Category Archives: In the News

Articles about legal issues currently in the news.

Expert Witness

Tennessee Requires Expert Witness in Malpractice Case to Be Licensed, Not Just Authorized to Practice

In response to lobbying by the insurance and medical industries, many states have adopted laws that make it more difficult to find expert witnesses who are permitted to testify in medical malpractice cases. Doctors who clearly have the expertise required to offer an informed opinion are precluded from testifying based on arbitrary criteria imposed by legislators who want to protect negligent doctors and their insurers from the consequences of malpractice.

Tennessee is one such state. Among other restrictions, Tennessee requires a liability expert in a medical malpractice case to have been licensed to practice and to have actually practiced medicine in Tennessee or a contiguous state during the year prior to the act that caused the patient’s injury.

Whether the licensing requirements applies to a doctor who is authorized to practice, and actually practicing, in Tennessee but exempt from licensing laws was the issue in Young v. Frist Cardiology. The Tennessee Supreme Court construed state law to require expert witnesses to be licensed even when they are authorized to practice without a license.

The Locality Rule in Malpractice Cases

In the nineteenth century, many states adopted the locality rule “to protect rural physicians from being held to the same standards as physicians working in urban areas or at academic institutions.” The locality rule requires juries to determine the standard of care in the locality where the defendant physician committed the allegedly negligent act.

Does the standard of care for treating a patient in Tennessee differs from the standard of care in Florida? There is no reason that it should, but parochial legislatures and courts are slow to recognize the need to bring the law into the current century.

The locality rule has no obvious value in the age of the internet. Rural doctors now have just as much access to modern medical techniques as urban doctors. Yet many states stubbornly cling to the antiquated rule. The Tennessee Code, for example, requires plaintiffs to prove the standard of care “in the community in which the defendant practices or in a similar community.”

The Tennessee Supreme Court has recognized the sensibility of using a national standard of care in the modern age. It has nevertheless deferred to the legislature’s 1975 adoption of the locality rule.

The locality rule restricts the range of expert witnesses who would otherwise be available to testify for the injured patient. A physician in Atlanta might be eminently qualified to testify about the appropriate standard of care for treating a health condition, but unfamiliarity with the standards followed by doctors in a small Tennessee town in which the defendant physician practiced might preclude the expert from testifying. Making it difficult to find expert witnesses is exactly the reason that laws like Tennessee’s are championed by the insurance industry.

The “Licensed to Practice” Rule

Randall Young had a procedure to correct an abnormal heart rhythm. He died from a stroke two days later. His estate sued the surgeon, alleging that the procedure should not have been performed on a patient in Young’s condition and that the surgeon failed to evaluate and monitor Young’s condition before and during surgery.

In compliance with a case management order, Young’s estate identified Dr. Jason A. Rytlewski as an expert witness who would testify about the surgeon’s deviation from the applicable standard of care. Dr. Rytlewski was an electrophysiology fellow with the Division of Cardiology at Vanderbilt University School of Medicine. There was no doubt that he had actual knowledge of the applicable standard of arrhythmia care in Nashville, where the surgery occurred.

Unfortunately, actual qualifications often give way to the artificial qualifications imposed by legislatures. The surgeon’s insurer argued that Dr. Rytlewski could not give admissible expert testimony because he was not licensed to practice in Tennessee or a contiguous state.

Young’s estate offered evidence that Dr. Rytlewski was licensed to practice in six states and had engaged in the practice of medicine in Tennessee during the year before Young’s death. The estate also noted that the Tennessee Board of Medical Examiners had granted Dr. Rytlewski the right to practice medicine in Tennessee during his appointment at Vanderbilt. The estate argued that the licensing requirement applies only to experts who must be licensed, not to experts who are exempt from the state’s licensing law.

Appellate Decision

Notwithstanding Dr. Rytlewsksi’s exemplary qualification to act as an expert witness, the Tennessee Supreme Court decided that the legislature meant for expert witnesses to be licensed to practice, not simply allowed to practice. Of course, a license to practice allows the licensee to practice, so the distinction between being “licensed” and “allowed” to practice has no practical bearing on the expert’s qualifications.

The relevant statute applies to a “person in a health care profession requiring licensure under the laws of this state.” Although Dr. Rytlewski did not require licensure to practice in Tennessee, the court concluded that the legislature meant the words “requiring licensure” to modify the term “profession” rather than “person.”

Nothing in the structure of the sentence or ordinary rules of grammar compels that conclusion. The court’s claim that “requiring licensure” modifies the three preceding words (“health care profession”) rather than the six preceding words (“person in a health care profession”) is unsupported by precedent, grammatical rules, or logic.

The legislature’s actual purpose in enacting the law might have been to shield the medical industry from liability for negligence, but its stated purpose was to assure that expert witnesses are qualified. Reading the statute to apply only to persons who require licensure would serve that purpose and avoid the injustice of disqualifying experts who do not require licensure but are authorized to practice medicine in Tennessee.

