Category Archives: In the News

Articles about legal issues currently in the news.

When Expert Opinion Amounts to Speculation

Attorneys do not often serve as expert witnesses, in part because only the judge who presides in a trial is the expert in the law that controls the case. In some cases, however, attorneys do serve as expert witnesses. They do so most often in legal malpractice cases, when they testify about the quality of representation a reasonable lawyer should provide and express opinions as to whether a particular lawyer met that standard.

An attorney was allowed to testify in a Texas malpractice case involving a technology company and its patent lawyers. The Texas Court of Appeals recently ruled, however, that the expert’s testimony was based on speculation rather than facts. Since the testimony failed to establish that the plaintiff was harmed by the alleged malpractice, the plaintiff could not prevail.

Lawsuit Background

Axcess International markets radio frequency identification (RFID) products and services. Axcess improved its technology by creating a “dual-frequency RFID system.” It hired Baker Botts, a Texas law firm, to act as its intellectual property counsel. Baker Botts began filing patent applications for Axcess in 1999. A year later, Axcess’ chief competitor, Savi Technologies, hired Baker Botts to seek patents of its own dual-frequency RFID system.

In 2002, when Savi announced the release of its new product, the Axcess employee who developed its dual-frequency RFID system thought that the Savi product might be using the same technology that Axcess had patented or that pending applications were seeking to patent. Axcess asked its Baker Botts attorney for advice. Axcess alleges that Baker Botts failed to provide the requested assistance.

Axcess then hired a new firm, Haynes and Boone, which wrote to Savi and suggested that Savi might need to license the patents that had been issued to Axcess in order to avoid infringing upon that patent. Savi forwarded the letter to its attorney at Baker Botts, who realized that Baker Botts had represented Axcess in its patent applications. Since a conflict of interest existed, Baker Botts told Savi it would need to have a different firm represent it in the case. Represented by new counsel, Savi advised Axcess that it was not infringing the Axcess patents and therefore would not license them.

A third competitor in the RFID industry, AeroScout, later challenged the validity of Savi’s patents. It based its challenge in part on the claim that Baker Botts should have disclosed Axcess’ patent applications to the patent office when it applied for patents on behalf of Savi.

Apparently in response to AeroScout’s contentions, Axcess hired yet another firm to sue Savi for patent infringement. Savi responded by asking the Patent Office to invalidate Axcess’ patent on the ground that the patented technology had already been patented by others. The Patent Office agreed and Axcess lost its patent. Axcess then sued Baker Botts, alleging that Baker Botts committed legal malpractice and that it breached its fiduciary duty to Axcess during its dual representation of Savi and Axcess.

Expert Evidence on Causation

To win its case, Axcess needed to prove not just that Baker Botts committed malpractice or breached a duty of loyalty, but that its alleged misconduct caused harm. The Texas Court of Appeals held that Axcess introduced no competent evidence to prove that it was harmed by Baker Botts.

Axcess relied on the expert testimony of a patent attorney to establish causation. The attorney testified that if Baker Botts had disclosed to Axcess that it was pursuing patents on behalf of its competitor Salvi, Axcess would have hired counsel that did not have a conflict of interest. The attorney then testified that, with new counsel, Axcess would have initiated an interference proceeding with the Patent Office. Under the law in effect at that time, the party that first invented something (rather than the party that first filed for a patent) was entitled to patent it. An interference proceeding resolves conflicts about entitlements to patents.

The attorney testified that a successful interference proceeding would have caused Salvi’s patent rights to shift to Axcess, placing Salvi’s lucrative government contracts that relied on the patents at risk. That would have placed Axcess in a stronger position to negotiate a resolution with Salvi, which would have benefitted Axcess.

According to the appellate court, the attorney’s expert opinion as to causation rested on (1) his belief that Axcess would have prevailed in its interference proceeding, and (2) his belief that Salvi would have negotiated a resolution to the dispute that would have benefitted Axcess. The court concluded that the attorney’s beliefs amounted to speculation rather than factual evidence.

The court decided that the attorney had no basis for deciding how the patent office would have responded to the interference proceeding. He pointed to no facts, such as similar disputes that the Patent Office had decided, to support his opinion that the Patent Office would have ruled in Axcess’ favor. The fact that the Patent Office ruled in Salvi’s favor with regard to another patent suggested that the attorney’s opinion was not grounded in the specific facts that separate a reasonable conclusion from conjecture.

In addition, the court decided that the attorney’s opinion as to what Salvi would have done if, in fact, Axcess had prevailed in the interference proceeding was entirely speculative. His testimony about what Salvi might have done was, in the court’s view, a conclusory opinion that was not based on fact.

Since Axcess needed expert evidence to prove that it was harmed by the actions of Baker Botts, and since the evidence it produced was based on speculation rather than facts, Axcess was not entitled to prevail. The case is a reminder that no matter how knowledgeable or qualified an expert might be, an expert’s opinion must still be grounded in demonstrable facts before a court will rely upon it.

