Category Archives: In the News

Articles about legal issues currently in the news.

Experts Debate Pay Disparities for Female Soccer Players

Sports Illustrated reports that expert witnesses will play crucial roles in a gender equity challenge that the U.S. Women’s National Team (USWNT) has made against the U.S. Soccer Federation, the governing body of the sport of soccer in the United States. Daubert challenges may shape the expert testimony that the jury hears. The magazine notes that “arguing over expert witnesses illustrates how much experts could potentially sway juror opinion” in a complex case that offers competing views of how two different pay systems should be compared.

The members of the USWNT collectively sued U.S. Soccer for gender discrimination. The lawsuit contends that U.S. Soccer gives contracts to female players that are less favorable than the contracts it gives to male players. The USWNT members argue that the disparity cannot be explained by job duties or job performance. A May trial date was recently postponed to June because of the coronavirus epidemic.

In a public relations blunder, U.S. Soccer tried to win summary judgment by claiming, in part, that female players “did not perform work of equal skill, effort and responsibility” as male players. The organization made that argument notwithstanding that the USWNT has won two consecutive World Cup titles, while the Men’s National Team has never placed higher than third, a feat it last accomplished in 1930.

The suggestion that women don’t play as hard or as well as men caused a backlash that resulted in the resignation of U.S. Soccer’s president, the firing of its lawyers, and the withdrawal of that assertion. The lawsuit, however, continues.

Disparate Pay

U.S. Soccer now focuses on the argument that compensation statistics do not support the claims made by the USWNT players. In 2019, the president of U.S. Soccer released data that, in his view, proves that female players were paid more in salary and game bonuses than male players from 2010 to 2018. The USWNT players dispute that data, as do members of the Men’s National Team, who issued a statement accusing U.S. Soccer of resisting “any concept of equal pay or basic economic fairness for the USWNT players.”

Analysis of compensation data is complex. The men’s team and the women’s team are represented by separate unions that have negotiated contracts with different structures. Players on the men’s team are only paid if they are called up for a game or training camp. They also participate in bonuses for playing in certain games and earn higher bonuses if the team wins certain games or qualifies for the World Cup.

The 17 players who are signed to contracts on the women’s team are paid whether or not they are called up. The remaining “non-contract” players, like players on the men’s team, are paid an appearance fee if they are called up and can earn bonuses based on the team’s performance.

Although the contract structure is arguably better for the women’s team, the pay is arguably better for players who are called up to play on the men’s team. According to ESPN, “making a World Cup team will net a men’s player $68,750. A women’s player will make $37,500 for making the World Cup squad.” Other bonus payments are also higher for men than for women.

Challenges to Labor Law Expert

Given the difference in contract structure, expert testimony is essential to determining whether a pay disparity exists. Each side is relying on experts to make its case.

The USWNT recently made Daubert challenges to the proposed testimony that three experts plan to give on behalf of U.S. Soccer. The first challenge involves Philip Miscimarra, a labor lawyer who was chairman of the National Labor Relations Board (NLRB) under President Trump. He proposes to testify that U.S. Soccer has complied with civil rights laws and has not discriminated against female players.

The players object that the judge is the only expert in the law and that Miscimarra’s attempt to explain U.S. Soccer’s alleged compliance with the law to the jury could result in confusion. The players contend that his “misleading” testimony might make the jurors believe he knows more about civil rights law than the judge.

Miscimarra also contends that the players’ union agreed to the terms of their compensation and that finding their compensation to be unlawful would undermine federal labor law. Whether applying civil rights laws to collective bargaining agreements is good or bad seems like a policy argument for a court to decide rather than the kind of factual determination that juries make.

The players also note that the Equal Pay Act expressly states that “collective bargaining agreements are not a defense” and that “any and all provisions in a collective bargaining agreement which provide unequal rates of pay in conflict with the requirements of the Equal Pay Act are null and void and of no effect.” Appellate courts have held that collective bargaining agreements cannot perpetuate unlawful discrimination. If the judge decides that those statutory pronouncements and precedents apply to this case, they would seem to foreclose Miscimarra’s opinion.

Challenges to Forensic Accountant

Carlyn Irwin, a forensic accountant, opined that the total pay received by male players should be compared to the total pay of female players. The players argue that the rate of pay, not the total pay, is the better comparison. Given the recent success of female players, their total pay reflects bonuses for winning World Cups that male players did not earn. However, given their different rates of pay, male players would have earned more money than female players if their team had achieved comparable World Cup success.

The judge has signaled, but not decided, that rate of pay is a better comparator than total pay because it is less likely to be influenced by variables (like team success) that change from year to year. In any event, the proper basis for comparison seems like a legal question for the judge to decide, not a factual question that should be left to the jury. If the judge regards it as a legal question, Irwin’s testimony will likely be excluded as irrelevant.

Challenges to Labor Economist

Justin McCrary, a labor economist who is a professor at Columbia Law School, would opine that neither pay system “is systematically better or worse” and that “there is no single rate of pay for either” group. He also points out that members of the USWNT earn more than members of the men’s team when they play “friendlies” (international matches occur outside of tournament competition). Consequently, he reasons, the pay system for the women’s team is not inferior to the pay system for the men’s team.

The USWNT challenges McCrary’s analysis on the ground that it is based on hypothetical assumptions rather than actual data. The USWNT contends that McCrary assumed that the woman’s team would pay “an unrealistically small number of games” as opposed to the number of games that the team actually plays each year. Using the actual data rather than the assumed data, according to the WNT, undermines McCrary’s conclusions.

