Category Archives: In the News

Ohio wooden Mallet

Expert Opinions in Ohio Prosecutions Should Be Excluded If Not Disclosed in Report

Ronald Boasten was convicted of murdering his ex-wife, Brandi. They married after Brandi became pregnant and soon divorced after she had an affair. The couple reconciled and had another child together but did not remarry.

Several years after they reconciled, Ronald suspected that Brandi was having another affair. After Ronald placed spyware on Brandi’s mobile phone, Brandi moved out of their home. She returned every day, however, to spend time with their children.

Ronald continued to monitor Brandi’s texts with the spyware he installed on her phone. After reading a series of suggestive texts, Ronald borrowed a gun from a friend. Ronald said he wanted to take care of a problem but did not mention Brandi.

The day after Ronald borrowed the gun, a hunter found Brandi’s SUV parked in a field with its engine running. The police discovered Brandi’s body in the SUV’s cargo area. A forensic pathologist determined that she had been strangled.

None of Ronald’s DNA was found on the body or in the SUV. A hair from Brandi’s head was found on a buckle on one of Ronald’s gloves. However, since Ronald and Brandi had been together for years, the hair was far from conclusive evidence of Ronald’s guilt.

Autopsy Report

A forensic pathologist autopsied Brandi’s body. She determined a time of death based on stomach contents. While the pathologist prepared a report that described the autopsy and offered an opinion as to the cause of death, the autopsy report included no opinion regarding the time of death.

The pathologist placed the buckle on Ronald’s glove against an abrasion on Brandi’s face and determined that the abrasion was “consistent with” the buckle and Velcro on Ronald’s glove. The autopsy report said nothing about the purported “consistency” between the glove buckle and the mark on Brandi’s face.

The pathologist mentioned her opinion about the glove buckle during a meeting with Brandi’s lawyer 19 days before trial. During the meeting, she also offered an opinion about the time of death. Brandi’s lawyer told the prosecutor that the autopsy report should be supplemented with this undisclosed information. The prosecutor declined to do so.

Failure to Disclose Expert Opinion Prior to Trial

Rule 16(K) of the Ohio Rules of Criminal Procedure requires an expert witness for either side in a criminal prosecution to “prepare a written report summarizing the expert witness’s testimony, findings, analysis, conclusions, or opinion.” The report must be disclosed no later than 21 days before trial. Failure to make the required disclosure “shall preclude the expert’s testimony at trial.”

The prosecution clearly violated discovery rules by failing to disclose two important expert opinions in a written report 21 days before the trial: time of death and alleged consistency between an abrasion and the buckle on Ronald’s glove. Ronald’s lawyer moved to exclude those opinions because that is the remedy for nondisclosure that Rule 16(K) requires.

The trial judge nevertheless admitted the opinions because defense counsel had the autopsy report that omitted those opinions a year before the trial and “chose” to meet with the pathologist 19 days before trial. Neither of those facts speak to the prosecution’s failure to follow the rule.

The court of appeals affirmed that ruling because courts are given “broad discretion” to make evidentiary rulings. However, courts have no discretion to make legally incorrect rulings. The Ohio Supreme Court therefore accepted review to determine whether a failure to disclose expert opinions 21 days before trial should result in exclusion of those opinions.

Appellate Analysis

Rule 16(K) allows the court to modify the 21-day deadline for good cause if the modification is not prejudicial. If the prosecution had asked the trial court in advance of trial to permit the late filing of a supplemental report, it might have cured the problem. Instead, prosecutors arrogantly refused to produce a supplemental report and did not ask for the deadline to be modified. Why prosecutors should be rewarded for flouting discovery rules is unclear.

The state supreme court noted a split in lower court decisions about whether Rule 16(K) means what it says. The text of the rule is written in absolute terms. The rule gives courts discretion to amend the disclosure deadline for good cause, but it grants no discretion to admit exert opinions that have never been disclosed in a written report. The supreme court concluded that “if a court rule is unambiguous, it is to be applied as written.”

