Category Archives: In the News

Articles about legal issues currently in the news.

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Iowa Supreme Court Overturns Child Abuse Convictions Due to Expert Testimony

Earlier this month, the Supreme Court of Iowa issued a ruling in three recent appeals of child sex abuse convictions that limited the extent of permissible expert witness testimony during trial.  According to the Iowa justices, sexual abuse expert witnesses can explain the symptoms of sex abuse to jurors but are not permitted to opine on whether or not the alleged child victim actually exhibited them.

Three Sexual Abuse Convictions Appealed to Iowa Supreme Court

In early December, the Iowa Supreme Court granted retrials to three alleged abusers in separate sexual abuse cases because prosecutor expert witnesses went too far with their testimony.  Each case prosecuted men for allegedly abusing young girls who were in their own family, and each featured an expert sexual abuse witness to help jurors determine whether or not the alleged abuse occurred.  A therapist, doctor, and forensic interviewer provided testimony to jurors that identified the symptoms of sexual abuse and then went on to identify observed behavior in the alleged victim.

According to one expert an alleged victim’s “demeanor was completely consistent with a child who has been traumatized, particularly multiple times.”  Another expert testified that during her work with the child in her case she, “observed some ‘telltale’ physical manifestations [of abuse] such as dressing in layers, cutting hair, dressing ‘very boyish,’ and reacting to triggers.”  With help from these comments and additional expert witness testimony that similarly connected the alleged victim’s behavior to symptoms of child abuse, prosecutors were able to earn convictions in all three cases.

During trial, defense attorneys attempted unsuccessfully to prevent the expert witnesses from being allowed to testify about specific behavior indicative of child abuse, but all three defendants found more success on appeal.

Iowa Supreme Court Overturns Child Abuse Convictions due to Expert Testimony

Citing Iowa case law, which prohibits expert witnesses from testifying to matters of fact, a unanimous Iowa Supreme Court decision found that all three sex abuse cases had improperly featured extensive expert testimony.  According to Iowa law, expert witnesses are permitted to explain symptoms of recognized psychological syndromes generally, but cannot speak to the facts of the case.  Additional fact witnesses are required to connect the general principles discussed during expert testimony to the specific facts at issue during trial.

In these cases, fact witnesses would consist of individuals who observed the specific behavior of the alleged child victim.  According to the Iowa Court, only fact witnesses who had seen the alleged victims after the claimed abuse could speak to their behavior, and it was up to the jury to determine whether or not that behavior matched the symptoms of child abuse explained by the experts earlier in the trial.  Although the distinction between permissible and impermissible expert testimony is a fine line, it is an important one that preserves the role of juries as ultimate finders of fact.

Limitations on Expert Witness Testimony Reinforce Role of Jury

Criminal and civil juries are responsible for examining the available evidence and making the ultimate decision on the outcome based on how the facts of the case align.  By having expert witnesses tell jurors that an alleged victim suffers from symptoms of child abuse, courts risk taking the issue of fact away from jurors because rather than determine whether or not the evidence supports a finding of abuse, jurors can easily be swayed by an expert’s own interpretation of the case.  Although the Iowa Supreme Court noted that expert witnesses may connect an alleged victim’s behavior to the symptoms of child abuse if the defense first argues the contrary, the state’s highest court reminded prosecutors that experts are not permitted to testify about their interpretation of relevant facts.

While the Court unanimously found the expert witness testimony to cross the line of permissible testimony, two of the seven justices dissented from the majority’s decision to overturn the convictions.  Saying the impermissible expert testimony did not significantly impact the conviction, the dissenting justices argued the Court should not have granted new trials.  However, the majority opinion disagreed and determined that when the experts took on the role of factual interpretation, jurors were influenced in such a way that the outcomes were tainted.  New trials will be held in all three cases.

 

Car Accident Reconstruction Expert Faces Aggressive Challenge from Prosecutor

A vehicular manslaughter trial in Ithaca, New York turned heated last week when the lead prosecutor accused the defendant’s car accident expert witness of being a “mercenary” willing to testify to anything for money.  While every expert witness testifying at trial does so for money, the contentious back-and-forth highlighted concerns that some experts prioritize financial interests over relevant testimony.

Vehicular Manslaughter Case Relies on Accident Reconstruction Analysis

Last New Year’s Eve, a Chevrolet Monte Carlo driven by 19-year-old James Crosby collided with a Jeep driven by Samantha Aarnio.  The collision killed one passenger in each vehicle: Kathy Lattimore, Aarnio’s 67-year-old mother-in-law, and Derek Nichols, Crosby’s 20-year-old friend, and, after investigation, Crosby was charged with vehicular manslaughter for both deaths.  He is also charged with second-degree assault, third-degree assault, second-degree reckless endangerment and reckless driving for his role in causing the accident.  Judge John Rowley is presiding over a bench trial that will not use a jury to come to a verdict, and prosecutors are asking that Crosby be found guilty and sentenced to 4 – 12 years in jail.