McCrary also argues that some members of the women’s team earn more than some members of the men’s team. Some female players, for example, earn pay when they are injured and cannot be called up, while injured male players earn no pay because men are only paid if they are called up. Women also receive maternity pay that men do not receive. The WNT argues that individual comparisons are misleading because women as a whole earn substantially less than men when the teams play a similar number of games and achieve comparable success.

Ruling to Come

The court had scheduled a hearing on the motion (as well as the USWNT’s summary judgment motion) for March 30, 2020. The court removed that hearing from the calendar due to coronavirus concerns. It stated its intent to decide the motions based on the parties’ submissions. The rulings may come within the next several weeks.

Florida Case Over Whether Expert Required to Corroborate Request for Fees Gains Attention

A dispute over legal fees is gaining attention in Florida as its courts are examining whether attorneys need expert witnesses to corroborate their requests for legal fees.

Underlying Dispute

The case began as a fee dispute between the Law Offices of Granoff & Kessler and its client, Richard Randal Glass. Attorney Roy E. Granoff was attempting to collect fees owed to him under a retainer agreement for his representation of Glass. The parties had an agreement that provided for an initial retainer plus $325 per hour for out-of-court services and $375 per hour for time spent in court. The total amount of the dispute was $34,345.

Granoff sued Glass in Miami-Dade Circuit Court. The Miami-Dade Circuit Court ruled that Granoff needed an independent expert to provide testimony to validate his fees. Granoff appealed.

Third District Court of Appeal

On appeal, the Third District Court of Appeal reversed the circuit court’s decision and ruled in favor of Granoff. The court remanded the case back to trial court to enter a judgment in Granoff’s favor. The court also certified a conflict with Florida’s Second District of Appeal’s decision in Snow v. Harlan Bakeries Inc.

Mark Goldstein, attorney for Glass, announced that he plans to ask for a rehearing en banc before all of the judges of the Third Circuit Court of Appeal. Goldstein claims that the appellate court’s decision “gutted a lot of law.”

Goldstein stated, “They essentially held when a lawyer directly sues his client for breach of contract, the rules of requiring a corroborating expert witness don’t apply.”

Granoff disagrees with Goldstein. He notes that his case has an important distinction. He said, “I was seeking it in the separate breach-of-contract action, and the case law holds you do not need an expert witness. Glass owed me attorney fees. I sued him in a separate lawsuit just for the fees he owed me. When I do it that way, I do not need an expert witness corroborating the fees.”

Granoff gave the following example as a comparison, “If there was an architect and he sued for fees, he would not have to bring in another architect to testify to the reasonableness to the fees. If there was a doctor, he wouldn’t have to bring in another doctor. But with lawyers, the law had been they have to bring in another lawyer.”

Granoff argued that this process makes no sense because an attorney would simply “bring an attorney friend of his who is going to testify to say his fees are reasonable.” He cited a Florida Bar Journal article by Robert J. Hauser, Raymond E. Kramer III, and Patricia A. Leonard, “Is Expert Testimony Really Needed in Attorneys’ Fees Litigation?,” where the authors opined that the “practice is cumbersome and unnecessary, and should no longer be required.”

Granoff noted that several attorneys have reached out to him and expressed an interest in representing him on appeal, intending to take this matter all the way to the Florida Supreme Court.

Expert Opinions Offered in Support of Challenges to Death Penalty Protocols

Public opinion about the death penalty has been shifting since the mid-1990s, as DNA testing and other evidence has revealed the frequency with which innocent defendants are sent to death row. Opinions have also been swayed by the realization that the death penalty is administered arbitrarily, with race often proving to be a critical factor as courts decide who should live and who should die.

Colorado recently became the latest of 22 states to reject the death penalty. The governors of three other states have imposed a moratorium on executions. States that maintain a death penalty have turned to experts in an effort to determine whether executions can be carried out in a way that does not torture the condemned prisoner.

Expert Testimony in Death Penalty Challenge

Experts continue to inform the ongoing death penalty debate. Last year, expert testimony in Ohio persuaded a federal court that Ohio’s method of executing prisoners was likely to cause extreme pain. The court relied on the testimony of several expert witnesses to support its conclusion.

Ohio’s lethal injection protocol begins with an injection of midazolam, a sedative that, in the administered dose, can make it extraordinarily difficult for an inmate to breathe. Inmates next receive a paralytic drug to prevent them from moving, followed by potassium chloride, which stops the heart.

Warren Henness, among other inmates, challenged the three-drug protocol. He argued that the paralytic makes it impossible to alert the authorities to the extreme pain caused by the drugs. He contended that midazolam causes extraordinary pain and does not shield inmates from feeling that pain before they die.

Henness supported his challenge with testimony from five expert witnesses, including a neuropathologist, a pulmonologist, a pharmacologist, a professor of anesthesiology who is also certified as a clinical pharmacologist, and an anesthesiologist who is certified in pain management. Each expert had impressive credentials.

The magistrate judge who heard Henness’ challenge excluded a government expert witness who, in this and other cases, had failed to produce an expert report containing the information required by federal law. The court rejected a Daubert challenge to another witness for the state, while expressing doubt that the expert’s opinion was entitled to significant weight.

Another government witness was excluded prior to trial because he had published little relevant research and was largely repeating the opinions of other experts. In addition, the minimal research that he had performed contradicted the opinions that the state wanted him to offer in court.

Court’s Analysis of Expert Evidence

Based on the expert testimony, the magistrate judge found that the second and third drugs cause excruciating pain, a finding the state did not contest. The magistrate judge also found that midazolam does not block the pain caused by the injection of the second and third drugs. An inmate who is sedated by midazolam is not unconscious and, as multiple lay witnesses at executions have observed, is capable of experiencing severe pain.