Testimony of Auto Design Expert Barred by VA Supreme Court

In a Daubert-like challenge, the Supreme Court of Virginia barred the testimony of an expert hired by the guardians and conservators of a person severely injured in a single-car automobile collision. (Hyundai Motor Company, LTD, et al vs. Duncan Record No. 140216)

Factual and Procedural Background

The case involved a single car collision involving a Hyundai driven by Zachary Gage Duncan. He lost control of the car, it ran off the road, hit a snow bank, a bale of hay, and ultimately, a tree. The impact was to the driver’s side of the car, and the driver suffered a closed-head injury despite the car being equipped with side airbags. Although the case had to be tried twice, it ultimately resulted in a verdict for the Plaintiffs of about $14 Million.

The original complaint alleged various theories of wrongdoing; it went to trial on the theory of breach of implied warranty of merchantability. Specifically, Plaintiffs contended that the car was defective, unreasonably dangerous, was unfit for its intended purpose and “did not pass without objection in the industry in which it was sold.” The crux of the defect, according to the Plaintiffs, was that the driver’s side airbag sensor was misplaced and for that reason, the airbag did not deploy on impact.

Discovery and the Expert Witness

The Plaintiffs hired a mechanical engineer, Geoffrey Mahon, as an expert to testify that the car was defectively designed. His opinion was that had the airbag sensor been installed in the pillar where the door closes, rather than on the cross-member under the driver’s seat, the airbag would have deployed when the collision occurred. He, therefore, concluded that it was the placement of the sensor that made the car unreasonably dangerous.

What the Expert Didn’t Do was Crucial to the Outcome

Before trial, and for the reasons discussed below, Hyundai sought to exclude Mr. Mahon’s testimony. The motion in limine was denied and the case went to trial.

As we will discuss, the problem with the expert’s opinion is that in reaching it, he relied on only a computer-aided design study that the car manufacturer had conducted some years prior. That study looked at more than a dozen possible locations for the sensor. One was on the pillar where the door closes, locating it 8-10 inches from the floor. The expert dismissed all of the options that the manufacturer considered, and concluded that locating the sensor on that pillar, but 4-6 inches from the floor instead, “would be his first choice.”

The expert was, at the least, intellectually honest. He stated that since the car manufacturer did not analyze the location that he thought was best, he would “have to run tests to verify that that’s just the right location, but based on [Hyundai’s] evidence of the somewhat higher pillar location, that looks very promising.” He also testified that whether or not a properly functioning airbag would have made a difference, he would have to examine the structure of the vehicle along with the sensors themselves and the attending mathematical algorithms. Significantly, the Plaintiffs’ expert testified that he had not performed any testing nor made any calculations. Nonetheless, the trial court found for the Plaintiffs.

On appeal, the Virginia Supreme Court reversed. It held that the expert’s opinion was based on the assumption that the airbag would have deployed had it been placed elsewhere in the driver’s side door. But, Mr. Mahon did not perform any tests or calculations, nor was any presented at trial to support his opinion. The Supreme Cout held that the expert’s opinion lacked factual basis and was, therefore, inadmissible.

Expert’s Credibility Challenged in Brock Turner Trial

Maintaining an appearance of objectivity is essential if an expert witness wants to be effective. When an expert appears to be an advocate for a party, the jury is less likely to regard the expert’s testimony as credible.

An expert who testified about the potential effect of alcohol on an alleged sexual assault victim learned that lesson during her cross-examination. According to media reports, the expert’s credibility was attacked because the expert’s emails to the defense attorney suggested a lack of objectivity.

Brock Turner Trial

Brock Turner was a varsity swimmer at Stanford and a potential Olympic contender prior to his arrest. He was charged with sexually assaulting an intoxicated, unconscious woman behind a fraternity house in January 2015. The alleged victim, a 23-year-old woman, did not attend Stanford but was on campus to attend a party at the fraternity.

A student who was biking to the party at about 1:00 a.m. testified that he saw Turner on top of a woman who was laying on the ground and not moving. The student testified that he confronted Turner and that Turner tried to run away. The student and his friend held Turner until the police arrived.

The police determined that the woman was unresponsive. The woman’s dress was hiked up and her underwear was found on the ground next to her.

A paramedic who responded to the scene testified that the woman was unconscious. However, she vomited before entering the ambulance and was able to clear the vomit from her throat without assistance.

The woman was taken to a hospital, where she regained consciousness after about three hours. Her blood alcohol content was estimated to be 0.24{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} at the time of the alleged assault. Turner’s was 0.17{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4}.

Turner was charged with three felonies: assault with intent to commit rape of an intoxicated or unconscious person, sexual penetration of an intoxicated person, and sexual penetration of an unconscious person. Turner, who was a 19-year-old freshman, withdrew from Stanford following his arrest.

Turner told the police that he had sexual contact with the woman but did not have intercourse with her. At trial, Turner testified that he “dry humped” the woman and penetrated her with his finger, but again denied that he had intercourse with her. He said he never removed his pants.

Since nonconsensual penetration with a finger would be sufficient to establish a sexual assault under California law, the question for the jury is whether the woman was either unconscious or too intoxicated to consent to Turner’s actions. Turner testified that the woman was awake and that she gave verbal consent to the sexual activity.