Lessons Learned

The trial court erred by admitting the expert opinions that were not included in the written autopsy report. Having made the correct decision, the supreme court then upheld the conviction, ruling that the error was harmless because the defense lawyer knew about the expert’s opinions before trial and was able to cross-examine the expert about them.

The holding essentially nullifies Rule 16(K). The harmless error analysis does not depend on whether the defense cross-examined the expert, but on whether the trial outcome might have been different if the improperly admitted evidence had been excluded. Given the circumstantial nature of the evidence linking Ronald to the crime, it is difficult to conclude that evidence purporting to match Ronald’s glove to the wound on Brandi’s face did not influence the verdict.

Perhaps the defense should have anticipated that the trial judge would ignore Rule 16(K) and should have hired an expert to explain why the mark on Brandi’s face could have been caused by any number of objects. For the same reason that bite mark evidence is unreliable, an eyeballed opinion that Ronald’s glove buckle was consistent with the abrasion is not based on sound science. The lesson to learn is that defense lawyers should always be prepared to call an expert to challenge a prosecution expert, particularly when the prosecution is relying on doubtful expert opinions.


Netflix Series Highlights Issues With Bite Mark Evidence

A popular Netflix series has called attention to the faulty science behind bite mark evidence.

Bite Mark Evidence

Bite mark evidence purports to be a branch of forensic odontology, where dentists attempt to match marks that were found at crime scenes to dental impressions of suspects. When a victim has been bitten during the commission of a crime, dentists claim the ability to match the bite mark to the teeth of a suspect.

Bite mark evidence has been used for many years in criminal prosecutions. Oftentimes, bite marks are found at the scene of violent crimes such as murders and assaults on areas like skin, clothing, and soft tissue.

Opponents to the use of bite mark evidence argue that is flawed because it is subjective to the person examining the evidence. Since skin stretches, it can easily be maneuvered into a position that seems like a match.

The California Innocence Project notes that, “Different experts have found widely different results when looking at the same bite mark evidence. Such subjectivity has no place being touted as science in the courtroom, as it is extremely persuasive to a jury, especially where someone has been wrongfully accused.”

Netflix Series “The Innocence Files”

The popular streaming company, Netflix, recently released a limited series entitled, “The Innocence Files,” which examines cases of wrongful convictions. In the first three episodes of the series, bite mark evidence is called into question.

In the first episode, the series introduces two men from Noxubee County in Mississippi: Levon Brooks and Kennedy Brewer. In 1992, Brooks was convicted of the capital murder of three-year-old Courtney Smith. His conviction was supported by eyewitness testimony and bite mark evidence. Later that year, Brewer was convicted of the rape and murder of three-year-old Christine Jackson. His conviction was in part supported by bite mark evidence.

Forensic odontologist Dr. Michael West testified in both trials. In Brooks’ trial, Dr. West testified that “Levon’s dental impressions were a ‘really good match’ for a potential bite left on the victim’s wrist.” In his medical report, Dr. West opined “that ‘indeed and without a doubt the bite marks on Courtney were made by Levon Brooks.” In Brewer’s trial, Dr. West offered testimony about the presumed bite marks found on the victim and Brewer’s dental impressions. Brewer’s defense team retained a world-renowned forensic odontologist, Dr. Richard Souviron, to rebut Dr. West’s claims; however, the jury ultimately found Brewer guilty.

In 2000, Brewer reached out to the Innocence Project for help proving his innocence. The Innocence Project tested the DNA of the victim’s rape kit, which excluded Brewer as the source of the semen. Further investigation revealed another possible suspect for the murders of Christine Jackson and Courtney Smith—a man who had a previous record of multiple home invasions in the same community, Justin Albert Johnson. Johnson’s DNA matched the DNA found in Christine Jackson’s rape kit. He eventually confessed to the murder of both girls; however, he denied ever biting either one.

