) 224 Cal.App.3d 1446, 1455 (County of LA).) Like other expert witnesses, treating physicians have knowledge ‘sufficiently beyond common experience,’ and their testimony is ‘[b]ased on matter (including . . . special knowledge, skill, experience, training, and education) . . . that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.’ (Evid. Code, § 801, subds. (a), (b).)”

The court of appeals affirmed the judgment of the trial court and awarded Dr. Cowen the costs of his appeal.

Opioids

Expert Helps Florida Defendant Avoid Conviction of Nonexistent Crime

The Winter Springs Police Department in Seminole County, Florida arrested Christopher Toro for murder in January 2018, as the Orlando Sentinel reported. Prosecutors might have cringed at headlines that reported the subsequent dismissal of that charge after an expert witness explained why Toro’s alleged conduct was not covered by the Florida law that was then in effect.

Criminal Justice and Drug Overdoses

Like many parts of the country, Seminole County has experienced a steep increase in opioid-related deaths. Some of those deaths have been related to fentanyl, a powerful painkiller that is primarily prescribed to cancer patients. Fentanyl and similar synthetic opioids are also manufactured illicitly.

According to the Centers for Disease Control, more than 72,000 Americans died from opioid overdoses in 2017. In an effort to be perceived as attacking the problem of drug-related deaths, Seminole County prosecutors have aggressively charged alleged drug dealers with murder for supplying drugs to addicts who die from an overdose.

Prosecutors charged Toro with murder based on the allegation that he provided fentanyl to Alfonso Pagan, who apparently mixed it with heroin. While nobody forced Pagan to use those drugs, charging drug providers with murder when drug addicts overdose is a long-standing but largely ineffective strategy in the war on drugs.

Using the criminal justice system to address a public health problem has never been smart. Charging 72,000 drug suppliers (some of whom are doctors) for murder because opioid users made unwise decisions isn’t a practical way to tackle the problem of deaths caused by drug overdoses.

Devoting public resources to arrests and prosecutions rather than treatment and prevention has been counterproductive, but arrests make headlines. Arrests give public officials an easy way to show the public that they are doing something, even if they aren’t doing something helpful or smart.

Expert Explains Fentanyl to the Court

At the time Toro was charged, the Florida law permitting drug dealers to be charged with murder applied to deaths resulting from the consumption of specific drugs, including “opium or any synthetic or natural salt, compound, derivative, or preparation of opium.” Fentanyl, however, is not synthetic opium.

Fentanyl was not added to the list of drugs to which the murder statute applies until eight days after Pagan’s death. The prosecutor understood that the revised law had not taken effect, but perhaps understanding the value of a good headline, charged about a dozen defendants under the old law.

The prosecutor took the unsupportable position that the statutory reference to “opium” includes all “opioids,” apparently on the theory that different words mean the same thing if they share a root.

Toro’s public defender used the state’s own expert witness to explain the prosecution’s error. Jannet Brown, a crime analyst with the Florida Department of Law Enforcement who testifies as an expert for the state, forthrightly admitted that “fentanyl is a synthetic opioid and not made from opium.”

The prosecutor had no ready explanation for the legislature’s addition of fentanyl to the statute if fentanyl was already covered in the statute’s inclusion of opium. Courts presume that legislatures do not add needless words to statutes.

Charge Dismissed

The judge agreed with the expert, ruling that “fentanyl is not made from opium at all and essentially has nothing to do with opium.” Toro can thank the honest testimony of the state’s expert witness for saving him from being convicted of a nonexistent crime.

Similar logic will likely lead to the dismissal of other Florida murder charges involving deaths allegedly resulting from fentanyl distribution, including a charge against a man who accepted $50 to introduce a drug user to the dealer who sold her the fentanyl on which she overdosed. The theory that a “middleman” commits murder by introducing a drug user to a drug dealer would have strained even if the statute applied to fentanyl.

Whether or not making an introduction can be charged as a murder, the charge should be dismissed because fentanyl was not yet listed in the statute that applies to deaths caused by illicit drug ingestion. Expert testimony is again likely to establish that Seminole County charged a defendant with a crime that did not exist.

Baby

Expert on Postpartum Depression to Provide Defense Testimony in Baby Murder Trial

The defense team of a man on trial for the murder of his infant son has announced that they plan to call an expert on postpartum depression to testify on the man’s behalf.