In his defense, Crosby’s attorneys have taken issue with the police report detailing the investigation.  The results of the police report suggest that Crosby’s Monte Carlo was traveling at a speed between 84 – 91 mph before colliding with Aarnio’s Jeep, which was traveling at 45 mph.  Pointing to this data, prosecutors have argued that Crosby was clearly in violation of traffic laws and was moving at such an unsafe speed that he was acting recklessly in such a way that he should have known would endanger the lives of others.  Concluding that his clearly reckless actions were the direct cause of two deaths in the resulting accident, prosecutors relied on the accident diagnosis found in the police report to convince Judge Rowley that Crosby is guilty of two counts manslaughter.

William Fischer, a crash reconstruction expert witness hired by the defense, disagreed with the information found in the report and took police investigator’s to task for shoddy and incomplete analysis of the accident.

Defense Car Accident Expert Testifies During Manslaughter Trial

Mr. Fischer began his testimony by informing the Court that his independent investigation concluded that Crosby was traveling at 55 mph – a speed much closer to the posted speed limit.  Further, Fischer testified that Aarnio’s Jeep was moving much slower than 45 mph, meaning that the accident happened at a far lesser speed than reported by police.  Fischer directly contradicted the police report’s analysis of the speed of the accident, allowing defense attorneys to argue that Crosby was not driving at a negligently high rate of speed prior to the crash.

Additionally, Mr. Fischer found fault in the police investigation because officers declined to perform skid tests at the scene.  Saying that police need to gather an estimation of the coefficient of friction in order to get accurate speed tests, Fischer called the investigation incomplete and prone to error.  Calling the police’s tactics a “bastardized” test of determining speed, the defense expert witness claimed that his calculations, which were more complete, represented a reliable estimate of the speed of the two vehicles.

Fischer also testified that a lack of deformity in the filaments of the rear taillights suggest that Aarnio’s Jeep may not have had its lights on at the time of the crash – a relevant fact considering the accident happened 19 minutes after sunset.  Taken together, Fischer’s car accident reconstruction expert testimony targeted potential flaws in the prosecution’s analysis which suggested Crosby was driving negligently at the time of the accident.  By calling Fisher, Crosby’s defense team attempted to introduce reasonable doubt to the question of his negligence, hoping to convince Judge Rowley that manslaughter is not an appropriate charge.

Prosecutors Challenge Defense Car Expert Witness

In response to Fischer’s criticism of the police accident reconstruction, lead prosecutor Eliza Filipowski challenged the car accident expert on a number of points.  First, Filipowski pointed out that Fischer has been openly critical of skid tests, raising questions about why he condemned the police for not using one in their calculation of Crosby’s speed.  Although Fischer responded that any test of friction would be better than none, Filipowski followed her line of questioning by contrasting the techniques used by police investigators, which relied on electronic optical measurements of speed, to Fischer’s calculations of speed, which featured an inaccuracy that the defense expert could not adequately explain.

Finally, Filipowski attacked Fisher’s credentials, which have not been updated recently, and challenged his history of testifying only for defendants in car accident reconstruction cases.  Pointing out that Fischer, who was paid $12,000 for his expert witness testimony, failed to provide a complete or consistent critique of police tactics or an accurate reconstruction method, Filipowski attacked the reliability and credibility of the defense expert in an effort to promote the state’s case for a manslaughter conviction.

Inmate’s Family Sues Ohio Expert Witness over Botched Execution

Family members of an Ohio inmate executed by the state have sued a lethal injection expert witness for failing to recognize that the controversial two-drug technique would cause suffering.  Claiming that the expert helped create an inmate execution policy that he knew would be painful, the plaintiffs are seeking financial compensation for its use in a death sentence carried out in January of this year.

Ohio Conducts Review after Lengthy Execution

In January, Ohio inmate Dennis McGuire was executed for the 1989 rape and stabbing death of Joy Stewart, a 22-year old pregnant woman.  McGuire’s execution, the first to be conducted by an untried two-drug combination, made headlines after he took nearly ½ an hour to die.  According to witnesses, the convicted killer gasped for air and writhed in pain for 15 minutes, leading attorneys representing McGuire and his family to call the new method of execution a “failed experiment” and request official review of the process.

In a report relying on the opinion of an anesthesiologist who reviewed the witness accounts and McGuire’s medical records, Ohio officials declared that the condemned inmate did not suffer during his execution.  Finding that the execution was humane despite the apparent hang-ups, the report read, “The two drugs used in the McGuire execution had their intended effect and that McGuire did not experience any pain or distress.  The bodily movements that were observed were consistent with the effects of the drugs, his obesity and other body characteristics, and involuntary muscle contractions associated with the ending of respiratory function. There is no evidence that McGuire experienced any pain, distress or anxiety.”

