Category Archives: In the News

Articles about legal issues currently in the news.

a doctor and a child

Where Are the Dauberts Today?

The Supreme Court’s Daubert decision revolutionized the law governing the admissibility of expert witnesses. The decision imposes a duty on trial judges to decide whether expert testimony is sufficiently reliable to be admitted as evidence in court. While there remains widespread disagreement about whether Daubert is meant to open or close the door to expert testimony, the decision’s influence on American law is undeniable.

A majority of states have adopted some version of the Daubert analysis, although states often put their own spin on the role that judges should play when the assess expert witness testimony. One scholar has applauded the Daubert “revolution” for bringing “scientific enlightenment to the law.” Another has questioned whether judges are any better than juries at evaluating expert evidence. In short, opinions about Daubert are all over the map.

The Daubert Decision

The Daubert decision was the culmination of a lawsuit commenced by Joyce and Bill Daubert. Among other deformities, their newborn son was missing three fingers and a bone in his forearm. Doctors told her that she was probably exposed to something that caused her developing embryo to deform, but they could not identify the specific cause.

About ten years later, Joyce read a newspaper article about a little girl with symptoms that were similar to her son’s. The girl’s parents were suing Merrell Dow, alleging that the birth defects were caused by Bendecin. The company marketed the anti-nausea medication as a remedy for morning sickness.

In 1983, the parents of the little girl won a $750,000 verdict against Merrell Dow. Their lawyer called a reproductive epidemiologist and a pediatrician as expert witnesses. About two weeks later, Merrell Dow pulled Bendecin from the market.

The Dauberts brought their own lawsuit against Merrell Dow. They assembled a team of expert witnesses. By that time, pharmaceutical and insurance companies had launched a public relations campaign against “junk science.” The campaign disparaged juries as being too “sympathetic” to injury victims (as if human empathy is an evil trait) and contended that experts chosen by plaintiffs (but not drug companies) were “hired guns” who slanted their unscientific opinions to favor the parties who hired them.

Merrell Dow moved to dismiss the case without a trial, based on an epidemiological study that found no “reproducible or consistent association of birth defects with Bendectin exposure.” The Dauberts challenged that study. They relied on eight experts, including experts in reproductive epidemiology, developmental biology, toxicology, biostatistics, and pharmacology. The experts reanalyzed the epidemiological data and concluded that the study advanced by Merrell Dow did not rule out the possibility that Bendectin caused birth defects.

The trial judge sided with Merrell Dow. On appeal, the Ninth Circuit applied the Frye test for expert witness admissibility. The court concluded that the methods relied upon by the Dauberts’ experts were not a “generally accepted” means of proving causation and thus could not be admitted as evidence.

The Dauberts took their case to the Supreme Court. The Court rejected the Frye test. The question, the Court said, should be whether expert testimony is reliable, not whether it is based on a methodology that is generally accepted by other scientists. While acceptance is one factor that helps a judge assess reliability, making it the only factor prevents juries from hearing reliable evidence simply because it is new or novel.

The Supreme Court reversed the Ninth Circuit’s decision. It rejected the Frye standard and crafted an admissibility test that is now known as the Daubert standard. The New York Times reported that the Court raised the bar for admitting expert testimony. The Washington Post reported that the Court lowered the bar. That controversy has continued to this day.

The Aftermath of Daubert

The Ninth Circuit applied the new standard and again rejected the Dauberts’ experts. This time, the court concluded that epidemiological evidence did not prove that Bendectin exposure would double a child’s risk of being born with birth defects. If the risk is not doubled, the court decided, it was impossible to say that birth defects were probably caused by Bendectin.

Putting aside the wisdom of the decision, the Ninth Circuit’s reasoning has been widely adopted. Judges have used it to reject expert testimony in a variety of contexts that involve potentially dangerous exposures, from chemical products and pollutants to radiation from power lines and cellphones.

