Category Archives: Research & Trends

Expert Witness

Expert Witness Report Rule Relaxed in Expedited Litigation

A Virginia district court has relaxed the expert witness report rule in the case of expedited litigation.

The Abduction

Bryce Gerald Randall Nowlan and Nina Lynn Nowlan were married and had a daughter, “AEN.” Bryce Nowlan is a Canadian citizen who resides in Canada. Nina Nowlan is an American citizen who currently resides in Virginia. Bryce Nowlan alleges that Nina Nowlan wrongfully took their daughter from his custody in Canada to Virginia.

Bryce Nowlan filed a petition for AEN’s return to Canada under The Convention on the Civil Aspects of International Child Abduction (the Hague Convention) and the International Child Abduction Remedies Act. He also filed a motion to expedite the proceedings under the Hague Convention.

Court Proceedings

The parties submitted a proposed scheduling order. The parties agreed on all matters with one exception. Bryce Nowlan proposed that both parties should provide “full and complete expert disclosures as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure” and “full and complete rebuttal expert disclosures, which shall also comply with Rule 26(a)(2)(A)-(C). Nina Nowlan objected to “importing the strict disclosure requirements of Rule 26, particularly since this matter is proceeding on an expedited basis.” Rule 26 requires that a witness prepare and sign a detailed report at the expense of the disclosing party. Since Nina Nowlan is indigent, she requested that the court instead require counsel for each party to provide summaries of each expert’s anticipated opinions.

The court granted Nina Nowlan’s request and required each party to provide “detailed written summaries of their experts’ opinions and conclusions.” The court noted that it was “cognizant of the onerous burden imposed by Rule 26 regarding expert witness disclosures and Ms. Nowlan’s objection to complying with the strictures of the rule due to both time and expense. The court agrees and notes that this, at bottom, is a summary proceeding with expedited deadlines, modified procedures, and relaxed standards for the admissibility of evidence. Given these unique factors, respondent’s objection is persuasive. The court will grant the parties latitude during the cross examination of any expert witness as necessary to account for any expert report that is less than fulsome than a standard Rule 26 report.”

Bryce Nowlan objected to the “truncating” of expert-disclosure obligations under Rule 26(a)(2)(B) in light of Nina Nowlan’s claims that he had sexually abused AEN. His objection stated that the court’s order did not provide him with the opportunity that he would have had under Rule 26 to note any Daubert challenges or move in limine to exclude a proposed expert in advance of trial.

Court Ruling

The court noted that district courts are “afforded substantial discretion in managing discovery.” It also noted that Rule 26(a)(2)(B) contemplated deviations from the typical requirements for expert witnesses’ written reports by including the language “unless otherwise stipulated or ordered by the court.”

The court noted that its order still required the parties to produce “detailed, written summaries” and that it had granted the parties “latitude during the cross examination of any expert witness as necessary.”

The court was satisfied that the parties were able to adequately prepare for the bench trial and bring any purported insufficiencies or shortcomings of the other party’s expert witnesses at trial and overruled Bryce Nowlan’s objections.

Criminal Forensics, word cloud concept 11

Does the CSI Effect Hurt Prosecutors Who Don’t Rely on Expert Witnesses?

It has become an urban legend, at least among prosecutors, that jurors have been conditioned by the CSI franchise (CSI: Crime Scene Investigation, CSI: Miami, CSI: NY, and CSI: Cyber) to expect guilt to be proved beyond doubt by forensic evidence. Prosecutors fear that they will lose cases if they try to prove guilt the old-fashioned way: with confessions, eyewitness testimony, or inferences based on motive and opportunity.

It isn’t unreasonable for jurors to expect prosecutors to rely on expert witnesses when they can. After all, the Constitution requires guilt to be prove beyond a reasonable doubt. If fresh blood found at the scene of the crime isn’t analyzed for DNA, a jury might reasonably wonder why the government didn’t do everything in its power to determine whether the blood belonged to a criminal suspect.

Still, forensic evidence isn’t available in every case. Sometimes there’s no physical evidence to analyze. In other cases, budgets may be inadequate to fund an expert. When those circumstances occur, does a case become unwinnable?

Concerns About the CSI Effect

A state’s attorney in McLean County, Illinois recently warned readers of a Central Illinois newspaper that CSI is not realistic. When he questions potential jurors, he asks them whether they “expect to see satellite imagery and laser grid analysis.” His questions are intended to remind jurors that high tech evidence isn’t needed or available in every case.

Whether the CSI effect actually exists is open to debate. A 2006 survey asked participants whether they would expect to see various kinds of evidence in seven different cases ranging from murder to theft. Participants were asked, for example, whether they would expect to see “eyewitness evidence,” “some kind of scientific evidence,” “fingerprint evidence,” and “DNA evidence.”

The survey found that 46% of participants expected to see some kind of scientific evidence in every criminal case, 32% expected to see ballistic evidence in every criminal case, and 22% expected to see DNA evidence in every criminal case. Since ballistic evidence pertains to firearms and since most crimes are committed without a firearm, the survey results might indicate that participants were not given sufficient information to make rational responses.

The survey also found that participants who watched a CSI show regularly were more likely to demand scientific evidence in every case than participants who rarely or never watched CSI. Those results were dutifully reported by the Central Illinois journalist who fretted about the impact of CSI on jurors.