Despite the findings, the Ohio Department of Corrections announced that it would increase the dosages of both drugs in its two-drug system, and state officials have postponed a second planned execution indefinitely.  Calling the state’s actions a tacit admission that the execution did not transpire as planned, attorneys for McGuire’s family filed a lawsuit against the state and the expert witness who helped develop the new two-drug execution procedure.

Inmate’s Family Files Lawsuit against Death Penalty Expert Witness

In a recently filed lawsuit, family members of Dennis McGuire claimed that a former expert witness who helped Ohio construct its two-drug cocktail knew, or should have known, the procedure would cause unreasonable pain and suffering when used during executions.  Dr. Mark Dershwitz, who resigned as a death penalty expert witness citing concerns about his professional reputation, worked closely with Ohio officials to help create the state’s new lethal injection process.  Dr. Dershwitz is an anesthesiologist and pharmacologist working for the University of Massachusetts who has been a public proponent of the two-drug method as a new lethal injection policy, and he contracted as an expert witness with Ohio prior to McGuire’s death in developing the procedure for use in state executions.

The lawsuit against Dr. Dershwitz and the drugs’ distributors claims that the expert “knew or should have known that when used in executions, Hydromorphone and Midazolam would cause unnecessary and extreme pain and suffering during the execution process.”  Pointing to the McGuire ordeal, plaintiffs claim that he suffered needlessly because of the experimental procedure, and Dr. Dershwitz shares responsibility for encouraging the state to switch to the two-drug method.  Although Dershwitz did not testify at a trial, his work was instrumental in the adoption and use of a two-drug cocktail that, according to lawsuit, he knew would cause pain and suffering in violation of the Constitutional protection against cruel and unusual punishment.

Dr. Dershwitz, who resigned in April after continuing to consult with Ohio prison officials following McGuire’s execution, has not responded to the federal lawsuit.

Canine Expert Witness to Testify in Negligent Supervision of a Child Case

A judge in Iowa has approved the request of a woman charged with the death of a 4-year-old child who was attacked by a dog while under her care to call a canine behavior expert witness to testify that the defendant could not have known the attack was likely to occur. The judge’s decision granted a pre-trial motion for the criminal case that is scheduled to begin in January, bringing to a close an investigation that began after the deadly attack last April.

Child Killed by Dog While Under Babysitter’s Care

Four-year-old Jordyn Arndt died from injuries suffered during a dog attack that occurred in the home of her babysitter, 24-year-old Jena Marie Wright. Wright was charged with taking care of Jordyn and her 7-year-old brother, Aden, at her home in Prairie City, Iowa on in April of 2013. While at the home, Jordyn was attacked by Jena’s dog, Brutus, an American Staffordshire Terrier. Brutus bit Jordyn in the head and neck area, causing injuries that resulted in the child’s death at a Des Moines hospital the following day.

Jena Wright was arrested and charged with child endangerment causing death as well as neglect or abandonment of a dependent person – two federal crimes that could result in a 35-year prison sentence if she is convicted. Wright is also charged with assault on a peace officer causing bodily injury and interference with official acts for allegedly kicking the arresting officer in the chest during her arrest after the attack.

In order for the prosecution to prove that Wright committed child endangerment and neglect of a dependent person, the state must demonstrate beyond a reasonable doubt that the defendant knew, or should have known, that Brutus had a propensity for aggression that could lead to him attacking Jordyn. As part of her defense, Wright’s attorneys sought the testimony of a canine expert witness to explain to jurors that she might not have known that her animal would become aggressive towards a young child.

Canine Expert Witness Called to Testify About Knowledge of Dog’s Capacity for Violence

Ron Berman, a California based forensics consultant who is an expert in canine temperament, bites, and behavior, has been chosen by Wright’s defense team to take the stand and bolster their claim that the defendant could not have known Brutus would attack Jordyn. Berman was chosen as one of four canine expert witnesses in the United States who has the experience with evaluating dog behavior that qualifies him to offer expert testimony on the subject during a criminal trial. Although the exact nature of Berman’s testimony is unknown, Wright’s attorneys argued his contribution to the trial was relevant because it would support the defense’s argument that the babysitter did not know the dog was violent when she made the decision to leave the children unattended with the animal.

Prosecutors objected to the use of Berman, arguing that his expert testimony was not relevant and would only serve to distract the jury from the important question of whether or not Wright acted negligently by leaving young children alone with a dog. Judge Richard Clogg, however, granted the defense team’s motion because he felt that the canine expert testimony would ensure that Wright received a fair trial that debated all relevant issues, including questions about whether or not she could have known that Brutus had a propensity for violence. As part of his ruling, Judge Clogg agreed to allot $18,000 in public funds to pay for Berman’s expert contribution to the proceedings.

