Category Archives: Working with Experts

Medical Expert

When Is an Expert Needed to Prove an ADA Disability Claim?

Medical experts often provide evidence that helps injury victims prove their damages. In some litigation, including medical malpractice cases, medical evidence is also needed to prove liability.

Is medical evidence needed to prove a claim under the Americans with Disabilities Act? A decision of the Court of Appeals for the Tenth Circuit explains that the answer depends on the nature of the plaintiff’s alleged disability.

Facts of the Case

Empire Marketing Strategies (EMS) employed Jonella Tesone as a product merchandiser. Her job duties included changing product displays in grocery stores. When it hired Tesone, EMS was aware that she could not lift more than 15 pounds.

EMS gave Tesone a performance review after she stayed an additional night in Colorado to complete a time-consuming project. Tesone did not obtain permission to stay an extra night at the hotel. During the review, Tesone explained that she needed extra time to finish the project because of her lifting limitation.

For the first time, EMS requested documentation of the limitation. Four months later, after repeated requests, Tesone supplied a doctor’s recommendation that her chronic back pain be accommodated by limiting her job duties so that she would not be required to lift more than 15 pounds or to lift anything above her head.

Tesone presented evidence that EMS suddenly began to make subjective complaints about her job performance. It then terminated Tesone’s employment for “consistent violations of company policies.”

Complaints about job performance that only arise after the employee asks the employer to follow the law are inherently suspicious. Tesone argued that the performance concerns were invented as pretexts to mask her employer’s desire to fire her rather than to accommodate her lifting restriction.

The ADA Accommodation Requirement

Under the Americans with Disabilities Act (ADA), employers must provide reasonable accommodations that will allow disabled employees to perform their essential job functions if the employer can do so without undue hardship. Federal court decisions consistently undermined the remedial purpose of the 1990 law until Congress revitalized the ADA in 2008. New legislation was enacted that year that eliminated many of judicial interpretations of the ADA that undercut its effectiveness.

The ADA defines a disability as an impairment of body or mind that substantially limits (or that an employer regards as limiting) a major life activity. Under the current version of the ADA, an individual whose major life activities are significantly limited as compared to the general population has a “substantial” limitation.

Major life activities include such ordinary functions of daily living as standing, walking, sleeping, breathing, seeing, hearing, and working. The impairment of a bodily organ or system is also defined as the impairment of a major life activity.

Many federal judges denied discrimination claims advanced by disabled employees prior to 2008 after concluding that the employees failed to prove that they were disabled. Judges often required employees to prove that their disabilities were severe and long-lasting, notwithstanding the absence of any language in the ADA that limited the ADA’s protections to a small subset of disabled employees.

When Congress amended the ADA in 2008, it made clear that proving the existence of a disability should not be an onerous burden. Courts should instead focus on whether an employer met its legal obligation to accommodate a disabled employee who was capable doing the work with an accommodation.

Failure to Designate Expert

The district court entered a scheduling order that set a deadline for disclosing expert witnesses. Tesone failed to meet that deadline. Counsel for EMS told Tesone that she could not prevail without an expert. A Magistrate Judge expressed that same opinion during a settlement conference.

After the settlement conference, Tesone filed a motion to enlarge the time for naming an expert. She also moved to amend her complaint to allege that she was discriminated against because of a perceived disability. Since an employer’s perception that an employee is disabled does not require proof that the employee is actually disabled, no expert testimony would be needed to support that claim.

The district court decided that Tesone waited too long to file her motions. The court concluded that nothing prevented Tesone from complying with the scheduling order’s deadlines for amending the complaint and designating an expert witness. Since Tesone failed to act with reasonable diligence, she could not demonstrate good cause to extend the deadlines.

The district court next concluded that expert testimony is necessary to establish the existence of a disability. Since Tesone could not produce that testimony, the court granted summary judgment in favor of EMS. Tesone appealed.

When Is Expert Testimony Required to Prove an ADA Claim?

The court of appeals agreed with the district court that Tesone failed to show good cause to amend her complaint to allege claims of discrimination on the basis of perceived disability or retaliation. While complaints must generally allege facts rather than legal theories, the case is a reminder to lawyers that they may be out of luck if a complaint fails to put a defendant on notice as to each legal theory the plaintiff might pursue.

The court of appeals disagreed, however, that summary judgment necessarily followed from the failure to name an expert. It should be self-evident that juries do not always need a medical opinion to prove that a plaintiff is disabled. A plaintiff who is confined to a wheelchair, for example, can easily establish the existence of a disability through his or her own testimony.

Expert testimony may nevertheless be helpful in establishing the existence of a disability. The regulations interpreting the ADA make clear that parties are not prohibited from relying on expert evidence to prove their claims or defenses. However, the regulations also state that a comparison of a plaintiff’s ability to perform a major life activity to the general population’s ability to perform the same activity “usually will not require the presentation of scientific, medical, or statistical analysis.”

In some cases, expert evidence may be critical. It is doubtful, for example, that most people are capable of self-diagnosing a psychological disorder. The existence of many physical disorders, on the other hand, produce obvious disabling symptoms.