The alleged victim’s sister testified that she seemed fine at 12:15 a.m., when the sister left the party she was standing and her eyes were open.

The alleged victim testified that she could not remember anything that happened after midnight. Other witnesses established that she made two telephone calls at about 12:30 a.m., but she did not remember making those calls. She also acknowledged that she had experienced four or five alcohol-related blackouts when she was still in school.

Prosecution Experts

A sexual assault nurse examiner testified that scratches on the woman’s body were consistent with “penetrating trauma.” She acknowledged, however, that she did not know what caused the scratches.

A forensic biologist who examined the woman’s underwear as well as swabs taken from her cervix and vagina found no evidence of semen. He found DNA that he attributed to the woman and to one other person in the waistband of the woman’s underwear, but he ruled out Turner as the source of the DNA.

Defense Expert

To obtain a conviction, the prosecution needs to prove that Turner’s alleged victim was either unconscious or extremely drunk and that Turner knew about that condition when he had sexual contact with her. The defense called a psychology professor to give expert testimony on the effects of alcohol, including blackouts.

The professor testified that a person who has been drinking can seem normal despite having a level of intoxication that leads to a blackout. The professor explained that an intoxicated person might be capable of making decisions, such as a decision to drive or to have sex, but incapable of storing short-term memories about those decisions.

The prosecution did not attack the scientific validity of the expert’s testimony. Instead, the prosecution attacked the expert. The prosecutor cross-examined the expert about an email she wrote to the defense attorney that “exulted in the acquittal of a Seattle man who had confessed to rape and expressed hope for a similar outcome for ‘our client’.” The prosecutor used that email to portray the expert as an advocate for the client, not as an unbiased expert.

A second email questioned whether communications between the expert and the defense should be turned over to the prosecutor because (according to the expert) doing so would be “akin to showing our entire poker hand prior to making a bet.” The disclosure of the emails was required by California law and the suggestion that they should not be disclosed created the impression that the expert was trying to create an advantage for the defendant instead of providing neutral evidence. The reference to poker also gave the prosecutor a chance to ask “Do you think this is a game?,” a potentially devastating question.

Expert Credibility

The lesson to be learned is that experts should avoid making statements that could be used to suggest a close alignment with the outcome of the case. Lawyers are advocates for clients. Effective experts are advocates for the truth. When an expert appears to cross the line by strategizing about how to win the case or by referring to the lawyer’s client (rather than the lawyer) as “my” client, the expert risks crossing a line that will harm the expert’s credibility.

(Photo Credit: “Expert Witness” by The Blue Diamond Gallery is licensed under CC BY-SA 3.0 NY)

Entomologists as Expert Witnesses: Establishing Time of Death

Several experts were among the nearly 100 witnesses who testified for the prosecution in the quadruple murder trial of Kyle Flack in Franklin County, Kansas. While most of the experts provided the kind of medical and forensic testimony that is common to homicide prosecutions, one witness — an entomologist — testified in a field of expertise that less often plays a role in criminal trials.

Four Deaths

Flack was charged with murdering four people with a shotgun, including an 18-month-old girl. Two of the charges carry the potential for the death penalty.

According to prosecutors, Kaylie Bailey left her home with her 18-month-old daughter on the morning of May 1, 2013. Receipts and financial records established that she withdrew money from a bank, bought gas for her car, and purchased cheeseburgers and a kid’s meal from Burger King.

Bailey’s mother testified that she saw Bailey on the morning on May 1 and that Bailey planned to leave her daughter at the home of her boyfriend, Andrew Stout, while she went to work. Stout was also working but Bailey was apparently relying on Flack, who was staying with Stout, to watch her daughter.

Bailey was due at work at 11:00 p.m., but she did not appear. On May 3, Bailey’s employer reported her missing. That same day, Stout’s sister became concerned about her inability to contact Stout. She went inside Stout’s home and, since it was raining, closed the windows. She noticed a bad smell but did not see anything unusual in the home. The rooms were disordered but the house was typically messy. Police conducted four welfare checks in response to the missing persons reports, but they did not find anything amiss.

A few days later, a friend who was feeding Stout’s pets saw what appeared to be a hand when he peered through a crack in the cinder blocks of an outbuilding. Police discovered the body of Stout’s roommate beneath a tarp in the outbuilding. When they searched the home, they found the bodies of Stout and Bailey beneath a large pile of clothing in the master bedroom. Bailey’s arms were bound behind her back.

Prosecutors maintain that Bailey must have died on May 1 because her body was dressed in the same clothing she was wearing when her image was recorded on the bank’s surveillance video. A kid’s meal wrapper from Burger King was also found in the home’s kitchen.

On May 11, a sheriff’s deputy spotted a suitcase floating in an Osage County creek. The body of Bailey’s daughter was found inside the suitcase.

Experts Testify for Prosecution

The prosecution relied on the testimony of a number of experts to make their case against Flack. A forensic pathologist testified that Stout was shot five times. The roommate was shot twice while Bailey and her daughter were each shot once. The pathologist testified that they were all killed with a shotgun.

