Category Archives: Research & Trends

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{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} 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{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} 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{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of survey participants said that Bayoh’s photographs made them more likely to attend an Afropunk event based exclusively on the imagery, only 74{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} 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{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4}, 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.


Court Rules Expert Testimony Not Needed in a Don and Doff Overtime Claim

Rodney Tygar brought an unpaid overtime claim against Precision Drilling Corp. and related companies. Tygar contended that his employer failed to pay workers employed as rig hands for the time they spent putting on personal protective equipment (PPE) prior to their shift and removing it after the shift ended.

Tygar presented expert testimony in support of the overtime claim. The district court excluded the testimony and granted summary judgment to Precision. The Court of Appeals for the Third Circuit reversed after concluding that expert testimony was not needed to prove the claim.

Facts of the Case

Tygar was employed as a rig hand to work on oil and gas rigs. Pursuant to company policies and in compliance with federal regulations, Tygar was required to wear PPE during his work shifts.

The PPE included flame-retardant overalls, steel-toed boots, gloves, goggles, earplugs, and hardhats. The PPE is necessary because it protects against common hazards that rig hands face, including chemical exposures, falling objects, slippery surfaces, and electrical shock.

Rig hands are covered with chemicals at the end of their shifts, some of which are caustic. It was undisputed that the overalls and other PPE reduced the risk that workers would be harmed by exposure to those chemicals.

It takes time to don (put on) and doff (remove) PPE. Precision required its rig hands to don the PPE before clocking in for a shift and to remove the PPE after clocking out. That policy prevented rig hands from being compensated for their donning and doffing time.

If Tygar had been “on the clock” while donning and doffing, Precision would have owed him overtime. Believing that the Fair Labor Standards Act (FLSA) required Precision to compensate rig hands for their donning and doffing, Tygar brought a collective action for unpaid overtime on his own behalf and on behalf of rig hands who were subject to the same compensation policy.

Summary Judgment

The FLSA requires employers to include donning and doffing in an employee’s compensable “hours worked” if wearing the equipment is “integral and indispensable” to their principle job duties. Since federal regulations require employers to provide PPE to employees who are exposed to chemical irritants and hazards, it should seem obvious that donning PPE is an integral and indispensable part of working safely as a rig hand.

The trial judge, however, decided that the “integral and indispensable” question could only be resolved by expert evidence. The court was apparently not certain that caustic chemicals are actually harmful.

Tygar proffered an expert report prepared by Ronald Bishop, an expert in chemical hygiene. Bishop’s report discussed “the health risks associated with exposure to certain hazardous materials on the rigs, in addition to the benefits of wearing PPE.”

In particular, Bishop offered four opinions. First, Precision’s rig hands come into contact with chemicals and substances that are hazardous. Second, PPE protects workers from those substances. Third, PPE becomes coated with hazardous substances as rig hands work. Fourth, it would be unsafe to leave the worksite before removing soiled PPE.

The court denied summary judgment motions filed by both parties after concluding that whether wearing PPE is integral and indispensable to the duties of a rig hand was a disputed factual question. Precision then filed a Daubert motion challenging Bishop’s methodology.

The trial court granted the Daubert motion, excluded Bishop’s testimony, and invited Precision to renew its summary judgment motion. After deciding that whether PPE is integral and indispensable to the job of a rig hand can only be determined on the basis of expert testimony, the court granted summary judgment to Precision because no admissible expert testimony could establish that fact.

Daubert Analysis

The Third Circuit described Daubert as requiring an analysis of qualifications, reliability, and fit. The “overriding consideration” is whether the expert evidence will assist the judge or jury in deciding the facts.

The appellate court did not question Bishop’s qualifications or the relevance (“fit”) of his opinions to determining whether donning and doffing PPE is an integral and indispensable part of a rig hand’s duties. Rather, the court affirmed the district court’s decision that Bishop’s methodology was unreliable.

The district court concluded that Bishop had insufficient factual support for his opinion that it was important for rig hands to don and doff their PPE on site. According to the court, Bishop lacked quantitative data about the amount of chemical exposure that would be hazardous.

Why that data is necessary to Bishop’s opinion is unclear. The amount of exposure is likely to change from day to day and worker to worker, depending on the hazardous substances with which they happen to be splattered on a given shift. The court did not dispute that the chemicals are hazardous or that PPE protects workers. Just how hazardous the chemicals might be at any given moment is not a fact with obvious relevance to Bishop’s opinion. Still, in a rather cursory analysis, the Third Circuit decided that the district court did not abuse its discretion in excluding Bishop’s testimony.

