Category Archives: In the News

Late Disclosure of Underlying Data Does Not Bar Damages Expert from Testifying

Plaintiffs in wrongful death cases routinely ask expert witnesses to compute the loss of the victim’s anticipated contributions to a family. The experts generally rely on past earnings as part of their analysis. Whether the belated disclosure of that data renders an expert’s opinions unreliable or otherwise requires exclusion of the expert’s opinion was the issue in a recent federal case in the District of Nevada.

Facts of the Case

Nickles and Dimes, Inc., a company that owns and operates amusement arcades in shopping malls, employed Charles Wyman as a route manager. Wyman was electrocuted while servicing a “claw” game machine in Las Vegas. The machine was manufactured by and purchased from Smart Industries Corporation. 

Unbeknownst to Wyman, the claw machine was electrically charged because a power wire and a grounding wire inside the machine were reversed. Wyman was in contact with the electrified machine for about ten minutes before a firefighter unplugged it. Wyman died without recovering consciousness.

Wyman’s estate, several of his surviving family members, and the company that insured Nickles and Dimes filed lawsuits against Smart and other entities for wrongful death. All of the lawsuits were eventually removed to federal court and consolidated. 

Some claims have been settled or dismissed. The remaining liability question is whether the claw machine left the factory in a defective condition. The disputed damages issue relates to lost financial support arising from Wyman’s death.

Expert Report

Terrence Clauretie prepared a preliminary expert report on behalf of the Wyman family members. His report calculated the financial support Wyman would have contributed to his family if he had not died. That report was disclosed within the time set by the court’s scheduling order.

Years after the preliminary report was filed, Smart moved to strike Clauretie as an expert witness. Smart complained that the expert report was incomplete when it was filed because Clauretie did not produce income records in support of the report. Smart also complained that the family members did not provide income records in discovery and that the income information Clauretie reviewed was so vaguely described that Smart could not “discern with certainty” the information he received. 

The family members responded that the preliminary report made clear that it was based on incomplete information and that additional information would be provided later. The preliminary report stated that the final calculation was unlikely to differ significantly from the preliminary calculation. 

After discovery closed, Clauretie received tax information from 2011 to 2013 and prepared a supplemental report that included a final estimate of loss. The final estimate did not differ from the preliminary estimate. 

Smart’s Objections

Smart premised its motion to strike on the argument that a preliminary report does not contain a “complete statement” of all the expert’s opinions as required by Rule 26(a)(2)(B). It also argued that Clauretie’s preliminary report did not include all facts and data he considered or exhibits that would be used to support his opinions.

Smart also objected that Clauretie based his report on statistical data regarding average households rather than Wylie’s actual income. That methodology, in Smart’s review, is unreliable and rendered his opinion speculative.

Smart conceded that Clauretie may have reviewed tax information before he prepared his preliminary opinion but complained that it did not know what information he reviewed. Smart asked the court to strike Clauretie as an expert witness because it could not conduct meaningful discovery of the facts that supported his final opinion.

Reliability Is a “Flexible Concept”

The district court reviewed Clauretie’s opinions for relevance and reliability. Clauretie’s calculation of lost financial support was obviously relevant to an award of damages in a wrongful death case. 

Unlike judges who view themselves as the ultimate authority on reliability, the court recognized that its job was not to determine whether the expert’s opinions are sound but whether the expert used a sound methodology to arrive at those opinions.

The court also recognized that reliability is “a flexible concept.” The court recognized that experts are not required to use a perfect methodology, or even the best methodology. Experts have discretion to choose among various reliable methodologies. Whether that choice affects the reliability of their opinions is for the jury to decide.

The district defined its gatekeeping role as screening out “nonsense opinions.” It is not the court’s job to reject impeachable opinions. Unless the expert “lacks good grounds” for an opinion, it is opposing counsel’s job to expose weaknesses in the expert’s analysis through cross-examination, and it is the jury’s job to decide whether to accept or reject the opinion. 

Reliability of Clauretie’s Opinions

The court rejected the argument that Clauretie failed to identify the facts upon which he based his opinion. The preliminary report identified the substantial information upon which it was based, including Clauretie’s review of tax returns from 2014 and 2015.

The court also rejected Smart’s claim that it never received those tax returns. The returns were attached to a disclosure that the plaintiffs filed but later withdrew after Smart objected that it was filed after the discovery deadline expired. The court did not allow Smart to pretend that it never received the tax returns. Since discovery was later reopened, Smart could have asked to depose Clauretie concerning his reliance on those tax returns. 

The preliminary report indicated that earlier tax returns were not likely to change Clauretie’s opinion significantly. After Clauretie received the 2011 to 2013 tax returns, he prepared a brief supplemental report and confirmed that the additional data did not change his calculation. Nothing in that sequence of events, including the belated disclosure of the 2014 and 2015 tax returns, rendered Clauretie’s opinion unreliable.

Late Disclosure

The court also considered whether the belated filing of Clauretie’s supplemental report justified striking him as an expert witness. Rule 26 requires expert reports to be filed within the time designated by the court. While Rule 26(e) permits supplemental reports, that rule does not create a loophole that permits experts to file incomplete reports before the disclosure deadline.

Rule 37 generally requires the exclusion at trial of opinions and data not included in the report that Rule 26 requires.  The court recognized that the rule nevertheless permits relief from its “harsh requirements” when a failure to disclose was substantially justified or harmless. In addition, the rule authorizes the court to impose sanctions that are less harsh than the exclusion of evidence.

Different judges apply Rule 37 in different ways. Judges who take a mechanistic approach require strict adherence to deadlines and believe that courts should rarely decline to exclude expert evidence when the rule is violated. Judges who believe that cases should usually be decided on their merits by juries, not by judges as a sanction for rules violations, are more inclined to exercise their discretion to avoid harsh results.

The court agreed that the plaintiffs offered no satisfactory explanation for their late production of either set of tax returns. While the belated disclosure might not have been entirely harmless, if only because the delayed resolution of a case is theoretically harmful to the administration of justice, the court decided that “the public policy favoring disposition of cases on their merits and the availability of less drastic sanctions” weighed against striking Clauretie as an expert witness.