Midazolam, in the dosage given by the state, is also likely to cause pulmonary edema, an extremely painful condition that causes airways in the lungs to fill with fluids, creating the sensation of drowning. In other words, Ohio’s execution protocol is akin to waterboarding, a form of torture. In fact, the experts explained, it is worse than waterboarding because the sensation of drowning is accompanied by excruciating pain as chemicals cause the inmate to feel like fire is flowing through the inmate’s veins.

In light of Supreme Court precedent, the magistrate judge declined to halt Henness’ execution because he was unable to demonstrate that Ohio had the ability to kill him more humanely. On appeal, in a remarkably cursory opinion that essentially ignored expert evidence that the magistrate judge carefully parsed, the Sixth Circuit determined that a pulmonary edema is not sufficiently painful to create the “needless suffering” that violates the constitutional safeguard against cruel and unusual punishment. One wonders whether a judge who actually experienced a pulmonary edema might express such a callous opinion.

The Sixth Circuit’s opinion has been justly criticized for elevating “junk science” above expert evidence that was accepted by the trier of fact. By underplaying the extent of the suffering caused by the execution protocol, the Sixth Circuit is permitting what well qualified experts regard as death by torture — exactly the kind of cruel and unusual punishment that the Eighth Amendment forbids.

Expert Opinions Sway the Governor

Based on the expert testimony, Ohio Gov. Mike DeWine granted a temporary stay of Henness’ execution. The governor ordered a review of the state’s execution protocol, with a view to replacing midazolam with a drug that would not cause pain and that would prevent the inmate from feeling the pain caused by the remaining drugs.

When Gov. DeWine was told that no such drug could be identified, he asked the Ohio Department of Rehabilitation and Correction whether other methods of execution would be less painful. That review is apparently still underway. Henness’ execution has been rescheduled three times and is currently set to occur May 14, 2020. The governor postponed other executions and has not yet decided when and whether Ohio executions will resume.

Some other states have abandoned execution protocols that use midazolam. Fearing an agonizing death, Tennessee inmates have chosen electrocution over the administration of midazolam. Most states, however, do not give condemned prisoners a choice of execution methods. Whether Tennessee, Ohio, and other states that still use midazolam in executions will eventually hear the voices of expert witnesses remain to be seen.

False Confessions Expert Casts Doubt on Convictions of Four North Carolina Defendants

Relying on expert evidence, the North Carolina Innocence Inquiry Commission decided that four men from Winston-Salem have produced substantial evidence of their probable innocence. Rayshawn Banner, Christopher Bryant, Jermal Tolliver, and Nathaniel Cauthen had been convicted of causing the 2002 death of Nathaniel Jones, the grandfather of NBA player Chris Paul.

Three of the four men were 15 when the crime was committed; the other was 14. Two of the men finished their sentences in 2017, while two are serving a sentence of life without parole. A fifth man convicted of the crime died after his release from prison.

Jones owned a gas station. After returning home from work one evening, he was beaten and robbed. He suffered a fatal heart arrhythmia that doctors attributed to the beating.

Substantial DNA was recovered from the crime scene, but no DNA samples matched any of the defendants. The police also “matched” a partial shoeprint to a common sneaker that was found in one defendant’s home, but the sneaker did not belong to the defendant, who had a smaller shoe size.

Trial Evidence

Jessicah Black, who was 16 at the time, testified at trial that she drove the defendants to the scene of the crime. Black later recanted. She explained to a reporter that she had been pressured by police detectives to tell the story they wanted to hear. She feared that she would be sent to jail if she did not give the testimony that the police detective insisted was the truth.

Courts have generally adopted the rule that recantation testimony does not warrant a new trial. The rule is premised on the notion that all recantations are unworthy of belief because a witness who tells inconsistent stories is not credible. Of course, if the witness is not credible, then the recanted testimony is just as unworthy of belief as the recantation. In a nation that values juries as factfinders, one might expect to see recantation evidence evaluated by a jury at a new trial rather than being rejected wholesale by judges for the sake of preserving doubtful convictions.

Since recantations rarely serve as grounds for a new trial, police officers have little to fear if they pressure witnesses into giving false testimony. The recantation rule shields the police from concern that an eventual recantation of pressure-induced testimony will affect a conviction.

In addition to Black’s testimony, prosecutors relied on confessions given by the young defendants. All four told the Innocence Commission that they were pressured into giving false confessions. Cauthen, for example, testified that the investigating detective told him that he would receive a lethal injection if he did not confess. The confessions all but assured that the boys would be convicted.

Many jurisdictions have adopted laws that require the police to record custodial interrogations to assure that confessions are not coerced. North Carolina adopted a recording law with regard to homicide interrogations in 2007. It was not in effect when the four young men were interrogated.

False Confessions

Research demonstrates that police pressure causes false confessions. Psychologists have found that police detectives presume the guilt of the people they interrogate. Even detectives who play by the rules (and coercing a confession is clearly against the rules) “ask questions and interpret the responses in such a way as to confirm guilt. Even denial is seen as evidence of guilt.” Young people are more likely than adults to make a false confession in response to police pressure.

Psychologists have found that “under the intense isolation and stress of a long interrogation, investigators willingly or unwillingly can place intense psychological pressure on suspects.” Young suspects tend to be deferential to authority figures. They say what they are expected to say, and sometimes come to believe that the statements they are prompted to give must be true.

Expert Testimony

Hayley Cleary, a psychologist with expertise in false confessions, compared the case of the four young men “to the Central Park 5 case, in which five black and brown teenagers were convicted in the brutal beating of a white jogger in 1989, based on false confessions and without forensic evidence.”

