Category Archives: In the News

Articles about legal issues currently in the news.

Pennsylvania Supreme Court Allows Expert Testimony on Eyewitness Identification

Pennsylvania’s Supreme Court made a significant ruling on expert witnesses this week when it determined that juries may hear experts testify to the reliability of eyewitness identification. Social scientists have dedicated years of study that casts doubt on the ability of eyewitnesses to accurately recall events – meaning that juries may be making decisions based on incorrect accounts. Many state jurisdictions and federal courts already allow expert witnesses to inform jurors about the unreliability of eyewitnesses, making Pennsylvania the latest in a long list of courts to take this step.

Eyewitness Testimony is Questionably Reliable

Study of the human brain has revealed that we have difficulty accurately recalling information, and often fill in the memory gaps with embellishment or fiction to produce a false account of what occurred. Much of this is subconscious, meaning that eyewitnesses may believe they are telling the truth, but, regardless of intent, scientists suggest that many eyewitness reports are tainted by untruths that could significantly alter a juror’s perception of what occurred. From misidentification of a defendant, to inaccurate recollection of events, experts on eyewitness testimony have identified a number of concerning legal consequences of the human brain’s inability to accurately recall information.

Complicating the inaccuracies that plague eyewitness testimony is the value that jurors place on that type of evidence. Jurors find eyewitnesses to be strongly convincing, which means that trials are heavily influenced by information that is potentially unreliable given the source. Further study has demonstrated that jurors are not able to tell when an eyewitness is lying, so there are few safeguards in place to prevent reliance on inaccurate testimony. Although the effect of an eyewitness expert testifying to the unreliability of personal recollections at trial is unknown, many legal jurisdictions have recognized the importance of having an expert inform the jury of the scientific community’s investigation into eyewitness accounts.

Pennsylvania’s Eyewitness Identification Expert Ruling

Pennsylvania’s Supreme Court considered the case of Benjamin Walker, a man convicted of a 2005 robbery of two college students in Philadelphia. Walker, who is serving 35 years in prison, was convicted because the victims identified him during their testimony. Walker and his attorneys brought the challenge in an attempt to allow him to present a psychology expert witness who would explain to jurors that eyewitness identifications are potentially unreliable.

The four-justice majority in the case agreed with Walker’s argument, and determined that Pennsylvania jurors will now be allowed to hear expert testimony on the reliability of eyewitness identification. Writing for the majority, Justice Debra Todd stated, “Twenty years of advances in scientific study have strongly suggested that eyewitnesses are apt to erroneously identify a person as a perpetrator of a crime when certain factors are present.” Finding that the statistical evidence suggesting the inaccuracy of eyewitness testimony is “substantial,” Justice Todd supported the use of expert testimony to inform jurors of concerns of eyewitness identification.

Eyewitness Expert Testimony Ruling Not Unanimous

Two judges on Pennsylvania’s Supreme Court dissented from the majority, writing that a better approach would be to allow the judge to inform jurors about the potential issues with eyewitness identification during juror instruction. Arguing that allowing expert witnesses to testify about eyewitness identification would open the door to allow experts to confuse jurors with testimony questioning all aspects of eyewitness accounts. Chief Justice Ronald Castille went on to defend jurors’ ability to understand the problems with eyewitness identification, saying that social science experts are not needed to inform juries about “matters affecting human perception and recall.”

Despite the dissent, which seems to ignore convincing study on the value of social science experts on eyewitness testimony, many criminal defense attorneys consider the Pennsylvania decision to be a step in the right direction. Defense attorney organizations argue that allowing eyewitness experts to testify about recall problems will help reduce wrongful convictions, and Pennsylvania’s decision to join other jurisdictions in allowing social science expert witnesses to contribute testimony is a positive outcome for the integrity of criminal prosecutions.

Damages Expert Testimony Rejected in Patent Infringement Case

It is well established that expert witnesses who offer their opinions to juries must build testimony from a solid foundation of reliable methodology that supports their conclusions. The Daubert standard of evaluating the reliability of testimony applies to any expert, including, as a recent federal decision highlights, expert witnesses whose testimony is focused strictly on determining appropriate damage awards. In Sloan Valve Company v Zurn Industries, a federal judge in the Northern District of Illinois showed that damages expert witnesses must base their testimony on credible methods of collecting and investigating data – holding damage testimony to a high standard that all experts must satisfy.