A firearms examiner linked at least eight of the nine shotgun shells recovered at the crime scene to a partial pump-action shotgun that was recovered from a garbage dump. Witnesses testified that Flack took a pump-action shotgun with him wherever he went.

Only the shotgun’s receiver and magazine were found in the dump. The firearms examiner testified that he “simulated” the barrel and stock by using inventory from the crime lab. Cross-examination of the expert focused on whether examining a “simulation” of a weapon, rather than a complete weapon, can produce an accurate result. The cross-examination also revealed that the first firearms examiner who studied the weapon concluded that the shells found at the scene could not have fired from the receiver that was recovered from the dump. The second examiner testified that the first examiner later withdrew that conclusion.

A forensic scientist specializing in DNA analysis testified that a few of Flack’s DNA markers were present on the receiver that was found in the dump. Other markers belonged to the victims or to dump employees who found the receiver. Two markers could not be identified.

Entomologist Determines Time of Death

In addition to the other forensic experts who helped reconstruct the crime, prosecutors turned to an entomologist. Stout’s body had substantially decomposed and partially mummified before it was found. The body was sitting upright near a heat vent. The warm environment attracted flies that laid eggs on the body’s face. When the body was discovered, it was covered with more than 100,000 maggots. Some of the skin on the face had been eaten away.

Neal Haskell, an international forensic entomologist consultant, used the temperature in the room and the nature of the insects (blow fly larvae) to determine an approximate time of death. He testified that Stout died between April 28 and April 30. Haskell testified that Bailey probably died between May 2 and May 5, although he agreed with the prosecutor’s suggestion that she might have died on May 1.

A forensic scientist specializing in bloodstain pattern analysis testified that the roommate’s body had been moved after he was killed. Based on samples collected from the roommate’s brain, Haskell testified that the roommate died between April 18 and April 20.

Guilty Verdict

Flack called no witnesses. After just three hours of deliberation, the jury found Flack guilty of all four murders. The trial will next proceed to the penalty phase, during which the jury will consider evidence in support of and in opposition to the prosecution’s request for the death penalty.

Haskell’s time-of-death evidence may be important to that determination. If all four victims had been killed at the same time, Flack would be in a position to argue that he acted in the heat of the moment. The time-of-death evidence suggests that Flack made deliberate decisions, in some instances separated by days, to kill each of the four victims. The jury may take that evidence into account when it decides whether the death penalty is warranted.

Expert Testimony Supports Negligent Homicide Jury Verdict

After deliberating for about seven hours, a jury found a Montana man not guilty of intentionally murdering his son. Instead, the jury found James Sindelar guilty of negligent homicide in his son’s shooting death. The jury may have based its verdict on the testimony of a defense expert who explained how Sindelar could have accidentally fired the fatal shot.

Murder Trial

There is no dispute that Sindelar, a 74-year-old resident of Ballantine, Montana, shot his 35-year-old son. The issue before the jury was whether Sindelar did so intentionally or accidentally.

The prosecution based its case on the testimony of Victoria Sidelar, the wife of James Sindelar’s son. She testified that Sindelar, who was living in a tent on family land that his mother had given to his son, came to their house to hand-deliver two letters. While he was there, Sindelar and his son got into a heated argument. Victoria Sindelar told the jury that her husband told his father to leave at least three times, eventually sticking a finger in his father’s face.

According to Victoria, James pointed a pistol at his son’s face during the argument. Victoria testified that her husband grabbed the barrel of the gun. Moments later, the gun discharged.

Sindelar testified that he brought the gun with him for protection. He said that his son was aggressive and described him as having a drinking problem. When he got to the house, his son started arguing with him and he felt threatened. He said he brought out the gun because his son was advancing on him and he wanted his son to stop. When his son bent over him and gripped the gun in both hands, the gun went off accidentally. Sindelar then called 911.

Sindelar’s Expert

The prosecution’s experts provided testimony that was consistent with what the eyewitnesses told the jury. A pathologist told the jury that Sindelar’s son died from a gunshot wound to the head. The shot was fired from a few inches away and traveled at an upward angle. Sindelar’s lawyer told the jury that the forensic evidence supported Sindelar’s testimony that his son was bending over him when the gun went off.

Another expert testified that Sindelar’s son had a high blood alcohol level. His 0.15{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} blood alcohol concentration was well above the legal limit for driving.

The prosecution argued that Sindelar made an intentional decision to pull the trigger. Sindelar relied on the testimony of Roger Enoka, a professor in the department of medicine at the University of Colorado. Testifying as an expert witness, Enoka explained to the jury how the central nervous system can cause a hand to squeeze a trigger even if the person holding the gun has not formed a specific intent to shoot. Enoka based his testimony on studies he has made of involuntary muscle contractions.

Experts in involuntary muscle contractions often testify on behalf of police officers in civil and criminal cases when the officers are sued or prosecuted for shooting an innocent victim. Dr. Enoka’s research is frequently the basis for that testimony. The research has also influenced police training procedures by emphasizing the need for an officer to keep his or her finger outside of the trigger guard prior to forming an intent to shoot.