Cleary testified that the interrogator used “maximization techniques” to take advantage of the young defendant. Those techniques “heighten suspects’ anxiety, and make them feel like confession is inevitable.” Accusing the suspect of lying and shutting down protests of innocence are techniques designed to make a suspect agree with the interrogator, even if the suspect must lie to do so.

Two police detectives admitted that they told the minors that they could receive the death penalty. Those threats were untrue, as North Carolina law did not permit executions for crimes committed by minors. Threatening a dire punishment is a “maximization technique.”

Cleary explained that the brains of children have not developed sufficiently to allow them to appreciate the consequences of making a false statement. When (as happened here) a detective tells a suspect they will be allowed to go home if they confess, giving a confession might seem like a good idea. In addition, children are less likely than adults to realize that American courts (unlike courts in much of the world) allow the police to lie to a suspect in order to induce a confession.

Cleary testified:

The idea of being relieved from a stressful interrogation or getting away from an uncomfortable or psychologically painful environment can be overwhelming to youth. And we’ve seen it in cases of documented false confessions, and I see indicators of this in the current case as well. For example, three of the defendants — Nathaniel Cauthen, Jermal Tolliver and Christopher Bryant — testified in their suppression hearings that they just wanted to go home. And they were specifically responding to interrogators’ questions by saying, “I want to go home.”

In addition, none of the four have an IQ above 80, suggesting severe cognitive defects that an adult authority figure can easily exploit to induce a false confession.

Hearing Outcome

The Innocence Commission voted 5-3 to find that there was ““sufficient evidence of factual innocence to merit judicial review.” The prosecution refused to admit that it prosecuted innocent defendants and vowed to fight to preserve the convictions.

As a result of that finding, the case will move forward to a three-judge panel convened by the superior court. Both sides will present evidence to the panel, which will then decide whether the defendants are innocent. If panel members unanimously agree that the defendants proved their innocence by clear and convincing evidence, the four men will be exonerated.

Expert Admonished by Medical School for Allegedly Exposing Junk Science

The media often portray expert testimony as grounded in “junk science.” In some instances, particularly when discredited theories are dressed up as forensic science and offered as evidence against criminal defendants, “junk science” is an apt description.

Yet most expert testimony is based on sound principles of science. The insurance industry and corporate lobbyists have nevertheless engaged in a public relations campaign to convince the public (and potential jurors) that any expert evidence offered against defendants in civil cases is based on “junk science” and thus unworthy of belief.

Johnson & Johnson has faced tens of thousands of lawsuits alleging the marketing of cancer-inducing products, dangerous drugs, and defective hip, knee, and mesh implants. It isn’t surprising that J&J has been a leading proponent of the “junk science” meme, notwithstanding a Reuters investigation that accused J&J of promoting its own junk science while concealing and slanting evidence about the safety of its products.

A prominent expert who testifies in litigation against J&J co-authored a paper that criticized a study conducted by DePuy Synthes, a J&J subsidiary. The paper essentially accused DePuy of using the techniques of junk science to attain results that favored a DePuy product. A Grievance Committee has questioned whether pressure from J&J may have persuaded Brown University to take action against the expert witness.

David Egilman’s Expert Testimony

A 2019 profile in Science described David Egilman, a professor of family medicine at Brown University, as a “bloodhound” who sniffs out corporate misconduct by scouring “corporate records uncovered during litigation, invariably finding memos and studies showing that companies knew about industrial hazards long before warning employees or the public.”

His detractors complain that Dr. Egilman is an advocate for plaintiffs rather than a neutral witness. The same criticism could be made of the expert witnesses who primarily testify on behalf of corporate defendants.

The ultimate question is whether an expert is an advocate for the truth. The Science profile quotes a number of experts who acknowledge that Dr. Egilman is passionate about the positions he takes while praising his rigorous application of science to the facts he uncovers.

Dr. Egilman has testified in multiple lawsuits that allege harms caused by chemical exposures, unsafe drugs, and defective products. He has earned the wrath of Johnson & Johnson by giving testimony that juries have found to be credible in cases that involve hip replacements and carcinogenic talc products.

J&J Seeks Retraction

In 2017, Dr. Egilman published “a peer-reviewed paper that accused a Johnson & Johnson company of publishing a poorly designed study.” The paper concluded that DePuy’s study was “a covert ‘seeding trial,’ which aimed to generate data for marketing their Pinnacle hip replacement system rather than study empirical results of the product’s use.”

The Brown Daily Herald reports that J&J asked the journal in which Dr. Egilman’s paper was published to retract it. J&J argued that Dr. Egilman was biased because he acted as an expert witness in a class action lawsuit against DePuy. Of course, it is exactly his expertise in the field that qualified him both to evaluate DePuy’s study and to serve as an expert witness.

Neither Dr. Egilman nor the other authors were paid to write the paper. No plaintiffs’ lawyers had input into the paper. Dr. Egilman made appropriate disclosures, permitting readers to come to their own conclusions about potential bias. The journal that published the article concluded that no grounds existed to retract it.

Brown University Takes Action Against Dr. Egilman

In an apparent response to J&J’s pressure, Brown University sent Dr. Egilman a cease-and-desist letter. The Brown Daily Herald reports that “the letter requested that Egilman remove his Brown affiliation from his publication” and demanded that Dr. Egilman “disclose when his research was not a product of his work at Brown on future papers.”

The University also cancelled a class that Dr. Egilman had taught repeatedly since 1987. According to the course description, the bioethics class, “Science and Power: The Corruption of Public Health,” focuses on “corporate influence and corruption in medicine and other topics that relate to medical and public health decision making.”

Suspicions of Corporate Influence

Dr. Egilman filed a grievance, asserting that “undue corporate influence on his research and teaching activities” had persuaded the University to interfere with his academic freedom. The University Grievance Committee conducted an investigation.