The symptoms of a disabling health condition may be sufficiently recognizable to make it unnecessary to use an expert to prove that they substantially limit the performance of major life activities. Notably, the ADA does not require an employee to prove the cause of a disability (which may require a medical diagnosis), but only that the disability exists and that it impairs a major life activity.

The ultimate question is whether a health condition would be so outside the realm of a typical juror’s experience that an expert diagnosis is required to prove its existence. The court of appeals cited the example of a rare condition that causes the death of bone tissue because of a deficient blood supply. Since most jurors would not be familiar with that condition, expert evidence is needed to prove that it meets the definition of a disability.

Appellate Court’s Ruling

The court of appeals recognized that some heath conditions can be readily understood on the basis of a lay juror’s own observations and experience. As an example, the court cited a knee injury that impairs an injury victim’s ability to walk normally. The court cited other cases addressing arm, neck, and back injuries. A victim’s own testimony, describing how those injuries limit the victim’s activities, is often sufficient to prove the injuries are disabling. All of those conditions are familiar to lay jurors, many of whom will have experienced (or at least observed) similar impairments, even if the symptoms that the jurors experienced were less severe than the plaintiff’s.

Tesone’s condition — back pain that is exacerbated by lifting — is neither rare nor of a character that can only be understood by a medical professional. Lay jurors are capable of understanding that severe back pain can be disabling. Tesone should therefore have been allowed to prove she is disabled by testifying about the ways in which her back pain limited her major life activities.

Since nothing in the ADA requires expert testimony to prove the existence of a disability, the district court committed legal error by holding that expert testimony is always necessary to establish a plaintiff’s case. The court did not decide whether Tesone’s own testimony was sufficient to prove her disability but remanded the case to the district court to decide that question using the correct legal standard.

Lessons Learned

Back pain might or might not be disabling, depending on its severity. The case will likely turn upon whether Tesone described the limitations she experienced in sufficient detail to permit a jury to conclude that her pain substantially limits the major life activity of lifting.

Her case would have been stronger, and this controversy could have been avoided, if Tesone had submitted admissible expert evidence of her back condition and the lifting restriction that it caused. The case stands as a reminder that even when expert testimony is not necessarily required, experts can help parties make a more convincing case.


USA legal system conceptual series - Illinois

Court Sanctions Lawyer for Bad Faith Accusations Against Expert Witness

A recent decision by a federal district court judge in Illinois illustrates the importance of maintaining civility in court proceedings, particularly when making statements about expert witnesses. The court sanctioned a lawyer for making a series of unsupported accusations about an expert in a bad faith attempt to intimidate the witness.

Odometer Rollback Lawsuit

Donald Twyman bought a used SUV from S&M Auto Brokers in Illinois. When Twyman took the SUV to a dealer because of poor handling, he discovered that the SUV had been rebuilt after an accident. The dealer’s records also revealed a discrepancy between the mileage that had been recorded by the service department and the mileage shown on the odometer.

Most used cars are sold “as is,” placing the burden on purchasers to discover defects, but Twyman claimed that S&M had violated an Illinois law prohibiting deceptive practices by failing to disclose that the SUV had been in an accident. In addition, Twyman sued S&M for rolling back the vehicle’s odometer, in violation of a federal law that prohibits tampering with odometers.

The lawsuit was filed in federal court. The judge set a short discovery period to control litigation costs in light of her assumption that the case wasn’t worth very much.

Personal Attacks Leveled at Plaintiff’s Lawyer

The lawyers sniped at each other as the litigation progressed. In particular, S&M’s lawyer, Joel Brodsky, accused Twyman’s lawyer of being a “recidivist” litigator because he had filed three other lawsuits bringing the same kind of claim. Given that it is the job of plaintiffs’ lawyers to file lawsuits, it is difficult to understand why Brodsky thought his complaint had merit. The judge told Brodsky to calm down.

The court noted that the lawyers were filing motions without making a serious attempt to resolve their concerns and admonished them to talk to each other as local court rules required. Talks did not go well. Brodsky sent emails to the plaintiff’s lawyer calling him an “extortionist” and an “embarrassment to the profession.”

Brodsky later asked for a protective order against certain discovery requests because “Plaintiff does not consider a lawsuit as a way to redress a legitimate grievance by uncovering the truth and applying the law, but instead considers it to be a profit making, fee generating, enterprise for attorneys.” That lawyers earn fees by bringing lawsuits should hardly come as a surprise to anyone.

The judge clearly became frustrated with Brodsky, noting that more than 150 docket entries were attributable to Brodsky’s conduct of the litigation. The judge repeatedly admonished Brodsky to be civil, particularly when he accused the plaintiff’s lawyer of lying, extortion, and attempting to create a false record. Brodsky crossed a line, however, when he attacked the plaintiff’s expert witness.

Unfair Attacks on Expert Witness

The plaintiff’s lawyer retained Donald Szczesniak as an expert witness. Szczesniak operates an auto repair business. Brodsky asked the court to strike Szczesniak’s expert report, claiming that Szczesniak had fabricated an expert report in an unrelated matter. He later accused Szczesniak of damaging another person’s fence and pointed to a number of civil judgments entered against Szczesniak’s business.