Case Background

Sloan Valve filed a lawsuit against Zurn Industries for an alleged patent infringement on its toilet plumbing fixtures. According to Sloan, Zurn copied flush toilet designs that allows users to alter the volume of flush water by changing the direction of the handle. During expert witness discovery, Sloan presented the testimony of Richard Bero to identify the damages Zurn’s patent infringement cost Sloan in terms of lost business.

As part of his analysis, Mr. Bero analyzed the market value of the valve assembly to calculate Zurn’s potential profits from Sloan’s lost sales. After hearing the damage analysis, Zurn moved to exclude the expert testimony for a number of reasons stemming from Bero’s failure to demonstrate that he used reasonable and reliable calculations during the course of his investigation. Applying a Daubert review of Bero’s methodology, the judge agreed and Sloan’s damages expert was precluded from testifying at trial.

Damages Expert Witness Testimony is Dismissed

The Court in Sloan v Zurn determined that the plaintiff’s damages expert witness presented a flawed testimony for a number of reasons. When analyzing the damages caused by Zurn’s alleged patent infringement, Mr. Bero:

Failed to narrowly tailor his analysis to the specific parts at issue in the patent dispute
Improperly included lost profits from related products sold by Sloan
Predicted, with no reliable method to his analysis, that Sloan would have been able to sell the parts at a higher price than Zurn had the patent infringement not occurred
Conducted his investigation without using any accepted method of royalty analysis, instead choosing to formulate a basic calculation that contrived an unsupported damages figure based on the biased testimony of Sloan executives and broad assumptions of the effect Zurn’s infringement had on Sloan’s sales

Mr. Bero’s testimony predicting Sloan’s damages from lost business lacked reliable and professionally verified methods for identifying the cost of patent infringement. The Court was unconvinced that Mr. Bero’s economic prediction was sufficiently supported by proven royalty analysis, and as such rejected his financial expert witness testimony.

Sloan Decision Demonstrates Importance of Daubert Standards

The Sloan decision serves as a reminder that the methodologies of data collection and investigation used by damages expert witnesses must be just as sound as that used by experts who help juries determine the outcome of a lawsuit. As with any expert witness, financial professionals hired to testify to damages have available an established set of methods that a court will look to when verifying the reliability of testimony, and a party hiring a financial expert must be sure the expert is incorporating them. The Daubert standards of expert witness testimony apply to all professionals called upon to inform judges and juries – including those who focus solely on calculating damages.

Medical Experts Shed Light and Cast Doubt On Shaken Baby Syndrome

The tragic death of 4-month-old Lincoln Wilber in 2007, initially determined to be the result of child abuse, is getting a second look by a handful of nationally renowned medical expert witnesses. At the behest of Northwestern University’s Medill Justice Project, experts in abusive head trauma, pathology, and Sudden Infant Death Syndrome (SIDS) reviewed the facts of the incident and cast doubt on the criminal prosecution of Lincoln’s care-giver.

Lincoln’s care provider, Jennifer Hancock, was tried and convicted of causing death by child abuse, in large part with the assistance of four medical experts specializing in shaken baby syndrome and head trauma. Hancock, who is serving 13 years in prison for the crime, was alone with Lincoln for 5 ½ hours prior to his death and convicted on the strength of a head and leg fracture that experts believed were indicative of abusive behavior.

Medical Experts Skeptical over Cause of Infant’s Death

Medical experts approached by the Medill Project examined Lincoln’s autopsy report, MRIs, CT scans, and medical history before providing several alternative theories to the infant’s death:

Lincoln had a blood clot: Dr. Michael Laposata, the head pathologist at Vanderbilt University Hospital and an expert in blood clotting, examined Lincoln’s case and said that because his mother had a history of Lupus and blood clotting, it is likely that Lincoln had similar issues. Dr. Laposata pointed out that a blood clot could lead to higher blood pressure, rupturing vessels and causing a subdural hematoma.
Lincoln had an existing brain injury: Dr. Ronald Uscinski, a neurosurgeon who also teaches at Georgetown University, served as an expert witness for Jennifer Hancock during her trial. He testified, and still believes, that Lincoln’s birth caused a subdural hematoma – brain bleed – that made him susceptible to the problem arising again. Dr. Jan Leestma, who has testified for defendants in infant death cases, reaffirmed the possibility by pointing out that Lincoln’s behavior and recent illness could have been the result of a chronic brain injury that could have become aggravated before the boy was alone with Hancock.
Lincoln’s Death the Result of SIDS: Dr. Michael Stier, the forensic pathologist who conducted Lincoln’s autopsy and declined to testify for the defense at trial, has rethought the case after further examination. Upon looking closer and Lincoln’s injuries and the timeline of his brain bleed, Dr. Stier believes that the death is surrounded by uncertainty and could have been the result of Sudden Infant Death Syndrome – an unexplainable cause of infant death.