The Ninth Circuit judge who wrote the decision rejecting the Dauberts’ claim later became an advocate for applying the Daubert standard in a way that benefits not just corporations accused of wrongdoing, but defendants who are accused of committing crimes. The judge noted that government crime lab employees too often view their jobs as helping prosecutors, not as seeking the truth. They rely on junk science to prove guilt without regard to its unreliability.

The legal system has been slow to reject the testimony of crime lab analysts who were allowed for decades to base opinions on anecdotal evidence rather than rigorous methodologies. While change does not come easily, courts are beginning to recognize that dubious testimony about bite marks, hair comparisons, blood spatter, and other branches of forensic science cannot be considered as proof of guilt.

What Happened to the Dauberts?

Where did the Daubert decision leave the Dauberts? Joyce feels that justice was not done because she never had her day before a jury. In the absence of any better explanation for her son’s birth defect, she still blames Merrell Dow. She might be right, but the Ninth Circuit’s questionable belief that doubling a relative risk is essential to proof of causation has become widely accepted by federal judges.

On the other hand, Joyce’s son — who is now 46 and working in the field of information technology — appreciates that a case bearing his name is being used to reduce the risk of innocent defendants being convicted on the strength of junk science. While disagreement about the application of Daubert in civil cases continues to spark controversy, there is a growing recognition of its importance as a shield against overzealous prosecutors who disguise biased opinions as “expertise” in their effort to convict accused defendants.

stock market

Experts Testify at Congressional Hearing About Blockchain Technology

A panel of experts have offered testimony at a United States Congress hearing over the benefits of blockchain technology for small businesses.

Congressional Hearing

The hearing, entitled, “Building Blocks of Change: The Benefits of Blockchain Technology for Small Businesses,” was held before The Committee on Small Business on March 4, 2020. The purpose of the hearing was to give the committee insight into “how innovators and entrepreneurs are using blockchain technology to help small businesses boost productivity, increase security, open new markets, and change the way business is done.”

Blockchain technology utilizes a distributed, decentralized, digital ledger or database that allows multiple parties to engage in secure transactions with each other without the use of an intermediary. Blockchain technology is most commonly associated with cryptocurrency such as bitcoin. However, it has many potential uses, including: monitoring goods in global supply chain, use in retail reward loyalty programs, serving as digital identification, digital voting, and transfers of items like real estate or motor vehicle titles.

Expert Witnesses

The experts who were called to testify before the Committee included: Shane McRann Bigelow, Dawn Dickson, Marvin Ammori, and Jim Harper.

Shane McRann Bigelow is the CEO of Ownum, LLC, a blockchain tech company focused on unlocking business growth and making government more efficient. Bigelow offered testimony on behalf of the Chamber of Digital Commerce. Bigelow testified that his company hoped to use blockchain technology to “Help the poorest in our country, who are also disproportionately minorities, to gain better access to their vital records in a secure way by encouraging federal and state governments to allow for the digitization of not only their vital records, but the process to acquire them.” He emphasized, “Additionally, we will help improve public safety through more accurate data, particularly in the vehicle title arena.”

Dawn Dickson is the CEO of PopCom, a company that uses blockchain technology in “high-IQ automated retail technology” or smart vending machines. Dickson testified, “Blockchain is not a silver bullet. But it can solve problems that small businesses face.” She gave the example that her company believes that the most “secure way to check and confirm a customer’s identity, while ensuring that their personal data remains secure, is to have the customer verify their information securely on their mobile device and store that data on blockchain.”

Marvin Ammori is the General Counsel of Protocol Labs, a research, development, and deployment institution for improving Internet technology. Ammori testified on behalf of the Blockchain Association, a trade association for organizations who are interested in responsibly building and investing in the next generation of digital services. Ammori testified that blockchain technology benefit businesses in many industries, including health care, supply chain, law, and enabling investment and competition in internet infrastructure services such as cloud storage.