Brodsky also accused Szczesniak of sending him an anonymous fax that included a newspaper article. Brodsky claimed that Szczesniak was trying to intimidate him to prevent further investigation of his background. Brodsky asked the court to make an immediate referral to the U.S. Attorney’s Office for a criminal investigation of Szczesniak, who Brodsky alleged had committed the crime of “indirect criminal contempt.”

Declining to act as Brodsky’s bully, the court denied those motions. Brodsky then asked the court to impose sanctions upon Szczesniak and upon plaintiff’s attorney for retaining him. None of Brodsky’s motions made reference to Daubert standards or alleged any legally justifiable reason for barring Szczesniak’s testimony or sanctioning his alleged out-of-court conduct.

Szczesniak denied all the accusations of wrongdoing and the plaintiff’s lawyer presented evidence to refute them. Brodsky responded by calling Szczesniak a liar and perjurer. Brodsky even accused Szczesniak of submitting a fabricated declaration from a nonexistent son.

The judge decided that enough was enough. She required the parties to attend the next hearing in person and discovered that Brodsky’s client would have been happy to settle the case but that Brodsky had never conveyed the plaintiff’s settlement offer to him. When the judge announced that she was considering sanctions against Brodsky, he withdrew from his representation, retained counsel, and moved to withdraw certain documents that he had filed.

Sanctions for Unwarranted Attacks on Expert

Brodsky apologized during the sanctions hearing and acknowledged that he went “too far.” The court’s decision suggests that Brodsky (who was “preoccupied” with his cellphone and sighed audibly during the sanctions hearing) was not entirely sincere or remorseful.

The court noted that Brodsky had been warned several times not to level nasty and unsupported accusations against plaintiff’s counsel or his expert witness. The court credited Szczesniak’s testimony that he was distressed by Brodsky’s accusations and was concerned that damage to his reputation would harm his credibility as an expert witness in odometer tampering cases.

The court noted that the legal system “provides ample opportunities for litigants to vociferously challenge the testimony of expert witnesses.” Rather than filing a Daubert motion, however, Brodsky “resorted to inflammatory, unsubstantiated, and false allegations against Szczesniak.”

The court found that “Brodsky’s allegations against Szczesniak were made “in bad faith, in an attempt to improperly impugn Szczesniak’s reputation before the Court, to have the Court potentially disqualify him as an expert, or at least intimidate Szczesniak to the extent he would not testify.” That conduct went beyond aggressive advocacy because it was not based on a good faith understanding of the law and the facts.

While withdrawing some of the inflammatory documents may have shielded Brodsky from Rule 11 sanctions, the court concluded that it had inherent authority to sanction Brodsky without relying on Rule 11. The court decided that leaving Brodsky unpunished for his bad faith conduct would undermine the integrity of the court’s proceedings.

The court noted that Brodsky had behaved badly in state court multiple times without being sanctioned. To put a stop to similar misconduct in federal court, Brodsky was ordered to pay a fine of $50,000. The court ordered him to attend an ethics course and an anger management course, and referred Brodsky to the Executive Committee to determine whether Brodsky should be barred from practicing in the Northern District of Illinois.

The lesson to learn is that advocacy can be aggressive but never abusive. Unsupported accusations and personal attacks upon expert witnesses are counterproductive and may lead to sanctions against attorneys who resort to those tactics.


The Psychological Toll of Being an Expert Witness

Experts witnesses, particularly in the field of mental health, may find themselves traumatized by their work. Maintaining objectivity and avoiding emotional turmoil can be a challenge for experts, both in and out of the courtroom. Withstanding cross-examination also takes its own toll on experts.

Remaining Unbroken

Megan Berthold, now a professor at the University of Connecticut, conducted psychological evaluations of torture victims when she was working as a clinical social worker. She testified as an expert in immigration proceedings when torture victims claimed asylum in the United States.

An article in UConn Today reports that an immigration judge who read Berthold’s expert report on the psychological impact of torture on an asylum seeker asked Berthold how she was able to do her job without breaking. Berthold told the judge that she balanced the stories she heard from survivors about trauma and harm against the strength she saw in people who overcame torture and were on a path of healing.

The immigration judge may have been unable to internalize her lesson. A short time after he asked Berthold about her coping skills, he resigned.

Coping with Secondhand Trauma

Berthold now teaches experts in the legal system how to overcome the secondhand trauma that can be caused by working with victims of persecution. Her research has focused on the concepts of “vicarious trauma and vicarious resilience, which affect those providing assistance to survivors of torture and other traumas.”

Vicarious trauma refers to the emotional impact of dealing with traumatized individuals. Mental health experts are at risk of experiencing shock, anxiety, and other adverse reactions when they are steadily exposed to individuals who have undergone traumatic experiences. The concept is also known as “secondary traumatic stress” and “traumatic countertransference.”