Need for Expert Testimony

After satisfying itself that Bishop’s expert testimony was inadmissible, the court decided that it was also unnecessary. A work activity is indispensable if an employee must engage in that activity to perform his or her job. Wearing PPE is a job requirement, so rig hands were not allowed to work if they did not first put on their PPE.

The district court steered an incorrect course when it based summary judgment on the failure to prove the degree of toxicity of the chemicals to which rig hands are exposed. The relevant question is whether rig hands could dispense with PPE and still perform their jobs. Tygar presented lay evidence that it would be impossible to perform the work of a rig hand without donning and doffing PPE. The FLSA does not require donning and doffing evidence to be presented in the form of expert testimony.

Since expert testimony was unnecessary, the Third Circuit reversed the district court’s summary judgment decision. The appellate court left it to the district court to decide whether the lay evidence creates a jury issue as to whether donning and doffing PPE is indispensable to the work of a rig hand.


Expert Witness

District Court Admits Expert Testimony Regarding Specific Causation in Hernia Mesh Litigation

Thousands of lawsuits against C.R. Bard allege that the company’s surgical mesh products have harmed patients. Cases involving mesh used to repair hernias have been consolidated in the Southern District of Ohio. In a recent decision, that court considered whether a surgeon’s expert testimony about specific causation should be admitted or excluded.

MDL Litigation

When similar lawsuits from around the country end up in federal court, they may be consolidated for pretrial proceedings using multidistrict litigation (MDL) procedures. Consolidation allows plaintiffs to coordinate and share discovery. It also enables a single court to resolve pretrial issues that are common to each of the individual cases. Consolidation arguably promotes the efficient and uniform determination of pretrial motions, although whether it actually does so is the subject of much debate.

Since cases are often removed from state courts that require early designation of expert witnesses, it can be difficult for an MDL judge to resolve Daubert issues efficiently. Different plaintiffs often designate different experts. While procedures vary, a plaintiffs’ steering committee will typically select expert witnesses and other plaintiffs’ lawyers will either adopt those experts or reject them and designate their own.

Experts who testify about general causation can have a far-reaching impact on pending cases. General causation is the concept that a product or substance is capable of causing harm to a patient. When a court grants summary judgment because the consolidated plaintiffs have no admissible expert evidence that a product or substance is capable of causing an alleged harm, all the plaintiffs may lose their cases.

Specific causation focuses more narrowly on opinions that pertain to each specific plaintiff. For that reason, the decision to admit or not to admit specific causation testimony might only affect a specific plaintiff, not the entire universe of plaintiffs who have been consolidated in the MDL.

Specific Causation Expert

Steven Johns is the plaintiff in the first case selected for trial in the Bard MDL. A Bard mesh was implanted in Johns to correct a hernia. Additional surgeries followed that Johns attributed to the failure of the mesh. Johns brought claims under Utah law alleging manufacturing and design defects in the mesh as well as a failure to warn of risks associated with the product.

Johns designated Dr. David Grischkan as a specific causation expert. Dr. Grischkan opined that the Bard mesh at issue caused Johns to suffer adhesions when its coating failed. The coating covers one side of the polypropylene mesh. The coating is designed to decay slowly so that the mesh will be gradually absorbed into the organ against which it is placed. That slow decay, which Bard advertised as occurring over “less than 30 days,” is intended to safeguard against the risk that the mesh will cause adhesions. The formation of adhesions may result in organs and tissues sticking together.

According to Dr. Grishkan, the coating failed to decay slowly. Instead, the mesh was rapidly absorbed into Johns’ organs, quickly exposing them to the polypropylene mesh. Dr. Grishkan noted that Bard’s own studies show that the coating can disappear in less than seven days, which is not enough time to avoid the formation of adhesions during the healing process. Dr. Grishkan’s determined that adhesions attributable to Bard’s product caused Johns’ pain and distress, leading to surgery to remove and replace the mesh.

Expert Qualifications

Bard filed a Daubert motion to exclude Dr. Grishkan’s testimony. Bard complained that Dr. Grischkan is a surgeon, not an expert in mesh design. He did not claim expertise in the chemicals used to coat the mesh that was implanted into Johns and, according to Bard, was unqualified to opine that the coating disintegrated too rapidly.

Parsing Dr. Grischkan’s proposed testimony, the court agreed that the doctor’s experience using mesh products to repair hernias did not qualify him to explain why the coating failed to perform as advertised. He had no experience using the coated product. Nor did he have experience with bioengineering or biochemistry. He could not say how the particles in the coating are broken down by the human body. His review of animal studies and other literature fell short of making him an expert on the coating used on the Bard mesh product.