Key to the medical experts’ analysis of Lincoln’s death is the timing of his brain bleed and his physical injuries. Dr. Julie Mack, a radiologist in Hershey, Pa. and experienced defense expert witness, examined Lincoln’s medical charts and concluded that his brain began bleeding 24 hours prior to his death – supporting any of the above theories. Dr. Mack was unconvinced by Lincoln’s leg and skull injuries, claiming that the injuries likely occurred during attempts to revive him.

Expert Witness Investigation Used in Appeal of Conviction

It is unsure if reexamining Lincoln’s death will have any impact on the criminal conviction of Jennifer Hancock, who is not involved in the Medill Justice Project’s investigation. The medical expert witnesses offering their opinion have only been able to conclude that Lincoln’s death was suspicious, and not necessarily the cause of head trauma or shaken baby syndrome, but none were able to definitively point to an alternative theory. Attorney Carrie Sperling, co-director of the Wisconsin Innocence Project, is preparing an appeal for Hancock and will rely on the several alternative theories to cast doubt on Hancock’s guilt – hoping to overturn her conviction.

Even if the expert investigation into Lincoln’s death is too vague to contribute to Hancock’s defense, the case is worth noting. Medical expert witnesses are critical to understanding the tragic deaths of infants, and criminal or civil cases in the future will benefit from the type of analysis made available by the experts who reevaluated the cause of Lincoln’s death.

Sixth Circuit Dismisses EEOC’s “Race Rating” Expert

The US Court of Appeals for the Sixth Circuit issued a ruling that dismissed an unreliable expert witness, demonstrating the strict requirements that must be met by parties seeking to admit expert testimony into a trial. In EEOC v Kaplan Higher Education Corp, the Sixth Circuit criticized the EEOC for calling an unreliable expert to bring a case “on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted by only the witness himself.”

EEOC v Kaplan Higher Education Uses Unique Expert Witness

Kaplan, a for-profit educational company noted for its college and graduate school test preparation programs, was sued by the EEOC for requiring a credit check from potential applicants as part of the hiring process. The credit check, according to the EEOC, violated Title VII of the Civil Rights Act because it had a disparate impact on African American applicants – meaning more black candidates were eliminated due to the check than white.

In order to prove the disparate impact, the EEOC relied on data from one of the third-party credit-check services used by Kaplan in its hiring process. Since the credit-check service did not have data on the race of each applicant, the EEOC combined the credit data with information on each applicant obtained from the candidate’s state department of motor vehicles. Most states also did not include information on race, however, each provided a color copy of the applicant’s driver’s license – which included a photograph.

Completing the link between credit-check data and the race of each applicant required the EEOC to hire an expert witness who created a process known as “race rating.” The expert’s process, created specifically for the litigation, required five “race raters” to independently identify the race of each applicant based on a visual inspection of the driver’s license photo. If at least four of the five raters agreed, the EEOC’s expert determined that the applicant was a member of the identified race.

Sixth Circuit Dismisses EEOC’s Race Rating Expert Witness

Upon reviewing the EEOC’s race rating expert report, the trial court refused to allow him to testify against Kaplan. On appeal, the Sixth Circuit agreed, finding that the race rating process created specifically for the lawsuit did not meet the Daubert requirements for expert witness testimony. Under Daubert standards, an expert witness may only present testimony to the court if his opinion is based on reliable and scientifically supported knowledge – a standard that the EEOC race rating process failed to satisfy.