Ammori also testified that, “The tax treatment is very complicated” and “doing your taxes for crypto is the worst nightmare.” He explained that doing taxes involving crypto is currently a nightmare and that the system should be reformed before mass adoption. He gave the example, “If you wanted to spend Bitcoin on a coffee this morning, you’d have to keep track of what you paid for the Bitcoin and how much it was worth the moment you spent it, and pay the capital gain or loss on every single transaction.” Ammori also argued for clearer crypto guidelines from both the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CTFC).

Jim Harper is a visiting fellow at the American Enterprise Institute. Harper identified “three advantages of blockchain I can identify for small business: First, simple efficiencies may produce lower costs for small businesses. Second, blockchains may allow for diversified and open market structures that support more niches and specialties. Finally, blockchains may reduce the competitive advantage that large businesses have in the world of data.”

 

A judge

Colorado Supreme Court to Weigh in on Experts in Domestic Violence Cases

The Colorado Supreme Court has decided to hear a case to determine whether to permit expert witness testimony in domestic violence trials by experts who are not familiar with the details of the case.

The Domestic Dispute

In the summer of 2013, Kerry Lee Cooper and his partner, L.K., got into an argument over where to place an electric fan. L.K. testified that Cooper shoved her face into the fan’s blades, cutting her, and she retaliated by hitting him. L.K. claims that Cooper then punched her, grabbed her by the jaw, and beat her with a tire iron.

Cooper claimed that L.K. had been the aggressor. According to Cooper, L.K. asked him to reposition the fan. When she was unhappy with the way he had placed it, he threw the fan on the end of the bed. He claims that L.K. hit him with the flashlight and bit his hand when he tried to take the flashlight away from her. Cooper only admitted to pushing L.K. in the forehead.

Cooper’s daughter, who lived nearby, heard screaming and called the police.

The Domestic Violence Expert

At Cooper’s trial, the prosecutors brought in an expert witness to testify about the “characteristics of domestic violence relationships” and the “power and control wheel,” a tool that was developed with the intent to “explain the ways that an abusive partner can use power and control to manipulate a relationship.”

Cooper’s attorneys objected to the testimony, but the court allowed its admission. A jury convicted Cooper of third degree assault and harassment, but acquitted Cooper of related menacing and cruelty to animal charges — Cooper’s dog had entered the room during the incident.

Colorado Court of Appeals

Cooper appealed his conviction. On appeal, the Colorado Court of Appeals considered whether the district court erred by admitting a subject matter expert witness who had no familiarity with the facts of the case.

The Colorado Court of Appeals ruled that the trial court had erred by admitting the expert witness. Writing for the court, Judge Michael H. Berger stated that “No evidence presented to the jury proved or even suggested that prior to the charged incident Cooper had assaulted, or physically or nonphysically abused, L.K.” Berger also noted that there was no indication of a cycle of violence or control over L.K.; however, “the expert was permitted to give extensive testimony about how domestic abusers exercise such control”.

In essence, the expert testimony had no factual foundation that made it relevant to the case. Berger wrote that the expert’s testimony “may well have caused the jury to infer that there was a prior history of domestic violence.” The court reversed Cooper’s conviction and ordered a new trial.

Colorado Supreme Court

The prosecution petitioned the Colorado Supreme Court for a Writ of Certiorari.

The Colorado Supreme Court granted the petition, agreeing only to determine the issues of (1) Whether the court of appeals erred in concluding that blind expert testimony on domestic violence was inadmissible because the charged act was the first act of domestic violence in the relationship; (2) Whether the court of appeals erred in concluding that blind expert testimony on domestic violence must be limited to those facets of a subject that are specifically tied to the particular facts of the case; and (3) Whether the court of appeals erred in finding that the admission of the expert testimony was not harmless.

 

Fake

Testing Instruments Used by Forensic Psychologists Criticized as Junk Science

Psychologists and other mental health professionals give helpful testimony in a variety of contexts. In civil cases, they may testify about the emotional trauma experienced by an accident victim. In family law cases, psychologists determine the fitness of parents seeking child custody. In workers’ compensation cases, they provide opinions about the degree of disability caused by job-related emotional injuries.