The Death

In August 30, 2017, 4-month-old Sterling Koehn was found dead in his baby swing by Chickasaw County sheriff’s deputies after his father, Zachary Koehn, requested that an ambulance come to his apartment. Sterling’s body was found with maggots crawling all over him and with a diaper that hadn’t been changed in over a week. Sterling weighed less than 7 pounds.

Koehn told the responding deputies that his girlfriend had fed Sterling that morning “and he was fine.”  Harris reportedly checked on the baby a couple hours later and found that he had died.

An autopsy of the body showed “maggots in various stages of development in his clothing and on his skin.” A forensic entomologist examined the maggots and concluded that Sterling had not been removed from the baby swing in more than a week and had not had a diaper change or bath during that time. The Iowa state medical examiner ruled the death was a homicide and the cause of death was failure to provide critical care.

Sterling’s parents, Zachary Koehn, 28, and Cheyanne Harris, 20, were charged with first-degree murder and child endangerment.  Koehn and Harris are being tried separately.

Murder trial of Zachary Paul Koehn

Koehn’s defense team retained an expert on postpartum depression to testify as an expert witness. Postpartum depressions can cause debilitating anxiety, depression, and fatigue in new mothers. The prosecutor on the case, Assistant Iowa Attorney General Denise Timmins, asked the court to disallow any evidence of Harris’ mental health.

Public Defender Steven Drahozal said, “The mental health status of that parent, we think, is extremely important to whether or not Mr. Koehn denied care to the child. … This is relevant to whether Mr. Koehn acted appropriately and willingly in denying care to his child and whether he was inquiring and what information he was being given, who the primary caretaker was, what kind of care was being given.”

Drahozal intends to argue that Koehn believed that Harris was caring for the infant, but that she wasn’t because of postpartum depression. Koehn’s defense team also subpoenaed Harris to testify, but her attorney, Aaron Hawbaker, invoked her Fifth Amendment right against self-incrimination.

Hawbaker said, “Nobody from the state or the defense can call her simply to take the stand and assert the Fifth, so we are asserting her right against self-incrimination.”

Koehn’s defense team is also seeking to exclude some of the photos of Sterling’s remains, arguing that the photographs are gruesome and don’t go to prove the nature of the death. Drahozal said that the medical examiner and sheriff’s deputies could testify about the condition of the body and cause of death without using the photos. The prosecution has argued that the images are important to answering questions about the time and manner of Sterling’s death.

pregnant young woman

Potential Testimony of Forensic Anthropologist and Obstetrician Creates Controversy in Skylar Richardson Prosecution

Criminal accusations against Skylar Richardson have made headlines, but news coverage has focused on the sensational and melodramatic aspects of the story. When the case finally goes to trial, crucial testimony from expert witnesses probably won’t make it into the tabloids, but might make the difference between a conviction and acquittal.

Criminal Charges

The prosecution alleges that Brooke Skylar Richardson, at the age of 18 and planning to enter college, murdered her newborn baby and buried the body in her yard. The defense contends that the baby was stillborn and that Richardson, who had concealed her pregnancy, buried the stillborn baby because she didn’t know what else to do.

The prosecution is relying on evidence that Richardson was extremely upset when her doctor told her she was pregnant, and that she ignored advice to obtain an ultrasound and prenatal care. The prosecutor characterizes Richardson as doing nothing to prepare for the baby’s birth, which it views as evidence that she never intended to allow the child to live. Richardson’s actions are also consistent with those of a young woman in denial, a theory that seems at least as plausible as the prosecution’s.

When Richardson saw her doctor again three months later, she was no longer pregnant. She told her doctor that she had given birth to a dead baby girl in the middle of the night and buried the corpse. Whether the doctor violated doctor-patient privilege by disclosing that communication to the police is one of the issues in the case.

John Faine, the lead detective who handled the murder investigation for the Warren County, Ohio Sheriff’s Office was demoted shortly before the scheduled trial. Faine, who is married to a Warren County judge, was accused of carrying on an affair while on duty with a woman he met on Snapchat.

The detective’s alleged misconduct fueled defense concerns about how the police mishandled the investigation. The trial was postponed in the wake of Faine’s demotion.