Vicarious resilience, on the other hand, occurs when trauma therapists draw upon the strength of trauma survivors. Stories told by trauma victims who overcome adversity can sustain and empower experts to deal constructively with their adverse reactions to the victim’s experiences.

Coping with the Trauma of Testifying

While expert witnesses can be traumatized by working with trauma victims, the mere fact of testifying can be an anxiety-provoking event. Joel Dvoskin and Laura Guy write that testifying as an expert can be a “harrowing and anxiety-laden experience” for several reasons, including:

  • fear of being embarrassed during cross-examination,
  • fear of unfair accusations of unethical conduct, and
  • fear of harsh criticism by attorneys and judges.

Dvoskin and Guy suggest that experts will be able to set aside those fears if they focus on giving clear and honest answers to questions while remembering that “it’s not about you.”

According to Dvoskin and Guy, the experts who have reason to fear are testifying for the wrong reasons. Experts who are embarrassed or treated harshly on the witness stand have usually given in to the temptation to act as an advocate and not as an objective expert. Their testimony is attributable “to narcissistic needs, including the need to be praised, to make money, to be right, to win.”

The need to win tempts expert witnesses to embellish their testimony to make it more helpful to the party that is paying for their services. The need to be admired tempts experts to claim credentials they haven’t earned. The need to make money tempts experts to say what the client wants to hear.

All of that can be avoided if experts “think of themselves as evidence.” An expert’s job is not to win the case. That’s the lawyer’s job. An expert’s job is to answer questions truthfully, based on the expert’s knowledge, experience, and analysis of the facts.

Tips for Expert Witnesses

Dvoskin and Guy offer good advice for potential expert witnesses who want to minimize the potential trauma of testifying. First, make sure you will be able to testify credibly. An expert who cannot be objective or who lacks “an adequate command of their field of inquiry” will not do well on cross-examination. Don’t be afraid to turn down an offer to testify if you don’t believe you are equipped to give a credible, informed opinion.

Second, write an expert report that demonstrates your credibility. That means acknowledging limitations in your knowledge, identifying and addressing any studies that contradict the studies you rely upon, and assessing alternative opinions, explaining why your opinion is the best “fit” with the facts as you understand them (or with the facts you have been asked to assume the evidence will prove).

Third, follow some simple rules while testifying:

  • Tell the truth, whether it helps or hurts your client
  • Don’t give an answer unless you are confident that the answer is correct
  • Don’t be afraid to say “I don’t know” if that is the most truthful answer to a question
  • If your answer is contingent on certain facts, always make those contingencies clear
  • Identify limitations in your methodology or analysis; don’t wait for them to be exposed on cross-examination
  • “Show your work” by explaining your opinions rather than stating them
  • Don’t hide the fact that you’re being paid and don’t feel bad about it
  • Make clear that your opinions are not just your own, but are built on solid research and methodologies that are accepted by other experts
  • View your role as educating the jury; speak in simple language without being condescending or talking down to your audience
  • Avoid sarcasm or attempts at humor (unless the humor is self-effacing)
  • Make eye contact with jurors to give them an opportunity to evaluate your trustworthiness
  • If a lawyer yells at you or belittles you, don’t take it personally and don’t lose your temper (that’s what the lawyer wants you to do)
  • Listen carefully to questions and, if necessary, clarify the question before you try to answer it

Dvoskin and Guy conclude with this simple advice:

[T]he most successful, respected, and admired forensic experts are those who understand their role in context. They realize that trials are not about them, and strive not to win but to explain their opinion as clearly as possible. While this stance does not feel quite so exhilarating as being the star witness, it allows one to practice successfully, over time, in a manner that is as lucrative as it is ethical.

Following that simple advice will make it easier for experts to cope with the stress and anxiety that naturally accompanies giving expert testimony.


Choosing the Right Expert

Writing for the New York Law Journal, attorneys Michael N. Rader and Jason W. Balich offer sound advice for selecting and working with expert witnesses in patent cases. Much of the wisdom they impart provides useful guidance when choosing an expert in any field, not just in patent litigation.

Start Your Expert Search Immediately

Sometimes a single expert in a field stands out. A proven track record of testifying persuasively or unique knowledge of a field might make that expert the “go to” choice for the legal claim at issue. In some cases, both parties might want to hire that expert. The first one to contact the expert may walk away with the prize — the expert’s testimony. And even if the expert isn’t used, it may be possible to take the expert off the market by making a quick hire.

Rader and Balich recommend starting the search for an expert right away. Plaintiffs may want to retain an expert even before they file suit. Defendants should search for an expert as soon as the complaint is served.

Find the Right Expert

The strongest expert witness is likely to be one who is familiar with the specific subject matter at issue. In a case involving patents, the best expert might be one who has worked with the specific technology that is the subject of the patent dispute. In a product liability case involving product failure, the best expert might be one who has designed similar products or who has worked with the materials from which the product was made.

One way to find relevant experts is to review professional literature. An expert who has written about the technology that is involved in the dispute may deserve serious consideration. If that person is unavailable, he or she may have suggestions about others in the field who might be willing to provide expert opinions.