Finding a doctor who is willing to testify against another doctor is extraordinarily difficult. Finding a doctor who is willing to testify against another doctor who practices in the same geographical area can be impossible. Legislatures that want to shield negligent doctors from liability take advantage of that difficulty by excluding eminently qualified experts who are not locally licensed. The Tennessee legislature’s rules have nothing to do with justice. Unfortunately, the Tennessee Supreme Court perpetuated injustice by its doubtful reading of the Tennessee statute regarding the licensure of expert witnesses.

 

Gun

Law Professor Defends “Stand Your Ground” Laws

A law professor and commissioner on the United States Commission on Civil Rights has filed a statement in support of the “Stand Your Ground” laws that were the subject of a recent Commission on Civil Rights report.

Stand Your Ground Laws

Under the common law castle doctrine, the use of deadly force is justified in the case of a person defending their home. Stand Your Ground laws are extensions of this castle doctrine, allowing the use of deadly force beyond the confines of one’s home, into any area where a person “has a right to be” in defense of their person or property.

The United States Commission on Civil Rights Report

In April 2020, the United States Commission on Civil Rights published a report entitled “Examining the Race Effects of Stand Your Ground Laws and Related Issues.” The report was based upon a briefing that was held before the commission in Orlando, Florida in 2014.

The purpose of the briefing and report was to “determine whether there is a possible racial bias in the assertion, investigation, or enforcement of justifiable homicide laws in states with Stand Your Ground provisions.” The briefing consisted of expert testimony from state legislators, academic researchers, and advocates.

The published report consisted of statements by Commissioner Michael Yaki, Commissioner Gail Heriot, and Commissioner Peter N. Kirsanow and a transcript of the Stand Your Ground Public Briefing Transcript that was held on October 17, 2014.

Dissenting Statement

Commissioner Gail Heriot, who is also a law professor at University of San Diego, wrote a dissenting statement to accompany the report. In her dissent, Heriot wrote that the commission report had ignored its own research that indicated that “Stand Your Ground” laws do not disproportionately harm African Americans. She wrote, “This report should not have been published in this form.”

Heriot continued, “When the results of an empirical study don’t come out the way Commission members hoped and expected that they would, the right thing to do is usually to publish those results anyway. Why hide useful information? Instead, the Commission sat on the report for years. Then it decided to discard the draft written by our staff and publish instead a transcript of the witness testimony received at our briefing that took place on October 17, 2014 in Orlando, Florida.”

She continued, “The Commission is publishing this transcript more than seven years after Trayvon Martin passed away — without any reference to its independent research on the subject. The controversy over his death and over ‘Stand Your Ground’ laws has largely faded out of the headlines. Some members of this Commission might be inclined to bemoan this report not being as relevant as it might have been had it been ready closer to 2012. I disagree. Cooler heads should have prevailed early on during the debate over Stand Your Ground laws. But they did not. Now that years have passed, the Commission could have made a modest contribution to that debate by publishing the results of its research. It chose to bury those results instead only because they did not go in the direction the Commission’s majority was hoping for.”

Statue of justice

Conviction Reversed Because Expert Witness Vouched for Credibility of Accuser

Appellate courts continue to reverse convictions when prosecutors use expert witnesses to vouch for the credibility of alleged victims. Credibility is for the jury to decide and no reasonable methodology allows an expert to determine whether another witness is telling the truth.

Richard Hopkins was charged in Michigan with multiple counts of having sexual contact with two minors. Hopkins rented property to the alleged victims’ mother, who agreed that Hopkins should babysit her daughters while she was working.

In addition to describing incidents of sexual touching, the alleged victims testified that they watched a pornographic movie at Hopkins’ residence and saw pictures of intimate body parts while scrolling through photos that were stored on his computer. One of the girls said she told their mother about the sexual contact, but the mother testified that she first heard about it from social services.

The testimony of the children, if believed, would have been sufficient to support the prosecution’s case. The prosecution nevertheless tried to bolster its case by using two expert witnesses for the improper purpose of vouching for the child witnesses. The Michigan Court of Appeals reversed Hopkins’ convictions because the prosecution’s strategy deprived him of a fair trial.

Vouching Testimony Regarding Credibility of Alleged Victims

Cynthia Bridgman testified for the prosecution as “an expert in the field of child abuse and therapy.” Bridgman is a therapist who provided therapy to the two alleged victims.

Bridgman claimed that “children’s statements are often labeled as inconsistent or not credible when, actually, they’re very credible.” She then testified that “research on credibility shows that kids rarely make up abuse allegations.”

Hopkins’ lawyer objected that Bridgman was vouching for the credibility of the accusers. The trial court permitted the testimony because it was based on studies regarding the truthfulness of children generally and not the truthfulness of the alleged victims.