Expert Witnesses and Relevance

Modern standards for admitting expert witness testimony require judges to make determinations about whether or not the proposed contribution would be relevant. Relevant testimony is testimony that informs the court whether the occurrence of a particular fact, or set of facts, is more or less likely, and if an expert is not adding information necessary or helpful to the jury’s determination of whether or not an important fact is true, or is providing testimony that could unfairly prejudice jurors in favor of one side over the other, then a judge could disallow the expert from participating at trial.

If, on the other hand, an expert’s proposed testimony will help jurors determine whether or not the facts presented at trial occurred in such a way that suggests the defendant’s guilt or innocence, the testimony will be relevant. In this case, Mr. Berman’s expert testimony on canine behavior will help jurors determine whether or not the prosecution’s allegation that Wright knew, or should have known, is true. Berman is speaking to a critical alleged fact – that Wright was aware that it was not safe to leave Brutus with two young children – and, as such, his contribution to the trial is relevant.

Dallas Buyers Club LLC Uses Technology Expert in Australia Copyright Lawsuit

Dallas Buyers Club LLC, the company behind the Oscar winning film starring Matthew McConaughey and Jared Leto, has actively pursued individuals who illegally downloaded the movie on a bit-torrent stream both domestically and abroad. The company has filed more than 3,500 subpoenas across the United States demanding anonymous users come forward with personal information, and this week litigation in front of an Australian federal court progressed with DBC’s hiring of a technology expert witness who will help the company identify parties who illegally download the film.

Dallas Buyers Club LLC Seeks Illegal Downloaders

While Dallas Buyers Club LLC has sent subpoenas demanding personal information to suspected illegal downloaders here in the United States, the company has taken more advanced steps in Australia.  In a highly publicized legal action, DBC has taken Australian Internet Service Providers (ISPs), including Australia’s primary ISP iiNet, to task for failing to reveal the identities of users who downloaded the movie illegally.  iiNet refused DBC’s request to reveal personal customer data, leading to a lawsuit in the Federal Court of Australia in which DBC asks the court to grant a “preliminary discovery” to compel identification of people who committed copyright infringement by downloading the film from illegal stream torrents.

While iiNet acknowledged that DBC had the right to pursue infringement of a copyright, the company questioned whether or not DBC would use customer information responsibility. Steve Dalby, an iiNet executive, responded to DBC’s claim by saying, “In this case, we have serious concerns about Dallas Buyers Club’s intentions. We are concerned that our customers will be unfairly targeted to settle any claims out of court using a practice called ‘speculative invoicing.’ iiNet is concerned that such a development would open the floodgates to further claims by other rights holders, leading to more Australians being intimidated to pay exorbitant amounts in an attempt to avoid improbable litigation.”

Dallas Buyers Club Hires German IT Expert Witness to Track Illegal Downloads

Contributing to iiNet’s concerns was DBC’s use of a German organization hired to connect IP addresses to personal user information – a process that iiNet and other ISPs felt uncomfortable with.  To investigate the organization further, iiNet requested an expert witness from Germany to explain how the company tracks individual users in order to assess the reliability and accuracy of the procedure.

After failing to receive personal information about illegal downloaders from ISPs upon request, Dallas Buyers Club LLC hired German company Maverickeye UG to track Australian users based on IP addresses that accessed the Oscar-winning film online.  According to the company’s website, Maverickeye uses “highly sophisticated software” and “robust hardware infrastructure” to obtain accurate user information identifying users who committed acts of copyright infringement.

To explain the process of reverse tracking users through IP addresses, DBC asked for an expert witness report from Dr. Simone Richter, a German IT professional who has experience in piracy detection systems like Maverickeye.  As explained in Richter’s report, Maverickeye serves a sort of lure to potential copyright infringers by acting as a source of data without actually transferring anything.  Once the system identifies a willing exchange partner, the IP address is identified and connected to illegal downloading activity.  According to Dr. Richter, Maverickeye is able to distinguish IP addresses of users who are willing to distribute a piece of copyrighted data from users who simply share files online with others.

For the purposes of Dallas Buyers Club LLC’s lawsuit, Maverickeye was tasked with identifying user account information connected to IP addresses that illegally accessed the movie online.

Australian Internet Provider Requests Expert Witness

Given the concerns that DBC would misuse user information, iiNet and other Australian ISP’s were reluctant to accept the film owner’s use of Maverickeye without first testing the reliability and accuracy of the user information obtained.  Arguing that the potential consequences to users that Maverickeye identified required a full analysis of the process, iiNet asked Justice Nye Perram for in-person access to Dr. Richter so he could explain his report.