In Sindelar’s case, the expert’s testimony may have made the difference between the intentional homicide verdict that the prosecution sought and the negligent homicide verdict that the jury returned. The maximum sentence that Sindelar faces is 20 years in prison. Given Sindelar’s age, even a mid-range sentence for negligent homicide would have the same practical effect as a life sentence. The judge will be challenged to fashion a sentence that takes Sindelar’s age and the unintentional nature of his conduct into account.

Ballistics Expert Witness Testifies in LA Grim Sleeper Trial

A LAPD police ballistics expert witness defended his research methodology in the trial of Lonnie Franklin Jr., the suspected Grim Sleeper serial killer. The high profile murder trial continues into its fourth week with prosecutors calling expert witnesses to build their case against Franklin, who has been accused of carrying out 10 murders in the LA area.

Grim Sleeper Murder Trial Continues in LA

Lonnie Franklin Jr. was arrested in July of 2010 in Los Angeles for the alleged murder of 10 women and assault on one woman who survived the attack after DNA evidence linked him to a series of murders in the 1980’s and the early 2000’s. Franklin, 63, has pleaded not guilty to the crimes, and prosecutors have built their case on eyewitness testimony from the surviving victim, DNA evidence from the crime scene, a photo of a victim that Franklin had, and expert witness analysis of bullet wounds which were allegedly caused by a weapon similar to the one in Franklin’s possession.

The gun allegedly used to commit one of the crimes has become a key piece of evidence against Franklin and was found inside a dresser drawer in his home following his arrest. During a three day search of Franklin’s home police investigators found 9 guns, but the one in question has become central to the trial because it was allegedly used to kill 25-year-old Janecia Peters, who police believe to be the last of the Grim Sleeper victims. With the weapon linked to Peters in hand, prosecutors called a forensic weapon expert witness to conduct further investigation into the caliber of gun used in a collection of other murders connected to the Grim Sleeper serial killer.

LAPD Ballistics Expert Witness Testifies in Grim Sleeper Trial

Deputy District Attorney Beth Silverman called Daniel Rubin, a LAPD criminalist expert witness, to link the same caliber gun as the one found in Lonnie Franklin Jr.’s home to a series of Grim Sleeper killings. Rubin testified in court that Franklin’s gun killed Peters, and that the same caliber of weapon was used in seven other Grim Sleeper crimes. According to Rubin’s expert ballistics analysis, the gun used in the other crimes left a unique signature on the bullets, and, like Franklin’s gun, was a .25-caliber semi-automatic hand gun. Attorney Silverman used Rubin’s testimony to argue that Franklin followed a pattern of using the same type of weapon to kill his victims.

Attorney Seymour Amster, who represents Franklin, challenged Rubin on the techniques he used to form his expert opinion. According to Amster’s line of questioning, Rubin used methods which did not qualify him to provide ballistics expert testimony during the trial. Rubin responded by defending his methodology and informing Amster, and the court, that his methods were widely accepted in the forensic science community. According to Rubin, his research followed the standard methods of testing ballistic evidence, and his criminalist expert testimony was backed by validated scientific processes which qualify him as an expert.

Grim Sleeper Trial Continues in LA

After the ballistics expert testimony by Daniel Rubin, the prosecution rested its case, leading to an intense confrontation between attorney Amster and Judge Kathleen Kennedy before the defense presented its case. During a shouting match in the middle of the courtroom, Amster told the judge that he was concerned the case was going to cause him to have a stroke because of the prosecution’s tactics and judge’s rulings.

A brief recess followed, and Amster was able to calm down and give an opening statement which attacked the validity of the DNA evidence used by police investigators to arrest Franklin. As the trial continues this week, Amster will begin calling witnesses to break down the prosecution’s, and will likely include a forensic expert witness to explain his criticism of the DNA evidence.

[UPDATE] Hulk Hogan’s Experts Testify Against Gawker

UPDATE: The jury in Hulk Hogan’s trial evidently found his experts to be persuasive. After only six hours of deliberation, the jury awarded Hogan $115 million in damages and an additional $25 million in punitive damages. Readers might be interested in Peter Horan’s firsthand account of what it was like to serve as an expert witness for Gawker during the Hogan trial.

As the ExpertPages blog noted in June 2015, a blogger professed to be shocked by the fees that Hulk Hogan was paying an expert witness who assisted in his invasion of privacy lawsuit against Gawker. Now that the case has finally come to trial, Hogan can decide whether his expert is worth the money.

The Hulk Hogan Trial

Terry Bollea, known professionally as Hulk Hogan, sued Gawker under Florida law for invasion of privacy. Gawker, a website that brands itself as a “one-stop guide to media and pop culture,” specializes in celebrity gossip.

The lawsuit contends that Gawker violated Hogan’s privacy rights in 2012 by posting a video made in 2006 that shows Hogan having a sexual encounter with Heather Cole, the wife of his former friend Bubba “the Love Sponge” Clem. The video was recorded without Hogan’s knowledge or consent. Hogan’s lawsuit also alleges that Gawker earned profits to which it was not entitled by exploiting his public image.