The Grievance Committee found that the University acted arbitrarily when it instructed Dr. Egilman to remove his University affiliation from his publications. The Committee also found that the instruction was “in express violation of University policy that states that faculty involved in outside activities may reference their Brown appointments in publications.”

The Grievance Committee concluded that Dr. Egilman’s class was cancelled because several deans of the School of Public Health thought his employment would be terminated because of his peer-reviewed journal article. Why deans who failed to investigate the facts would believe a tenured professor could be fired because of a corporate complaint is unclear.

The Grievance Committee did not find direct evidence of corporate influence on the University’s decisions, a charge the University denies, but it concluded that the decisions were “inherently suspicious and (they open) the door to the perception of corporate influence.” The Grievance Committee recommended that the University withdraw its cease-and-desist letter and that it reinstate Dr. Egilman’s class.

The University has made no public comment about the Grievance Committee’s recommendations. Since Brown University has suspended classes in light of the COVID-19 crisis, the University might not be in a position to take action in the near future.

Lance Armstrong Doping Expert Banned for Doping

An expert on doping who was part of Lance Armstrong’s defense team has been banned from the sport of cycling for four years after testing positive for banned substances.

Expert Witness John Gleaves

John Gleaves is an associate professor of kinesiology at California State University, Fullerton (CSUF). Gleaves focuses his research on doping in sport, which he examines from a variety of sociocultural perspectives.

Gleaves was appointed co-director for the International Network for Doping Research from 2012 to 2019. Gleaves is a co-founder and current co-director for CSUF’s Center for Sociocultural Sport and Olympic Research. He also serves as an Associate Editor for the Journal of Olympic Studies. Gleaves co-authored “Doping in Cycling: Interdisciplinary Perspectives” with Bertrand Fincouer and Fabian Ohl, and Practical Philosophy and “History of Sport and Physical Activity” with Scott Kretchmar, Mark Dyreson, and Matthew Llewellyn.

In 2015, Gleaves was an expert witness for Lance Armstrong’s defense during the United States government’s whistleblower lawsuit fraud suit. Gleaves offered testimony about the widespread nature of doping that persisted in the sport at the time that Armstrong was accused of doping.

Armstrong ended up confessing to doping and settling the fraud suit with the federal government for $5 million. As a result of his confession, Armstrong was banned from sanctioned cycling events for life and stripped of all seven of his titles in the Tour de France.

Gleaves’ Doping Ban

In addition to being a kinesiology professor and expert witness, Gleaves is a masters racer on the United States cycling circuit.

On August 31, 2019, Gleaves, 36, gave a urine sample as a participant at the Masters Track National Championships. Gleaves tested positive for oxandrolone metabolites 17α-Hydroxymethyl-17β-methyl-18-nor-2-oxa-5α-androst-13-en-3-one and 17β-Hydroxymethyl-17α-methyl-18-nor-2-oxa-5α-androst-13-en-3-one, as well as clomiphene and its metabolite 4-hydroxyclomiphene.

These substances are prohibited at all times by the USADA Protocol for Olympic and Paralympic Movement Testing, the United States Olympic and Paralympic Committee National Anti-Doping Policies, and the International Cycling Union Anti-Doping Rules.

As a result of his positive sample, Gleaves accepted a four-year period of ineligibility that began on August 31, 2019. Gleaves has also been disqualified from competitive results obtained on and subsequent to August 31, 2019, including forfeiture of any medals, points and prizes.

Doping Among Seniors on the Rise

While the ban of a doping expert for doping may come as a surprise to some, Gleaves himself has been speaking about the rise of doping among seniors for years.

In June 2015, Gleaves spoke about the rise of doping of seniors at the National Athletic Trainers’ Association convention. Gleaves said that current estimates were that 23 percent to 25 percent of all athletes knowingly use a banned substance at least once during their careers. Gleaves noted that experimentation has increased among masters athletes, or athletes who are 35 and older and compete in things such as distance running and cycling competitions.

Gleaves said:

It’s what no one is talking about now. … In cycling, swimming and track and field we’re seeing illicit use. There are a lot of lawyers, doctors and middle- to upper-middle-class people with disposable income and the social capital to be able to get quasi-legal prescriptions.

Gleaves noted that there was little testing at masters events, so few people were caught. However, the United States Track and Field did begin testing masters athletes over the past few years.

Expert Silenced for Giving Truthful Testimony

Sexual predator laws hold defendants convicted of sex crimes in detention after they have served their sentences. The laws are premised on the popular belief that sexual predators have an uncontrollable compulsion to commit sex crimes, and that an indefinite civil commitment is an appropriate means of protecting society from the crimes they might commit in the future.

State legislatures avoid double jeopardy concerns by claiming that sexual predators are not receiving more punishment after they finish their sentences. The laws generally require that defendants who are labeled as sexual predators receive treatment, although whether any treatment can defeat an actual compulsion to commit sex crimes is a hotly debated topic.

Whether or not they receive treatment, individuals who are labeled as sexual predators are confined to institutions that in many respects are indistinguishable from prisons. The deprivation of freedom has a punishing impact even if punishment is not the law’s stated purpose.

Release from Confinement

Sexual predator laws typically allow a confined individual to petition the court for release, based on evidence that the need for confinement no longer exists. After all, if the laws are justified by the rationale that offenders have a mental disorder for which they need treatment, individuals who respond to treatment and are no longer a likely threat should not continue to be confined.

The government typically resists release by calling experts who testify that the risk persists. Offenders respond with experts who testify that there is little reason to believe the offender will commit a new sex crime.