While Smart did not benefit from timely production of the tax returns, it did receive the preliminary expert report on time. That report incorporated a number of exhibits and explained how Clauretie arrived at his opinions. Smart had the tax returns before discovery was reopened. It manufactured its own prejudice by failing to take Cluaretie’s deposition so it could question him about the tax returns. Nor did Smart move to compel disclosure of the tax returns.

The court noted that Smart was not required to take Clauretie’s deposition or to move to compel disclosure of documents that Rule 26 requires to be produced. At the same time, Smart was not in a position to argue that it was harmed when it knew of Clauretie’s opinions, had his report, and had the opportunity to depose him. Smart could not claim to have been surprised by Clauretie’s opinions since they did not change from the time the preliminary report was filed. Since Smart received the tax returns before a trial date had even been set, the exclusion of Clauretie’s testimony would be an unduly harsh sanction.

The court decided that a lesser sanction than exclusion was appropriate. It allowed Smart to take Clauretie’s deposition and required the Wymans to pay all expenses associated with it. It also required the Wymans to pay attorneys’ fees associated with the motion to strike.

Lessons Learned

The district court judge wisely avoided a knee-jerk response to belated discovery disclosures. The judge’s ruling was tailored to the lack of harm associated with the late disclosure. 

Lawyers should understand that some judges are more concerned with enforcing their scheduling orders than with producing just results. Experts and the lawyers who hire them should always do their utmost to either (1) produce reports and data relied upon to support opinions by the date set in the court’s scheduling order, or (2) move for an extension of time to produce that data with a showing of good cause for the delay. Violating a rule and hoping that the judge will not impose a harsh sanction is never a good strategy.

California Law Legal System Concept

California Court Limits Rule that Expert Can’t Give Declaration Contrary to Prior Discovery Responses

A recent California court decision has limited a rule that an expert witness cannot give a declaration that is contrary to prior discovery responses.

The Underlying Dispute

From August 1973 to May 1974, Michael Harris worked on the U.S.S. San Jose as a hull maintenance technician for the United States Navy. Thomas Dee Engineering Company performed repairs on the boiler aboard the U.S.S. San Jose during the fall of 1973.

Michael Harris was diagnosed with mesothelioma in March 2014. Two months later, he and his wife Beth filed a complaint against Thomas Dee Engineering Company and other defendants for negligence, strict liability, and loss of consortium. The complaint alleged that Thomas Dee’s work on the U.S.S. San Jose had exposed Harris to asbestos. 

Michael passed away in October 2014. In July 2015, Beth and her children amended the complaint to include wrongful death and survival claims.

Motion to Dismiss

In June 2017, Thomas Dee filed a motion for summary judgment on the issue of asbestos exposure. The company argued that Harris had testified that he had not seen anyone working on the boilers and Harris’ expert had testified that Harris would not have been exposed to asbestos if he was not present when the work was being done.

To oppose the motion, the Harrises offered their expert’s “re-entrainment theory,” an opinion which was not previously disclosed and contradicted by his deposition testimony. Under the re-entrainment theory, Harris would not have needed to be present during Thomas Dee’s work to be exposed to asbestos. The trial court granted Thomas Dee’s motion for summary judgment. The Harrises appealed.

Court of Appeal of the State of California, First Appellate District

On appeal, the Harrises argued that the trial court erred by refusing to give weight to their expert’s declaration and that the declaration raised a triable issue as to whether Thomas Dee’s activities exposed Harris to asbestos.

The court of appeals noted that the trial court should not have disregarded the Harrises expert’s declaration simply because it wasn’t mentioned in his deposition. Prior cases had prevented experts from testifying at trial about opinions that exceeded the scope of deposition testimony. The court distinguished the current case — here, the introduction of the re-entrainment theory came in a motion in opposition to summary judgment, not at trial. If the theory was new, there was nothing that prevented Thomas Dee from re-deposing the expert prior to trial.

The court also noted that the fact that the expert’s declaration and his deposition testimony contradicted each other did not necessarily eliminate the declaration’s evidentiary value. Here, the expert’s declaration related to a scientific theory he had not mentioned in his deposition and his statement did not directly contradict any prior testimony regarding facts that he had observed. 

The court noted that it was a decision for the ultimate factfinder to decide what weight to give to the expert’s testimony in light of his previous deposition testimony. Therefore, the trial court erred by refusing to give the expert’s declaration any weight and granting summary judgment. The court of appeals reversed the order granting summary judgment in favor of Thomas Dee.


MedMal Cases with Unclear Causes of Death or Injury Can’t Proceed Without Sufficient Expert Testimony in Arizona

The Arizona Supreme Court has ruled that medical malpractice cases involving unclear causes of death or injury cannot proceed without sufficient expert testimony to provide guidance to jurors.

The Incident

In March 2012, Michelle Sampson took her four-year-old son, Amaré Burks, to the Surgery Center of Peoria for a scheduled tonsillectomy and adenoidectomy. Surgery Center of Peoria is an outpatient surgery clinic, and the scheduled procedure was considered routine with an extremely low complication rate.

Dr. Guido administered the general anesthesia and Dr. Libling performed the procedure.  Dr. Libling remained with Amaré for about thirty minutes after the surgery and then transferred him to the post-operative anesthesia care unit. Nurse Kuchar attended Amaré in the recovery room. After sixty-one minutes, Amaré scored eight out of eight on a vitals-release test and he was released to his mother’s care.

Sampson took Amaré home and put him to bed. She had been told that it was normal for a patient to sleep after surgery. Approximately two hours after his discharge, Samson checked on Amaré, but he was not breathing. Emergency personnel were unable to revive him.

The Lawsuit

Sampson brought a wrongful death action against the Surgery Center, Dr. Guido, and other defendants.

Sampson identified Dr. Greenberg as her expert witness to establish cause of death, proximate cause, and standard of care.