Another way to find an expert is to look for cases that have addressed similar issues. Examine the testimony given by the experts in those cases. If their reports are available, review them to determine whether the expert was thorough and communicated facts, methodologies, and conclusions clearly.

Of course, a good starting place to find expert witnesses is always ExpertPages.

Review the Expert’s Background

Academic credentials are important, but Rader and Balich suggest that equal or more weight be given to practical experience in the field. An expert with “hands on” knowledge may be in a better position to convey information to the jury than an expert whose knowledge is largely theoretical.

Rader and Balich also advise lawyers to become familiar with the testimony the expert has given in prior cases. An expert who renders opinions that conflict with opinions the expert provided in other cases is more of a liability than an asset. It is also important to learn whether the expert has been subjected to professional or judicial criticism before making a commitment to retain the expert.

An expert who has worked with or for the adverse party in the past may have a conflict of interest. It is important to determine whether conflicts exist before disclosing information that might have strategic value if it is disclosed to adverse parties.

Explore the Expert’s Work Ethic

Every lawyer who regularly employs expert witnesses has encountered a disappointing expert who hasn’t done his or her homework. The lucky lawyers are those who find a disappointing expert testifying for the opposing party.

Nothing hurts an expert’s credibility more than admitting a lack of familiarity with the facts of the case. When an expert is asked “Did you review Mr. Smith’s deposition?” and the answer is, “I glanced at it,” jurors wonder why the expert bothered to take the witness stand.

Rader and Balich talk about finding an expert who will “spend the time necessary to master the issues in a case.” When testimony involves complex technical matters, the expert may need to devote many hours to studying the facts. When an expert must perform calculations or conduct experiments before arriving at a conclusion, it is important to find an expert who has time to devote to those tasks.

Consider Multiple Experts

If the litigation budget allows hiring more than one expert, it may be sensible to do so. Of course, multiple experts are necessary when different expert opinions are required for different aspects of the case (a liability expert and a damages expert, for instance), but even if multiple experts are focused on the same general subject matter, dividing the work so that each expert can focus on a specific question might be the most productive approach to a complex case.

Expert Testimony in the Curtis Lovelace Murder Trial

Perils of Hiring the Wrong Expert

Finding the right expert to testify on a party’s behalf is often the key to success in bringing or defending against a legal claim. That’s particularly true when the law requires expert testimony to prove the claim. Medical malpractice, for example, can usually be established only when an expert testifies that a health care provider failed to provide the appropriate standard of care.

Some states have narrowed the range of experts who are allowed to testify in medical malpractice cases, regardless of their qualifications. Those laws make it all the more essential to be certain that an expert has the credentials that state law requires. Here are two recent examples.

Rutyna v. Schweers

Rutyna v. Schweers is a non-precedential decision of a three-judge panel of the Pennsylvania Superior Court. Aldis Rutyna and his wife sued William Schweers, an attorney, for legal malpractice. They alleged that Schweers was negligent in bringing a medical malpractice claim against a physician who allegedly injured Rutyna during back surgery. The medical malpractice case was dismissed after Schweers failed to file a certificate of merit in accordance with Pennsylvania law.

Pennsylvania law required the Rutynas to prove that they would have prevailed in the medical malpractice lawsuit in the absence of Schweers’ negligence. Schweers contended that he had an expert review the case, that the expert concluded the surgeon was not negligent, and that Schweers accordingly decided he would be unable to obtain a certificate of merit. The Rutynas countered with the expert opinion of an attorney who concluded that contacting only one expert in a medical malpractice case is insufficient to meet the standard of care required of medical malpractice attorneys.

Schweers then took the position that the Rutynas could not prove the surgeon committed malpractice because no expert could credibly testify that the surgeon failed to adhere to the appropriate standard of care during surgery. The Rutynas offered the expert opinion of Dr. Mark Foster to prove the surgeon’s medical negligence.

Unfortunately for the Rutynas, Pennsylvania law prohibits an expert witness from testifying against a physician in a malpractice case unless the expert practices in the same sub-specialty as the physician who is alleged to be negligent. Dr. Foster no longer practices as an orthopedic surgeon and thus was not qualified under Pennsylvania law to testify as an expert in the Rutynas’ medical malpractice case.

After the trial court ruled that Dr. Foster was not qualified to testify, Rutyna asked for a continuance so he could find another expert witness. The trial court denied that motion and dismissed the case.

On appeal, the Superior Court concluded that sufficient evidence supported the trial court’s view that Dr. Foster no longer practiced as an orthopedic surgeon and thus was not qualified under Pennsylvania law to testify about the standard of care an orthopedic surgeon should follow.

The Superior Court also concluded that the trial court did not abuse its discretion in denying a continuance. The fact that Dr. Foster did not practice in the same sub-specialty was a fact that the Rutynas’ attorney should have known, and it was not unreasonable for the judge to decide that a very old case should not be further delayed under those circumstances.