In criminal cases, mental health experts often provide evidence that will help a sentencing court decide upon an appropriate punishment. In death penalty cases, their testimony might help a jury understand whether a defendant is likely to commit another violent crime. When wives kill husbands, mental health experts explain how the “battered woman syndrome” might affect the wife’s perception of the need to act in self defense.

While mental health experts play a vital role in the legal system, their testimony is often criticized as inexact. Proper testing of an untainted DNA sample can establish identity to a near certainty, but mental health experts have no comparable tools. Physicians rely on objective evidence to make a diagnosis, including CT scans and MRI results, while mental health experts are more likely to rely on subjective impressions when they identify a mental health condition.

Assessment Instruments and Subjectivity

To reduce subjectivity in forensic psychological assessments, experts have developed instruments that help them make a diagnosis. Those tools allow psychologists and other expert witnesses to base opinions on objective research findings rather than subjective impressions.

Subjective conclusions may reflect unconscious bias. They may also reflect an opinion that would not be held by a different professional conducting the same evaluation. To the extent that an assessment instrument is both valid and reliable, the instrument may help forensic experts achieve more consistent results.

Despite the advantages of using assessment tools to inform an expert opinion, a 2014 study found that a quarter of all forensic evaluations are conducted without using an assessment instrument. Experts who regularly eschew tools typically trust their professional judgment more than evidence-based assessment methods.

While using an assessment instrument may contribute to the reliability of an expert opinion, not all instruments are created equal. The criteria chosen for measurement may be based on a consensus of subjective opinion rather than an objective analysis. In addition, instruments often call for the assessor to answer subjective questions. Different psychologists administering the same test might therefore reach markedly different results.

For example, the Hare Psychopathy Checklist, a screening tool to determine whether a patient should be classified as a sociopath, asks whether the subject has “excessive glibness” or superficial charm. Two different assessors might disagree about the amount of glibness that is “excessive.” What seems to be genuine charm to one might seem superficial to another. It isn’t surprising that the tool has been harshly criticized, despite its widespread acceptance in the mental health community, as relying on criteria that are “subjective, vague, judgmental and practically unmeasurable.”

Validity of Forensic Psychology Instruments

Tess Neal, an assistant professor of psychology at Arizona State University, led a study of testing instruments commonly used to provide an objective foundation for expert opinions rendered in court. Legal scholars teamed with mental health experts to examine assessment tools commonly used by expert witnesses. The study’s findings will likely fuel Daubert challenges while providing ammunition for challenging opinions on cross-examination.

The study examined 30 assessment tools “to determine their popularity among experts and their scientific credibility.” Neal and her colleagues assessed a variety of instruments, including “aptitude tests (e.g., general cognitive and ability tests), achievement tests (e.g., tests of knowledge or skills), and personality tests.”

The study found that only about two-thirds of popular assessment tools are generally accepted as reliable in the field of psychology. It also determined that there is only a “weak link” between general acceptance of a tool’s reliability and its actual reliability.

Actual reliability was determined by whether the instruments received “favorable reviews of their psychometric and technical properties in authorities such as the Mental Measurements Yearbook.” Only about 40{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of popular assessment instruments have been favorably reviewed.

Some tests, such as the Static-99 (a sex offender risk assessment tool) are generally accepted as reliable despite the absence of any professional reviews. Others, such as the Structured Inventory of Malingered Symptomology (SIMS), are generally accepted despite having largely unfavorable reviews. The assumption that an instrument is reliable seems to be detached from evidence-based research.

The authors report that psychological testing is a large and profitable business. Yet it is not always true that “psychological tests published, marketed, and sold by reputable publishers are psychometrically strong tests.”

According to the study, “some psychological assessment tools are published commercially without participating in or surviving the scientific peer-review process and/or without ever having been subjected to scientifically sound testing—core criteria the law uses for determining whether evidence is admissible.” The mental health experts who use an instrument may be unaware that it has never been peer-reviewed or validated with testing.