The Privilege Question

The prosecution wants Richardson’s OB-GYN to testify as a fact witness rather than an expert witness. The prosecution hopes to elicit testimony about the statements that Richardson made to her doctor, both before and after her pregnancy ended.

The trial judge agreed to allow some of Richardson’s medical records, as well as the doctor’s testimony, to be admitted as evidence. That prompted an appeal that again delayed the trial.

Statements to a treating physician are usually privileged when they are made to further the patient’s treatment. Ohio law broadly protects statements made to a physician in a doctor-patient relationship.

The privilege is intended to assure the kind of candor that promotes good health. Patients who fear that their statements will be revealed may conceal critical information from their doctors for fear that their statements will become public knowledge. That fear may inhibit medical treatment if doctors are not told facts that might affect a diagnosis or treatment.

Bearing in mind the purpose of the privilege, the appellate court might draw a distinction between statements Richardson made to her OB/GYN during her pregnancy in the context of obtaining a diagnosis or treatment, and statements about burying her stillborn baby, which arguably had no relationship to medical treatment. How the court is likely to resolve the issue will probably not be known for several months.

Forensic Expert Criticized

Prosecutors, perhaps with the intent of inflaming the public and influencing the jury pool, have spent months referring to Richardson’s child as “Baby Jane Doe.” Naming the baby creates the impression that the baby was born alive, a disputed fact that prosecutors have yet to prove in court.

Richardson’s attorneys say that Richardson was looking forward to her child’s birth, and had already selected the name Annabelle. Richardson’s attorneys blame the prosecution’s forensic anthropologist for fueling public outrage by claiming that the baby had been burned before being buried. After a second expert found no evidence that the body had been burned, the prosecution quietly retracted the claim made by its forensic anthropologist — but not until after a grand jury indicted Richardson, and after the false accusation tainted the public’s view of the case.

The defense will likely use the forensic anthropologist’s mistake to cast doubt on the reliability of the prosecution’s experts. In addition, investigators originally concluded that Richardson had buried her stillborn baby, but later relied on expert opinions that the baby had been born alive. The defense will likely use that uncertainty to suggest the existence of reasonable doubt.

Richardson’s case underscores the critical need for experts to be certain in their opinions. Richardson may find it impossible to have a fair trial because of the publicity surrounding a horrific but false claim about her actions. If Richardson is guilty, the expert’s mistaken opinion might make it more difficult to secure a conviction.

UFC, fighting ring

Experts Challenged in UFC Antitrust Lawsuit

The phrase “junk science” is so often wielded as an attack phrase against expert witnesses that it has all but lost its meaning. An antitrust lawsuit involving the Ultimate Fighting Championship (UFC) has resulted in predictable accusations of “junk science” in Daubert motions seeking to exclude expert opinions upon which the fighters rely. The phrase is hyperbolic, but it remains to be seen whether the trial judge will regard the experts’ methodologies as sufficiently sound to make their opinions admissible.

Class Action Lawsuit

The UFC is operated by Zuffa, LLC, a company founded by Frank and Lorenzo Fertitta to promote professional mixed martial arts (MMA) competitions. Zuffa acquired the UFC in 2001 for $2 million. At that time, MMA was banned in 36 states and had been condemned by Senator John McCain as “human cockfighting.” Zuffa worked to rebrand the sport and to persuade state regulators to legalize it. By 2016, MMA competitions were legal in every state. Even Senator McCain became a fan.

The former fighters who are suing Zuffa contend that the UFC engaged in an anticompetitive scheme to suppress their wages. They allege that the scheme included signing fighters to exclusive long-term contracts and coercing them to renew those contracts, a tactic that prevents competing promoters from signing the best fighters. The lawsuit also accuses the UFC of acquiring other promoters of MMA, only to shut them down. The result, the fighters say, is a labor market monopoly in professional MMA competitions by the UFC.

Part of the scheme, according to the plaintiffs, involved scheduling fewer bouts than fighters wanted while keeping more fighters under contract than they could use. The UFC allegedly kept fighters under contract, even though they had few fights to offer them, to keep the fighters from being signed by competing promoters.

The UFC has denied the allegations and is opposing certification of the lawsuit as a class action. The UFC has also filed Daubert motions challenging the admissibility of the expert opinions upon which the plaintiffs rely.