As a result of Johnson’s confessions, Brooks and Brewer were exonerated for their convictions. According to the documentary, Dr. West’s expert testimonies have contributed to 6 known wrongful convictions.


Court Dismisses Expert Witness Lawsuit Against Professional Association

Texas Case Illustrates Why Defense Lawyers Must Fight for Expert Witness Funding

Bryan Gutierrez died three months before his second birthday. Efforts to revive him after he stopped breathing were futile. A paramedic eventually used forceps to extract a wad of paper towels, about the size of an egg, from his throat. By that time, however, his brain had been deprived of oxygen for too long. His body was kept alive for another three months, but he suffered brain death.

Suspecting that a toddler could not have ingested such a large mass of paper towels on his own, police officers interrogated Rosa Jimenez, who was babysitting Bryan at the time of his death. Jimenez was caring for her own son while she babysat Bryan.

Jimenez told the police that she used paper towels to wipe the noses of both boys after they woke up from a nap. The boys then started rolling paper towels into balls and throwing them at each other. Jimenez told them to stop, then went into the kitchen to make lunch.

Bryan soon entered the kitchen in distress. He appeared to be choking on something. Jimenez could not find anything in his mouth. Slapping him on the back had no result, so she rushed him to a neighbor for assistance. The neighbor called 911.

The officer who interrogated Jimenez pressed his own theory, telling her that she must have wanted a few moments of peace and stuffed paper towels into Bryan’s throat to silence him. Jimenez protested that she loved Bryan like her own son and insisted that the officer’s version of events was false. After five hours of intense interrogation, Jimenez was released, only to be arrested in her home at 11:00 p.m.

Unfair Trial

Jimenez was charged with injury to a child. Despite the absence of any physical evidence suggesting that Jimenez had abused Bryan, a jury found her guilty. In 2005, Jimenez was sentenced to 99 years in prison.

Since then, at least four judges have questioned the fairness of Jimenez’ trial. A Texas Monthly investigation notes that each time Jimenez was granted a new trial, Texas prosecutors appealed, causing the verdict and sentence to be reinstated.

Federal Magistrate Judge Andrew Austin is one of the judges who recommended a new trial. When the case came before him for a second hearing, Magistrate Austin noted that Jimenez received “a very infirm trial and that there is likely an innocent woman who is sitting in a jail for seventeen years.”

It isn’t unusual for innocent defendants to spend many years behind bars before the slow-moving judicial system corrects the errors that caused their wrongful convictions. Delay is particularly tragic in Jimenez’ case, however, because she suffers from stage-four chronic kidney disease. She is likely to die in prison if her appeal is not expedited.

The state is doing everything it can to delay a final decision in Ms. Jimenez’ case. Its apparent strategy is to run out the clock, allowing her to die so that the unjust conviction it obtained will never be exposed.

Prosecution’s Expert Evidence

In the absence of an eyewitness or any physical evidence suggesting a crime had been committed, prosecutors attempted to prove that a boy as young as Bryan could not have stuffed paper towels so far down his throat. Since Jimenez was the only adult present, the prosecution theorized that she must have done it.

Prosecutors relied on four expert witnesses to make its case. The ER doctor who treated Bryan testified that his gag reflex would have pushed the wad of paper out of Bryan’s mouth if it had not been forced down his throat.

A pediatric ICU doctor echoed the ER physician’s testimony and expressed the opinion that there was “no way” Bryan could have placed the paper towels in his mouth by himself. She testified that Bryan must have been forcibly held down, despite the absence of any bruises that would have supported that testimony.

A forensic pathologist testified that Bryan’s throat was too narrow to ingest the paper towels voluntarily. A pediatrics and child-abuse specialist testified that Bryan’s death was not accidental. All of that expert evidence seems to be based on speculation rather than scientific studies.