Dr. Greenberg testified that “(1) one hour was insufficient to assess a pediatric patient for discharge and that three hours was appropriate, especially for a child with a history of sleep apnea; (2) the anesthesiologist fell below the standard of care by discharging Amaré before that time and Amaré’s death could have been prevented with longer observation in the PACU; and (3) Amaré died from being rendered unable to breathe from the after-effects of surgery and anesthesia, as his pharyngeal tissues were swollen and obstructed his upper airway, and the residual effects of anesthesia did not allow him to awaken to overcome the obstruction.” 

Dr. Greenberg also opined that the standard of care required between one and three hours of observation before release.

The Surgery Center and Dr. Guido filed motions for partial summary judgment and argued that Dr. Greenberg’s testimony did not establish that their actions had proximately caused Amaré’s death. The trial court agreed and entered final judgment against Sampson. She appealed and the court of appeals reversed, finding that a reasonable jury could determine that the standard of care for observation was three hours.

The Arizona Supreme Court Decision

The Arizona Supreme Court granted review to determine whether the court of appeals erred.

Upon review, the Arizona Supreme Court noted that Arizona law requires that in medical malpractice cases, “causation must be established by competent expert testimony, and the narrow exception is that a jury may infer such causation if malpractice is ‘readily apparent.’”

The court stressed that in this case, expert testimony establishing causation was essential. However, disagreement existed over the cause of Amaré’s death. “Whereas the autopsy report stated that Amaré died from a ‘disseminated Strep Group A’ infection, Dr. Greenberg opined he died from a ‘swollen and obstructed upper airway’ combined with his inability ‘to breathe from the after-effects of surgery and anesthesia.’ Given that even the medical experts did not agree on the cause of death, it is unrealistic to conclude, as the court of appeals did, that a jury “could properly infer that the early discharge was the probable cause of Amare’s death.”

The court determined that, in this case, the court of appeals had departed from the proper standard for proving causation by allowing the jury to determine causation based on speculation built upon inference. Accordingly, it reversed the court of appeals decision.

Defense Expert Disqualified for Insufficient Credentials

A defense expert in a capital murder case has been disqualified for insufficient credentials.

The Crime

On January 13, 2018, Dr. Shauna Witt, an optometrist, was seeing a patient at a Walmart Vision Center in Starkville, Mississippi. Her ex-boyfriend, William Thomas “Tommy” Chisholm, entered the store and proceeded into a patient room. Dr. Witt told Chisholm to go away and he pulled out a gun. Dr. Witt tried to escape but didn’t make it. 

Dr. Witt’s assistant, Kaylace Dorman would later testify that “I remember seeing Tommy pointing the gun and hearing shots…I remember hearing shots and I remember looking at her, looking at Dr. Witt and thinking she was going to get away. Then I saw her get hit and fall in the corner near the door.” The incident was also captured by surveillance video and first responder body cameras.

Dr. Witt died as the result of her injuries. Chisholm was charged with capital murder in connection with the crime.

The Proposed Expert

Chisholm faced trial in Oktibbeha County Circuit Court before Judge Lee Howard. His defense was that he was not guilty by reason of insanity.

The defense team presented Dr. Jennifer Carroll, a licensed professional counselor, as an expert witness.  Dr. Carroll performed an evaluation on Chisholm’s mental state at the time of the incident. While Dr. Carroll works in the field of psychology, she is not a licensed psychologist or licensed to practice any type of psychology. Instead, she is a counselor who holds a doctoral degree in general psychology.

Assistant District Attorney Marc Amos argued that in the state of Mississippi, it is illegal for someone to claim to be a psychologist or to practice psychology without a license. Dr. Carroll claimed to do both on her curriculum vitae.

Judge Lee Howard ruled in the state’s favor, reasoning that only a licensed psychologist or psychiatrist may be hired to perform a mental evaluation on a suspect.

Chisholm’s defense attorney Mark Cliett moved for a mistrial, claiming that the defense team was under the impression that Dr. Carroll had the credentials required to testify. “We were under the impression from talking to Dr. Carroll that she was able to make these opinions to a reasonable degree of psychological certainty, and all of the issues that were addressed on cross-examination about a license and accreditation, I addressed those things to her,” Cliett said. “She assured me that she was able to make those opinions.”

Judge Howard denied Cliett’s motion.

Judge Howard allowed the admission of previously recorded testimony by Dr. Robert M. Storer, a licensed psychologist, who had evaluated Chisholm in June 2019. This video was only intended to be used as rebuttal if the defense had presented an expert witness, but both parties agreed that the recording could be shown. 

Dr. Storer testified that Chisholm was in a proper state of mind at the time of the crime.  “Based on all of the information that I reviewed… in my opinion, to a reasonable degree of psychological certainty, Mr. Chisholm did not have a mental disease, defect or disability that could have interfered with his ability to know the nature and quality of his alleged acts or the wrongfulness or those alleged acts at the time of the offense,” he said.

Trial Result

Following a four-day trial and 26 minutes of deliberation, a jury found Chisholm guilty of murdering Dr. Shauna Witt. Chisholm was sentenced to life in prison without the possibility of parole.

Expert Testimony May Be Necessary to Counter ShotSpotter Evidence

The latest technology to capture the attention of law enforcement is called ShotSpotter. The manufacturer claims that hidden microphones installed in neighborhoods can tell the difference between gunshots and other loud noises. Rather than waiting for someone to report a shooting, police agencies that rely on the technology dispatch officers to the location where the shots were allegedly fired.

The technology has generated criticism. Apart from concerns about the concentration of microphones in black neighborhoods, the Electronic Frontier Foundation is worried that police agencies might use the microphones to eavesdrop on private conversations. Whether the ShotSpotter system reduces gun violence seems doubtful. 

From the standpoint of an expert witness blog, the question is whether defense attorneys should use expert witnesses to challenge ShotSpotter evidence in court. There is good reason to think that Daubert challenges should be filed, and experts employed, whenever ShotSpotter evidence is a critical component of the prosecution’s proof.

Investigations of ShotSpotter 

A recent investigation calls into question the evidentiary value of ShotSpotter reports. Last year, Michael Williams brought a shooting victim to a Chicago hospital. Williams said the victim was shot during a drive-by shooting. After the victim died, the police arrested Williams for the victim’s murder. Why Williams would bring the victim to a hospital if Williams intended to kill him is a question that raises serious doubt about Williams’ guilt.