Andrew Zimbalist

Everyone agrees that the wages paid to UFC fighters has grown as the sport has grown. To prove that wages would have grown more in the absence of anticompetitive activity, the plaintiffs are relying in part on the expert analysis of economist Andrew Zimbalist.

Zimbalist calculated wage loss by applying the “yardstick method.” The yardstick method is often used to calculate lost profits that result from antitrust violations. The method compares profits earned in similar but competitive markets to profits earned by the plaintiff. The assumption is that profits in similar markets will be similar, and that the comparison thus approximates the profits that were lost due to the antitrust violation. The yardstick method is also used to calculate overcharges by comparing prices charged in comparable competitive markets to prices charged by a company that is allegedly violating antitrust laws.

Zimbalist compared UFC fighters’ wages as a percentage of event revenues to the percentage of revenues earned by athletes in the NBA, NFL, MLB, NHL, and boxing. Although the versions of the expert reports that have been made available to the public are heavily redacted, one source reports Zimbalist’s conclusion that UFC fighters would have made an additional $981 million over the 6 year period if they had been paid the same share of revenue as athletes in the other five sports.

Courts have generally accepted the yardstick method as satisfying the Daubert standard of reliability, but the UFC has branded Zimbalist’s methodology as “junk science.” The UFC argues the players in the four major sports leagues are unionized, and that those markets are therefore not comparable to the UFC. Zimbalist counters that players’ unions have created competitive labor markets by, for example, allowing athletes to become free agents. According to Zimbalist, it is the competitive labor market in league sports that increases player compensation, not simply the fact that players are unionized.

Boxing may be the most comparable industry to the UFC, but the UFC complains that Zimbalist took his figures about boxing wage percentages from a different expert’s analysis of a single promoter (Golden Boy) without verifying the data used by that expert. It isn’t unusual for experts to rely on work done by other experts, and if it is the kind of data that experts routinely rely upon, courts do not expect them to reinvent the wheel. The UFC’s stronger argument might be that using data from one boxing promoter is not an adequate sample, given that there are about twenty fight promoters of nationally televised events.

Hal Singer

A court cannot certify a class unless it concludes that questions of law and fact are common to all class members. The plaintiffs are relying on the expert opinion of Hal Singer to prove that the compensation of all proposed class members is adversely affected by the UFC’s anticompetitive practices. Using regression analysis, Singer opined that 78% of UFC compensation is determined by common variables, including card placement, rank, and weight class. Any anticompetitive practice that reduced compensation in general would arguably affect all fighters if fighter salaries are all influenced by the same factors.

More importantly, Singer offered an expert opinion that fighter salaries were affected by UFC’s alleged practice of putting competing promoters out of business while locking key fighters into long-term contracts. Singer contends that foreclosing competition leads to a lower share of revenues being devoted to fighter compensation. By his calculation, fighters lost $811.2 million to $1.6 billion in compensation due to anticompetitive practices.

Singer agreed that wages paid to UFC fighters have grown, but not in proportion to UFC’s revenues. Whether it makes sense to compare “wage level” (actual wages, which have risen) or “wage share” (wages as a percentage of revenues earned, which have fallen) is a key question that the UFC raises in its Daubert motion. The UFC argues that “an analysis of wage share does not provide a reliable means of inferring anticompetitive effect, antitrust injury or damages because it cannot distinguish between a decrease in wage share as a result of the challenged conduct and a decrease as a result of legal and procompetitive business developments that increase overall revenues.”

Judges are trained as lawyers, not as economists or statisticians. Whether a judge is any more capable than a jury of determining whether the plaintiffs’ experts used “reliable methodologies” in this case is unclear. What is clear is Daubert’s requirement that judges must not expose juries to expert opinions that, in the judge’s view, lack a reliable foundation.  In the coming months, the judge presiding over the antitrust lawsuit against the UFC will need to perform that daunting task.

Murder

High Profile Forensic Psychiatrist Killed Outside Phoenix Office

A high-profile forensic psychiatrist was shot and killed outside his Phoenix office. His death is being investigated in connection with three other shootings that recently occurred in the area.