Defense Evidence

The defense pointed out Jimenez’ DNA was not found on the paper towels. The defense also argued that the untrained officer who first arrived on the scene may have forced the paper towels farther into Bryan’s throat while attempting to administer CPR.

The defense called witnesses who testified that Jimenez was a good babysitter who never lost her temper. The defense also emphasized that Jimenez had no motive to harm Bryan.

The defense wanted to call its own expert witness, but two potential witnesses declined. One was still owed a fee for testimony provided in an earlier case; the other thought the fee that Jimenez’ court-appointed lawyer offered was insufficient.

The defense retained Ira Kanfer, a Connecticut medical examiner. He regarded the lack of trauma on Jimenez’ face as evidence that the choking was accidental. But Kanfer had no pediatric training and did not belong to any forensic science organizations. He apparently formed his opinions by printing out articles he found on the internet.

Kanfer also testified that a toddler could wad up paper towels and swallow them, particularly if they were wet. There was evidence that Bryan had a history of throwing paper into the toilet.

Kanfer lost his cool after a cross-examination questioned his credentials. During a break in his testimony, he confronted the prosecutor in the hallway and made a rude remark to her. She questioned him about the remark when he resumed his testimony. Whether the judge would have deemed the remark to be relevant is unclear since defense counsel did not object to it.

After the Trial

A filmmaker who covered Jimenez’ case is convinced of her innocence. Jimenez was a poor Mexican who did not have immigration documents. The filmmaker suspected that the jury would never have convicted a white middle-class woman on the basis of such flimsy evidence.

The documentary caused a stir in Mexico that eventually prompted the Mexican government to fund Jimenez’ defense. New lawyers located Dr. Karen Zur at the Children’s Hospital of Philadelphia. Dr. Zur is the associate director of the Center for Pediatric Airway Disorders. Dr. Zur reviewed the evidence and swore in an affidavit that the size of the paper towel wad was not inconsistent with accidental choking. She also explained that the gag reflex could actually result in paper towels being pulled deeper into the throat.

Three other experts, including another pediatric otolaryngologist, a critical care surgeon, and a forensic pathologist, all agreed that it was possible for a toddler to accidentally swallow the paper towels. The otolaryngologist explained that he had removed a wad of bread of a similar size from the throat of a 28-month-old child.

The forensic pathologist had conducted autopsies on children who choked to death. He testified that it is not unusual for children to place a large wad of paper towels in their mouth. He faulted the prosecution experts for basing opinions on speculation rather than medical science.

Defense Lawyers Must Identify Effective Expert Witnesses

Had Jimenez’ defense lawyer called an expert in pediatric otolaryngology —  an expert with appropriate credentials who would not have been so easily flustered on the witness stand — the trial outcome might have been different. Unfortunately, publicly funded defense lawyers in states like Texas are unable to match the resources available to prosecutors.

Politicians are typically more willing to fund experts for prosecutors than for the defense, while pro-prosecution judges are skeptical about paying defense experts the fees that they deserve. The scales of justice are thus rigged to favor the prosecution.

Child abuse justifiably makes people angry. Some prosecutors seize upon that anger to convince juries to base verdicts on their emotions rather than the facts. An evidence-based appeal to rationality is the only strategy that counters that emotion. The strategy begins by identifying and finding a way to fund the right expert witness.

Jimenez’s trial attorney testified that he informally asked the trial judge for more funding, a claim that the judge denied. The lawyer now acknowledges that he should have placed his request in writing. Whenever a verdict in a court-appointed case may turn on expert evidence, lawyers need to make a written record of the need for a qualified expert witness and of the reasons a defendant will be deprived of the right to a fair trial without one.


Judge in courtroom

Failure to Challenge Expert Testimony of Pathologist Results in New Trial

Janet Walsh was murdered by strangulation in her apartment. The police questioned Gregory Hopkins, who admitted that he had a casual sexual relationship with Walsh during the summer but denied being present when she died. Having no evidence to the contrary, the investigation languished.