In order to substantiate Maverickeye’s ability to present user data that accurately matched an IP address to an individual account holder AND connect that particular individual to the act of copyright infringement, iiNet requested DBC fly Dr. Ricter from Germany to fully explain how Maverickeye operated.  Citing expense, DBC’s lead attorney attempted to satisfy iiNet and the Australian federal judge by reading from Ricther’s expert witness report which explains the process of identifying users based on IPs, but iiNet responded that due to the complexities of the issue the witness needed to be cross-examined.  Attorneys for iiNet argued that because account holders who were identified by Maverickeye would face the threat of legal action from DBC, the process needed to be fully vetted by having the expert witness testify in person during trial.

Ultimately Judge Perram agreed with iiNet, and ordered DBC to fly Dr. Richter to Australia so his expert testimony could be heard in person.  The question of whether DBC can force ISPs like iiNet to reveal user information will proceed in January, and given the development of a similar issue in the US, how Australia uses Dr. Richter’s expert witness testimony could become important in future litigation domestically.

Psychiatry Expert Witness Testifies in Murder Trial

Last week a jury in Tioga County, New York convicted 63-year-old Douglas Every of manslaughter for the stabbing death of his 39-year-old roommate, Milton Jump.  Mr. Every did not deny his role in the incident, but attempted to bolster his self-defense argument by calling a psychiatric expert witness to testify that his mental state caused him to reasonably fear the victim would harm him.

New York Man Convicted of Manslaughter for Stabbing Roommate

Douglas Every and Milton Jump lived together in a home owned by the 63-year-old Every until the two got into a verbal altercation on October 23, 2013.  After the men had been drinking, they began an argument that ended with Every stabbing Jump in the heart.  Prosecutors charged Every with 2nd-degree murder, but the Defendant argued that he had acted in self-defense due to feeling intimidated by the younger Jump’s behavior during the argument.

After a two-week trial, jurors were unwilling to find Every guilty of the murder charge, forcing the prosecution to settle for the lessor option of manslaughter.   Although the jury ended up convicting Early for the stabbing death of his roommate, the decision to find him guilty on the lessor manslaughter charge suggests that the defense strategy to justify the assault had some impact on the outcome.  Critical to the defense was the testimony of a psychiatry expert witness who informed jurors that the Defendant suffered from heightened states of agitation that contributed to his violent and fatal reaction to the argument.

Psychiatry Expert Witness Testifies for Defense

Defense attorneys for Douglas Every called Dr. Thomas Lazzaro, a forensic psychologist with more than 30 years of experience, to testify that the Defendant experienced high anxiety and the early stages of dementia that contributed to his overreaction to verbal confrontation.  Dr. Lazzaro performed a psychiatric evaluation on the Defendant after his arrest, and testified to jurors that the accused experienced anxiety as a result of his dementia.  Lazzaro, who both sides agreed is an expert in psychology and human behavior, explained to the court that his evaluation with Every and his investigation of the incident led him to concluded that the Defendant could not control his perception of the escalating argument with Milton Jump.

Defense attorneys used Dr. Lazzaro’s expert testimony to argue that Every acted out of fear of a physical threat, even if an objective observer to the situation would determine that the threat did not warrant a violent response.  Self-defense justifies violent action if a defendant reasonably perceives a threat of imminent harm, and when a disrupted mental state alters how the defendant perceives confrontation jurors can take the altered perception into account.  If Douglas Every’s mental condition and high anxiety created in his mind a reasonable fear that his verbal altercation with Milton Jump would turn violent, then he may qualify for a self-defense justification to the crime.

Prosecutors responded to the effort by questioning Dr. Lazzaro’s motivation to testify (he received $3,000), and pointing out that despite the psychiatric evaluation, it was Every who escalated the argument to violence.

Jurors Don’t Grant Self-Defense Acquittal

Dr. Lazzaro’s evaluation of Douglas Every led to compelling testimony that the defendant was unable to process the threat of a verbal altercation with his roommate in a normal way, however, jurors were unwilling to grant full acquittal.  The 1st-degree manslaughter conviction is a step down from 2nd-degree murder, suggesting Dr. Lazzaro’s testimony had some effect, but jurors clearly felt that Every was accountable for his violent behavior and did not deserve to go unpunished.  Mr. Every has been remanded to the Tioga County jail for a January sentencing hearing that will likely reopen the issue Dr. Lazzaro testified to during the trial.  Every faces a maximum of 25-years for the 1st-degree manslaughter conviction.

Texas Court Dismisses Expert Witness in Environmental Contamination Lawsuit

The Texas Supreme Court vacated a $350,000 jury verdict last week due to insufficient testimony from the Plaintiff’s expert witness that improperly influenced the award.  In an environmental contamination lawsuit between a Texas ranch and its neighboring metal processing plant, the Plaintiff’s case leaned heavily on the testimony of a real estate expert to ascertain long-term property damages.  On review, the Texas Supreme Court rejected the reliability of the expert testimony, and struck down the high-dollar judgment.