The Shooting

On Thursday, May 31, witnesses described hearing a loud argument followed by gunshots near Scottsdale and Bell roads in Phoenix, Arizona. The shooter fled the area. The shooter was described as an adult male, bald, wearing a dark colored hat with a short brim. Dr. Steven Pitt was pronounced dead at the scene.

Phoenix psychologist David Weinstock, who worked with Pitt on forensic cases, speculated that Pitt may have been killed because of his work on criminal cases. He told the Arizona Republic, “I could be wrong, but the timing and circumstances sound a lot like someone who was waiting outside his office for him. . . . I suspect this was one who either got out after Steve helped put him away or someone whose case he was working on who felt threatened about what Steve could do.”  Weinstock said that he and Pitt had previously discussed the risks involved in their lines of work.

Pitt’s killing is being investigated for a possible connection with three other people who were recently shot in the Phoenix area. The other victims were Veleria Sharp and Laura Anderson, paralegals at a Scottsdale law firm, and Marshall Levine, who worked at a nearby mental health facility.

Prolific Career

Dr. Steven Pitt, 59, was a Clinical Associate Professor of Psychiatry at the University of Arizona College of Medicine, Phoenix. Pitt’s expertise included mental state at the time of the offense, competency to stand trial, serial rape, sexual harassment, psychic harm, wrongful termination, violence risk assessment, and officer involved shootings. He also focused on murder for hire, psychiatric autopsy, impaired professionals and domestic homicide. Pitt was known for his work in conducting forensic psychiatric evaluations, particularly those combining videotaping and transcription. Pitt worked with the Phoenix Police Department Homicide and Missing Persons Unit and consulted on numerous forensic psychiatric cases throughout the U.S. Pitt was retained as an expert by both the government and defense in criminal cases, and by defense and plaintiff’s attorneys in civil matters. Pitt was known for his work on the investigations of the murder of JonBenet Ramsey, the Columbine school massacre, and the Phoenix Baseline Killer.

The district attorney who worked on the JonBenet Ramsey case, Alex Hunter, explained why he retained Pitt as an expert, “When I talked to different people about him, he came with really high marks. He gave us insights in terms of ‘profiling’ people that we were looking at that I thought were beyond all of our expertise, important, helpful stuff. He’s tough and tenacious, and he isn’t just a book kind of guy. He was particularly valuable in giving us suggestions about the order and timing and nature of the questions we’d be asking the Ramseys. He always has had extremely strong feelings about the case, which, to put it mildly, he wasn’t afraid to share.” Pitt’s public statements about the case strongly suggest he believed Patsy Ramsey to be the killer, an opinion that is both unsupported by any physical evidence and contradicted by DNA evidence that caused Hunter to exonerate the Ramsey family.

Football Locker Room

Lawsuit Alleging Eli Manning Engaged in Sports Memorabilia Fraud Settles Before Experts Testify

Collectors of sports memorabilia sued Eli Manning and the New York Giants, as well as the team’s equipment managers and a company that sells “game-worn” equipment, claiming that they engaged in fraud. The collectors alleged that Manning was vouching for the authenticity of game-worn helmets and jerseys that, in fact, he had not worn in a game.

The lead plaintiff, Eric Inselberg, says he asked the Giants to authenticate the helmets as game-worn, which the Giants did not do. The plaintiffs also based their allegations on a suspicious email from Manning that asks an equipment staffer for “2 helmets that can pass as game used.” According to Manning’s lawyer, Manning was asking for two helmets that had been used in a game, an interpretation that is difficult to square with the words “pass as” that Manning actually used.

Inselberg sent an email to a Giants’ equipment manager after purchasing helmets that Manning had purportedly worn in games. The email asked: “Are these the bs ones eli asked you to make up because he didn’t want to give up the real stuff?” The equipment manager responded with an email that said: “BS ones, you are correct.”

Manning and the Giants were unable to obtain a dismissal of the lawsuit prior to trial. The collectors and the Giants both relied on expert witnesses in submissions they made to the court and were expected to call those witnesses to testify at trial.

Lawsuit Allegations

Inselberg is an enthusiastic collector of Giants memorabilia. He also sells sports memorabilia. In 2011, the FBI claimed that Inselberg was fraudulently selling fake game-worn jerseys. When Inselberg explained that he was getting the jerseys from an equipment staffer, the staffer denied that he provided jerseys to Inselberg. That denial wasn’t surprising, since equipment managers aren’t supposed to enrich private dealers in sports memorabilia, but Inselberg was able to produce cancelled checks to an equipment manager for team jerseys. The equipment manager later admitted that he had been selling equipment to Inselberg for years.