The police built their case on video and ShotSpotter evidence. The video evidence showed only that Williams’ car had stopped in the 6300 block of South Stony Island Avenue at 11:46 p.m. on the night of the shooting. The police contended that the victim was shot at that location. No video evidence supports that contention.

The police contend that they received a “shots fired” alert from ShotSpotter at the Stoney Island location. In fact, company records show that “19 ShotSpotter sensors detected a percussive sound at 11:46 p.m. and determined the location to be 5700 South Lake Shore Drive—a mile away from the site where prosecutors say Williams committed the murder.” The company’s algorithms identified the sound as an exploding firework.

Company records show that “a ShotSpotter analyst manually overrode the algorithms and ‘reclassified’ the sound as a gunshot.” Months later, a different ShotSpotter employee manually changed the alert’s coordinates to a South Stony Island Drive location near the place where Williams’ car can be seen on camera.

The evidence suggests that ShotSpotter changed its data to support the theory that Williams shot the victim. Williams’ lawyer filed a motion that challenged the ShotSpotter evidence, arguing that it failed to meet the Illinois standard for the admissibility of expert opinions. Rather than defending against the motion, prosecutors agreed not to use ShotSpotter evidence against Williams. 

Daubert Challenges to ShotSpotter Evidence

The investigation suggests that the Chicago incident was not an isolated example of ShotSpotter tailoring its conclusions to match law enforcement theories. In a carefully worded statement, ShotSpotter denied that it has ever “altered the information in a court-admissible detailed forensic report based on fitting a police narrative.” The statement claims that ShotSpotter is “100{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} accurate,” a claim of certainty that many reputable forensic science experts condemn. The statement asserts that ShotSpotter has been admitted over ten Frye challenges and one Daubert challenge, but it does not state how many challenges to admissibility have succeeded.

ShotSpotter commissioned a report by CSG Analysis, a “police officer-owned and operated company,” that is filled with unsurprising praise of ShotSpotter. The report does not purport to be based on a scientific analysis. Rather, it is based on interviews with police officers in cities that have paid to install ShotSpotter. 

Despite the report’s obvious credibility issues, the authors acknowledge that false positives — sounds that could be caused by trucks, dumpsters, construction, church bells, and all the other sources of concussive sound — are a significant operational problem with ShotSpotter. In two of the seven jurisdictions where interviews were conducted, half of the ShotSpotter alerts were believed to be false positives. A recent study found that Chicago police officers investigated 40,000 ShotSpotter alerts in a 21-month period that resulted in no evidence that shots had been fired.

Challenges to ShotSpotter Evidence

ShotSpotter claims that its analysts can identify actual gunshots when evidence is needed for court. The analysts allegedly perform a deeper dive into the data than the system’s algorithms perform. ShotSpotter contends that a more reliable human analysis explains why results are changed after police agencies contact ShotSpotter. Since one purpose of algorithms is to eliminate human bias, one might wonder whether second-guessing algorithms calls either the algorithms or the analyst’s opinions into question.

The admissibility of ShotSpotter evidence, whether generated by algorithms or humans, is not a foregone conclusion. A Daubert challenge should focus on whether ShotSpotter results been accepted by any independent scientific community, whether its analytical system has been peer reviewed, whether it has a known error rate, and whether conclusions drawn by analysts have been verified by independent testing. The National Juvenile Defender Center has compiled materials, including transcripts of testimony that ShotSpotter witnesses have given at Daubert/Frye hearings, that may guide those challenges.

Notably, a California appellate court reversed a conviction based on ShotSpotter evidence because the trial court did not hold a pretrial hearing to determine whether the evidence was reliable. The court noted the dearth of appellate opinions considering the admissibility of ShotSpotter evidence and concluded that courts could not assume the reliability of the novel technology.

ShotSpotter offers to supply prosecutors with expert witnesses who will testify in court for $350 an hour with a two-hour minimum. Retaining a defense expert with a background in acoustic science may be critical to countering those experts and to bringing a successful Daubert challenge. 

Expert Testimony Excluded in Michael Mann Defamation Lawsuit

More than two decades ago, Michael Mann and two other climate scientists published an article in Nature. The article included a graph showing that the Earth’s temperature had been stable for 500 years but had spiked upward in the twentieth century. A year later, they extended the graph to cover an entire millennium, supporting their argument that the upward spike in temperature was unprecedented within the last thousand years.

Because the spike at the end of the graph resembles a hockey stick, it came to be known as the “hockey stick graph.” As Mann explained in a 2018 article in Scientific American, the hockey stick graph received widespread attention, both from neutral media sources and from the fossil fuel industry. According to Mann, “industry-funded attack dogs” began a campaign to discredit him personally in order to “discredit the iconic symbol of the human impact on our climate.”

Criticism of Mann’s research was part of a broader assertion that climate scientists had fabricated evidence to demonstrate that human activity is responsible for global warming. Hacked emails were said to support a conspiracy that came to be known as Climategate. Neutral investigations determined that the conspiracy claims were unfounded. 

Mann in particular was accused of manipulating or altering research findings, suppressing data, deleting emails to conceal wrongdoing, misusing confidential information, and engaging in other forms of scientific misconduct. An investigative panel at Pennsylvania State University, Mann’s employer, exonerated Mann of all the ethical charges that were lodged against him. The panel found that Mann did not seriously deviate from accepted practices within the academic community.

Mann’s Defamation Claim

In 2012, the Competitive Enterprise Institute (CEI) published a blog that criticized Penn State’s exoneration of Mann. The CEI has strong ties to the petrochemical, pharmaceutical, and tobacco industries.

As Jonathan Adler explains, “the post’s author, Rand Simberg, suggested Penn State was no more diligent investigating Mann than it had been investigating Jerry Sandusky. Mark Steyn quoted and elaborated on the CEI post with a post of his own on National Review Online.”