The journalist neglected to report the survey’s central finding: Participants were not more likely to acquit a defendant simply because guilt was not supported by expert evidence. A recent article in the ABA Journal notes that the 2006 survey was followed by an urban survey in 2008-09 that found even less reason to believe that a CSI effect results in unwarranted acquittals. A judge who helped design the survey attributed worries about the CSI effect to “grumbling prosecutors.”

While survey participants said that the absence of scientific evidence would not make them more inclined to acquit, they were more likely to doubt guilt in the absence of eyewitness testimony. Ironically, eyewitness testimony is among the least reliable forms of evidence in a criminal prosecution. The defense lawyer in a case that turns on eyewitness identification should give automatic consideration to the need for an expert witness who can explain why identifications are so often mistaken.

Should Jurors Be Cautioned About the CSI Effect?

How participants respond to hypothetical questions on a survey is probably a poor measure of how they will judge the evidence in an actual trial. It makes little sense to think that jurors will worry about the absence of ballistic evidence in a case that does not involve a gun. No judge would allow a defense attorney to question the absence of evidence that isn’t relevant to the case.

The judge who was interviewed in the ABA Journal article argued that prosecutors might actually trigger a CSI effect by asking potential jurors whether they expect guilt to be proved by scientific evidence. If potential jurors aren’t thinking about scientific evidence before the prosecutor talked to them, they may wonder about its absence when the prosecutor calls attention to it.

In some cases, however, a defense lawyer’s comments about the prosecution’s failure to present forensic evidence is legitimate. The Journal article reports a Maryland case in which a criminal defense lawyer called the jury’s attention to the absence of scientific evidence to prove that the defendant had handled a screwdriver or tape found at the scene of the burglary.  No expert witness testified about fingerprints or DNA samples that one might expect to find on that evidence.

It is commonplace for lawyers to argue that a police investigation was incomplete and that the failure to make a diligent search for evidence creates reasonable doubt. The trial judge in the Maryland case nevertheless instructed the jury that ““there is no legal requirement that the state utilize any specific investigative technique or scientific test to prove its case.” That’s true, but there is a legal requirement that prosecutors prove guilt beyond a reasonable doubt.

An appellate court found that the instruction improperly undermined the defense theory that the absence of scientific evidence contributed to reasonable doubt. The defense lawyer did not argue that the prosecution had an obligation to present expert evidence. Rather, the lawyer argued that the prosecution had the ability to ask experts to analyze the evidence and that its failure to conduct a complete investigation of the evidence created a reasonable doubt about the defendant’s guilt. That argument did not warrant a jury instruction regarding the prosecution’s failure to produce scientific evidence.

Similar instructions have come to be known as “anti-CSI instructions.” Prosecutors argue that the instructions are needed to overcome the CSI effect. Since there is little evidence that the CSI effect actually exists, fair judges keep their thumb off the scale and avoid giving instructions that seem to excuse a prosecutor’s failure to introduce expert evidence when a case seems to call for it.


A white cop

Seventh Circuit Permits Police Officer to Testify as Drug Jargon Expert

The odds of admitting expert testimony are stacked against defendants in criminal cases. An analysis of federal criminal prosecutions found that judges almost always admit expert testimony offered by prosecutors but usually disallow the expert testimony of defense experts.

Prosecutors commonly rely on police officers to provide expert testimony. While the officers are not allowed to testify that a defendant is guilty (an issue that only the jury can decide), they are often allowed to give “ultimate issue” testimony that invites the jury to find guilt. To a jury, there is little difference between testifying that “In my opinion, the defendant sold drugs” and testifying that “In my expert opinion, all of the evidence is consistent with the defendant selling drugs.”

Federal courts have been criticized for their lax application of the Daubert standard to police officer testimony. Other experts are required to demonstrate that they formed opinions through the reliable application of a sound methodology to sufficient facts. Police officers are often allowed to couch any opinion as an expert opinion simply by claiming that the opinion is based on their experience in law enforcement.

A common example of the lax application of Daubert involves “expert” testimony about the meaning of “drug jargon.” A recent decision of the U.S. Court of Appeals for the Seventh Circuit determined that police officers can offer expert opinions about the hidden meaning of ordinary words that a defendant uses in text messages.

Facts of the Case

Maurice Gardner was the passenger in a car that was stopped by police officers in Evansville, Illinois. For reasons that the appellate opinion does not explain, the officers searched the vehicle. They found bags containing six grams of methamphetamine, digital scales, and a loaded firearm. Officers testified that they asked Gardner why he was in the vehicle and Gardner admitted that he was trying to sell drugs.

Given those facts, the government had a slam dunk case on the drug charges. It nevertheless bolstered its evidence by calling Evansville Police Officer Cliff Simpson as an “expert in narcotics distribution.” Since the jury was just as capable of interpreting the evidence as Simpson, this was not the kind of case in which the testimony of an “expert in narcotics distribution” would normally be admissible. The prosecution, however, wanted Simpson to “translate” text messages on Gardner’s phone that the prosecution claimed were “coded.”

Simpson claimed expertise because he had “interpreted” text messages and phone calls in more than a dozen wiretap investigations. The prosecution apparently offered no evidence that Simpson had interpreted the communications accurately.