In its ruling, the Sixth Circuit identified several reasons to disallow testimony on racial identification by the EEOC’s race rating expert witness:

The EEOC expert did not demonstrate that his newly created race rating system had been tested or that it had an acceptable rate of error. Although the EEOC cross-checked the results with other external sources identifying the Kaplan applicants’ race, the Sixth Circuit determined that cross-checking a sample of the results was insufficient.
The expert’s methodology, invented specifically for the litigation, was not subject to peer review or “submission to the scrutiny of the scientific community.” Courts are often unfamiliar with the subject matter expert witnesses testify about, so when an expert’s methodology has undergone review and critique from his peers, his investigation is more likely to be accepted by the legal community.
The EEOC race rating system did not have a standardized methodology for determining race. Instead, the process relied on the visual assessment of five independent raters who knew the names of each applicant – a fact the court felt could impact the racial analysis.
Without peer review from the scientific community, there was no evidence that the race rating methodology had been generally accepted as reliable.
The court determined that the sample of 1,090 applicants was not representative of Kaplan’s applicant pool as a whole. Of the EEOC expert’s sample, 23.8{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of applicants failed the credit-check, however, only 13.3{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of applicants failed overall – meaning that the EEOC expert’s results were skewed to favor the plaintiffs’ claim.

The Sixth Circuit’s opinion clearly identified reasons why the EEOC’s rate rating expert witness failed to satisfy the Daubert standard for scientific expert testimony. The unique and highly specific review process created for the purpose of the EEOC’s case against Kaplan was not reviewed or critiqued by the scientific community, and was not created using a sound or objective methodology. As such, the Sixth Circuit refused the EEOC’s expert testimony.

9th Circuit Roundup: A Case of Contaminated Water and Medical Expert’s Failed Methodology

The 9^th Circuit handed down two recent decisions to provide guidance on the treatment of expert witnesses by trial judges. The attention expert witnesses receive from the federal circuit serves as a point of emphasis on how important it is to have experts who can pass judicial scrutiny prior to offering their testimony.

9^th Circuit Revives Expert Testimony in Contaminated Water Case

Earlier this month, the 9^th Circuit overturned a lower court’s dismissal of expert testimony by pointing out that judges do not have the authority to question an expert’s conclusions. When evaluating whether or not an expert witness is permitted to testify, a judge must follow the Daubert standard and focus on the expert’s qualifications and the methodology he used to support his testimony.

Pomona, California filed a lawsuit against SQM North America Corporation (SQMNA) for contaminating water by importing Chilean materials into the town several decades ago. To support its claim, Pomona called Dr. Neil Sturchio, the director of the Environmental Isotope Geochemistry Lab at the University of Illinois at Chicago. Dr. Sturchio conducted a study of Pomona’s water using a “stable isotope analysis” and determined that sodium nitrate from Chile’s Atacama Desert, used by SQMNA in fertilizer, was responsible for contaminating the town’s water.

A lower federal court determined that Dr. Sturchio’s conclusions were outside of the scientific mainstream, and therefore he was not permitted to testify at court. On appeal, the 9^th Circuit pointed out that Dr. Sturchio’s expert testimony was supported by a methodology that was published in a 2011 manual for the Department of Defense, and therefore was built on a sufficiently sound foundation. During the publishing process, Dr. Sturchio’s methodology was reviewed by two other laboratories, giving the process further credence as a collaborative work. In its conclusion, the 9^th Circuit pointed out that when an expert witness is supported by scientifically sound methodology, the validity of his conclusions are facts that are reserved for a jury, not for a judge.

9^th Circuit Requires Closer Scrutiny of Medical Expert

In April, the same 9^th Circuit court kicked back an asbestos lawsuit because the plaintiff’s expert witness was not sufficiently evaluated by the lower court judge before being allowed to testify. At trial, the judge refused to conduct a Daubert review of a medical expert witness, allowing him to take the stand despite objections from the defense over his credentials and methods employed during pre-trial investigative studies.

In Barabin v Asten Johnson, Inc, the plaintiff and his wife alleged that he developed mesothelioma from asbestos exposure while working at the defendant’s paper mill. A medical expert witness was called to connect fibers found in the mill’s dryer felts to the asbestos exposure that caused the plaintiff’s condition, and, with his assistance, the plaintiff was successful. On appeal, the 9^th Circuit Court determined that the lower court had failed to properly evaluate the expert’s methodology, which involved tests performed in different conditions than present at the paper mill, and sent the case back for a re-trial that involved a Daubert review to scrutinize the medical expert’s qualifications.