Mann sued a number of individuals and entities for libel and intentional infliction of emotional distress. Most of the defendants, including the CEI and National Review, have been dismissed from the suit, largely because Mann could not meet the high standard of proving that the allegedly defamatory statements about him were not just false but malicious. The two blog authors are the remaining defendants.

As the case finally approaches trial, the district court considered competing motions to exclude the testimony of expert witnesses relied upon by both sides. In a lengthy order, the court excluded all but one expert witness.

Court Decision

The district court emphasized that the lawsuit did not place climate science on trial. The only question raised by the lawsuit was whether the blog authors defamed Mann when they accused him of “molest[ing] and tortur[ing] data in the service of politicized science[,]” “engaging in data manipulation[,]” and creating the “fraudulent climate-change ‘hockey-stick’ graph[.]” 

Still, the blog authors contended that their statements were true. The defamation claim therefore turns in part upon the validity of Mann’s research. In that sense, the lawsuit does put climate science on trial, at least to the extent that Mann contributed to climate science with the hockey stick graph.

The bloggers intended to rely on the testimony of two experts in the fields of climate science and statistics “to lend to the credence and the legitimacy of the allegedly defamatory statements.” Mann intended to call seven experts to establish that the authors’ claims were false and defamatory.

The court determined that, apart from the statistician’s opinions, none of the expert testimony was admissible. Remarkably, the court decided that none of the experts (apart from the statistician) based their opinions on a reliable methodology. In the court’s view, the experts instead based their opinions on “documents and articles that they have reviewed.”

Relying on documents and articles is hardly an unusual practice for experts. According to the court, however, an expert only follows a reliable methodology when the expert “systematically gathers, organizes and catalogs the documents such that another expert with similar training could follow the same procedure and arrive at the same result.” Regurgitating the opinions of others without analyzing and synthesizing the opinions, the court said, is not a scientific methodology. 

According to the court, the experts merely summarized selected research studies and offered opinions about their conclusions. Yet some of the experts would have explained science to the jury. When experts are merely educating a jury rather than expressing opinions, the search for a “methodology” is misplaced.

Mann’s History of Science Expert

Take, for example, the proffered testimony of Naomi Oreskes, a professor of the History of Science at Harvard. She proposed to testify about the factors that make scientific opinions reliable. When asked what scientific methodology supported her opinions, Dr. Oreskes testified “reading and thinking.” The court ruled that reading and thinking is not a scientific methodology because jurors are just as capable of reading and thinking as are experts. 

Yet jurors are not as well equipped as an expert in the history of science to understand how scientific research is conducted. That testimony might be characterized as fact testimony, informed by an expert’s understanding of the facts, rather than opinion testimony that must be supported by a methodology.

To the extent that Professor Oreskes would have applied the scientific method to the development of the hockey stick graph in order to opine that Mann followed reliable practices in developing the graph, it is difficult to understand why her testimony was excluded. The professor’s methodology was to apply the scientific method to Mann’s work and to express an opinion that his work was consistent with accepted research principles. The application of standards to a set of facts certainly seems like a reliable methodology.

The court complained that the reliability of the professor’s methodology could not be established because it was not peer reviewed, had no established success rate, and cannot be replicated by other experts in the field. Yet the professor was not conducting an experiment. Daubert emphasized that the test of reliability is flexible. Not every expert methodology depends on error rates or peer-reviewed research. The court’s narrow understanding of the Daubert decision shaped its decision to exclude most of the testimony that the parties proffered.

Professor Oreske also proposed to testify about the agenda-driven misuse of science by “think tanks” such as CEI that “ignore, misrepresent, or reject principled scientific thought on environmental and climate issues.” The court excluded her opinions about CEI’s history of distorting science to serve the ends of industry because she recounted CEI’s doubtful publications but “made no effort to compile or catalogue CEI’s publications according to an objectively defined set of metrics.” Perhaps Professor Oreske can testify as a fact witness regarding CEI’s history and allow the jury to draw its own conclusion about CEI’s bias.

Peter Frumhoff

Peter Frumhoff, the Director of Science and Policy and Chief Climate Scientists at the Union of Concerned Scientists, would have testified that the stolen emails revealed reasonable scientific techniques, not wrongdoing. The court again found that Frumhoff used no scientific methodology to reach that opinion. Testifying about the existence of a scientific technique and then analyzing an email to determine whether it describes a legitimate scientific technique sounds very much like a reliable methodology. Again, not all methodologies involve experiments and error rates.

Frumhoff would have testified that public attacks on scientists “can have detrimental effects on scientists, on the scientific enterprise, and on the public understanding of information and its societal implications.” That seems like fact testimony given by a knowledgeable observer about how attempts to disparage science diminish respect for scientists. It is doubtful that any methodology beyond observation is necessary to testify about the historical impact of unfounded criticism on science and scientists.

Frumhoff also proposed to testify about the ways in which climate change denial harmed Mann and climate science in general. The court concluded that the evidence was not relevant because the issue was whether Mann was defamed, not whether climate change is caused by human activity. The court decided that CEI’s alleged attempt to stifle climate science to support the agenda of the fossil fuel industry did not cause a harm that was unique to Mann and was therefore not relevant. To the extent that Frumhoff would have explained how reputational damage impairs the ability to obtain grants, the court decided that jurors understand how grant funders take an applicant’s reputation into account when they consider whether to fund a grant. Since most jurors have no idea how grant funders operate, the court’s analysis fails to appreciate how Frumhoff’s specialize knowledge would have assisted the jury.

Mann’s Other Experts

Other experts would have provided background information about the history of climate change. That evidence would have helped the jury decide that the hockey stick graph was not fraudulent. The court decided that the testimony was not relevant because it did not address the specific accusations of fraud made in the blogs.

The court excluded a computer scientist who was an expert in disinformation “because the Court has not previously been made aware of a field of study dedicated solely to tracking misinformation.” Judges are experts in the law, although they often fancy themselves to be experts in everything. The court’s lack of awareness that experts track disinformation illustrates why judges should defer to experts. 