Prosecutors nevertheless charged Inselberg with mail fraud for falsely selling equipment that he represented to be game-worn. More than a year later, after Inselberg’s attorneys amassed evidence that the equipment manager had been selling Inselberg equipment that was falsely represented as having been game-used, prosecutors dropped the charges. The Giants do not dispute that equipment staffers may have engaged in misconduct in 2011, but contend that no fraud occurred in later years.

Inselberg nevertheless sued the Giants and Manning for allegedly engaging in a scheme to scuff helmets and stain jerseys so that they could be sold as “game-worn.” The lawsuit accused the Giants of keeping the FBI’s attention focused on Inselberg in order to divert law enforcement’s attention from the wrongdoing of Giants’ employees.

Unlike Major League baseball, which makes a strong effort to authenticate each item that was worn or used in a game, the NFL has done little to curb fraudulent sales of game-used equipment. The league leaves authentication to each team. According to Inselberg, the Giants made no effort to police the authenticity of equipment that players or equipment managers sold or donated.

Expert Witnesses

Experts use a process of “photo matching” to authenticate a claim that a jersey or helmet was worn during a game. The expert compares the jersey to photos of players that were taken during the game. While an apparently identical jersey might not prove that a jersey was worn during a game, differences in appearance might be taken as evidence that the jersey is a fake.

Inselberg survived summary judgment by presenting the expert opinion of John Robinson of Resolution Photo-Matching. Robinson determined that photos of four out of five helmets he examined, despite being sold as game-used by Eli Manning, did not match photographs of the helmets Manning wore in those games. Robinson opined that Manning probably never wore them in a game.

The Giants retained their own expert, Troy Kinunen, who testified in a deposition that photo-matching is not a reliable way to assess a jersey’s or helmet’s authenticity. According to Kinunen, photo matching “does not take into account that helmets are routinely reconditioned during or after a season, the evidence of which might be found on the inside of the helmet and not the outside.”

Settlement

While the expert testimony may not have been conclusive, it strengthened Iselberg’s case. Coupled with the suspicious emails, Iselberg may have been able to persuade a jury that he was only arrested by the FBI because he had been the victim of false representations that the equipment he sold had been used in Giants’ games. Iselberg claimed that the arrest damaged his reputation and hurt his business.

Manning has consistently denied any wrongdoing. He had much to lose if he lost the trial, as the NFL may have viewed a verdict in Iselberg’s favor as reason to impose a multiple-game suspension on Manning for violating the NFL Conduct Policy. The Giants, meanwhile, have contended that the organization never authorized equipment managers to engage in memorabilia fraud, a position that essentially threw equipment staff under the bus if the jury believed that fraud actually occurred.

With so much at stake, it isn’t surprising that the case settled before Manning had to take the stand and testify. The terms of the settlement are confidential, and the parties released a joint statement reminding the public that neither Iselberg’s claims nor the Giants’ defenses are supported by the settlement agreement.

Smartphones

Expert Witnesses Announced in Apple v. Samsung Damages Trial

Apple and Samsung have filed their lists of witnesses for the upcoming damages trial in the U.S. District Court for the Northern District of California. The two companies are scheduled to go to trial on May 14 to determine how much Samsung owes Apple for infringing three design patents.

Case History

This case began when Apple claimed that Samsung copied the entire design for one of its smartphones. Samsung responded that if there was any infringement, the entire device was not copied as an “article of manufacture.” The case went to the United States Supreme Court for clarification on the term “article of manufacture.” The court sent the case back to district court. Apple is still seeking damages in the amount of the entire device’s value. Samsung seeks to show that only a portion of the design constitutes infringement.

Apple’s Experts

Apple lists Richard Howarth, a senior director of the Apple Design Team and one of the co-inventors of the patents at issue in this case. Howarth is expected to testify about Apple’s design process, the infringed design patents, and the other designs considered by Apple.

Apple intends to call its vice president of product marketing, Greg Joswiak, to the stand. Joswiak will offer testimony regarding Apple’s marketing strategy, the competitive market for smartphones, and the importance of Apple’s design patents to its products.