Mendoza v. Inspira Medical Center

In a similar case, a federal judge in New Jersey recently granted summary judgment in favor of medical malpractice defendants because the plaintiff’s expert witness was deemed to be unqualified. Gladys Mendoza alleged that the death of her husband in February 2015 was caused by negligent kidney treatment in March 2014. Mendoza sued Dr. Naeem Amin, Kidney and Hypertension Specialists PA, and Inspira Medical Centers Inc.

New Jersey’s Affidavit of Merit Statute requires an expert witness who testifies as to the applicable standard of care in a medical malpractice case to “have specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, as the party against whom or on whose behalf the testimony is offered.”

Mendoza offered the testimony of Dr. Bruce D. Charash who, like Dr. Amin, was board certified in internal medicine. However, Dr. Amin was certified in the subspecialty of nephrology while Dr. Charash was certified in the subspecialty of cardiology.

It may well be that Dr. Charash had sufficient training and experience to offer meaningful testimony about the standard of care that a nephrologist should provide. The court ruling makes clear that under New Jersey law, actual expertise does not matter if the expert witness is not certified in the same subspecialty as the defendant. The judge ruled:

Allowing a cardiologist to testify that delaying or denying the decedent’s dialysis treatment departed from the standard of care expected of nephrologists would effectively undo the kind-for-kind requirement in contravention of the Affidavit of Merit statute and the New Jersey Supreme Court’s interpretation of it.

The court noted that the New Jersey statute does not apply when claims are within the common knowledge of the jury, but disagreed with Mendoza’s argument that alleged understaffing at Inspira was an issue about which the jury could draw conclusions without the guidance of an expert.

Since Mendoza did not provide an affidavit of merit from a physician who practiced in the same subspecialty as the physician she sued, the court dismissed her claim.

Lessons Learned

Health care providers and their insurers argue that laws like those in Pennsylvania and New Jersey are necessary to protect doctors from lawsuits that are supported by the opinions of experts who are not qualified to assert those opinions. Lawyers who represent injury victims argue that the statutes shield health care providers from the consequences of their negligence by barring experts who may be well qualified to offer an opinion about the standard of care, even if they were not practicing (or not practicing in the defendant’s subspecialty) at the time the alleged malpractice occurred.

The lesson to be learned is that medical malpractice attorneys in states that limit the range of qualified experts who can give admissible testimony must undertake a diligent search for an expert who has the necessary qualifications.

Malpractice attorneys should also be aware that, under a statute like New Jersey’s, they can ask the court to waive the statutory requirement if they make a “good faith effort … to identify an expert in the same specialty or subspecialty” and, having failed to find one, are offering an expert who “possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine.” Of course, whether a court will be satisfied with the attorney’s “good faith effort” is difficult to predict, so locating an expert who has the statutory qualifications is always a better option.

Florida Computer Expert Arrested for Lying About Credentials Under Oath

Florida Computer Expert Arrested for Lying About Credentials Under Oath

While awaiting trial on more than a dozen felonies involving sexual abuse of a child, Jason Eugene Daniels got a tip from his cellmate about an expert witness who could assist his defense. The expert, Chester Kwitowski, had testified as a computer forensics expert in other Polk County, Florida cases.

Daniels passed the expert’s name to his defense attorney, who asked Kwitowski for his resume. Impressed with Kwitowksi’s credentials, the attorney decided to engage his services. That turned out to be an unfortunate decision, particularly for Kwitowski. After he testified, Kwitowski was arrested for perjury. Even more unfortunate is the opportunity Kwitowski gave the Polk County Sheriff to criticize defense experts.

Kwitowski’s Arrest

The Tampa Bay Times reports that a sheriff’s detective who was serving as a prosecution expert in Daniels’ case became suspicious about “inconsistencies in Kwitowski’s qualifications.” The Sheriff’s Office began an investigation. Kwitowski was arrested after detectives discovered that some of his credentials were falsified.

Kwitowski was charged with committing perjury when he testified about his education, his professional certifications, and his military service. Kwitowski falsely claimed to have a master’s degree in computer science and engineering and to have multiple computer forensics certifications. He also gave false testimony about having a “Top Secret clearance” and working on “sensitive government projects.”

An investigation by the Tampa Bay Times also cast doubt on Kwitowski’s claim that he had “information technology and systems support contracts” with two government offices. Those offices had no record of contracting with Kwitowski.

Kwitowski said he testified as a computer forensics expert at least fifty times in state and federal courts. The Sheriff’s Office is investigating that claim to determine whether it was exaggerated.

Sheriff Criticizes Defense Experts

An interview that the Polk County Sheriff gave to a news station suggests that the Sheriff’s Office had a grudge against Kwitowski. The Sheriff said, “We call him Chester who defends the molesters.”

The implication is that expert witnesses should not testify for the defense in child pornography or child molestation cases. The Sheriff’s uncharitable attitude is inconsistent with the presumption of innocence and the constitutional right to present a defense.

Experts should not be impugned simply because they testify for one side or the other in a criminal prosecution. Experts are advocates for the truth, not for a particular party.