Expert Opinions

Gardner received a text message that said “she will pay 245 for it.” Simpson testified that the message meant “someone would pay $245 for methamphetamine.” Since neither “245” nor “it” are drug jargon, it is difficult to understand why the judge felt that an expert was needed to decode the message. Whether “it” referred to methamphetamine was an inference that the jury could draw without Simpson’s guiding hand.

The same is true of Gardner’s reply: “I can do one for 250 and dat’s all.”  The phrase “do one” likely means “sell one” in context, but there’s nothing coded about that language. Simpson’s testimony that Gardner meant that he was willing to sell a quantity of the drug for $250 hardly requires an expert interpretation.

Simpson might have relied on expertise when he testified that 3 grams of methamphetamine would retail for $250, but the message did not say “I can sell three” or “I can sell an eight ball” (jargon that describes an eighth of an ounce, or about 3.5 grams). The jury was just as capable as Simpson of inferring that “one” referred to an unspecified drug quantity.

Finally, Gardner texted, “I ain’t got dat kind of deal rite now. I’m grinding dis out.” Simpson believed “dat kind of deal” referred to a lower price, an obvious conclusion that requires no expertise.

Simpson also testified that “grinding dis out” meant that Gardner was not selling large amounts but was breaking down his supply to sell in smaller amounts. Perhaps that’s true. Or perhaps Gardner was saying that he was just trying to get through the daily grind of his day. It is not at all clear that Simpson’s opinion about the meaning of Gardner’s words was grounded in expertise rather than assumptions.

Daubert Challenge Rejected

Perhaps the common practice of street dealers to make more money by risking multiple smaller sales rather than giving a quantity discount for a larger sale is not a practice that juries would understand without expert testimony. But Simpson did not explain how street dealers work. He simply offered a personal opinion of what “grinding dis out” meant. A reasonable expert methodology would require the expert to study the jargon used by drug dealers and to identify other instances in which “grinding dis out” meant “selling smaller quantities.” Nothing in the appellate opinion suggests that Gardner based his opinion on a reasonable methodology.

The appellate court nevertheless concluded that a different standard of reliability applies when an expert witness is a police officer. The expert officer does not need to employ a reasonable methodology to arrive at a reliable opinion. It is enough for the officer to base an opinion on the officer’s experience. The court held that “the reliability of the expert’s methods may reasonably be inferred from the expert’s background.”

Experts who testify about harms caused by dangerous drugs and toxic exposures need to rely on reasonable methodologies, no matter how “vast” their experience might be. Why is the Daubert rule different for the police? The Seventh Circuit made no attempt to justify its application of a different standard that benefits the prosecution in criminal cases. A cynic might conclude that the court simply wanted to make it easier for the government to win criminal cases and abandoned doctrinal consistency to advance that goal.

The court also rejected the argument that “Simpson interpreted innocuous, everyday words that need not be decoded by an expert.” According to the Seventh Circuit, words that might “seem entirely innocuous” to ordinary jurors can be recognized as “drug jargon” by police officers. Perhaps there are instances where that might be true, but nothing in the phrase “I can do one for 250” even remotely qualifies as coded drug jargon. What Gardner meant by “one” is an inference to be drawn from all the facts. It is not a “coded” word that only an expert can interpret.

In the end, the case against Gardner was so strong that Simpson’s testimony likely had no impact on the verdict. The court of appeals covered itself by noting that the district court’s decision to admit the testimony would have been a harmless error even if the appellate court had found the decision to be erroneous. The decision nevertheless provides further support for the sad conclusion that “the Daubert revolution, aimed at upgrading the quality of expert evidence, has had surprisingly little impact in the criminal courts.”


Death Row Inmate Freed After Bite Mark Evidence Discredited

A Mississippi man that sat on death row for over a quarter of a century has been freed and exonerated after the bite mark evidence that was used to convict him was discredited.

The Crime

In 1992, 84-year-old Georgia Kemp was found dead in her home in Lowndes County, Mississippi.  Her autopsy revealed that she had died from two stab wounds. Kemp also had injuries consistent with rape, but no visible bite marks.

Prosecutors retained Dr. Michael West as an expert witness. West is a forensic dentist known for his analysis of bite marks. Over a period of 15 years, West testified in 71 trials in 9 states. West examined Kemp’s body with ultraviolet light and found bite marks, which he testified matched the teeth of Eddie Lee Howard.

Court Proceedings

Howard was indicted on the charge of capital murder with the underlying felony of rape.  He was convicted in 1994 and sentenced to death. In 1997, Howard’s conviction and sentence were reversed and remanded for a new trial.

In May 2000, Howard’s second trial began. Dr. West testified again, stating that he was certain to a reasonable degree of medical certainty that Howard had left the bite marks found on Kemp’s body.  Howard was convicted of capital murder and sentenced to death. The conviction was upheld in numerous appeals and post-conviction relief proceedings.


In December 2010, the Mississippi Supreme Court allowed Howard to file another post-conviction petition for relief due to new DNA testing of physical evidence that had excluded Howard as a source.

The court reviewed the DNA evidence and also Dr. West’s bite-mark testimony. Dr. West’s techniques have come under criticism for overstating his findings and testifying on subjects where he had limited expertise. Dr. West’s practices were investigated and he was eventually suspended by the American Board of Forensic Odontology. Dr. West has also stated in a 2012 deposition that he no longer believes in bite-mark evidence and that it should not be used in court cases. That testimony is small comfort to the 71 defendants who were subjected to Dr. West’s unreliable opinions.