Apple also plans to call Susan Kare to the stand. Kare was an early designer at Apple and the recent recipient of the prestigious American Institute of Graphic Arts medal. Kare is expected to testify about icon and user interface graphics design and one of the patents at issue in the case.

Apple’s experts include Ravin Balakrishnan, a professor of computer science at the University of Toronto; Alan Bell, an expert on industrial design; Julie Davis, a consultant with expertise in accounting and damages analysis; Karan Singh, a professor of computer science at the University of Toronto; and Tony Blevins, a vice president of procurement at Apple.

Samsung’s Experts

Samsung’s list of experts includes Justin Denison, senior vice president of mobile product strategy and marketing at Samsung Electronics America. Denison is expected to testify about the repairability of Samsung’s phones and the company’s holistic design strategy. Denison may also offer testimony regarding his trips to the repair facility near Samsung’s North American headquarters where he saw phones being disassembled and reassembled.

Samsung also lists Drew Blackard, a senior director of product marketing for Samsung Electronics America. Blackard will testify about the parts of Samsung’s devices that used the infringing Apple design patents, explain how some customers disassemble and reassemble their own phones, and describe the smartphone market.

Samsung’s expert witnesses include Jinsoo Kim, vice president in its Corporate Design Center; Kyuhyun Han, an executive in Samsung’s business operations group; Dongwook Kim; Tim Sheppard, Samsung Electronics America’s vice president of supply chain logistics; Sam Lucente, an expert in the term article of manufacture; Michael Wagner, an expert to discuss Samsung’s profits and appropriate damages.

Money

DOJ Expert Testifies AT&T-Time Warner Merger Costly for Consumers

An expert witness for the Department of Justice has testified that the AT&T-Time Warner merger will be costly for consumers.

The government filed a lawsuit against AT&T and Time Warner this past November, arguing that the proposed merger is illegal under antitrust law because it would raise pay TV costs to consumers. AT&T has argued that the merger does not mean that prices would necessarily go up and that it would have no reason to keep content from its competitors because it would make less money in ad revenue. The trial began in mid-March in U.S. District Court in Washington, before Judge Richard Leon.

Expert Testimony

The Justice Department called Carl Shapiro to testify on its behalf. Shapiro is a professor at University at California Berkeley and an economic expert. In the past, Shapiro has held positions at the White House and the Antitrust Division. Shapiro worked on the Comcast-NBC Universal merger when he was the chief economist for the Justice Department.

Shapiro testified that the merger of AT&T and Time Warner will cost consumers an extra $436 million per year by 2017 and and extra $571 million by 2021. Shapiro said, “Consumers will be hurt. . . . They will be hurt because competitors to DirecTV will face higher costs.”

Shapiro testified that the $85.4 billion merger between the two companies will harm consumers, which is the standard that the government uses to determine if a transaction raises antitrust issues. Shapiro testified that the merger would “substantially lessen” competition.

Shapiro testified that AT&T risked raising costs to consumers by: raising the price of content for other cable companies; benefiting in customer additions from rivals that could not afford Time Warner content; and coordinating with Comcast to restrict access to Time Warner and NBC content to hurt emerging over-the-top (OTT) services, a media distribution practice that allows a streaming content provider to sell media services directly to a consumer over the internet.

Shapiro explained that AT&T would be able to restrict its rivals from using HBO as a promotional tool. HBO is used across the industry as a way for cable and satellite services to enroll new customers and retain their existing ones. Shapiro said that AT&T would have added bargaining leverage because of the threat of a programming blackout. Shapiro explained that blackouts are important because, “Even though they don’t happen very much, that’s the key to leverage.”

Cross-Examination

Attorney for AT&T-Time Warner, Daniel Petrocelli, cross-examined Shapiro. Petrocelli attempted to show that Shapiro’s model did not take into account real-world situations and the offer for Time Warner’s Turner networks to engage in “baseball-style” arbitration in carriage disputes with AT&T’s rivals. Petrocelli also questioned Shapiro over the type of data that he included in his study versus what he chose to leave out.

Shapiro argued that his methodology was in line with standards for merger with reviews and that his methods were in some ways a conservative approach. Shapiro said that his methods focused on the longer-term market structure in the event of a merger.