Gerald North chaired a National Research Council committee that investigated Mann’s work. He was prepared to testify that Mann’s research was valid, honest, and conducted in a scientifically appropriate manner. The court rejected that opinion, despite its obvious reliance on an expert evaluation of Mann’s research, because the court viewed North as reciting the committee’s opinion. Since committees can’t testify, one might think that the committee chair would be well positioned to describe how the committee arrived at its conclusions. The court again discussed error rates and peer review as if all expert knowledge depends on peer-reviewed research with known error rates.

Raymond Bradley would have testified as both a fact and expert witness about the research that supported the hockey stick graph. He would have refuted the bloggers’ claims about the invalidity of that research. The court decided that the “principles and methodologies he used” to conclude that Mann selected appropriate data points for his graph were insufficiently explained. That seems like an attack on the expert’s credibility, not on the reliability of the methodology the supports the expert’s opinions.

Defense Experts

Judith Curry has a doctorate in atmospheric science. She proposed to testify that it was reasonable to refer to the hockey stick graph as fraudulent in the sense that it was deceptive and misleading. She based her opinion on Climategate emails and public accusations of fraud. Of course, the fact that others may have defamed Mann does not prove that the bloggers did not.

Curry did not claim that Mann’s conclusions were fraudulent. She opined that it would be reasonable for members of the public to believe that they were fraudulent. The court determined that her opinion was inadmissible because it invaded the province of the jury. Whether the bloggers defamed Mann depended on whether they acted with actual malice. An expert in atmospheric science has no scientific basis for determining the bloggers’ state of mind. To the extent that she offered a lay or expert opinion about whether the public could reasonably perceive the hockey graph as fraudulent, she was no more qualified to do so than reasonable jurors.

Curry also proposed to testify about the deficiencies in Mann’s construction of the hockey stick graph without specifically disagreeing with his conclusion about the impact of human activity on climate change. The court concluded that Curry employed no scientific methodology to form that opinion. Rather, she “reviewed several articles and documents, and then opined that the conclusions of those documents are correct. Such methodologies are not derived from the scientific method and, thus, render Dr. Curry’s opinion unreliable as expert testimony.”

The court allowed a statistician, Abraham Wyner, to testify for the defense. Wyner plans to testify that there are “aspects of Dr. Mann’s work that can reasonably be construed as manipulative, if not in intent than in effect, as the word is used in common parlance.” The court concluded that Wyner “offers detailed analysis of the statistical methods used to construct the Hockey Stick graph, and why the methods may be reliable and, thus, tending to support a basis for Defendants’ statements.” The court was apparently satisfied that a discussion of statistics by a statistician constitutes a reliable methodology while the discussion of climate science by climate scientists did not.

Lessons Learned

The difference between an expert’s explanation of facts — an explanation based on knowledge that a lay juror is unlikely to possess — and an expert’s opinion testimony can create gray area that lawyers need to anticipate. Lawyers also need to anticipate attacks upon methodologies that do not rely on error rates and peer-reviewed research. Finally, lawyers need to make sure that experts explain their methodologies in sufficient detail to allow judges to understand that their opinions are sufficiently reliable for a jury to consider. Unfortunately, when judges are determined to exclude evidence regardless of its merit, there is little that lawyers can do apart from hoping that an appellate court might eventually take a different view.

Gavel and Stethoscope on Reflective Table

Georgia Court Reinstates Malpractice Verdict Despite Expert’s Equivocal Testimony About a Nationwide Standard of Care

Connie Lockhart was treated in a hospital emergency room in Cherokee County, Georgia. An emergency room physician, Dr. Glenn Bloom, mistakenly placed a catheter in her femoral artery rather than a femoral vein. The accumulation of medications administered through the catheter destroyed the tissue in her leg, resulting in its amputation.

Lockhart sued Dr. Bloom for medical negligence. Lockhart relied on the expert testimony of Dr. Eric Gluck to establish a breach of the standard of care for inserting a femoral catheter. Dr. Gluck had been board certified in critical care medicine for 27 years and had extensive experience placing central venous catheters in the femoral region.

Dr. Gluck is not an emergency room physician. He testified that he runs the ICU at the Chicago hospital where he is employed. He also testified that he is chair of a critical care committee that sets hospital policy for critical care departments, including the emergency department. He had personal, recent experience placing femoral catheters in an ICU but not in an emergency room.

Dr. Gluck testified that emergency room physicians, critical care physicians, and general practice physicians all follow the same standard of care for placing a femoral catheter. The standard of care requires the physician to identify the correct vein in which to insert the catheter and to follow an accepted procedure for its insertion. After it is inserted, the standard of care requires the physician to use one of four methods to confirm that it was inserted in the correct location.

Dr. Bloom acknowledged that he mistakenly inserted the catheter into the femoral artery but contended that he had no need to confirm its placement in the correct location because he did not suspect that it was placed incorrectly. The standard presumably requires doctors to double-check their work precisely because they might not suspect that they erred. Dr. Gluck expressed the opinion that Dr. Bloom breached the standard of care by failing to confirm the catheter’s placement in its intended location.

On cross-examination, Dr. Gluck admitted that he did not know whether emergency physicians are taught to verify the placement of a catheter. He knew that physicians in the Chicago hospital where he worked were required to verify the catheter’s placement, but he did not know whether that was a nationwide standard. On redirect, Dr. Gluck testified that he was confident that confirming the placement of catheters is a standard that applies regardless of geographical location. 

Directed Verdict

After the presentation of evidence concluded, Dr. Bloom moved for a directed verdict on the ground that Dr. Gluck was not qualified to articulate the standard of care that applies to Georgia emergency room physicians who place femoral catheters. The trial court concluded that Dr. Gluck’s testimony was “equivocal” as to whether a nationwide standard of care existed. The court concluded that Dr. Gluck was not able to testify about the specific standard of care that applies to emergency room physicians in Georgia, a state in which he never practiced medicine.

The court ruled that Dr. Gluck’s testimony did not establish a standard of care and that Lockhart therefore failed to prove a breach of that standard. The court thus directed a verdict in favor of Dr. Bloom despite the obvious harm he caused to his patient.