The court noted that there has been a change in the scientific understanding of the reliability of identification through bite marks since Howard’s conviction. Today, bite mark testimony would be inadmissble evidence. The court also concluded that Dr. West’s identification of Howard was the most important evidence presented at trial. Given the inadmissibility of bite mark evidence and the fact that that the DNA of another man was present on the murder weapon, the court found that a jury would probably not find Howard guilty beyond a reasonable doubt.

In August 2020, the Mississippi Supreme Court vacated Howard’s conviction and sentence and remanded his case for a new trial.

In December 2020, Howard was released from death row and on January 8, 2021, Howard was officially exonerated. Lowndes County District Attorney Scott Colom decided not to retry Howard’s case, noting that there was not enough evidence to convict Howard “beyond a reasonable doubt” and stating that “My ethical and legal responsibility requires that I dismiss the case.”


Criminal Forensics, word cloud concept 11

New Paper Condemns Failure to Establish Reliable Error Rates in Forensic Science

“Junk science” has been the rallying cry of lobbyists for the insurance and pharmaceutical industries. The term has largely been used to condemn expert evidence offered by plaintiffs in civil suits. While the claims that plaintiffs base cases on “junk science” have been largely overblown — the claims are intended, after all, to minimize the opportunity of juries to evaluate evidence of corporate negligence — there were a few well-publicized cases in which bad science may have influenced verdicts in civil cases. The Daubert revolution was a judicial and legislative response to those cases.

Since outrage about junk science has been carefully nurtured by corporate lobbyists, it has focused on expert evidence presented by plaintiff’s lawyers in civil cases. The outraged attacks upon experts tend to overlook questionable science that is funded by and relied upon by industries and their insurers to avoid liability.

Until recently, even less attention was paid to junk science advanced by prosecutors in criminal cases. If Daubert has value, judges should apply it consistently to all expert evidence, regardless of the side that offers it and regardless of whether the evidence is offered in a civil or criminal case. Yet judges routinely allow prosecutors to present testimony by forensic scientists that unbiased experts recognize as junk science.

Forensic Science Reliability

Slate recently called attention to a scientific paper that it deemed worthy of greater media attention. The paper (Misuse of Scientific Measurements in Forensic Science by Itiel Dror and Nicholas Scurich) discusses error rates in forensic science.

Error rates are a poorly understood factor in the application of the Daubert standard. Daubert demands that experts employ reliable scientific methodologies. A methodology that has a high error rate should generally be rejected as unreliable. While it is easy to understand that the reliability of a methodology is a function of how often the methodology produces an accurate result, the measurement of error rates to validate a methodology is less intuitive.

Dror and Scurich point out that the error rate for many forensic science methodologies is unknown. Crime lab employees often cover up that deficiency by claiming complete confidence in their results. Confidence, however, is not a substitute for science.

Fingerprint examiners, for example, often tell juries that the science of fingerprint comparison is infallible. As Dror and Scurich explain, there is no such thing as an error rate of “zero,” despite improper testimony to that effect. In fact, they cite a study demonstrating that the same expert comparing the same fingerprints on two separate occasions will reach a different result about 10% of the time.

Well prepared defense attorneys may be able to counter claims that fingerprint comparison is infallible with examples of mistaken fingerprint identifications that police agencies have relied upon in the past. The question, however, is whether the examiner should be permitted to testify at all — and whether a defendant should be placed at risk of a wrongful conviction — if the examiner can’t cite an error rate to prove that identifications are nearly always reliable.

Dror and Scurich lament that judges have often admitted the opinions of forensic science experts who rely on methodologies that “have no properly established error rates and even when experts have implausibly claimed that the error rate is zero.” How can a judge regard a methodology as reliable when the judge has no idea how often the methodology returns an erroneous result?

Error Rate Determinations in Forensic Science

Dror and Scurich argue that forensic sciences have difficulty measuring an accurate error rate because they classify opinions that a methodology returned an “inconclusive” result as correct. Rendering the opinion that a comparison is inconclusive does not mean that the opinion is correct.

Assume, for example, that nine of ten fingerprint examiners exclude the defendant as the source of a fingerprint on a pane of glass. If the tenth examiner testifies that the comparison is “inconclusive,” the examiner is likely wrong. Yet that incorrect opinion will be deemed “correct” in an analysis of error rates.

Crime lab employees too often have a bias in favor of prosecutors and police officers who are hoping for a particular result. When they know the police are hoping for a ballistics match that they cannot find, they may decide that the comparison is “inconclusive” to avoid damaging the prosecution’s case. If no match can be made, the opinion is wrong.

Since “inconclusive” results are not reflected in forensic science error rates, error rate computations by forensic scientists are skewed toward making the methodology seem more reliable than it actually is. As Dror and Scurich argue, “not ever counting inconclusive decisions as error is conceptually flawed and has practical negative consequences, such as misrepresenting error rate estimates in court which are artificially low and inaccurate.”

Lessons Learned

Defense attorneys should consider Daubert challenges whenever a prosecution is based on the testimony of a forensic scientist. The failure to rely on a methodology with an acceptable error rate may be a fruitful basis for challenging the admissibility of an expert opinion. Defense lawyers should also consider retaining their own expert for the purpose of educating the judge or jury about the danger of relying on error rates that count “inconclusive” results as if they are always accurate results.