Medical expert witnesses, who are critical in toxic tort cases, must pass close scrutiny to ensure that testimony presented to a jury is reliable and supported by sound scientific investigation. In Barabin, the trial judge failed to properly scrutinize a key expert witness, leading to the 9^th Circuit reversing the trial’s outcome.

As the use of expert witness testimony becomes more commonplace, decisions like these from high ranking federal jurisdictions will provide emphasis on the importance of properly evaluating experts before allowing them to speak at trial.

Dueling Experts and the Oscar Pistorius Case

On Valentine’s Day, 2013, noted South African Olympian Oscar Pistorius, who gained fame for competing in the 2012 London Olympics despite not having legs below his knees, fired four gunshots through his bathroom door to kill his live-in girlfriend, model Reeva Steenkamp. Now, from halfway across the globe, the ensuing murder investigation has captured the attention of the American public and kept legal experts and laymen wrapped up in the twists and turns of the trial.

As the case unfolds, expert witnesses have emerged as important characters in the drama by providing factual analysis to support or contradict Pistorius’ claim that he fired the shots in self-defense under the belief that the person behind his bathroom door was an intruder. A recent two-week adjournment provides opportunity to pause for analysis of the impact the critical expert witnesses have had.

Experts for the South African Prosecution

Lead South African prosecutor Gerrie Nel notably called experts in ballistics and pathology to help contradict Pistorius’ claim that he fired on what he suspected was a home invader. Police ballistics expert Chris Mangena and pathology expert Gert Saayman were both called by Nel in order to call into question Pistorius’ testimony about the evening and the fatal encounter.

Ballistics expert witness Mangena: Of critical issue to Pistorius’ claim that he was unaware that the person behind his bathroom door was Steenkamp is the order in which the bullets hit her. Both sides agree that the fatal wound was administered by a shot to the head that would have caused instant death, and the prosecutor’s ballistic expert witness testified that the head-shot was the third and final bullet to make contact. Mr. Mangena further testified that Steenkamp was struck with two other bullets – one in the hip and one in the arm – both of which would have caused pain and given cause for the victim to scream prior to being killed with the third shot. Mr. Mangena also claimed that the pattern of wounds on the body would make Pistorius’ story that he fired two rapid “double taps” impossible, meaning that he would have had the opportunity to hear her scream and identify her before firing the fatal shot.

Pathology expert witness Saayman: Gert Saayman’s testimony of the gruesome wounds suffered by Ms. Steenkamp was highlighted by the defendant vomiting in court at the graphic description. However, his most contested claim was in regards to something far less serious: the contents of the victim’s stomach. Pistorius has told the court that he and Steenkamp were in the bedroom by 10 PM, and asleep shortly after, and that he thought she was still sleeping next to him when he discharged the firearm against the suspected intruder. However, according to Saayman, Ms. Steenkamp had probably eaten around 1 a.m. – meaning that the two were not together in bed from 10 p.m. until the time of the shooting.

The prosecution’s use of expert witnesses was well crafted, and targeted key points of Pistorius’ story of how the shooting took place. Defense attorney Barry Roux aggressively questioned both, and shaped his own expert witness list to directly challenge their findings.

Pistorius Calls Pathology Expert Jan Botha

First to testify for Pistorius was pathology expert witness, Dr. Jan Botha. Dr. Botha opened by calling into question the methodology used by Dr. Saayman when he determined that Steenkamp had eaten only two hours prior to the shooting, calling the claim to be questionably supported by facts. Dr. Botha then turned his attention to the claim that Pistorius would have had the opportunity to hear the victim scream before firing the fatal shot. Although he did not speak to the order in which Ms. Steenkamp’s wounds were caused, Dr. Botha did testify that the pain caused by the impact of the bullets would have caused her body to go into shock – making it highly unlikely that she would have cried out unless there was significant time between the shots.

Pistorius Recent Defense Expert Creates Confusion

The most compelling expert presented in the case has been Pistorius’ forensic expert witness, and apparent jack-of-all-trades, Roger Dixon, whose contradictory account of the shooting led prosecutor Nel to question his qualifications and create doubt about the defendant’s version of the incident.