Nationwide Standard of Care

Courts define a standard of care as the care, skill, and treatment that, under the circumstances, is recognized as appropriate by reasonably prudent healthcare providers who practice in the same or a similar field of medicine. During much of the nation’s legal history, plaintiffs in medical malpractice cases were required to prove the standard of care that applied in the community where the treatment was provided. Courts were concerned that doctors in rural communities should not be held to the same standards as big city doctors because they had no opportunity to learn of “modern” practice trends that were implemented in remote urban locations.

The “locality rule” began to change as communication and transportation barriers disappeared. Many courts allowed expert testimony about the standard of care in similar communities within a region when physicians had the opportunity to gain experience and keep abreast of medical developments by visiting those communities.

By the late twentieth century, it was clear to most courts that doctors everywhere have the same opportunity, and thus the same responsibility, to educate themselves about best medical practices. Medical journals are available nationwide. Travel to continuing education programs in larger communities was no longer burdensome. With the advent of the internet, webinars bring continuing education programs to physicians in remote parts of the country.

Most courts now agree that it isn’t unfair to expect all physicians within a specialty to be familiar with standards that are widely regarded as necessary to protect patients from harm. For the most part, courts accept that nationwide standards of care, rather than local standards that vary from community to community, are necessary to assure that patients receive care that is consistent with medical advances known to average physicians in the United States who practice in a particular specialty.

Some jurisdictions cling to the “locality” or “similar community” rule. Those jurisdictions seem more interested in protecting physicians from liability for their failure to learn about current standards of care than in protecting patients from negligent care.

Appellate Analysis

The Georgia Supreme Court agreed that Dr. Gluck’s testimony was inconsistent. During his direct and redirect testimony, Dr. Gluck described a nationwide standard of care that applies to all physicians who place femoral catheters. On cross-examination, he admitted that he does not know if that standard of care is taught in all emergency room residency programs. He explained that his knowledge was based on his own experience in establishing a hospital-wide standard of care in Chicago.

Proving the existence of a nationwide standard doesn’t necessarily require proof that every medical school in the nation teaches that standard. No single expert is familiar with the teaching practices in every medical school. By virtue of their own experience attending conferences and meeting with other physicians who practice in a specialty, experts are often capable of forming an opinion that a nationwide standard of care has emerged.

Dr. Gluck’s testimony nevertheless created some uncertainty as to whether he was describing a national standard or a standard that applied only in the Chicago hospital where he worked. However, the supreme court noted that Dr. Gluck’s testimony was admitted into evidence without objection. Dr. Bloom did not make a Daubert challenge to Dr. Gluck’s qualifications or to the facts and methodology that informed his opinion. Instead, Dr. Bloom laid in the weeds and first raised his objection in a motion for a directed verdict after Dr. Gluck’s opinion was already in evidence.

In Georgia, a directed verdict should be granted only if there is no evidence that would support a verdict in the party’s favor. Dr. Gluck testified that a nationwide standard of care existed. If he contradicted that testimony, it was up to the jury to decide which of Dr. Gluck’s contradictory statements to believe. When the trial court decided that Dr. Gluck’s testimony was “equivocal,” the court was commenting upon the expert’s credibility, not upon the existence of evidence that would support the verdict. 

The credibility of an expert witness is always for the jury to decide. The trial court erred by disregarding expert testimony that supported the verdict. The supreme court accordingly reversed the judgment.

Lessons Learned

Lawyers can learn two lessons from the Lockhart decision. First, when an expert witness needs to establish a standard of care, lawyers should prepare the witness to explain why the expert believes that the standard has been adopted nationwide. Reference to medical textbooks, journal articles, or seminars with a nationwide audience may support the belief that a nationwide standard of care exists.

Second, lawyers who want to challenge an expert’s opinion should not wait until the evidence is closed to bring that challenge. Making a Daubert motion before trial or objecting during the trial may result in exclusion of the evidence. While lawyers, as a tactical matter, might not want to alert opposing counsel to deficient testimony while counsel may still be able to correct it, laying in the weeds may allow a jury to base a verdict on testimony that could have been excluded if a timely objection had been made.

gun and bullets

Court to Evaluate Validity of Forensic Ballistics

A Virginia court will evaluate the validity of forensic ballistic and firearm examination.

The Crime

On February 17, 2018, 74-year-old Mary Jackson and her pregnant granddaughter, 33-year-old Tiffany Byers, were found shot to death at home. The body of Byers’ husband, 45-year-old Aaron Byers, was later found in a shallow grave on a property owned by 37-year-old Paul Brock.

Justin Collins, who was Mary Jackson’s grandson and Tiffany Byers’ brother, testified that he was at the property at the time of his grandmother’s and sister’s shooting. Collins said that he heard a gunshot and did not see the shooter, but heard his sister say, “Paul, you shot me.” Collins later identified a photo of Paul Brock as a person that he recognized as previously visiting his home.

Brock was charged with three counts of capital murder, fetal homicide, tampering with physical evidence, and being a first-degree felony offender in connection with the deaths. Brock would later admit to killing Aaron Byers, but said it was done in self-defense. Brock claims that he had nothing to do with the deaths of Mary Jackson and Tiffany Byers.

The Forensic Examination

A forensic examiner took apart and examined the bullets that were used to kill Mary Jackson, Tiffany Byers, and Aaron Byers. She examined the pieces under a microscope and determined “that the lands and grooves on each individual bullet were of similar agreement, which is what they call it to determine if they were fired from the same gun … all the bullets from all the bodies came from the same weapon.”

The Commonwealth wanted to present this evidence, but Brock’s defense team objected. The court held a Daubert hearing to determine whether the evidence should be admitted.

The Daubert Hearing

Gregory Klees, an examiner with the Bureau of Alcohol Tobacco Firearms and Explosives, testified as an expert witness for the Commonwealth. Klees testified that the firearms testing was valid and that the theories and techniques of ballistics examination have been subject to review for over 100 years. When asked whether he knew of any jurisdictions that did not allow firearms examination testimony, Klees responded, “Except for some individual court cases, I don’t know of any standard or federal courts that have excluded it all together.”