Expert Allowed to Testify About Standard of Care Despite His Belief that the Standard Is Mythical

Pamela Scholl underwent lumbar fusion surgery in Indiana. Scholl alleged that the surgeon, Dr. Mohammed Majd, placed a screw too close to an iliac artery, causing nerve damage. She later had a second corrective surgery.

Scholl sued Dr. Majd for malpractice. Indiana law requires complaints of medical malpractice to be submitted to a medical review panel. The medical and insurance industries view those panels as discouraging malpractice lawsuits that have no merit. Plaintiffs’ lawyers regard panel members as having a pro-doctor bias and typically view them as an obstacle that adds a layer of delay and expense to litigation that is meant to benefit doctors and their insurers.

The panel concluded that Dr. Majd did not breach the applicable standard of care. Scholl then filed suit. She relied on the expert testimony of Dr. Robert Sexton to prove her claim.

After Scholl rested her case, Dr. Majd moved to dismiss on the ground that Dr. Sexton’s testimony failed to establish that Dr. Sexton was familiar with the applicable standard of care. That motion was based on Dr. Sexton’s testimony that the standard of care is whatever a physician thinks it is. Scholl appealed from the trial court’s decision to grant that motion.

Dr. Sexton’s Testimony

Dr. Sexton is a board-eligible neurosurgeon who has performed more than 12,000 spine surgeries during his career, including 150 fusions. Dr. Sexton retired from surgical practice but maintains an active medical license and complies with continuing medical education requirements.

A medical review panel determined that Dr. Majd’s surgery did not fall below the standard of care. Dr. Sexton testified that he disagreed with that conclusion. When he was asked about the panel’s findings, Dr. Sexton referred to the panel’s reliance on a “mythical” standard of care.

Dr. Sexton explained that there is no published standard of care. The review panel defined the standard of care generically as “what a reasonably skilled doctor . . . would do in a given situation.” Dr. Sexton suggested that the generic definition does not identify specific things a doctor should do but leaves it up to each doctor to invent his or her own standard of care.

Dr. Sexton testified that Dr. Majd’s surgery fell below the standard of care because his workup of Scholl before the surgery was “sparse.” He opined that a prudent spine surgeon would have performed a bone density test before deciding whether a spinal fusion was appropriate. He also testified that using a spinal fusion to correct Scholl’s condition as “very controversial.”

Dr. Sexton concluded that placing a screw too close to Scholl’s iliac artery caused her injury. He testified that the standard of care required a surgeon in Dr. Majd’s position to do one of two things: perform a bone graft without using screws or perform a decompressive laminectomy as an alternative to spinal fusion.

When he was asked whether Dr. Majd’s decision to perform a spinal fusion using screws fell below the standard of care, Dr. Sexton replied, “Based on the outcome, yes, I think it was.” On cross-examination, Dr. Sexton repeated that “there is no such thing as a standard of care except what the individual doctor thinks it is.”

After Scholl rested her case, Dr. Majd moved for judgment on the basis that Dr. Sexton did not demonstrate a familiarity with the applicable standard of care. The court granted Dr. Majd’s motion. Scholl appealed.

Appellate Analysis

Indiana follows the customary rule that a medical standard of care and its breach must be established by an expert opinion. The question before the court was whether Dr. Sexton’s opinion adequately conveyed the standard of care to the jury.

The court noted that Dr. Sexton quoted a doctor from the medical review panel who stated that the standard of care is “what a reasonably skilled doctor with reasonably skilled training would do in a given situation.” That is a correct paraphrasing of the standard of care. The fact that Dr. Sexton referred to it demonstrated his familiarity with the standard. His criticism that the standard is mythical in the abstract did not alter his understanding of the standard.

As the court noted, Dr. Sexton explained his reference to the “mythical” standard by noting that no textbook or other authoritative source clearly defines how a spinal surgeon should have treated Scholl’s condition. The court viewed his testimony as explaining that the standard of care was open to interpretation, as is often the case in medical malpractice lawsuits.

Of course, the abstract standard — doctors have a duty to do what reasonably skilled doctors would do — says nothing about what reasonably skilled doctors would do in a given situation. Dr. Sexton filled that gap by testifying that a prudent spine surgeon should perform a bone density test before surgery. He also testified that the standard of care required Dr. Majd to perform a laminectomy rather than a fusion with hardware, a procedure that would have eliminated the risk of causing the injury that resulted from placing a screw too close to the iliac artery.

Dr. Sexton’s extensive history as a spinal surgeon qualified him to express opinions about the applicable standard of care and its breach. The court held that Dr. Sexton’s characterization of the standard of review as “mythical” was “imprecise,” but those comments did not reveal a lack of understanding of the standard of care. The trial court accordingly erred by dismissing the lawsuit rather than submitting it to the jury.

Lessons Learned

The intersection of law and medicine can lead to collisions. Doctors think in terms of medical concepts. The standard of care is a legal concept. Dr. Sexton viewed the standard of care as “whatever a doctor thinks it is” because the medical panel used the language of the law to describe the standard.

What a reasonable doctor would do in a given situation is intended to be an objective standard but differing opinions of whether a doctor’s actions were “reasonable” reveal its subjective nature. Dr. Sexton identified the subjective nature of the standard of care when he defined the standard as whatever “a doctor thinks it is.”