Walsh died in 1979. More than three decades later, advances in technology allowed Pennsylvania to test crime scene evidence for traces of DNA. The police reopened the investigation and discovered the presence of Hopkins’ semen on items that were on or near Walsh’s body.

Since Walsh admitted having a sexual relationship with Hopkins, the presence of his semen was consistent with his innocence. Having no evidence that the semen was deposited at the time of Walsh’s death, prosecutors strengthened their case by calling a forensic pathologist, Dr. Cyril Wecht, as an expert witness.

Dr. Wecht opined that “topographical distribution” of Hopkins’ semen proved that he was present at the time of Walsh’s death. The jury accepted that testimony and found Hopkins guilty of third-degree murder.

After Hopkins’ conviction was affirmed on appeal, Hopkins filed a postconviction motion based on his trial lawyer’s failure to seek exclusion of Dr. Wecht’s testimony. On appeal from a denial of that motion, the Pennsylvania Superior Court agreed that Dr. Wecht should not have been allowed to present his novel “topographical distribution” theory as an expert opinion.

Trial Evidence

Walsh separated from her husband shortly before her death. When her body was discovered, her hands were bound behind her back with the belt from her bathrobe. Walsh was wearing a nightgown and her body was covered by a sheet. A bandana around her neck had been used to strangle her.

The sheet had been placed on Walsh’s body by her father when he discovered her body. The sheet was removed and replaced multiple times by police officers, including the investigating trooper. The trooper examined the scene closely but saw no wet spots or stains on the sheet or on Walsh’s nightgown. Forensic specialists took swabs from Walsh’s mouth and vagina but found no evidence that Walsh had engaged in sexual activity at the time of her death.

The best suspect appeared to be a drifter who danced with Walsh at a club and then went to a restaurant with her in the late-night hours before her death. The drifter’s checkbook was found in a gutter near Walsh’s apartment.

Hopkins candidly admitted to the police that he had sex with Walsh several times during the summer. Their last sexual encounter was about three weeks before her death. He denied being with her (and nobody claimed to have seen them together) on the evening before her death.

When the investigation reopened in 2010, forensic investigators used a technique to identify traces of semen that are invisible to the naked eye. Forensic investigators testified that they found semen on the sheet, the bathrobe belt, and the nightgown. Although much of the semen had degraded and could not be reliably tested for DNA, investigators testified that DNA found in some samples came from Walsh. No DNA was found on the bandana that was used as a murder weapon.

The forensic investigators admitted that they did not know when the sheet, nightgown or bathrobe belt had last been washed. They also admitted that no test can identify the date on which semen is deposited prior to its collection for testing.

The prosecution nevertheless constructed a theory that Walsh died during a sexual encounter with Hopkins. That theory was unsupported by any physical evidence and was inconsistent with evidence that no semen was found in Walsh’s vagina. In addition, a physical examination of Walsh’ body in 1979 revealed no evidence of recent sexual activity.

Expert Testimony

Undeterred by the absence of any evidence that Walsh had sex on the night of her death, the prosecution obtained an expert report from Dr. Wecht to bolster its case. Dr. Wecht is an experienced forensic pathologist. He concluded that Hopkins’ semen had been deposited on the night of Walsh’s death.

Dr. Wecht based his opinion on the placement of the semen on Walsh’s bathrobe belt, nightgown, and bed sheet. He concluded that the location of the semen somehow established that Hopkins was on the bed on top of Walsh’s back at the time of her death. Dr. Wecht’s “topographical distribution” theory suggested that Hopkins strangled Walsh while he was having intercourse with her from behind.

Dr. Wecht admitted that DNA can be transferred from one object or location to another when objects are handled or laundered, although he discounted that possibility in this case. He could not explain why trained investigators failed to observe fresh semen stains if they had been deposited just hours before Walsh’s body was discovered.