Failure to Challenge Assessment Instruments

The study also noted that lawyers have done a poor job of challenging the reliability of assessment evidence. Judges and lawyers tend to accept the evidence without question.

The study’s key finding is startling: “Challenges to the most scientifically suspect tools are almost nonexistent. Attorneys rarely challenge psychological expert assessment evidence, and when they do, judges often fail to exercise the scrutiny required by law.”

The study found that lawyers challenged the admissibility of only 5{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of expert opinions that were based on the surveyed assessment instruments. The majority of those challenges addressed how the expert used the tool (i.e., whether the expert followed the instructions correctly) or whether the expert interpreted the results correctly.

A more fundamental challenge would address the validity of the instrument itself. Daubert requires expert opinions to be based on adequate facts and a reasonable methodology. If an assessment tool has not been determined by peer-reviewed studies to produce reliable results, opinions that are driven by the tool may be ripe for a Daubert challenge.

When validity challenges are made, they often fail. Judges base decisions on the evidence and arguments presented at a Daubert hearing, so it may be unfair to criticize judges for failing to recognize the weaknesses of assessment instruments that have not been validated.

Still, the study found that courts sometimes view test results as only one fact among many that inform the expert’s opinion. If that fact is unreliable, however, Daubert would prevent an expert from using the test result as support for an opinion. Since reliance on a testing instrument bolsters a psychologist’s subjective opinion with data that is supposedly objective, a jury might be swayed by unreliable test results, even if the jury might not be persuaded by the expert’s testimony in the absence of those results.

The study’s “bottom-line conclusion is that evidentiary challenges to psychological tools are rare and challenges to the most scientifically suspect tools are even rarer or are nonexistent.” Effective representation of a client may require lawyers to raise Daubert challenges to opinions based on psychological assessment instruments, even if the instruments are widely used.

Using Experts to Challenge Experts

When one party calls a mental health expert to testify, it is nearly always imperative for the opposing party to use its own expert to challenge that testimony. Professor Tess’ study provides a means for experts to challenge opinions that are based on the findings of popular assessment instruments.

Michael Saks, a professor of law with ASU’s Sandra Day O’Connor College of Law, stresses the importance of challenging the credibility of psychological evidence. Challenging biases that are inherent in assessment instruments is an important means of assuring that juries do not place undue weight on opinions that are only loosely grounded in science.

Professor Saks hopes that the study will encourage expert witnesses to be skeptical of their own testing instruments. Professor Neal agrees that psychologists need to be more introspective by challenging their own assumptions about the validity of their tools. At the very least, experts should be prepared to acknowledge the limitations of their findings and to admit that psychological opinion evidence can never be entirely free of subjectivity.

 

Covering the Cost of Experts in Utah Jail Death Cases

In Utah, expert witnesses play important roles in the civil court cases that are fought over jail deaths.  Who pays for these experts?  That depends on if you’re a plaintiff or a defendant.

The Government Indemnity Pool

In the State of Utah, there is a government indemnity pool that pays for civil defense attorneys and expert witnesses when a death occurs in a jail.

The Ogden, Utah-based Standard-Examiner daily newspaper recently took a look at how the government indemnity pool works and how it may cause the government to have an advantage over plaintiffs in civil jail death cases.

Funding the Government Indemnity Pool

The Utah Counties Indemnity Pool was created by the Utah Government as a public agency insurance mutual.  The pool allows counties to combine resources to cover legal expenses and other losses.  Individual counties pay “law enforcement liability contributions” to this fund each year.  For example, thus far in 2020, Box Elder County has paid $125,025 into the fund, Davis County has paid $325,065 into the fund, Morgan County has paid $16,670 into the fund, and Weber County has paid $396,746 into the fund.  The amount that each county owes is based upon the total number of law enforcement personnel that it employs.

According to the data that the pool shared with Transparent Utah, the pool paid out more than $2.5 million to cover losses, including settlements, and payments to attorneys in 2019.