Brock’s defense team called Dr. Jeff Salyards, a Principal Analyst with Compass Scientific Consulting and former Chief Scientist for the US Army Criminal Investigation Laboratory as an expert witness. Dr. Salyards noted his concern with the validity of the peer-review process used by ballistic examiners. Dr. Salyards testified that until recently, the firearms examination field did not use blind review studies. Dr. Salyards also stated that the average industry error rate of less than 2 percent could be attributable to the way that studies surrounding the forensic science had been set up.

At the conclusion of the hearing, Whitley County Circuit Court Judge Dan Ballou ordered both sides to submit briefs on their arguments. The case is scheduled for one additional status hearing prior to Brock’s jury trial, which is scheduled to begin on September 8, 2021. 


Opioid Manufacturers Challenge Addiction Expert’s Testimony

The attorneys for the manufacturers of opioids have challenged the credibility of an addiction expert who testified that their client’s misleading marketing materials helped to cause the opioid epidemic that has plagued thousands of families in Long Island since the late 1990s.

The Case

The lawsuit at issue was filed in New York State Supreme Court. It alleges that drug manufacturers and distributors created a public nuisance by misleading physicians and patients with marketing that minimized the dangers and addiction risks of opioids.

State and county officials have stated that they hope to hold the drug manufacturers and distributors responsible for the death and suffering caused by the opioid epidemic and to recover hundreds of millions of dollars for treatment, recovery, and prevention.

The drug manufacturers and distributors have denied responsibility. They claim that they followed all regulations and are being blamed for the actions of health regulators who encouraged opioid use and the doctors who overprescribed them.

The case is before Supreme Court Justice Jerry Garguilo — In re Opioid Litigation— New York Supreme Court, Suffolk County, No. 400000-2017. It will be the first case of its kind to go before jurors in the United States. This case puts the entire opioid supply chain on trial. In similar cases, only a small number of the companies that were actually sued were taken to court. Most parties reached settlements in those cases before the trials began. Hundreds of witnesses are expected to be called over the course of the trial.

Expert Witness Dr. Anna Lembke

The state and the counties retained Dr. Anna Lembke to testify as an addiction expert. Dr. Lembke is a professor of psychiatry at Stanford University and a physician who treats patients who are struggling with substance abuse.

Dr. Lembke testified that the drug manufacturers and distributors’ marketing materials helped to fuel the opioid epidemic. She stated that defendants Teva Pharmaceuticals, Endo Pharmaceuticals, and Allegan Finance, used misleading promotional materials to convince health care providers that their opioid medications were safe.


Attorneys from the drug companies attempted to discredit Dr. Lembke. Under cross-examination from Teva Pharmaceuticals attorney Harvey Bartle, Dr. Lembke admitted that she had been paid hundreds of thousands of dollars to appear as an expert witness for plaintiffs who have been suing opioid makers in recent years. 

Bartle played a video of Dr. Lembke at a 2015 Stanford panel on opioids. During this panel, Dr. Lembke also stated that opioid prescriptions surged in the 1980s because of a “groundswell” among doctors who feared that they were not doing enough to alleviate pain. Dr. Lembke also stated that this increase in opioid prescriptions “came from a really good place” and “really needed to happen.” Dr. Lembke responded that Bartle had mischaracterized her testimony.

Under cross-examination from Jim Heirschlein, attorney for Endo Pharmaceuticals, Dr. Lembke admitted that she did not know how many physicians in Nassau and Suffolk Counties or New York State had been influenced by pharmaceutical marketing messages or how many prescriptions had been written in the states since the 1990s, when the opioid epidemic began.


Expert from Chauvin Trial to Testify Against Nashville Police Officer

An expert on police use of force who testified against former Minneapolis police officer Derek Chauvin will be allowed to participate in the upcoming murder trial of a Nashville police officer.

The Shooting

On July 26, 2018, Nashville Metro Police Officer Andrew Delke shot and killed Daniel Hambrick during a foot chase. The chase happened after a traffic stop. Metro Police reported officers with the Juvenile Crime Task Force had noticed a white Chevrolet Impala driving erratically. The officers tried to stop the vehicle, but it did not pull over.

Later in the evening, a Metro officer found a vehicle matching the car’s description in the parking lot of an apartment complex. The occupants of the vehicle got out of the car as Officer Andrew Delke exited his vehicle. Hambrick began to run and Delke followed behind.

In a court hearing, Delke described the incident. He recalled seeing Hambrick pull a gun from his waistband and point it at him as he ran away. Delke claimed that Hambrick gave him a “targeted glance,” or trying to get an idea of where to shoot. Delke said that he repeatedly yelled to Hambrick to put the gun down and that he thought Hambrick presented an imminent threat.

Surveillance video of the seconds before the shooting show Hambrick facing forward and running away as Delke shoots him. Hambrick was hit three times from behind.

Delke, a 26-year-old white police officer, was charged with one count of premeditated first-degree murder in connection with the shooting of Hambrick, who was 25 and black. Delke pleaded not guilty and claimed that he was acting out of self-defense. Delke is the first Nashville police office to be charged with murder in connection with an on-duty shooting. The trial has been delayed multiple times due the COVID-19 pandemic.

Contested Expert Testimony

Prosecutors presented Los Angeles Police Department Sgt. Jody Stiger as an expert witness. Earlier this year, Sgt. Stiger testified against Derek Chauvin, the Minneapolis police officer who was convicted of murder in connection with the death of George Floyd.

Delke’s defense team, led by attorney David Raybin, argued that Sgt. Stiger should not be allowed to testify because the connection to Chauvin, a white police officer who was convicted of murdering a black man, would overshadow the trial. The defense team claimed that using Sgt. Stiger as a witness is the state’s way of associating this case with Chauvin’s. However, the prosecution has said that they will not mention George Floyd’s name at trial.

After consideration, Judge Monte Watkins ordered that Sgt. Stiger may be listed as a state’s expert witness. Judge Watkins also decided to allow former District Attorney Torry Johnson to testify as a defense use-of-force expert.

At earlier motion hearings, Johnson has testified that Delke did have probable cause to chase Hambrick. State attorneys have characterized this testimony as Johnson’s admitting that he may not have prosecuted Delke if this had happened while he was still in office.