The court nevertheless recognized that Dr. Grishkan did not need to explain how the coating failed to express an opinion that it failed and that the failure injured Johns. Dr. Grishkan has years of personal experience using a variety of mesh devices to repair hernias. He has personally observed the damaging effects caused by polypropylene mesh. He is capable of recognizing complications caused by mesh when he sees them. His training and experience qualified him to testify about the ways in which polypropylene mesh causes complications after its implantation.

Reliability of Expert Methodology

Dr. Grishkan performed a differential diagnosis to rule out other possible causes of Johns’ continuing medical problems. The rapid absorption of Bard’s polypropylene mesh was the only cause he could not rule out. Dr. Grishkan was qualified to make a differential diagnosis.

The court rejected Bard’s attack on the reliability of Dr. Grishkan’s differential diagnosis. Bard made no showing that Dr. Grishkan inappropriately ruled out other potential causes. Nor did Bard identify potential causes that Dr. Grishkan failed to consider. Rather, Bard complained that Dr. Grishkan “ruled in” the fast absorption of its polypropylene mesh as a potential cause of adhesions when he had no basis for doing so.

The court recognized that Dr. Grishkan relied on medical records that supported his view of the speed at which the mesh was absorbed. Surgical findings made clear that the coating failed to protect Johns’ organs from adhesions and therefore did not serve its intended purpose. Reliance on those facts to form an opinion was a reliable methodology.

Bard also complained that Dr. Grishkan improperly relied on Bard’s internal documents. The court concluded that Dr. Grishkan based his opinion largely on his experience and a review of Johns’ medical records. Experts have wide latitude to consider a variety of facts when they form opinions. The fact that Dr. Grishkan bolstered his opinion with information he found in Bard’s corporate documents did not render his methodology unreliable.

Future Pain and Medical Care

The court agreed, however, that Dr. Grishkan’s opinion about Johns’ ongoing pain and need for future surgery was speculative. Johns’ adhesions were corrected with the same Bards’ mesh. While Dr. Grishkan thought that Johns’ current pain might result from a similar failure of that product, his opinion was not based on a new medical examination. Dr. Grishkan’s opinion that similar problems likely have similar causes did not strike the court as being based on a reliable methodology.

Accordingly, the court allowed Dr. Grishkan to testify that Johns suffered from adhesions caused by the absorption of the Bard mesh and that Johns needed another surgery because the mesh was absorbed too quickly. However, the court did not allow Dr. Grishkan to testify that any problems Johns had after that surgery are related to implantation of another mesh of the same design.

Adequacy of Warnings

Dr. Grischkan also proposed to testify that Bard’s warnings were insufficient to alert doctors about the risks associated with the surgical mesh. The warnings indicate that the coating disappears in “less than 30 days.” Yet Bard’s internal documents show that that the coating can be completely absent within seven days. Dr. Grischkan opined that doctors would want to know that information before deciding whether to take the risk of implanting the product.

Dr. Grischkan’s report stated that any reasonable surgeon would understand Bard’s warning to mean that the coating would remain intact during the healing period and that implantation was therefore safe. Because that representation was contrary to experience, and because Bard’s warning failed to mention various complications that could arise from implanting the mesh, Dr. Grischkan regarded the warning as deficient.

The court concluded that Dr. Grischkan had sufficient experience with surgical mesh to testify about the warning’s adequacy. He could not testify about the adequacy of the warnings from a legal or regulatory perspective, but he could explain whether the warnings adequately disclosed risks that a surgeon would want to understand before deciding to use the product.

Gavel and Stethoscope on Reflective Table

Lawyer Is Qualified to Give Expert Testimony About Physician’s Right to a Hearing on Revocation of Hospital Staff Privileges

Lawyers might be experts in a field of law, but they are not typically experts in the practices followed by other industries. The California Court of Appeal identified an exception to that rule in a case involving a lawyer who was proposed as an expert witness in medical industry practices concerning a physician’s right to a hearing before the termination of hospital staff privileges.

Facts of the Case

Farzin Tayefeh signed a two-year agreement to work with Somnia, Inc. as an anesthesiologist at Kern Medical Center (KMC) in Bakersfield. Somnia’s anesthesiologists were independent contractors rather than employees.

Tayefeh’s agreement with Somnia required him to maintain his hospital staff privileges at KMC. The suspension or termination of hospital privileges was a ground for the immediate termination of the agreement.

Somnia’s anesthesiologists were given an application for temporary hospital privileges at KMC. If privileges were granted and if Somnia decided that it was satisfied with the anesthesiologist’s work, it would ask KMC to give the anesthesiologist full staff privileges.

By signing the application for temporary privileges, Tayefeh agreed to obey KMC’s bylaws. The bylaws provided that, with one exception, temporary privileges could be terminated with or without cause and without a hearing. The bylaws entitled a doctor to a hearing if termination was based on a “medical disciplinary cause or reason.”