But do the experts have the data they need to form reliable opinions? As a recent article in Reason explains, the State of California took extraordinary steps to suppress a study that would have helped expert witnesses make better judgments about the risk to society that follows the release of an offender who has been defined as a sexual predator.

Sexual Predator Laws

Before an individual can be deprived of freedom, perhaps for the rest of that person’s life, sexual predator laws require two conditions to exist. First, the alleged predator must have been convicted of a sex crime. Each state defines the specific offenses and the number of convictions that are required before sexual predator proceedings can be commenced.

Second, a court must determine that the person poses a high risk to society. While the definition of a sexual predator who should be civilly committed varies from state to state, it generally has two components: (1) the alleged predator suffers from a mental abnormality or personality disorder that seriously impairs the ability to control sexually violent behavior, and (2) because of that disorder, the alleged predator will probably engage in acts of sexual violence if not confined.

Expert witnesses play a key role in sexual predator proceedings. Psychologists with experience evaluating sexual predators make predictions about the risk of future violence. In a typical case, separate experts testify for the government and for the alleged predator. A judge or jury then decides whether the government has met its burden of proving that the alleged predator must be confined for the safety of society.

Like too many laws, sexual predator legislation is based on fear, not on a neutral assessment of data. While offenders who commit other crimes are released after serving a sentence, public sentiment (or at least the sentiment of people whose voices are heard by legislatures) favors continuing the confinement of sex offenders on the unsupported theory that sex offenders are more likely than other criminals to commit new offenses after they are released. In fact, the data shows that most convicted sex offenders are never charged with another sex offense after they are released from prison.

Expert’s Study Undermines Premise of Sexual Predator Laws

Arguably, empirical data concerning sex offender recidivism does not capture the subset of offenders who are selected for additional confinement as sexual predators. Jesus Padilla decided to answer that question by gathering data that addressed the relevant population.

Jesus Padilla was a psychologist employed at Atascadero State Hospital in California. Padilla tracked individuals who had been confined as sexual predators and who were released without treatment after the State dropped the ball in pursuing recommitment (a process that California required at the time). Since the legal system identified those individuals as sexual predators but failed to give them treatment, Padilla expected that they would have a high rate of recidivism.

Padilla was surprised to find that five years after their release, only 6.5{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the offenders had been arrested for a new sex offense. That recidivism rate is remarkably low, considering that 49{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of offenders convicted of other crimes are rearrested for a similar offense within 5 years of release.

Padilla’s Expert Testimony

In 2006, an individual confined as a sexual predator in California petitioned for release. His lawyer learned of Padilla’s study. The lawyer subpoenaed Padilla to testify as an expert witness.

The state objected that Padilla’s publicly funded research was confidential, a silly claim that the judge rejected. To protect the privacy of individuals who were studied, the judge limited Padilla to giving a summary of his findings.

Padilla’s research called into question the rationale for sexual predator confinements. Because he is honest, however, Padilla gave honest testimony about his research results. It turned out that honest expert testimony did not sit well with the State of California.

Expert Silenced for Telling the Truth

Like the prison industry, the sexual predator industry is a substantial employer. California spends more than $300 million a year on its sexual predator program. State employees depend on courts filling institutions with sexual predators so that they will continue to draw state paychecks. Perhaps it isn’t surprising that, with their jobs on the line, employees of the department responsible for confining sexual predators resisted Padilla’s conclusions.

It is surprising, however, that California chose to silence Padilla rather than criticizing his study or funding larger studies to determine whether his results could be replicated. According to a law review article that examined Padilla’s research, Padilla’s study was “halted in midcourse” after he testified. Reason explains that Padilla’s “records were confiscated, his hard copies were shredded, and he was forbidden to talk about his work.” His boss accused him of illegally accessing conviction data, a bogus charge that was dismissed after an independent investigation concluded that it was groundless. Padilla’s efforts to restart the research were consistently rejected.

The law professors who investigated Padilla’s case made a Freedom of Information Act request for the research data. The state responded with a shocking claim that it could not verify that Padilla had ever conducted a study. The law professors then confronted the state with documents proving that the study had been approved and funded. At that point, the state was forced to turn over the data. However, when Padilla inspected the data, he discovered that someone had tampered with the Excel files by carving up spreadsheets and rendering them useless. He also discovered that the data was incomplete.

Censoring an expert and suppressing an expert’s research because the expert’s findings are unwelcome is a shameful response to honest research. As Reason notes, authorities in California apparently prefer to adhere to their “unexamined assumptions” rather than considering evidence that might contradict the foundations of their work.

The law professors concluded that after Padilla testified, the state “may have realized the study had to be stopped because it threatened the legitimacy of the entire [sexual predator] program.” Nothing could be more antithetical to the honest research and expert analysis upon which the legal system depends than suppressing knowledge that undermines the basis for depriving individuals of their freedom.

Recommendation That Expert Should Not Be Disqualified From Testifying Against Former Employer

A U.S. district court judge has received a recommendation that he should allow a former employee of the Consumer Financial Protection Bureau to testify as an expert witness against it, in the agency’s suit against loan financier Navient.

The Underlying Suit

In 2017, the Consumer Financial Protection Bureau (CFPB) and the State of Pennsylvania sued Navient, claiming that the nation’s largest student loan servicer failed to properly service its borrowers’ accounts and improperly directed them toward forbearance, instead of encouraging them to move toward income-based repayment plans. Forbearance is the act of refraining from paying any debts.

The complaint alleges that Navient violated the Consumer Financial Protection Act, the Fair Debt Collection Practices Act and Regulation V of the Fair Credit Reporting Act.

Navient has vigorously defended against these claims. It called the suit an “unauthorized copycat” of a complaint that CFPB previously filed against it.