Texas Ranch Seeks Stigma Damages after Contamination

The case, Houston Unlimited, Inc. Metal Processing v Mel Acres Ranch, arose after Houston Unlimited released liquid waste into a culvert that drained into a stock tank on the Mel Acres Ranch.  The Plaintiff requested the Texas Commission on Environmental Quality (TCEQ) to enforce action against Houston Unlimited for noncompliance with environmental regulations, and compel the processing plant to cease operations that risked contamination on ranch lands.  After Houston Unlimited took corrective action, the company determined that there was no ongoing effect on Mel Acres Ranch and thought the matter was resolved.

Mel Acres disagreed, and filed a lawsuit seeking damages for a decrease in the fair market value of the ranch due to contamination and the stigma of contamination that effected the ranch’s reputation.  According to the lawsuit, the ongoing damage to Mel Acres came in the form of a negative stigma associated with contamination, even if the actual contamination had a minimal or short-term effect on the value of the property.  Texas law is not clear on whether stigma damages are allowed in real estate contamination actions, but Mel Acres pursued the option due to no specific legal position denying it.

Mel Acres’ tactic worked, and after trial a Texas jury awarded the Plaintiffs $350,000 for the ongoing effect of negative stigma created by the contamination caused by Houston Unlimited.

Contaminated Ranch Relies on Real Estate Expert for Diminution of Value

Critical to the Plaintiff’s case was the testimony of real estate expert witness, Kathy McKinney.  McKinney is a licensed real estate appraiser who was called to testify about the effect contamination had on the lasting value of Mel Acres property.  During her expert testimony, McKinney employed a “sales-comparison” appraisal approach to determine Mel Acres’ value when compared to other properties similar in size, location, date of sale, and physical attributes.  Based on the comparison, McKinney determined that the Mel Acres Ranch had an “unimpaired” value of $2,329,000, which the Defendant did not dispute.

In determining the “impaired” value, however, McKinney branched off from the “sales-comparison” model due to lack of similarly effected properties to compare Mel Acres to.  Instead, McKinney found two properties, both of which had experienced environmental contamination that did not have a long-term effect.  In each case, McKinney found that the properties sold for a much lower price than the appraised value, and determined that contamination like Mel Acres had suffered caused a 60{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} loss of market value.

Texas Supreme Court finds Contaminated Property Appraisal Unreliable

Although the Texas Supreme Court ducked from the determination of whether or not stigma of formerly contaminated property damages are available under the law, the Justices found no problem dismissing McKinney’s expert witness testimony due to lack of reliable facts and poor methodology.  While the Court accepted the sales-comparison approach, it took issue with the method McKinney used to derive the impaired value of Mel Acres that was, in her expert opinion, negatively affected by stigma associated with contamination.  Upon examining the details of the two previously contaminated property sales that McKinney compared Mel Acres to, the Court noticed that there were a number of factors that contributed heavily to the reduced sale price, all of which could have had more influence than the environmental contamination. Further, McKinney’s claim that Mel Acres had experienced 60{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} reduction of value was based on a guess rather than a formula that could reliable appraise property.

The Texas Supreme Court found McKinney’s entire expert testimony relied on a series of assumptions about proper sales comparisons, and how stigma of contamination could impact property value.  Without reliable facts or proven methodology to base her expert testimony on, McKinney was dismissed as a witness because her opinion improperly influenced the trial.  Without testimony from a reliable real estate appraisal expert witness, the Court dismissed the jury award for contamination stigma damages.

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Expert Witnesses Participate in Infant Murder Trial

Last week a Chicago criminal court declared a mistrial in the murder case of Jessica Cruz, who has been accused of killing her baby moments after it was born and disposing of the body in a trash can in Salvation Army store restroom.  During the trial, which left jurors hopelessly deadlocked, two forensic pathologist expert witnesses offered contradictory reports as to whether or not the infant was alive after the birth at all.

Jessica Cruz Accused of Murdering Infant

Jessica Cruz was arrested in November of 2011 after police connected the body of a newborn that employees of the Chicago-area Swiss Army store found to the then 19-year-old woman. Jessica, now 22, was charged with first-degree murder and concealment of a homicide for allegedly killing her infant shortly after giving birth.  Prosecutors sought life in prison for what the state called, “exceptionally brutal or heinous behavior indicative of wanton cruelty.”

Crucial to the Cruz trial was the question of whether or not the baby was alive at the time of his birth.  According to authorities, Cruz gave birth to living baby boy then put the baby into a garbage bag, tied the bag around his neck, put his body into a garbage can and covered him with paper towels.  She attempted to clean up the restroom before leaving to clean herself in another store nearby the Salvation Army outlet.

Through her attorneys, Cruz has denied the claim that the baby was alive.  According to her story, the infant was stillborn and, because she did not know what to do, she hid the body in a trash can without alerting police or medical personnel.  Both prosecutors and defense attorneys called medical expert witnesses who debated whether or not the baby boy was alive at birth throughout dueling testimony presented during trial.