Two defense experts (a forensic pathologist and a DNA expert) challenged Dr. Wecht’s opinions. They agreed that the semen could have been deposited prior to the night of Walsh’s murder.

Challenge to Dr. Wecht’s Testimony

Hopkins’ counsel challenged the admissibility of the opinions provided by Dr. Wecht on the ground that they were not stated to a reasonable degree of medical certainty and that they were not scientific opinions and thus not helpful to the jury. Counsel did not challenge the opinions on the ground that they failed the Frye test.

The trial judge agreed that Dr. Wecht identified no scientific principle that allowed him to determine from semen “placement” the date on which the semen was “placed.” The prosecution appealed that pretrial ruling. In a cursory 2-1 opinion, the Superior Court concluded that the testimony was admissible under Pennsylvania’s liberal standard for the admissibility of expert evidence. The dissenting judge agreed that Dr. Wecht’s opinion was unsubstantiated by any scientific principle and was therefore an inadmissible lay opinion rather than expert testimony.

Post-Conviction Motion

Pennsylvania has consistently rejected the Daubert standard of admissibility. It has adhered to the Frye standard for decades and incorporated Frye’s “general acceptance” standard into the state evidence code shortly before Hopkins’ trial.

The appellate court emphasized that trial counsel’s challenges to Dr. Wecht’s testimony did not specifically include a Frye challenge. That is, he did not argue that testimony based on a “topographical distribution” theory was inadmissible because the theory was not generally accepted by the scientific community.

At a hearing on his post-conviction motion, Hopkins presented the expert testimony of two forensic pathologists: Dr. David Fowler, the chairperson and former president of the National Association of Medical Examiners, and Dr. Kimberly Collins, the incoming president of that association.

Both experts testified that Dr. Wecht’s topographical distribution theory is “not medical science” and that engaging in a topographical distribution analysis is outside the boundaries of accepted practice in the field of pathology. In fact, neither expert had ever heard of the theory before.

While Pennsylvania courts recognize the admissibility of expert testimony based on novel theories, those theories must be founded on methodologies that are generally accepted by the scientific community. General acceptance can be established from a variety of sources, but an expert’s personal opinion is not enough. The opinion must be supported by recognized scientific authority.

In deciding the post-conviction motion, the trial court recognized that Dr. Wecht’s topographical distribution theory had no scientific validity but bizarrely concluded that his testimony was admissible precisely because it was not based on science and was therefore not subject to the rules governing the admissibility of expert opinions.

Appellate Analysis

The appellate court recognized that the trial court’s decision would make all expert testimony admissible, whether or not it was based on generally accepted principles of science. The prosecution presented Dr. Wecht as an expert and urged the jury to accept his expert opinion. An opinion that purports to be based on science must be supported by a generally accepted methodology.

The prosecution argued that Dr. Wecht’s conjecture was supported by “common sense.” However, common sense is not science. Juries and lay witnesses are entitled to use their common sense. Experts in science must be guided by science.

Since Dr. Wecht’s opinion was supported by nothing beyond his own conjecture, his opinion was inadmissible. The appellate court concluded that Hopkins’ counsel was ineffective in failing to seek exclusion of the testimony on Frye grounds. Had he done so, the testimony would have been excluded. And without Dr. Wecht’s testimony, no evidence supported the theory that Hopkins was present at the time of Walsh’s murder. Hopkins is therefore entitled to a new trial.


USA legal system conceptual series - Illinois

Illinois Considers Updates to Supreme Court Expert Discovery Rules

Two proposed changes to the Illinois Supreme Court Rules that are pending before the Chicago Bar Association Civil Practice Committee affect expert witness discovery. The affected rules are Illinois Supreme Court Rule 203 and Rule 213.