Miller and Hayes Deaths

In December 2017, Gregory Leigh Hayes, 33, died of a prescription drug overdose after being booked into the Davis County Jail.  His mother, Susan Johnson, filed a wrongful death suit, arguing that the jail should have had him checked by a doctor before putting him in a holding cell.

In December 2016, Heather Miller, 28, died of a severely ruptured spleen after falling from her cell’s top bunk.  Her mother, Cynthis Farnham-Stella, sued Davis County for damages and an injunction requiring better medical care for inmates.

Dr. Kennon Tubbs was retained by Davis County as the chief expert witness in both the Miller and Hayes suits.  Dr. Tubbs is the contract medical director for 11 county jails in Utah and Wyoming and formerly practiced medicine at the Utah State Prison for 13 years.  Dr. Tubbs’ rate sheet indicates that he receives $500 per hour or $3,500 per day for his expert witness fee.  Dr. Tubbs’ expert witness fee comes out of the Utah Counties Indemnity Pool.

Less Options for Plaintiffs

Tad Draper, one of the attorneys who is representing the families of Hayes and Miller in their suits, told the Standard that hiring expert witnesses can be more challenging for plaintiffs.  He explained that expert witness fees can range from $200 to $500 per hour.  Draper said that lawyers will typically front the expense of expert witnesses, and cover those costs if they lose the case.  He explained, “In most cases worth pursuing, a lawyer takes the risk,”

 

Former FBI Director Excluded as Expert Witness

A federal judge has excluded the testimony offered by a former FBI Director in the case of the high-profile Volkswagen diesel emissions scandal.

Volkswagen Diesel Emissions Scandal

Volkswagen installed emissions software on more than 500,000 diesel cars in the United States and about 10.5 million more globally that allowed them to sense when a car is going through an emissions test. When the cars are in test mode, they are fully compliant with the maximum emissions levels that are set by The Environmental Protection Agency (EPA). But when the cars are driving normally, the cars switch to a different mode that changes fuel pressure, injection timing, exhaust-gas recirculation, and the amount of urea fluid that is sprayed into the exhaust. The “normal driving” mode delivers higher mileage and power; however, it also emits nitrogen-oxide (NOx) at levels that are up to 40 times higher than the federally-allowed limit.

As a result of these findings, Volkswagen was sued by the Environmental Protection Agency, the Federal Trade Commission, and the Department of Justice. Volkswagen was also liable civilly to the customers who had purchased the vehicles with the emissions software installed.

Expert Witness Louis Freeh

In 2016, Volkswagen was in talks to hire former FBI Director Louis Freeh to run its diesel emissions litigation. Freeh’s resume includes stints as a special agent in the FBI, Assistant U.S. Attorney, and United States District Judge for the Southern District of New York. President Bill Clinton appointed Freeh as the 5th Director of the Federal Bureau of Investigation, where he served from 1993 to 2001. He now serves as a lawyer and consultant in the private sector.

Freeh requested a guaranteed $15 million over three years, plus 10{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the “savings the company and its subsidiaries yield and/or the costs saved by settlements.” In the end, VW passed over Freeh for the role.

Freeh, who is founder and chairman of consulting firm Freeh Group International Solutions and senior managing partner of the affiliated law firm Freeh Sporkin & Sullivan, is now working for the other side. Freeh was retained as an expert witness for the plaintiffs who opted out of VW’s 2016 civil settlement and chose to sue the company instead.

The Knight Law Group retained Freeh as a plaintiff’s expert witness in the case In Re: Volkswagen “Clean Diesel” Marketing, Sales Practices, and Products Liability Litigation. The Knight Group paid Freeh $50,000 to write a 21-page report and agreed to pay $1,850 per hour for any future work. In his report, Freeh concluded that Volkswagen had gotten off too cheaply in the government’s criminal case against it, which settled for $2.8 billion in 2017. In Freeh’s opinion, the proper fine should have been in the range of $34 billion to $68 billion.