The Importance of Defense Experts

Computer forensics experts play a crucial role in assuring that juries understand the evidence against individuals who are accused of crime. Sloppy work by a prosecution expert, left unchallenged, can lead to a wrongful conviction.

Julie Amero is a case in point. While working as a substitute teacher, Amero used a classroom computer to check her email. The computer began to display pornographic images in a series of popups. As quickly as Amero closed one, another would take its place.

Students in the classroom saw the images. She reported it to school officials, who told her not to worry. Concerned parents, however, pressured the school to report Amero to law enforcement authorities. Amero was accused of surfing pornographic websites in the classroom. The accusations led to her arrest for causing a risk of injury to a minor.

The prosecution called a computer forensics expert who testified that the computer could not have displayed pornographic popups, as Amero claimed. The defense did not call an expert and Amero was convicted.

If Amero’s defense attorney had hired an expert, it is likely the case would have been dropped. After her conviction, forensic computer experts volunteered to help her. They explained that her version of events was consistent with a malicious spyware program. Their assistance shamed the prosecution into sending the computer’s hard drive to the state police forensics laboratory. An analysis found evidence that supported Amero and that contradicted the state’s expert witness.

Based on the new expert evidence, a judge overturned Amero’s conviction. The judge also found that the prosecution’s computer forensics expert had given false testimony. But for the willingness of experts to step in and remedy an injustice, Amero’s wrongful convictions would still be haunting her.

Lessons Learned

Jack Townley, the president of the Florida chapter of the Forensic Expert Witness Association, told the Tampa Bay Times that once someone has testified as an expert, lawyers tend to assume that the expert’s credentials have been verified. That isn’t always the case, as Kwitowski’s history demonstrates.

It never hurts to ask an expert to verify claims made on a resume. Producing a copy of a diploma or of certifications shouldn’t be burdensome for most experts, and a failure to do so should cause lawyers to raise an eyebrow and ask whether the expert might be hiding something.

Only a small percentage of expert witnesses fabricate their resumes, which might lull lawyers into a false sense of security. As Townley notes, the more time lawyers spend verifying credentials, the less time they have available to prepare for court. At the same time, an attorney who fails to check credentials runs the risk that a lawyer on the other side of the case will do so. It’s better to learn about an expert’s problematic resume before making a decision to put the expert on the witness stand than to watch the expert’s credibility be destroyed on cross-examination.

A courtroom

How Not to Be an Expert Witness

Michael West is a textbook example of the kind of expert witness most lawyers avoid. The controversial bite mark expert is, in the words of Randy Balko, “brash, prickly, and prone to fits of braggadocio on the witness stand,” as well as “belligerent, profane, and combative.” Those are not qualities that endear a witness to the jury.

As ExpertPages pointed out last year, West has acknowledged that bite mark analysis is, by its nature, unreliable. Yet Balko reports that West, while disclaiming bite mark analysis in general, still defends his own work.

Expert Witness Credibility

Balko reports that West claimed to have invented new techniques of bite mark analysis “that he and only he could perform.” That claim should have cast doubt on his credibility, since the ability of one scientist to replicate the results obtained by another scientist is a hallmark of credible scientific research. Yet prosecutors continued to present West’s work to jurors as the gold standard in bite mark analysis.

Credible expert witnesses generally specialize in a limited number of related fields. Experts who claim to have a specialized understanding of several unrelated areas of science risk being viewed as experts in the art of getting hired to testify as often as possible, rather than experts in a particular field.

West broke that rule by testifying as “an expert witness in a variety of forensic specialties, including a few he claimed to have invented.” According to Balko, West testified as an expert in trace metals, wound patterns, gunshot residue, gunshot reconstruction, blood spatter, tool marks, fingernail scratches, and liquid splash patterns. He also claimed to be an expert in video enhancement and crime scene investigation.

Credible experts are typically members in good standing of relevant professional organizations. West was investigated by three professional organizations and either resigned, or was expelled, from each of them. He attributed those investigations to a conspiracy to destroy the science of bite mark analysis.

Asked about two wrongful convictions of innocent defendants that were based at least in part on his testimony, West refused to acknowledge that the defendants were innocent. Despite the fact that DNA evidence and a confession by the real killer exonerated the defendants, West continued to insist that his bite mark analysis proved the guilt of the defendants. Both were released from prison after the State of Mississippi agreed that they were innocent.

Credible experts admit when they are wrong. They are not afraid to address potential weaknesses in their conclusions. They take note of new developments in science that might invalidate their positions. Experts who refuse to acknowledge the possibility of error and who defend positions that are no longer defensible impair their value to lawyers as expert witnesses.

Expert Witness Demeanor

Balko quotes extensively from testimony that West gave in a deposition. The case involved a man who was convicted of murder, in part on the strength of West’s bite mark testimony. New DNA evidence revealed that the convicted defendant was almost certainly not the murderer.

West was consistently arrogant and combative during the deposition. He insisted that he stood by his previous testimony, although he claimed he did not recall the testimony and refused to review it. He referred to the attorney who was questioning him as a sociopath and said the attorney would need “five years of improvement” before he would rise to the level of “jerk.” He also described the attorney in profane terms.