Scholl’s case ended with a dismissal and an appeal because Dr. Sexton referred to the standard of care as “mythical.” That testimony honestly identified the difficulty of defining a precise standard that has not been identified in medical texts. Unfortunately, the testimony was also problematic. An expert’s reference to a legal standard as “mythical” is likely to wave a red flag in front of opposing counsel.

The case illustrates the need for plaintiffs’ lawyers to take the time to explain legal standards to expert witnesses and to caution experts not to editorialize about those standards. How the expert feels about a legal standard has no bearing on the case. The appeal could have been avoided if Dr. Sexton had simply testified that “the standard of care is what a reasonable spinal surgeon would do and, in my opinion, a reasonable spinal surgeon would do the following.”



Expert Witness Establishes GEICO’s Failure to Pay Reasonable Cost of Windshield Replacements

A Florida judge in Hillsborough County consolidated eleven lawsuits that Glasso, Inc. filed against GEICO. In each case, Glassco replaced windshields that were damaged in cars insured by GEICO. Glassco took an assignment of the insurance benefits from the car owners and billed GEICO directly for the replacement cost.

The lawsuits alleged that GEICO paid less than the invoiced amount. GEICO admitted that it did not pay the invoices in full. It relied on a clause in its insurance contract that limits its liability to the “prevailing competitive price” for repairs. GEICO contended that Glassco’s billings exceeded the prevailing competitive price for windshield replacements.

To support its claim, Glassco relied on the testimony of owners of businesses that make windshield repairs. Glassco also called an expert witness. The judge agreed with the expert’s opinion and entered judgment in favor of Glassco.

Facts of the Case

At trial, the owner of Glassco and the owners of two competing auto glass companies explained how they determine pricing. They take into account the cost they pay for replacement glass and for the materials (molding, clips, and adhesive) they use to install the glass. They also take into account their labor costs. All of those depend on the make, model, and year of the vehicle that needs a replacement windshield.

To reach a final price, the owners add profit to their costs. To calculate profit, the owners take into account the amounts charged by competitors in their same market. They also consider the charge that most insurance companies will pay without dispute.

The owners of Glassco’s competitors testified that Glassco’s pricing structure was consistent with prevailing market prices. They also testified that 95% of insurance companies pay their bills without dispute. Glassco has a similar rate of undisputed payment.

Expert Testimony

Barrett Smith testified as an expert witness for Glassco. Smith is an expert in the appraisal of collision damage repair. He operated an auto body repair shop before joining the insurance industry. As a claims adjuster, Smith evaluated collision damages and estimated reasonable repair costs. He returned to the collision repair industry before founding a business that provides expert appraisal and mediation services regarding collision damage.

Smith testified that he was hired to “perform comparative market research regarding the products and services provided in windshield replacement service” and to tender an opinion “as to the prevailing competitive price of the goods and services.” He concluded that Glassco’s prices were competitive and prevailing within its market.

Smith surveyed 24 glass repair facilities to determine their pricing structure. Based on that survey and his considerable experience in the collision repair and insurance industries, he found that Glassco’s prices were at the lower end of the prevailing range of prices in the market.

GEICO’s Defense

GEICO did not contest that Glassco performed the windshield repairs competently. GEICO did not disagree that Glassco was conveniently situated to the owners who brought their vehicles in to be repaired.

GEICO offered no expert testimony. It instead relied on the testimony of a corporate representative who handles glass litigation claims. She testified that GEICO paid invoices according to its own determination of the “prevailing competitive price.” She based her opinion of that price on GEICO’s glass pricing agreement with its affiliate SGC/Safelite.

Court Decision

The court decided that Glassco had the initial burden of offering “substantial, competent evidence to establish its prima facie case for what the prevailing competitive price is” because Glassco could not prove a breach of contract without demonstrating that it invoiced the prevailing competitive price. If Glassco succeeded in making a prima facie case, the burden shifted to GEICO to establish that the invoices exceeded the prevailing competitive price.

Glassco met its burden with industry and expert testimony. In particular, the court credited Smith’s expert testimony that Glassco’s pricing was at the low end of the prevailing range of competitive pricing.

To rebut that testimony, GEICO offered only the opinion of its own employee. The court faulted GEICO’s representative for failing to offer any data to support her conclusory opinion. GEICO’s pricing agreement with a single affiliate did not establish a prevailing price within the industry. The court therefore agreed that GEICO breached its insurance contracts by failing to pay the full amount that Glassco billed for its services.

Lesson Learned

Glassco’s lawsuit illustrates the impact that expert evidence can have in litigation. While Glassco may have prevailed by relying only on the testimony of glass company owners, the court might have regarded that testimony as self-serving, given the owners’ interest in maximizing their profits by forcing GEICO to pay their bills.

By calling an expert witness with years of experience in both the collision repair industry and in the insurance industry, Glassco offered important support for its claims. The expert collected a significant amount of survey data to support his opinion, giving the court a strong basis for understanding the prevailing competitive price structure for auto glass repair. The court’s favorable view of that expert evidence clearly contributed to Glassco’s litigation success.