The case is before U.S. District Judge Robert D. Mariani in the Middle District of Pennsylvania.

Proposed Expert Testimony

Navient proposed to have Xiaoling Ang, Ph.D, testify as one of its expert witnesses at trial. Dr. Ang is an expert in consumer financial services, antitrust, and labor economics. She has experience in class certification and damages analysis, policy evaluation, cost-benefit analysis, and fair lending in a range of industries, including mortgage, student loan, subprime lending, deposit products, and fixed income.

Dr. Ang was the author of an article that was published in Law360 entitled, “Student Loan Repayment Options in Light of CFPB v. Navient.” Navient’s counsel approached Dr. Ang about testifying on Navient’s behalf based on writing this article. Her expert report, which Navient proposed to rebut one of CFPB’s experts, reflects the information contained within her article.

Claim of Conflict of Interest

Dr. Ang has a Ph.D. in economics from Princeton University and currently serves as an Associate Director at NERA Economic Consulting. Dr. Ang previously served as an Economist at the CFPB from July 2011 to November 2015. At the CFPB, she served as the Lead Economist on Bureau initiatives and rulemaking, including interagency appraisal rulemaking, larger participant rulemaking in student loan servicing and international money transfers, randomized control trials, disclosure testing, and on a Congressional report on private student loans.

The CFPB objected to Dr. Ang testifying as an expert for Navient, claiming a conflict of interest. The CFPB argued that Dr. Ang should be disqualified from testifying as an expert because she worked for CFPB during its investigation of Navient.

Special Master’s Report

The court asked Special Master Thomas I. Vanaskie to investigate whether Dr. Ang should be disqualified from testifying as an expert at trial. Vanaskie recommended that Dr. Ang should not be disqualified.

Addressing the claimed conflict of interest, Vanaskie wrote, “I have also concluded that Dr. Ang’s sporadic and brief interactions with the Bureau’s Office of Enforcement attorneys over a period of two years did not expose her to confidential information substantially related to the opinions she has offered in her report in this matter such that the Bureau will be prejudiced if she remains an expert witness in this particular case.”

Georgia Supreme Court Prohibits Automatic Exclusion of Expert Testimony as Sanction for Violating Scheduling Order

The failure to disclose an expert witness or to provide an expert report within the time limit set by a scheduling order is a recurring issue. Some courts enforce deadlines rigidly. Others are more flexible.

Overruling several lower court precedents, the Georgia Supreme Court made clear that the late disclosure of an expert should not automatically result in exclusion of the expert’s testimony. Rather, a trial judge should make a ruling that is fair to both parties, given the circumstances of the case.

Smith’s Discovery Disclosures

David Smith II was a highly ranked collegiate high jumper before he fractured his hip in a car accident. Smith sued the other driver, Donggue Lee, for negligence. Lee admitted fault.

Smith’s complaint requested damages for medical expenses and pain and suffering. The complaint did not specifically ask for an award of lost future earnings, but it did include a boilerplate request for such further relief as is just and proper.

An interrogatory asked Smith to identify expert witnesses. He answered that he had not made a decision about experts and would supplement his answers pursuant to the rules of civil procedure.

Another interrogatory asked Smith to itemize all of his special damages, including lost wages. Smith provided the medical expenses he had available, stated that he had not received final billings for all of his treatment, and promised to supplement his answers pursuant to the rules of civil procedure. The answer made no reference to past or future wage loss.

The last relevant interrogatory asked for information about lost earnings. Smith answered that he was not claiming lost earnings.

In response to a request for production of documents concerning loss of wages or future earning capacity, however, Smith answered that he was not claiming a loss of past or present earnings but might present evidence of lost earning capacity. He stated that he would supplement his response when that evidence was available.

Four years after the accident, Smith was able to compete in the Olympics. A year later, he had surgery to remove a bone chip from his hip joint that he regarded as accident related.

Two months after that surgery, Smith supplemented his discovery responses to state that he intended to call damages witnesses, including a treating physician and his agent. He stated that in the absence of a stipulation, he would also call an economist to testify about reduction to present value of future lost earnings.

Scheduling Order Issues

The trial court then entered a scheduling order setting a deadline for disclosing experts. Before the deadline passed, Smith supplemented his discovery responses again to indicate that he had been losing earnings, and would continue to do so, in the form of endorsement fees, corporate sponsorship fees, appearance fees, and similar compensation regarding his career as a professional high jumper. He also identified a newly retained agent who would testify as an expert witness.

The defense responded by identifying a rebuttal expert. Smith moved to exclude the expert because he was not identified within the time required by the scheduling order. The trial court granted the motion.

The court expressed sympathy for defense counsel’s claim that prior to the last day for disclosing experts, Lee had no notice that Smith intended to call his new agent as an expert or to make a claim for lost endorsement fees and similar future earnings. However, the court was apparently frustrated that the case had been on the docket for so long and did not want to make any rulings that would further delay the trial.

At trial, Smith emphasized in closing arguments that the defense presented no expert testimony to counter the agent’s calculation of lost earnings. The jury returned a general verdict of $2 million in Smith’s favor.

Lee appealed. The Georgia Court of Appeals affirmed the judgment. The Georgia Supreme Court agreed to review the trial court’s exclusion of testimony by Lee’s rebuttal expert.

Automatic Exclusion of Expert Testimony

The Supreme Court considered two principles of Georgia law that are in tension. First, trial courts have broad discretion to manage their cases and to set deadlines in scheduling orders. Since compliance with those orders is “of paramount importance” to effective case management, judges must be given broad discretion to enforce them.

Second, the exclusion of a witness is a “harsh sanction” that should not be used to punish noncompliance with a scheduling order if a lesser sanction will suffice. Only sanctions that “vindicate the court’s authority” should be imposed.