Illinois Supreme Court Rule 203

Illinois Supreme Court Rule 203 is titled, “Where Depositions May Be Taken.” Its current version was effective January 1, 1996. The rule currently reads, “Unless otherwise agreed, depositions shall be taken in the county in which the deponent resides or is employed or transacts business in person, or, in the case of a plaintiff-deponent, in the county in which the action is pending. However, the court, in its discretion, may order a party or a person who is currently an officer, director, or employee of a party to appear at a designated place in this State or elsewhere for the purpose of having the deposition taken. The order designating the place of a deposition may impose any terms and conditions that are just, including payment of reasonable expenses.”

The proposed changes to the rule would require a controlled expert witness to come to the county where the case is pending for the deposition. Under the new rule, an expert would be responsible for his or her expenses, which would then get passed on to the party. This rule would apply whether the deposition was for the purposes of discovery or evidence.

Opponents to the proposed change argue that this would impose burdens on parties that they may not be able to bear, by requiring them to pay travel fees for their chosen expert witnesses. The opponents note that the proposed rule shifts the costs of expert travel to benefit the deposing party. They argue that the cost of an in-person deposition should be borne by the party who requests that deposition. The new rule would also remove the option that currently exists to have the expert travel to the county where the case is pending because it is cheaper to pay to have the witness travel than the lawyers.

Illinois Supreme Court Rule 213

Illinois Supreme Court Rule 213 deals with “Written Interrogatories to Parties.” Its current version was amended December 29, 2017 and effective January 1, 2018. In pertinent part, Rule 213(f) requires parties to disclose, for independent expert witnesses, “the subjects on which the witness will testify and the opinions the party expects to elicit,” and for controlled expert witnesses, “(i) the subject matter on which the witness will testify; (ii) the conclusions and opinions of the witness and the bases therefor; (iii) the qualifications of the witness; and (iv) any reports prepared by the witness about the case.”

The proposed change to this rule would exempt from disclosure all draft expert reports, draft expert disclosures, and communications with the expert except for those related to the fee agreement, billing and payment. This proposed change aims to bring Illinois more in line with the Federal Rules of Civil Procedure.

Opponents to the proposed rule argue that the proposed rule change should fail because without enacting the federal rules as a whole, adopting a portion of them does a poor job of balancing privilege with discovery. As Donald P. Eckler, legislative chair of the Illinois Association of Defense Trial Counsel, wrote of the proposed rule change, “This proposal would place an obstacle to the search for the truth and harm civil justice in Illinois.”



Infectious Disease Experts Will Be Critical to Lawsuits Alleging Negligent Spread of COVID 19 Infections

As the COVID-19 virus has swept the nation, lawyers are being asked whether individuals or businesses can be held liable for failing to prevent infections. Some businesses have denied employees an opportunity to work from home while asking them to sign a “voluntary” waiver of liability for infections they contract by coming to work. Since employees who fail to sign are laid off, conditioning a paycheck on the risk of acquiring an infection might be seen as coercive rather than voluntary.

Whether employers will be deemed negligent for denying work-at-home opportunities, and whether they can protect themselves from liability by conditioning future employment on a liability release, are open questions. Party-divided senators are debating whether federal legislation should protect employers from liability or whether states should be entitled to decide what has historically been a question of state law.

A clearer case of liability is posed by businesses that fail to protect patrons from infections. When outbreaks can be traced to infected servers at a restaurant, for example, the restaurant may be liable for allowing servers to handle food or interact with customers without wearing masks or gloves. How to assure the safety of patrons is a question that will grow in importance when the economy begins to reopen.

The most obvious cases of infectious disease negligence involve nursing homes and other care facilities that fail to protect patients from the spread of COVID-19. A nursing home in Hayward, California has been threatened with legal action after 25 staff members and 41 residents tested positive for a novel coronavirus infection. Nine residents died from the virus. Attorneys are investigating allegations that staff members were compelled to work despite having symptoms of a COVID-19 infection.