Court Dismisses Expert Witness Lawsuit Against Professional Association

Texas Court Reinstates Sexual Assault Conviction After Dismissing Expert Witness Objections

The Texas Court of Criminal Appeals has reinstated the sexual assault conviction of former Baylor University football player Sam Ukwuachu after dismissing claims that defense witnesses had been improperly impeached by false evidence.

The Crime

In October 2013, a female Baylor University student-athlete alleged that Sam Ukwuachu raped her at his Waco apartment. The victim alleged that Ukwuachu took her to his apartment following a homecoming party and forced himself on her. The following day, she went to the hospital and had a rape examination. Her injuries were consistent with sexual assault.

In June 2014, Ukwuachu was indicted on two felony charges. Following a trial, he was convicted of one count of sexual assault. In 2015, Ukwuachu was sentenced to ten years of felony probation, 180 days in county jail, and 400 hours of community service.

First Appeal

Ukwuachu appealed his case. Waco’s 10th District Court of Appeals overturned his conviction because the trial court had not allowed in some text messages that could have shown that the sex was consensual. However, the Texas Court of Criminal Appeals reversed the lower appeals court and reinstated the conviction. The ruling allowed Ukwuachu to continue to appeal his case, but not on the text messaging issue.

Second Appeal

Ukwuachu appealed his conviction a second time. This time, his lawyers argued that prosecutors had improperly used cell phone record evidence to impeach two defense witnesses, which was a violation of Ukwuachu’s due process rights.

At trial, prosecutors had presented cell phone records with time and data location that showed that Ukwuachu’s roommate was across town at the time of the alleged assault, rather than in their apartment. Because the phone records were shown in UTC (Coordinated Universal Time), which was five hours different from local time, Ukwuachu claimed that the records could not show that his roommate’s testimony was not true. The trial court did not allow the admission of the phone records but allowed prosecutors to ask questions about making phone calls.

At a motion for a new trial hearing, Ukwuachu presented an affidavit from an expert in computer forensics that opined “that it was impossible to accurately verify location data solely from the records without additional review by an expert, that the latitude and longitude given on this type phone records was rarely precisely accurate, and that it would take many hours for an expert to accurately provide the location of where an individual was when a call was made.”

Waco’s 10th Court of Appeals agreed with Ukwuachu’s arguments and reversed his conviction.

The Texas Court of Criminal Appeals reversed the decision of the lower court. The court ruled, “The phone records at issue were never admitted into evidence nor made part of the record. Further, no expert testimony was introduced to establish that the state misled the jury regarding any particular information shown in the records. Without these phone records or such expert testimony, Appellant cannot prove that the state actually elicited witness testimony that conflicted with the substance of those records.”

The court remanded the case to Waco’s 10th Court of Appeals for consideration of the remaining appeal issues.


Fourth Circuit Allows Recovery of Expert Witness Fees

The Fourth Circuit Court of Appeals has allowed the recovery of expert witness fees in Maryland where a fee=shifting provision specifically used the word “fees” separately from “attorney fees.”

The Underlying Dispute

In November 2005, Lennar entered into a contract with three companies (Settlers Crossing, Washington Park Estates, and Bevard Development Company) to purchase 1,250 acres of land in Prince George’s County for $200 million. Lennar paid $20 million in deposits. Sandler, the sole owner of a seller company, personally guaranteed the return of the $20 million deposit if the seller companies breached the contract.

In 2006, Lennar asked the seller companies to renegotiate the contract because of the decline in the residential housing market. The companies agreed and in May 2007, the purchase price of the property was reduced from $200 million to $134 million. All parties agreed to a guarantee of specific performance by Lennar. During this time, the seller companies received a $100 million loan from iStar, which was partially secured by the property and the sellers’ rights under the purchase agreement.

In 2008, following a series of disputes, Lennar notified the companies that it elected to terminate the contract and demanded a refund of its $20 million deposits. The seller companies refused. During this time, the seller companies defaulted on their loan to iStar and iStar foreclosed upon the property.

The District Court Case

In July 2018, Lennar filed a lawsuit against iStar, Sandler, and the three seller companies in the United States District Court District of Maryland. Lennar alleged breach of contract, fraudulent inducement, concealment breach of environmental representations and warranties, and claim for declaratory judgement. The seller companies and iStar filed a joint counterclaim for declaratory relief and specific performance of the contract.

Following pretrial proceedings, two main issues remained for trial: (1) whether the seller companies denial of Lennar’s access to the property constituted a breach of contract; and (2) whether the seller companies had breached the environmental representations and warranties in the purchase agreement. A bench trial was held to resolve these issues.

The majority of the trial was spent on the environmental representations claim. Lennar presented three expert witnesses to testify on this issue. iStar called four experts to testify on this issue.

Following the bench trial, the district court determined that Lennar had failed to satisfy its burdens and iStar was entitled to specific performance of the contract. The district court entered judgment in favor of iStar. Lennar appealed and the Fourth Circuit affirmed the judgment.

The Fee-Shifting Agreement

Following the Fourth Circuit’s affirmance, iStar sought reimbursement of its costs, fees, and expenses in accordance with a fee shifting provision in the purchase agreement. Specifically, iStar requested $14,880,227.82 in attorneys’ fees, $656,002.12 in expert witness fees, and $553,712.56 in costs.