To reconcile those competing principles, trial courts must exercise their discretion in a reasonable way. The state supreme court decided that trial judges cannot automatically default to the exclusion of an expert witness based solely on a late disclosure, because the automatic imposition of a sanction is not an exercise of discretion. Courts must instead weigh the facts and make a ruling that is fair to both parties.

In this case, the court acknowledged that Lee didn’t create the problem but excluded his rebuttal expert solely because he missed a disclosure deadline that he arguably had no opportunity to meet. The court abdicated its duty to exercise discretion by excluding the expert as an automatic sanction for a belated disclosure. The state supreme court thus reversed the court of appeals’ opinion and overruled a string of court of lower court opinions that affirmed the automatic exclusion of a witness based solely on a violation of a scheduling order.

Factors Courts Must Consider When Sanctioning a Scheduling Order Violation

Going forward, the Georgia Supreme Court requires trial courts to consider four factors when deciding whether the late disclosure of an expert witness should be sanctioned by exclusion of the witness:

the party’s explanation for the failure to make a timely disclosure;
the importance of the testimony;
the prejudice to the opposing party if the witness is allowed to testify; and
whether a less harsh sanction would be sufficient to ameliorate any prejudice and vindicate the court’s authority.

Granting a continuance of trial or amending the scheduling order to permit discovery regarding the witness are examples of remedies that are less harsh than exclusion of the witness. Whether to select one of those remedies will depend on how the court weighs and balances the other factors.

Discretion should be exercised in the first instance by the trial judge, not by the appellate court. The Georgia Supreme Court therefore remanded the case to the trial judge with the direction to allow the parties to present evidence and arguments relevant to the identified factors. It will be up to the trial judge to decide whether Lee’s expert should be allowed to testify in a new trial, or whether no new trial is necessary because the court would have excluded the witness after conducting the appropriate analysis.

Growing Trend of Using Rap Lyrics as Evidence in Court

An expert on hip-hop culture has noted an uptick in the trend of prosecutors using rap lyrics and videos as evidence of guilt.

The Shooting Death

On December 10, 2016, shots were fired at a “Naughty or Nice Pajama Jam” party being held in the warehouse district of Carson in the Los Angeles area. A 24-year-old partygoer, Davion Gregory, was shot five times. Gregory was brought to the Harbor-UCLA Medical Center and pronounced dead on arrival. Two other people were wounded in the shooting: Travis Harvey-Broome and Kwentin Polk.

Investigators found shell casings from a .40-caliber Glock and a .38 revolver at the scene. There was no video footage of the shooting and no one could identify the shooters. L.A. County sheriff detectives Francis Hardiman and Richard Biddle visited Harvey-Broome and Polk at the hospital, who described seeing a “light-skinned black guy with braids or dreads” in the parking lot, vaguely remembering seeing a black Mercedes SUV and red Mustang or Benz.

Approximately one week later, Hardiman heard the name “Drakeo the Ruler” on a wiretap in an unrelated gang case. Detective Hardiman alleges that he spoke to the victim’s family about Drakeo and they told him that they had also heard rumors about Drakeo being involved with the shooting. This led to an investigation into Darrell Caldwell, a rapper who goes by the name, Drakeo The Ruler.

Darrell Caldwell/Drakeo’s Trial

Drakeo was eventually charged with murder, attempted murder, felony gun possession by a felon, and criminal gang conspiracy in connection with the shooting death of a Davion Gregory.

Drakeo was acquitted of all charges of murder and attempted murder and convicted on a charge of felony gun possession by a felon. The jury was hung on the count of criminal street gang conspiracy. The prosecutors’ theory behind this charge is that Drakeo had ordered the shooter to kill a musical rival, “RJ,” but the shooting was botched and Gregory was killed. As evidence, prosecutors cited a line from Drakeo’s song “Flex Freestyle,” in which he raps, “I’m ridin’ round town with a Tommy gun and a Jag / And you can disregard the yelling, RJ tied up in the back.”

Hip-Hop Culture Expert

Drakeo’s defense attorneys called Erik Nielson to testify as an expert witness in Drakeo’s first trial. Nielson is an Associate Professor of Liberal Arts at the University of Richmond. His research is focused on African American literary and musical traditions with an emphasis on hip-hop culture. Nielson has co-authored two books on the topic, The Hip Hop & Obama Reader and Rap on Trial: Race, Lyrics, and Guilt in America. He is also the author of numerous academic articles, chapters, reviews, and feature articles on the topic.

Nielson has estimated that he has been asked to consult on over 60 cases where prosecutors have introduced rap lyrics or videos as evidence of guilt. Nielson also conducted research with University of Georgia law professor Andrea Dennis that reveals over 500 instances of prosecutors using this tactic.

Nielson explained that the role that he plays at criminal trials is correcting prosecutorial mischaracterizations of rap music. He noted that prosecutors “routinely ignore the fact that rap is a form of artistic expression – with stage names, an emphasis on figurative language and hyperbolic rhetoric – and instead present rap as autobiographical.”

Nielson further explained that this practice is effectively asking “jurors to suspend the distinction between author and narrator, reality and fiction, and to read rap lyrics as literal confessions of guilt. No other art form is exploited like this in court. And yet it’s an effective strategy precisely because it taps into stereotypes about rap music and the young men of color who are its primary creators.”

In Nielson’s opinion, introducing rap lyrics as evidence in criminal trials can be highly prejudicial because it allows prosecutors “to draw on stereotypes about young black and Latino men as violent, hypersexual and dangerous.”

Drakeo is set to be retried on the criminal gang conspiracy charge. If convicted, he faces life in prison.

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