Hogan’s invasion of privacy claim is based on a Florida law that prohibits the publication of “private facts.” Gawker contends that Hogan’s frequent public references to his sex life and his confession of infidelity in his autobiography have transformed conduct that is ordinarily private into a matter of public interest. Gawker argues that the video was part of a legitimate news story in light of public discussions of the sex tape that had been ongoing for months before Gawker posted it. Gawker maintains that it had a First Amendment right to report and to comment upon information that had captured the public’s attention.

Hogan’s lawsuit tests the line between an individual’s right to privacy and the media’s right to report the news. Given Hogan’s status as a public figure who, for many years, has welcomed publicity, the First Amendment plainly protects news reports and commentary concerning the contents of the video. Less clear is whether Gawker had the right to post the video itself.

The trial judge ruled that Gawker had no First Amendment right to post the sex tape, a decision that an appellate court will likely review if Hogan prevails. In the meantime, further investigation is needed to determine whether the tape revealed “private facts” or whether Gawker reported and commented upon newsworthy facts that were already in the public realm. Gawker contends that it merely “joined a conversation” that was already ongoing, while Hogan argues that the conversation did not include a video of his sexual activity until Gawker revealed it to the world.

Hogan’s Economic Experts

Hogan rested his case at the end of the first week of trial. He relied upon two experts to establish his economic damages. Shanti Shunn, a digital marketing strategist, testified that the sex tape was viewed 4.5 million times, not counting another 99,000 views on You Tube. About 2.5 million of those views occurred on the Gawker website.

Shunn testified that the Gawker site experienced a substantial spike in views immediately after posting the video. He admitted on cross-examination that he could not say whether the page views represented unique visitors or a lesser number of visitors who viewed the video multiple times.

Jeff Anderson, a director of valuation and analytics at a consulting firm that specializes in intellectual property, also testified that Gawker experienced a significant increase in web traffic after posting the video. He estimated that Gawker’s value increased by $15 million as a result of the additional traffic. Gawker is expected to challenge Anderson’s estimate of the company’s value when it presents its defense.

Hogan’s Liability Expert

The blogger who professed surprise that an expert could charge $250 per hour ($350 per hour for trial testimony) was referring to Mike Foley, a journalism professor at the University of Florida. Hogan’s attorneys relied on Foley to establish that the sex video was not newsworthy.

Foley testified that while Hogan’s conduct could be considered newsworthy, the video is “gratuitous” and should not have been posted to the website. He also testified that Gawker violated the Society of Professional Journalists’ Code of Ethics by posting it. The Code, however, includes a disclaimer that draws a distinction between ethics and newsworthiness. The disclaimer was apparently added to the Code in an effort to prevent the Code from being used as evidence against journalists in cases like Hogan’s.

Gawker’s attorney attacked Foley on two fronts during cross-examination. First, Foley conceded that publishers make difficult judgments about newsworthiness every day, and that what seems newsworthy (or, for that matter, offensive) to one person might be viewed in a different light by others. The cross-examination explored the newsworthiness of a variety of sex-related stories, from Magic Johnson’s HIV to the 1991 Vanity Fair cover that featured the photograph of a nude (and pregnant) Demi Moore.

The second line of attack focused on Foley’s credentials. Gawker’s attorney pointed out that Foley has not been a reporter for 43 years and hasn’t worked in a newsroom for 24 years. The cross-examination was designed to establish that Foley is out of touch with modern journalism, particularly internet journalism, which did not exist when Foley was a reporter. Whether the jury will believe that an academic cannot keep abreast of journalistic developments without practicing journalism remains to be seen.

Was Foley worth the fee that so shocked the blogger? Reviews are mixed. CNN reported that “Foley appeared flustered,” paused for long periods before answering questions, and struggled with his answers. The Hollywood Reporter suggested that “blistering” questions exposed the “faultiness” of Foley’s judgments. But media outlets may have reason to root for the media during their trial coverage. Hogan’s attorney said he was pleased with the testimony, but he can hardly be expected to say otherwise. In the end, the jury’s opinion will be the only one that matters.

(Photo Credit: “Hulk Hogan” by Mike Kalasnik is licensed under CC BY-SA 2.0.)

Election Experts Testify in Virginia Voter ID Case

Laws requiring voters to show photo identification before their votes can be cast or counted are both politically and legally controversial. Last year, the United States Supreme Court declined to consider a challenge to a Wisconsin law that requires voters to produce a photo ID before they are allowed to vote. The Supreme Court’s inaction left in place a sharply divided federal appeals court decision that rejected a challenge to Wisconsin’s law. A few months later, a different federal appeals court ruled that Texas may not enforce portions of its voter ID law.

A lawsuit challenging Virginia’s voter ID law is underway. The plaintiffs, which include the Democratic party, are relying on expert testimony to support their challenge to the law. The defendants are countering with experts of their own.

The Voter ID Controversy

Proponents of voter ID laws argue that they are needed to combat voter fraud. Opponents of voter ID laws argue that voter suppression is the true motivation underlying the demand that voters produce a photo ID. They claim that voter fraud is a red herring and that disenfranchising voters who are poor, young, or disadvantaged — the groups who are least likely to have a valid photo ID — is the hidden purpose that the laws actually serve. That claim was recently endorsed by a conservative federal judge who has been persuaded by the evidence that photo ID laws have nothing to do with voter fraud and everything to do with politics.