The relevant provision stated:

In the event of any litigation arising under or pursuant to this agreement . . .
the parties hereby agree that . . . the prevailing party in such matter shall be
entitled to recover from the non-prevailing party[] such party’s costs, fees
and expenses incurred in such litigation, including actual and reasonable
attorneys’ fees and court costs.

Lennar challenged the reasonableness of the attorneys’ fees and the entitlement to expert witness fees.

The district court determined that the plain language of the provision entitled authorized the recovery of all attorney fees, fees, and costs. Lennar contested the awarding of expert witness fees, arguing that Maryland law does now allow the recovery of expert witness fees under a fee-shifting agreement. Lennar cited two district court cases where the district court determined that the recovery of “all costs” and “expenses” did not provide for the recovery of expert witness fees.

The Fourth Circuit noted that the fee-shifting provision in this case was broader than the provision in the other cases. Here, the provision specified “attorney fees” as a separate item from “fees.” The court determined that the plain language of the contract indicated that attorney fees were only a subset of that total fees that may be recovered. Accordingly, the Fourth Circuit determined that the awarding of expert witness fees was proper.

Expert Witness

Expert Testimony on Branding Disallowed in Copyright Infringement Case

A company called Afropunk produces music festivals. It paid photographer Mamba Bayoh $1,200 for photographs. According to Bayoh, the photographs were to be used on Afropunk’s website and Instagram account to promote a festival in Brooklyn. Bayoh complained that Afropunk improperly used the photographs in other marketing materials.

After selling the photographs, Bayoh registered the photographs with the Copyright Office. Bayoh then sued Afropunk for copyright infringement. The belated registration prevented Bayoh from seeking statutory damages.

To prove actual damages from the copyright violation, Bayoh relied on two expert witnesses. Afropunk filed a motion to exclude the testimony of Bayoh’s experts. After applying a Daubert analysis, the court granted the motion.

Brand Consultant Expert Testimony

Robert Wallace is a brand consultant. He believed Bayoh’s photographs were “distinctive” and “compelling.” Wallace compared the photographs that Afropunk used before it acquired Bayoh’s photographs and concluded that the earlier photographs were less effective in branding the company. Wallace also concluded that the Bayoh photographs influenced the look of the photographs that Afropunk used subsequently.

Wallace concluded that Bayoh’s photography style is “highly unique, recognizable” and protectable intellectual property. He opined that Afropunk’s brand success was attributable in part to its use of Bayoh’s photographs and to the influence of those photographs on its marketing designs.

To validate his opinions, Wallace surveyed individuals who had purchased tickets for and attended recent African American cultural events. He showed Bayoh’s photographs to half of the survey participants and showed photographs that Afropunk used in marketing prior to acquiring Bayoh’s photographs to the other half.

While 86% of survey participants said that Bayoh’s photographs made them more likely to attend an Afropunk event based exclusively on the imagery, only 74% said that non-Bayoh photographs made them more likely to attend. Participants who saw the Bayoh photographs were also more likely to attend other Afropunk events and to purchase related merchandise.

Infringement Valuation Expert Testimony

Weston Anson chairs a firm that values and monetizes trademarks and copyrights. Anson calculated a figure he assumed to the Afropunk’s profits over a four-year period. Although Afropunk claimed a loss in three of the four years, Anson subtracted an operating expense category from total expenses that he assumed would represent salaries paid.

After deciding that the industry-wide licensing rate for intellectual property is about 6%, Anson calculated a “brand value” attributable to the photographs for each year. He concluded that Afropunk’s brand value increased by about $4 million from 2015 to 2018.

Daubert Analysis

The court concluded that Wallace could not testify about Afropunk’s alleged intent to infringe Bayoh’s copyright. Wallace has no expertise in discerning intent. Nor could he express the conclusion that Afropunk actually violated Bayoh’s intellectual property rights. That was a question for the jury to decide.

The court also excluded Wallace’s opinion that Bayoh’s photographs contributed to the success of Afropunk’s brand. The court faulted Wallace for not studying “the extent to which Bayoh’s photographs were used in marketing a particular Afropunk festival or the extent to which those photographs contributed to the revenues of that festival (as opposed to other marketing materials or the popularity of the festival performers).”

The court concluded that Wallace’s survey did not provide evidence that was relevant to the infringement claim. The fact that survey participants were more engaged by Bayoh’s photographs than other photographs did not prove that the alleged infringement caused an actual loss to Bayoh. Wallace’s analysis would require the jury to speculate on the impact Bayoh’s photographs might have had on Afropunk’s revenues.

The court decided that Anson’s testimony did not close that analytical gap. Anson’s opinions did not provide a causal link between Afropunk’s revenue and the alleged infringement. In the absence of evidence that Afropunk’s revenue increase was caused by Bayoh’s photographs rather than other factors, Anson’s calculation of increased revenues was not relevant. Neither Anson or Wallace employed a methodology to established that “brand value” accounted for the revenue increase.

Finally, the correct measure of actual damages for a copyright infringement is the fair market value of a license covering an infringing use of the copyrighted works. Bayoh offered no evidence of the fair market value of a license for his photographs. Wallace’s analysis focused on brand value rather than the fair market value of a license.

Since neither Wallace nor Anson used a methodology that created relevant evidence, the court excluded the testimony of both expert witnesses. Although Bayoh cannot prove damages, he has argued that he is still entitled to an injunction prohibiting Afropunk from using his photographs in the future.