Volkswagen’s defense team filed a motion to disqualify. In its motion, the team argued, “Mr. Freeh’s conflict of interest and receipt of confidential information disqualify him from serving as an expert adverse to defendants.” The motion argued that Freeh had “engaged in extensive privileged and confidential discussions with Volkswagen’s senior-most executives and counsel about the same diesel matters underlying this lawsuit, including discussing key documents and legal strategy.”

While the motion to disqualify was still pending, U.S. District Judge Charles Breyer of the Northern District of California, held a Daubert hearing on the relevance of Freeh’s opinion. Judge Breyer ruled that the admission of Freeh’s opinion could bog down the trial and would require testimony from the judge who oversaw the criminal case and federal prosecutors. Judge Breyer said that plaintiffs’ counsel could not point to a single case where that type of testimony would be admissible.

Judge Breyer’s ruling effectively mooted the pending motion to disqualify Freeh based on information that was shared with him when he was in the running for the role to run the company’s previous litigation.

Prosecution Undermines Weinstein’s False Memory Witness

The prosecutors in Harvey Weinstein’s criminal trial got the defense “false memory” witness to admit she was not an expert in brain regions, potentially undermining the testimony that she offered in Weinstein’s defense.

The Criminal Charges Against Weinstein

In May 2018, Manhattan District Attorney Cyrus Vance Jr. charged Weinstein with “Rape in the First and Third Degrees, as well as Criminal Sexual Act in the First Degree, for forcible sexual acts against two women in 2013 and 2004, respectively.”  In July 2018, the charges were amended to include “one count of criminal sexual act in the first degree and two counts of predatory sexual assault.”

Weinstein pleaded not guilty to all charges.  If convicted, he could face life in prison.

Weinstein is charged with four similar sex crimes in Los Angeles County.  That case is on hold until his New York case is resolved.

The False Memory Witness

Weinstein’s defense team retained Professor Elizabeth Loftus to testify in his defense.  Professor Loftus is a Distinguished Professor of Psychological Science; Criminology, Law and Society; Cognitive Science; and Law at University of California Irvine (UCI).  She has her Ph.D. from Stanford University.

Professor Loftus concentrates her studies on human memory.  According to her UCI faculty profile, Loftus conducts experiments that “reveal how memories can be changed by things that we are told.”

Loftus has worked as an expert witness on numerous high-profile cases, including those of Michael Jackson, the Menendez brothers, and Ted Bundy.

Weinstein’s defense team is arguing that his accusers are misconstruing consensual sexual encounters as assault and rape.  They contend that these accusations are particularly suspect in light of the constant negative media coverage surrounding him.  They retained Loftus to strengthen these arguments.

Under the questioning of Weinstein attorney Diana Fabi Samson, Loftus testified that media exposure can weaken memories.  She said, “it doesn’t take a Ph.D. to know a memory fades over time. … As time is passing and the memory is getting weaker and weaker … it becomes more vulnerable to post-event information.”

Loftus continued, “By exposing a witness to media … post-event information can cause a contamination in memory.”

The Cross-Examination

Prosecutor Joan Illuzzi took the lead on cross-examining Loftus. Illuzzi questioned Loftus as to whether “all memory is wired and retained and retrieved equally?” Illuzzi then brought out a diagram of the brain to question Loftus about it. lluzzi asked Loftus whether the diagram fell within her area of expertise. Loftus replied, “I would defer to the neuroscientists who study the brain.”

Illuzzi pressed further, “Doctor, does that fall within your area of expertise?” Loftus replied, “I know a little bit, but I am not an expert. That’s a more complete answer.”

Justice James Burke, who is presiding over the case, then repeated the question, “Field of expertise?” Loftus replied, “I will say, no.”

Illuzzi also got Professor Loftus to admit that she had previously written a book entitled Witness for the Defense and asked whether her prior testimony that Valuim can impact memory had been tailored to the case.

 

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 after Clark withdrew his plea. 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 new name.

Clark’s 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 Mississippi 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 appellate court recognized 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 was entitled to an acquittal. 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.