Medical Expert Witnesses Debate Life of Infant

To support the state’s argument that Jessica Cruz gave birth to a living baby boy before strangling him with a garbage bag and leaving his body in a bathroom trash can, prosecutors called upon the Cook County medical examiner’s office.  The assistant medical examiner who was part of the murder investigation took the stand as an expert witness in order to inform jurors that the baby died of strangulation.  Pointing to x-rays and a float test that indicated the baby boy had taken life, Dr. Ponni Arunkumar testified to jurors that the baby had been alive and strangled in an act of homicide, giving prosecutors the testimony they needed to argue that Cruz had committed murder.

Defense attorneys mounted a spirited counter-attack by calling a separate medical expert witness to cast doubt on the county examiner’s conclusion that the baby was born alive before being strangled.  Dr. Janic Ophoven, a pediatric forensic pathologist, was called as a medical expert witness for the defense to tell jurors that there was not sufficient evidence to prove the boy survived the birth.  Dr. Ophoven countred Dr. Arunkumar’s claim that the boy had taken breath by comparing the infant’s lungs to an x-ray of a stillborn baby in its first or second trimester.  The defense medical expert went on to testify that the alveolar sacs in the lungs were “inconsistent with live birth” and opined that the baby could have asphyxiated while moving through the birth canal.

The competing medical expert witnesses debated the critical question of whether or not the infant boy was alive at the time of birth during testimony to jurors, and both parties pointed to the expert evidence during closing arguments before jury deliberations.

Jurors Unable to Reach Verdict

Ultimately, the jury was not able to agree which evidence was more credible and after three days of contentious deadlock, Judge Bridget Hughes formally declared a mistrial.  While a mistrial is not akin to a conviction, it is evidence that the defense expert witness was able to sway some members of the jury with testimony that the evidence of the infant’s live birth was unconvincing.  Cruz will undergo another murder trial with a new jury, which will unquestionably feature the same, or similar, expert witnesses to once again engage in debate about whether or not the baby boy was alive after his birth.

11th Circuit Rules Expert Testimony Based on Theory is Inadmissible

Last month, the federal 11th Circuit Court of Appeals confirmed that the lower federal trial court correctly excluded expert witness testimony due to insufficient factual support.  In a lawsuit against Fixodent denture adhesive, defendants were granted summary judgment due to the failure of plaintiff’s expert witness to link the allegedly defective product to the harm suffered.

Expert Witness Standards in Toxic Torts

In personal injury lawsuits alleging a defective product created a toxic risk, the plaintiff must be able to establish a causal link between the product and the harm suffered.  In modern litigation, this is done exclusively with expert testimony by use of scientists who either connect conclusions established by existing studies to the facts of the case or argue that a new study or method of analysis creates the necessary causal link for the plaintiff to be successful.

Regardless of whether the expert applies established scientific literature to the case or supports the application of new science to the litigation, federal judges will determine if the expert testimony is reliable and relevant by applying the test created by the Supreme Court in Daubert v Merrell Dow Pharmaceuticals.  Under Daubert, expert testimony is considered reliable if the scientific methodology is based on sound theory, was well researched, and was accurately applied the facts of the case.  Typically, judges look to established literature from peer reviewed journals to assist the determination if a particular expert is supporting his testimony with reliable science, but when the science is relatively new, judges are forced to take a close look at the methods and procedures applied by the expert witness.

In Chapman v Procter & Gamble Distributing, LLC, plaintiff’s expert witness testified to recent scientific studies that, in theory, supported the allegations that defendant’s products caused medical harm.  The 11th Circuit determined that the testifying expert had failed to connect his scientific theory to the cause of the plaintiff’s injury.

Plaintiff Expert Witness Fails Reliability Test

At issue in Chapman is whether or not Fixodent denture adhesive from P & G caused the plaintiff’s neurological disorder.  To demonstrate the necessary causal link between Fixodent and the plaintiff’s injuries, plaintiffs called an expert to argue that the excessive levels of zinc found in Fixodent created a risk for copper deficiency that would lead to neurological complications.  During his Daubert hearing, the plaintiff’s expert cited existing research, but only research that showed the connection between zinc and copper deficiency.  In terms of forming the causal link between Fixodent’s zinc levels and neurological disorders, the expert could only hypothesize based on his inference from the more general research.

The 11th Circuit was not convinced that the expert’s proposed testimony was reliable, and found that his testimony was properly excluded during trial.  Without established research to connect the specific product to the harm suffered, the plaintiff’s expert needed more than just a theory or untested hypothesis.  In regards to the particular theory advanced by the plaintiff’s expert, the Court wrote, “Taking everything together, there is enough data in the scientific literature to hypothesize causation, but not to infer it. Hypotheses are verified by testing, not by submitting them to lay juries for a vote.”