Dixon, hired by Pistorius as an expert witness to support his version of the shooting, is a former police forensics investigator who now teaches geology. During a dramatic three-day affair, Dixon initially testified to confirm Pistorius’ account that the room was too dark for him to recognize that Ms. Steenkamp was no longer in bed with him. He then contradicted ballistic expert Chris Mangena’s testimony that the victim was in a defensive position – indicative of an argument between her and Pistorius – when the shooting started by testifying that she was leaning towards the door handle in preparation to come out of the bathroom – supporting Pistorius’ account that he reacted to an unfamiliar noise. Finally, Dixon conducted visual and audio tests to dispute testimony from Pistorius’ neighbors that called into question the timing of the gunshots and the position the shooter was in.

Sparks began to fly when Mr. Dixon was cross-examined by prosecutor Nel for having a confessed “laymen’s understanding” of ballistics, for not taking Pistorius’ height into account when recreating the scene, and for contradicting the defendant’s own testimony of what the scene looked like during and after the shooting. Because Dixon is a geologist, and not actively conducting forensic investigations, he was taken to task for being unqualified and for providing testimony that could prove unreliable – calling his entire expert witness credentials into question.

Judge Thokozile Masipa, who is solely responsible for determining Pistorius’ guilt in South Africa’s non-jury system, has delayed the trial for two weeks following the up and down testimony of Mr. Dixon. The defense will resume on May 5^th, and will likely attempt to reconcile Mr. Dixon’s testimony with Pistorius’ version of the events with another independent forensic expert witness.

Will GM or Viagra Generate The Next Big Litigation?

Bad news for the public: the Deepwater Horizon Gulf Oil Spill, the defective GM ignition switch, or a widely used drug that turns out to have dangerous consequences – all create “Big Cases.” Big Cases are good news for lawyers and for the expert witnesses they need.

What makes a Big Case? A large number of persons impacted, and the greater the aggregate harm suffered the better it can be for those experts who will be called upon to help investigate, determine, opine on and/or calculate matters such as cause and effect and damages.

Big cases are exceptionally attractive to lawyers, who typically scramble to become involved. Plaintiffs’ lawyers tend to take to television and the Internet to get the word out to the prospective clients they hope to represent. As plaintiffs’ attorneys typically work on a contingency fee basis, the larger the potential recovery, the greater their potential fees. Successfully representing hundreds or thousands of victims can be a bonanza for plaintiffs’ lawyers.

Defense lawyers, on the other hand, typically are paid by the hour – and each hour is very pricey. Especially with Big Cases, the hours add up fast – and defense lawyers are paid their high fees win, lose or draw. While it has historically been “beneath” most large corporate / insurance defense law firms to pitch their services publicly on TV or the Internet, they still throw a mean fastball, but pitch in the privacy of corporate board rooms, country clubs and industry associations, and through long-cultivated relationships and old school ties. The bigger the case the harder the major defense and corporate law firms jockey to attract the large corporation that created the problem, or the insurance companies that are faced with the Hobson’s choice of paying the claims or paying defense lawyers to defeat or whittle down the claims.

There seem to be two Big Cases about to go nuclear.

The GM defective ignition switch has already attracted litigation with defective switches and countless potential plaintiffs who may have had accidents as a result, and who thus may be in a position to sue GM. The hurdle they face is GM had filed for bankruptcy and thus many claims may have been extinguished in the bankruptcy proceedings, although plaintiffs’ lawyers are scrambling to overcome that. If not, automotive experts will be in very high demand.

The second and possibly bigger case involves ED Drugs. On April 7, 2014, the Internal Medicine Journal of the American Medical Association issued the results of a decade long university study. Its results suggest the millions of men who took Pfizer’s erectile dysfunction drug Viagra® — and perhaps Eli Lilly’s Cialis® or Bayer’s Levitra® as those drugs effect the same pathway that may make people more susceptible to invasive melanoma — may be at significantly greater risk for the often deadly skin cancer melanoma. Although a connection does not prove causation, that’s what experts do. And lawyers are already looking into possible lawsuits and that’s bound to be good news for expert witnesses who are physicians and pharmacologists.

Expert Witness Testimony Banned for Questionable Fee Agreement

A federal judge presiding over Taylor v Cottrell, a personal injury case in the United States District Court for the Eastern Division of Missouri, dismissed an expert witness because of an improper fee arrangement. Medical expert Dr. James Odor was prepared to testify in support of damages owed the plaintiff by explaining that a $450,000 spinal surgery was “reasonable and necessary” to correct injuries allegedly caused by the defendants. During discovery, the defendants discovered documents that indicated Dr. Odor was operating under a contingency fee agreement under which he would not receive payment for his testimony unless the plaintiffs were successful.