As of January 2016, 36 states have adopted laws that require voters to show some kind of identification at the polls. Not all of those states, however, require a photo ID. The laws in 3 of the 36 states have been struck down by courts.

Election Experts Testify in Virginia

The plaintiffs in the Virginia suit contend that the voter ID law is intended to reduce the number of minority voters. Proponents had argued that the law is needed to curb voter fraud by impersonation, but a state senator testified that the law’s proponents could not point to a single case in which a Virginia voter had been arrested or convicted for impersonating another voter.

An expert testifying on behalf of the parties who are challenging Virginia’s voter ID law told the court that fear of voter fraud is not a rational justification for the law. The expert, Lorraine C. Minnite, is a professor of political science at Rutgers who has studied election fraud and vote suppression.

Minnite testified that the kind of fraud photo ID laws are meant to curtail is so rare that the number of legitimate voters who will be disqualified from casting ballots for lack of acceptable identification far exceeds the number of fraudulent voters who will be prevented from voting. Minnite conceded that voter fraud occurs, but contended that one voter impersonating another — the kind of voter fraud that photo ID laws target — almost never happens.

The defendants, state agencies and officials charged with administering elections in Virginia, countered with the testimony of two experts. Karen L. Owen, an assistant professor of public administration at Reinhardt University in Georgia, suggested that legitimate public policy concerns, rather than voter suppression, may have influenced Virginia’s legislators to enact the voter ID law. Even if voter impersonation is not a serious concern, she said, legislators may have been responding to the public perception that voter fraud is a problem, and enacted the law to increase voter confidence in the integrity of election outcomes.

Daniel J. Palazzolo, a professor of political science at the University of Richmond, agreed that the legislature may have enacted the voter ID law in response to public perceptions. He also suggested that legislators may have been influenced by activist groups that lobbied in favor of the law. Palazzolo testified that he could not rule out prejudice against minority voters as a motivating factor, but contended that there was insufficient evidence to prove that legislators passed the law because they wanted to suppress minority votes.

After all the trial testimony was completed, the presiding judge asked the parties to file written arguments. The last of those arguments is due in court in early April. Whether the judge’s decision will be influenced by the expert testimony presented on behalf of either party will not be known until the judge issues a decision.

Expert Witnesses Testify During Erin Andrews Stalker Video Trial

Former ESPN employee and current Fox Sports reporter Erin Andrews called expert witnesses to the stand this week in her $75 million stalker video trial. The lawsuit filed against her convicted stalker and the Nashville hotel where she was staying alleges the violation of her privacy caused her severe emotional distress and damaged her professional image as a sports reporter.

Erin Andrews Files $75 Million Lawsuit over Stalker Filmed Video

In 2009 Michael Barrett followed then ESPN personality Erin Andrews to her Nashville Mariott hotel, requested a room right next to hers, and filmed the sports media personality through her hotel door peephole. The footage showed a naked Andrews standing in front of a mirror and walking around her room. After filming the video, Barret distributed his footage online, exposing Andrews’s private moment to the entire internet public. In 2010, Barrett was found guilty of stalking and served 2 years in prison.

Erin Andrews, who has since moved from ESPN to Fox Sports, has alleged the stalking incident caused her severe emotional trauma and has influenced her professional reputation as well. She has suffered from depression and sleeplessness, and claims to hear taunts from male fans when she works the sidelines of professional sporting events. Late last year, Andrews finalized a $75 million lawsuit against Barrett and the Nashville Mariott hotel alleging the incident could have been prevented had hotel officials taken the opportunity to either prevent Barrett from accessing her hotel room or notifying her of his presence.

IT Expert Witness Testifies in Erin Andrews Stalker Trial

In order to demonstrate the effect Barrett’s peephole video had on her, Erin Andrews called two expert witnesses to the stand during her lawsuit against the Nashville Mariott and her stalker. First, Andrews called Dr. Bernard Jansen, and IT expert witness, to explain to jurors how pervasive and widespread distribution of the elicit video was during the period immediately after its release on the internet. According to Dr. Jansen, the peephole footage has been viewed by more than 16 million people since its release to the internet in 2009.

Further, Dr. Jansen told the court that during the month of July, 2009 the phrase “Erin Andrews” was the most commonly searched term, and someone watched the footage every 1.5 minutes. Jansen concluded by telling jurors that his estimates were likely conservative because they only accounted for unique searchers, and the actual figures were higher because it is likely that many of those 16 million unique searches were viewed by multiple people.

Therapist Expert Witness Testifies on Behalf of Erin Andrews

Erin Andrews also called to the stand a therapist expert witness who worked directly with the sports personality in the wake of the video’s release. Loren Comstock, who is a licensed social worker and Executive Leadership Coach who has consulted with the Sigma Group for 17 years, took the stand as an expert therapist and career consultant to explain the effect the video had on Andrews’s mental composition. According to Comstock, Andrews was humiliated and distressed, and in a state of severe anxiety due to the widespread distribution of the peephole video.