11 Circuit Disallows Expert Testimony

Affirming the trial court’s decision to exclude the expert testimony, the 11th Circuit supported its decision by writing, “Because these experts have failed to demonstrate the primary methods for proving [that] the zinc in Fixodent causes [neurological injury], their secondary methodologies, including plausible explanations, generalized case reports, hypotheses, and animal studies are insufficient proof of general causation. This latter evidence could mislead the jury by causing it to consider testimony that was insufficient by recognized primary methodologies to prove [that] using Fixodent causes [neurological injury].”

Even though the expert witness theory was based on generally accepted science the particular factual inference was not, and, as such, the plaintiff’s expert could not present his opinion during trial.  Although the exclusion of the expert witness effectively dismantled the plaintiff’s lawsuit, the 11th Circuit could not justify allowing opinion that was not based on scientific study.  The Chapman case serves as an important example of why expert witnesses must be able to support their testimony with reliable and relevant scientific study.

 

Expert Witness Testifies to Inadequate Health Service During Jail Lawsuit

Monterey County, California is embroiled in a legal dispute over the condition of its prison systems with plaintiffs alleging that prison conditions and mental health treatment services are well below levels required by federal law.  Last week, a federal judge heard expert witness testimony that argued the inmates filing the lawsuit against Monterey County Jail suffered from substandard conditions that warranted a class-action claim against the prison system.

Monterey County Jail Inmates Sue Prison

The legal troubles for Monterey County Jail and its health contractor California Forensic Medical Group (CFMG) started in May of 2013 when five inmates filed a lawsuit due to allegedly unsafe and poor conditions of their confinement.  Over the last year, the number of inmates joining the lawsuit has risen to 21, and attorneys representing them have joined with the American Civil Liberties Union (ACLU) to request the lawsuit become a class-action on behalf of all current and future inmates.

In a 30-page complaint, attorneys for the aggrieved inmates claimed that Monterey County Jail and CFMG failed to provide adequate inmate medical and mental health care, and that conditions in the prison are not in compliance with the Americans with Disabilities Act (ADA).  Inmates complain of overcrowding and inadequate facilities to handle the prison population’s mental and physical health needs.  To support their legal position that conditions in Monterey County Jail warranted a class-action lawsuit, plaintiffs presented a report by Dr. Mike Puisis, a medical doctor who criticized the Monterey Jail health facilities.

Medical Expert Witness Critical of Monterey Jail

As part of his expert witness report, Dr. Puisis examined medical records of 29 inmates at Monterey County Jail, none of whom were plaintiffs to the litigation.  Dr. Puisis, who was agreed upon as one of four neutral experts by both parties in the early stages of the litigation, presented expert analysis of the medical history of each inmate, and argued that Monterey County Jail committed “egregious missteps” that could result in a harmful situation if not corrected.  In Dr. Puisis’ expert opinion, Monterey County Jail and CFMG fail to provide the most basic level of medical health services as required by law, and inmates in the prison system are in danger of having inadequate care.

Michael Freeman, an attorney for the plaintiffs, reinforced the need for a class-action lawsuit citing Dr. Puisis’ testimony, saying, “This is not a theoretical case, this is not a made up case, these are not inmates seeking luxuries for the jail. This is about serious failings in the medical and mental health care system there and the consequences of people being seriously injured, including death.”  Defense attorneys, however, disagreed and argued that Dr. Puisis’ expert testimony was developed to push an agenda rather than provide relevant evidence in the lawsuit against Monterey County Jail.

Defense Attorneys Object to Prisoner’s Expert Witness

Attorneys representing Monterey County Jail and CFMG objected to the use of Dr. Puisis’ expert witness report because of the way in which he gathered his data and articulated his opinions.  At primary issue were the medical records of the 29 non-plaintiff inmates that Dr. Puisis relied on in generating his report.  Defense attorney Peter Bertling argued the report was filled with factual errors, but in order for the defense to attack those errors it would need access to confidential patient personal health information that would prejudice CFMG.

Pointing to inconsistencies between Dr. Puisis’ report and a report by Dr. Robert Cohen, another expert cited by the plaintiffs, Bertling also found Puisis’ expert opinion unconvincing, saying, “Dr. Puisis is effectively interjecting his personal preferences as the governing framework for correctional medicine in lieu of Title 15. He entirely disregarded this assignment and seized the opportunity to impose a personal agenda with his review.”  Arguing that Dr. Puisis’ expert report not only inappropriately relied on confidential health records, but was also not relevant to the case, Bertling and the Monterey County defense team requested Judge Paul Sing Grewal exclude Puisis’ testimony from the trial.

Judge Grewal will make a ruling on the admissibility of Dr. Puisis’ expert witness testimony and whether or not to grant the plaintiffs’ request for a class-action sometime in the next week.