Nursing Home Negligence and COVID-19

There’s no doubt that nursing homes and similar healthcare facilities are in a tough position. USA TODAY reports that a minimum of “2,300 long-term care facilities in 37 states have reported positive cases of COVID-19” and that 3,000 residents have died. The actual numbers are likely higher, as some states (including Florida) did not answer USA TODAY’s request for data.

At least 127 of 163 elderly residents at a nursing home near Richmond, Virginia have fallen ill with COVID-19. At least 35 of its staff members have tested positive for the virus, leading to a staff shortage that may further endanger residents. The facility’s medical director says the nursing home was taken by surprise, although the risk of a global outbreak was widely reported by February.

Since infections spread rapidly and infected individuals are not always symptomatic, nursing homes that exercise reasonable care to protect their residents might still experience a coronavirus outbreak. Yet USA TODAY found that even before the pandemic, 75% of nursing homes had been “cited for failing to properly monitor and control infections in the past three years.”

Questions Experts Will Need to Answer

Elderly patients and individuals with compromised immune systems are particularly vulnerable to life-threatening conditions caused by the COVID-19 virus. Whether a nursing home is responsible for the spread of COVID-19 in a vulnerable population may require experts to answer difficult questions, including:

  • What are the costs and benefits of isolating vulnerable patients during a pandemic?
  • Would prudent management require staff members to wear masks and gloves during all interactions with patients?
  • Should nursing homes stop admitting new residents to reduce population density and further the goal of social distancing?
  • What precautions should management take to assure that nurses and other staff members are not infected?
  • Should management have recognized the symptoms of a potential infection and sent potentially infected staff members home until they received a negative test result?
  • Did the facility take all necessary steps to disinfect rooms and common areas where the virus might linger?

Similar questions arise with regard to other confined settings, including jails, cruise ships, and hospitals. While preventing the spread of an infectious disease can be extraordinarily difficult, expert witnesses can determine whether certain elementary precautions — such as preventing a person with a cough from working until the employee tests negative for COVID-19 — should have been taken.

Infectious Disease Experts Making a Difference

Expert witnesses are likely to testify about COVID-19 in a variety of contexts. Lawsuits in Wisconsin, for example, allege that the failure to move the April 11 election disenfranchised voters who did not visit a crowded polling place for fear that they would acquire the virus and expose vulnerable family members to it. Infectious disease specialists and public health experts will likely be called upon to testify that those fears were legitimate.

Expert witnesses also assisted the ACLU in bringing a lawsuit seeking the release of four migrants detained by ICE in a crowded facility. Expert evidence established that the migrants had “medical conditions that make them highly vulnerable to serious illness and death if infected with COVID-19.”

The lawsuit contended that twelve detainees and one staff member had been infected with COVID-19 and that staff did not regularly wear gloves or masks to prevent the transmission of the virus. The lawsuit prompted ICE to release the detainees.

Infectious disease experts will continue play a vital role in informing the public as the pandemic continues to threaten lives. In the foreseeable future, they are likely to play critical roles as expert witnesses in litigation that holds negligent parties responsible for the preventable spread of this deadly disease.

dollar bills

Experts Debate Pay Disparities for Female Soccer Players

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

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

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

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

Disparate Pay

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

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

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

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

Challenges to Labor Law Expert

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

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

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

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

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

Challenges to Forensic Accountant

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

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

Challenges to Labor Economist

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

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

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

Ruling to Come

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

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

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

Underlying Dispute

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

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

Third District Court of Appeal

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

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

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

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

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

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

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

Expert Witness Report Alleges Negligence in Prison Death

Expert Opinions Offered in Support of Challenges to Death Penalty Protocols

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

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

Expert Testimony in Death Penalty Challenge

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

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

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

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

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

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

Court’s Analysis of Expert Evidence

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

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

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

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

Expert Opinions Sway the Governor

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

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

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


North Carolina

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

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

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

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

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

Trial Evidence

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

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

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

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

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

False Confessions

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

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

Expert Testimony

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

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

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

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

Cleary testified:

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

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

Hearing Outcome

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

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