The court reviewed the nature of Dr. Odor’s expert witness fee agreement and the Court concluded that it violated the rules governing fee agreements between attorneys and witnesses. Under Section 117 of the Restatement (Third) of the Law Governing Lawyers, ‘A lawyer may not offer or pay to a witness any consideration contingent on the content of the witness’s testimony or the outcome of the litigation.’ The rule against contingency fees for expert witnesses is designed to preserve the impartiality and the integrity of testimony by removing financial motivation to ensure one party succeeds. In Taylor, the Court determined that Dr. Odor was not permitted to testify because of the contingency fee agreement between the two parties.

Can a Non-Testifying Expert Be Compelled to Answer at a Court-Ordered Deposition in Florida

The Florida Court of Appeals has determined that an expert witness who is not testifying at trial does not have to answer questions at a deposition by the opposing party, even if that expert has produced documents during the pre-trial phase. The case, Rocca v Rones, featured a plaintiff who hired an accounting expert witness to assist him in a lawsuit over the sale price of a business. The plaintiff’s expert prepared an accounting report, and was scheduled to testify at trial before the plaintiff withdrew him as a witness when the defendant announced the intent to question him. The expert was initially ordered to appear in a deposition, but, at advice from the plaintiff’s attorneys, he refused to answer questions about the materials he produced for his clients.

The plaintiff argued that his non-testifying expert witness did not have to answer questions at a deposition because the information he had was protected under Florida’s work product law – which keeps private expert witness materials produced in preparation of trial unless the opposing party can show exceptional circumstances. Judge Leslie B. Rothenberg of the Florida District Court agreed, and determined that the non-testifying expert witness did not have to respond to questions about materials he prepared in anticipation of trial because the materials were considered work product. Judge Rothenberg determined that the defendant had not shown the required exceptional circumstances to compel a non-testifying expert witness to testify about pre-trial matters, and kept the plaintiff’s accounting expert out of the defendant’s deposition.

This case provides an interesting contrast to the Republic of Ecuador v Hinchee case discussed here last week, which determined that under federal law expert witness materials were not protected by work product privilege rules. The key difference between federal law and Florida law is the specific mention of expert witnesses as parties whose communications are protected by work product privilege. Under Florida’s work product rule, communications with, and materials prepared by, expert witnesses who meet certain qualifications are specifically protected from the eyes of an opposing party.

Intoxication Manslaughter Trial of Josh Brent: Toxicologist Experts Report

The high profile intoxicated manslaughter conviction of former NFL player Josh Brent, 25, was aided by key expert witness testimony which supported the prosecution’s theory that Brent was drunk at the time of the fatal car crash that killed his friend and teammate, Jerry Brown. Brent’s defense attorney argued that he was not intoxicated when he got behind the wheel of the car, however, the prosecution expert witness disputed that position by analyzing Brent’s blood alcohol content and testifying that he had several drinks before driving.

Toxicologist Justin Schwane took the stand to testify that Brent’s blood taken at the time of his arrest, indicated that the blood alcohol calculations indicated the 6-foot-2, 320 pound Brent had consumed 17 drinks prior to driving. Brent’s blood alcohol level was .189, consistent with Schwane’s expert toxicology testimony that Brent had consumed far more than the “fewer than five drinks” he told the police. Central to the prosecution’s argument was evidence of Brent’s intoxication which caused the fatal crash, and Mr. Schwane’s statement bolstered the case against the ex-Cowboy by indicating that the quantity of alcohol he consumed was sufficient to render him intoxicated, even considering his size.

Brent’s defense team responded to the testimony with what has become a fairly standard criticism of toxicology expert witnesses: arguing the testing was not proper due to potentially improper storage of Brent’s blood, questioning whether the testing equipment and procedure could have been faulty, and challenging Schwane’s credentials as a toxicology expert. However, the jury was sufficiently convinced that he was drunk at the time of the accident, and Brent was convicted of intoxicated manslaughter. After two days of sentencing trial, Brent was given 10 years of probation and 180 days in jail.

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