Tayefeh represented on his application for temporary privileges that he was not subject to any pending disciplinary action. About two weeks after Tayefeh was granted temporary privileges, the Medical Disciplinary Board notified KMC that it had filed a complaint against Tayefeh for prescribing medication without a patient examination and without maintaining adequate records. The complaint was filed before KMC granted temporary privileges to Tayefah.

The KMC bylaws require doctors with hospital privileges to notify KMC within ten days after a disciplinary action is commenced. Tayefeh did not notify KMC of the complaint. KMC terminated Tayefeh’s privileges for two reasons: (1) failure to report the disciplinary action and (2) the serious nature of the accusations involved in the complaint.

KMC did not give Tayefeh a hearing because it did not regard either justification for termination as a “medical disciplinary cause or reason.” Because he no longer had staff privileges, Somnia terminated its agreement with Tayefeh.

Tayefeh sued KMC for failing to give him a hearing. The trial judge decided that the meaning of “medical disciplinary cause or reason” was subject to conflicting interpretations as the term applied to Tayefeh’s conduct and should therefore be resolved by a jury.

Expert Witness Dispute

A California statute defines “medical disciplinary cause or reason” as any aspect of a doctor’s “competence or professional conduct that is reasonably likely to be detrimental to patient safety or to the delivery of patient care.”

At trial, KMC called an expert witness to educate the jury about the application of the term “medical disciplinary cause or reason” to the termination of Tayefeh’s hospital privileges. The expert testified that, in his opinion, the reasons for terminating Tayefeh’s privileges did not include medical discipline as that term is understood in the medical industry.

Tayefeh wanted to call Arthur Chenan as an expert witness. Chenan is not a physician. He has never participated in making a decision to revoke or suspend a physician’s hospital staff privileges.

Chenan is an attorney who has advised hospitals and medical staffs about whether state law required them to report a physician’s conduct to the medical board. Reporting is mandatory when staff privileges are suspended or revoked for a medical disciplinary cause or reason.

The court decided that Chenan was not qualified to testify as an expert. The court concluded that Chenan was not a doctor and was thus unqualified to testify about the medical industry. Accordingly, the jury only heard expert testimony from KMC. By a 9-3 vote, the jury ruled in favor of KMC.

Appellate Court Analysis

California law permits courts to rely on extrinsic evidence — any evidence that goes beyond the words themselves — to interpret ambiguous contract language. The court applied that same rule to the bylaws that were referenced in Tayfeh’s contract.

The appellate court agreed with the trial court that the phrase “medical disciplinary cause or reason” was ambiguous. Expert testimony about the meaning that is customarily given to that phrase in the medical industry was therefore the kind of extrinsic evidence that is admissible in a trial that hinged upon the interpretation of that language.

California follows the customary rule that a witness “is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” The appellate court rejected the trial court’s conclusion that only a doctor or a hospital administrator can testify about the customary meaning given to a term used in medical bylaws.

That Chenan is not a doctor or a hospital administrator does not mean he lacks knowledge of industry standards when the term “medical disciplinary cause or practice” is applied in the hospital peer review industry. Chenan was not asked to testify about medical matters that require a physician’s training. Nor was he asked about a topic that only a hospital administrator would be qualified to explain.

Knowledge and experience do not need to be gained by working in a particular field. Chenan has taught courses and has published articles in the area of medical staff credentialing, hospital peer review, physician discipline, and restriction of staff privileges.

The court acknowledged that general litigation experience might be insufficient to qualify an attorney as an industry expert. The court noted that a lawyer who handles bad faith claims against insurance companies is not necessarily an expert in insurance industry standards for approving or denying claims.

While an attorney who occasionally represents doctors in employment matters might not have the requisite experience to support an expert opinion, Chenan had years of experience “advising hospital boards, medical staffs, and physicians specifically about peer review matters.” He frequently advised those entities whether a suspension or revocation of staff privileges triggered a reporting requirement because it was based on a “medical disciplinary cause or practice.”

Chenan’s testimony was not founded on knowledge gleaned from litigation experience, but on specific work as an advisor to the medical industry on peer review matters that required the application and interpretation of hospital bylaws. Given Chenan’s experience, the fact that he is a lawyer advising the medical industry rather than a hospital administrator working within the medical industry did not disqualify him from rendering an expert opinion.

The divided jury verdict indicated that this was a close case. Excluding the plaintiff’s expert testimony left the defendant’s expert testimony unchallenged by another expert. The trial court’s erroneous exclusion of Chenan’s testimony might therefore have affected the verdict. The appellate court accordingly reversed and remanded for a new trial.