The appellate court concluded that the trial court erred. The prosecution’s evidence essentially told the jury that children rarely lie about sexual abuse and that the jury should therefore believe the stories told by the alleged victims.

Research shows that adults have about a 50-50 chance of determining whether a child is lying. Studies that purport to measure how often children fabricate stories of sexual assault are inherently suspect because researchers have no way of knowing whether the stories are fabricated. The court, however, did not address the expert’s reliance on what might be “junk science” in forming her opinions, since the opinions amounted to inadmissible vouching for the credibility of the alleged victims.

Vouching Testimony Regarding Interview Techniques

Brooke Rospierski testified as an expert in forensic interviewing and disclosure of sexual abuse in children. Psychologists are sometimes called as defense experts to explain how improper interviewing techniques can induce children to say what they think the interviewer wants to hear, whether or not it is true.

In this case, however, the expert was called by the prosecution. Rospierski did not confine herself to testifying about interviewing techniques but testified that she saw no “red flags” that would cause her to believe that “either child was coached or pressured to fabricate any allegations.”

In some states, that kind of testimony would be admissible to rebut a defense expert’s testimony that the statements made by children could have been produced by improper interview techniques. In this case, since the prosecution called Rospierski before the defense presented its case, her testimony had no purpose other than to bolster the credibility of the accusers.

The court concluded that Michigan law precludes an expert from testifying that a child has not been coached by interviewers if that testimony communicates a belief that the child was telling the truth. The line between commenting on interview techniques and vouching for the veracity of a child’s statement is a fine one, but the Court of Appeals decided that the expert’s testimony crossed that line.

Gavel and scales

Ninth Circuit Panel Questions Precedent

A three-judge panel of the Ninth Circuit Court of Appeals ordered a new trial in a case where a district court had used the wrong standard in barring expert testimony. However, in a concurring opinion, the judges noted that while precedent requires a new trial, that result didn’t make sense in this case.

The District Court Case

Patrick Bacon and Daniel Ray were convicted of assault with a deadly weapon with intent to do bodily harm and assault causing serious bodily injury as the result of a metal shank stabbing of another prisoner at federal prison in Victorville.

At trial, Bacon pleaded insanity. Bacon’s defense attorneys retained forensic clinical psychologist Dr. Nadim Karim to testify on Bacon’s behalf. Dr. Karim was prepared to testify that Bacon’s mental health disorders would have caused him to have trouble understanding the consequences of his actions at the time of the stabbing.

District Court Judge Percy Anderson of the Central District of California excluded Dr. Karim’s testimony. Judge Anderson reasoned that “Dr. Karim’s opinion that an individual who was suffering from a myriad of severe mental health disorders that Mr. Bacon was facing would have had difficulty understanding the nature and quality of his action at the time of the offense conduct is equivocal and will not help the trier of fact to understand the evidence or determine the issue of sanity.”

Bacon was sentenced to 10 years in prison. Ray was sentenced for eight years and four months for his role in the crime.

The Ninth Circuit

Brown appealed the ruling to the Ninth Circuit Court of Appeals. His case was heard before a three-judge panel consisting of Circuit Judges Paul J. Watford and Mark J. Bennett, joined by District Court Judge Jed S. Rakoff of the Southern District of New York, sitting by designation.

On appeal, the Ninth Circuit ruled that Judge Anderson had applied the incorrect legal standard. Instead, Judge Anderson should have made his decision based on whether Dr. Karim’s testimony would assist the jurors in drawing their own conclusions regarding “Dr. Karim’s opinion that an individual who was suffering from a myriad of severe mental health disorders that Mr. Bacon was facing would have had difficulty understanding the nature and quality of his action at the time of the offense conduct is equivocal and will not help the trier of fact to understand the evidence or determine the issue of sanity.”

The court clarified  that it was not ruling that the district court must admit Dr. Karim’s testimony on remand — it was only holding “that the district court abused its discretion in finding the testimony was not relevant to Bacon’s insanity defense.” Under Ninth Circuit precedent, this abuse of discretion required a retrial.

However, Judge Watford wrote a concurring opinion joined by Judges Bennett and Rakoff. He wrote that he agreed with the panel’s ruling, but that he wrote “separately to highlight how wasteful of judicial resources that remedy potentially is.”

He gave the example, “What if, on remand, the district court decides that Dr. Karim’s testimony is insufficiently reliable, and thus must be excluded once again? If that occurs, why in the world should the court hold a new trial at which a second jury will hear the same evidence heard by the jury at the first trial?”

Judge Watford suggested that a better procedure would be to “conditionally vacate the judgment and remand to the district court with instructions to determine whether the disputed expert testimony was admissible” under the relevant court rule and case law. This course of action was previously suggested by Ninth Circuit Judge Jacqueline H. Nguyen’s concurring and dissenting opinion in the 2014 case of Estate of Barabin v. AstenJohnson, Inc.

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.”

 

DNA

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{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} 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.