Comstock told jurors that Andrews “could not get through the day peacefully,” and that she was publically humiliated as a result of the video’s release. Comstock further explained that she diagnosed Andrews with adjustment disorder and noticed some symptoms of PTSD which she said can be “very debilitating” for a person – particularly one with a highly public career and lifestyle. Andrews herself took the stand to drive home the emotional impact of the video’s release, and during her tearful testimony she explained how she suffered from the symptoms which her therapist expert witness had introduced to jurors earlier in the trial.

Erin Andrews’s $75 million lawsuit trial continues this week as the Nashville Mariott argues the stalker Michael Barrett is solely to blame for the intrusive video and its widespread distribution.

Court Declines to Allow Elizabeth Smart to Testify as an Expert in Kidnapping Case

Elizabeth Smart, an ABC News contributor who describes herself as an activist for victims of predatory crimes, will not be allowed to testify as an expert witness in a California kidnapping case. Smart gained national attention when she was abducted from her home in Salt Lake City at the age of 14. She was rescued nine months later.

The Orange County district attorney wanted Smart to explain why the alleged victim in the kidnapping case did not escape when she had the chance. Although Smart testified outside the presence of the jury that she experienced a similar ordeal, the judge ruled that Smart’s anecdotal experience did not qualify her to testify as an expert.

Orange County Kidnapping Trial

Isidro Garcia is accused of kidnapping the 15-year-old daughter of his former girlfriend in 2004. The alleged victim, who is now 26, testified that Garcia began to touch her inappropriately at the age of 14 and threated to call immigration authorities if she told her mother about his conduct. She also testified that Garcia forced her to leave her home, held her captive for 10 years, and made her marry him and bear his child.

Prosecutors contend that Garcia changed identities and moved his wife and child frequently in order to conceal his crime. Garcia’s wife said she was rescued after contacting her sister on Facebook in 2014.

The defense contends that the alleged victim left her home willingly because she was quarrelling with her mother. According to the defense, the alleged victim lived with and married Garcia voluntarily, and was happy with their relationship until shortly before she contacted her sister. Garcia’s defense attorney attributes the accusation to the fact that Garcia’s wife wanted out of a relationship that had become troubled.

Neighbors have reported to the press that Garcia and his wife seemed to be a happy couple. They threw parties and danced together. Neighbors saw no evidence that Garcia’s wife, who had her own car and job, was being abused or confined.

Elizabeth Smart’s Proposed Expert Testimony

The strongest argument in support of the defense is that the alleged victim had ample opportunity to flee over the course of ten years but chose to stay. That evidence suggests that she was not kidnapped and held captive, as the prosecution claims.

Prosecutors contend that the alleged victim may not have been physically restrained by Garcia, but was “mentally his captive.” The alleged victim testified “that for a decade she felt an underlying fear that Garcia would beat her, separate her from her child and arrange for her deportation.”

Prosecutors wanted to call Elizabeth Smart to testify about the reasons the alleged victim might have stayed with Garcia. During a hearing held outside the jury’s presence, Smart noted parallels between her own experience and the testimony given by Garcia’s wife. A key difference in the cases, however, is that Smart was rescued after nine months while Garcia’s wife stayed with him for ten years.

Smart told the court: “Those threats to me, they were very real to me. That’s why I didn’t run, and I can only say that that’s the same reason that this victim didn’t run either.” Unfortunately for the prosecution, Smart’s proposed testimony amounted to little more than speculation that the alleged victim’s reason for staying with Garcia must have been the same as her own reason for staying with her kidnapper.

The judge ruled that Smart’s proposed testimony lacked foundation. In other words, she had no basis for testifying that Garcia’s wife stayed with Garcia for the same reason that Smart stayed with her kidnapper. Smart was not qualified to testify as an expert because she did not base her opinion on studies, psychological profiles, or other evidence (beyond her own anecdotal experience) that would have supported her opinion. Smart’s testimony would have amounted to “she says she was afraid and I believe her because I was afraid too,” but deciding whether a witness is telling the truth is the function of the jury, not of other witnesses.

Stockholm Syndrome and Expert Testimony

It may have been possible for prosecutors to support their case with expert testimony. Victims in the position of Garcia’s wife are sometimes said to have suffered from Stockholm syndrome. Also known as capture-bonding, Stockholm syndrome occurs when hostages learn to identify with and become dependent upon their captors.

Expert witnesses have testified about Stockholm syndrome in a number of cases, including the defense of Patty Hearst. Widespread (although less than universal) acceptance of the syndrome opens the door for expert testimony to explain why a kidnapping victim might not take advantage of escape opportunities.

Had the prosecution offered to present the testimony of a psychologist who had studied Stockholm syndrome and who could apply the diagnostic criteria for that condition to the alleged kidnapping victim in the Garcia trial, the court might well have agreed to allow the expert to testify. Since Elizabeth Smart could not provide that kind of testimony, the prosecution lost its bid to educate the jury with expert evidence.

Photo Credit: “Elizabeth Smart Speaks About Overcoming Trauma” is licensed under CC BY-SA 2.0.

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