West complained that the defense attorney was picking on him. He complained that he wasn’t being paid for his deposition testimony. He testified that his involvement in the case ended years earlier, that he was not responsible for the jury verdict, and that he did not care if they put the defendant to death.

West referred to other experts in bite mark analysis as idiots and fools, among other contemptuous descriptions. Disparaging other members of a profession by making personal attacks only serves to make an expert look weak and small-minded.

Effective experts are cordial, humble, and sensitive to the impact that their testimony might have on parties to litigation. Through their testimony, they reveal that they are servants of the truth, not advocates for any party who is willing to pay for their time. Expert witnesses can learn from Michael West by viewing him as an example of an expert who did everything wrong.

Scientist examining plants in petri dish

Plants Cannot Testify, But Forensic Botanists Can

Plants cannot testify, but they give up their secrets to forensic botanists who serve as expert witnesses. Forensic botanists help the police solve crimes. Then they help prosecutors or defense attorneys explain plant science to juries.

The Beginning of Forensic Botany

According to a recent article in Atlas Obscura, the first forensic botanist was Arthur Koehler. An authority on trees and wood who worked at the United States Forest Products Laboratory, Koehler got his start as an expert witness in cases involving wood that was used to construct homemade bombs and weapons.

Koehler went on to serve as the key witness in the 1935 trial of Bruno Hauptmann for kidnapping the baby of Charles and Anne Lindbergh. Based on a painstaking examination of a homemade ladder found outside the Lindbergh home, Koehler identified a mill in the Bronx as the source of the boards from which the ladder was made. Hauptmann had been employed at a lumber yard connected to the mill and had purchased wood stock that was consistent with the homemade ladder. Koehler provided the strongest evidence against Koehler when he testified that wood used to make a rail on the ladder exactly matched a board that had been removed from the attic in Hauptmann’s apartment. Without Koehler’s detailed analysis, Hauptman would probably not have been arrested, much less convicted.

It is interesting to read Koehler’s testimony, as well as defense counsel’s objection that Koehler’s study of wood “is not a science that has been recognized by the courts … this is merely a man who has had a lot of experience in examining trees.” Even in the modern Daubert era, “a lot of experience” coupled with a sound scientific analysis can provide the foundation for an expert opinion. The objection was overruled, as it would be today.

Forensic Botany Today

Modern forensic botanists are following Arthur Koehler’s example. The highly-publicized Casey Anthony murder trial featured a wide range of expert witnesses, including forensic pathologists, computer scientists, anthropologists, chemists, entomologists, and a forensic botanist. A key question in the case involved the length of time the 2-year-old victim’s body had been in the woods where it was discovered. The prosecution’s case depended on proof that the body had been there for at least a month. A botanist who examined the vegetation beneath the body testified that the body might only have been covering the vegetation for two weeks. Casey Anthony was acquitted of murder, manslaughter, and all other felony charges.

Two cases involving plant DNA illustrate how forensic botanists can help prosecutors convict the guilty while helping defense attorneys protect the innocent. In Arizona, the body of a hit-and-run victim was found near a group of paloverde trees. One of the trees had been damaged in the collision. A forensic botanist matched DNA from the damaged tree to seed pods found in the bed of a suspect’s car. The expert’s testimony cemented the hit-and-run conviction.

In Florida, a woman’s body was found in a shallow grave beneath an oak tree. Oak leaves were found in a suspect’s car. A forensic botanist compared DNA samples and determined that the leaves in the car could not have come from the tree at the grave site. That work saved the suspect from an unjust conviction.

Pollen and Spores

While DNA is often considered the gold standard in forensic science, pollen and spores (which easily stick to clothing) can also provide reliable evidence that links an individual to a crime scene. According to the Botanical Society of America, pollen and spores “are amazingly diverse.” A particular species may exist only in one specific location. Since they are microscopic, they act as “silent witnesses and even if they were visible, unlike fingerprints, they would be nearly impossible to eliminate from a crime scene.”

The Botanical Society of America laments the failure of most crime scene analysts to recognize the importance of forensic botanists in criminal investigations. While the FBI’s Handbook of Forensic Services discusses wood and cotton fibers, it does not address other kinds plant evidence. Crime scene investigators might notice leaves, but they do not routinely examine clothing for spores or other microscopic plant evidence that could help rule in or rule out criminal suspects. As forensic botanists continue to play an important role as expert witnesses, they may be able to educate police officers and attorneys about the kind of plant evidence that criminal investigations too often overlook.

Choosing the Right Expert Means Asking the Right Questions

Choosing the Right Expert Means Asking the Right Questions

Expert witnesses are often essential to proof of a claim or defense. Some claims, like medical malpractice, will rarely succeed unless they are supported by expert testimony. Proof of damages may depend on the testimony of physicians or economists. Other claims and defenses can be bolstered by credible testimony provided by engineers, forensic scientists, psychologists, and a variety of other experts.

When expert testimony is important to a party’s case, how does a lawyer go about choosing an expert witness? Trial attorney Quentin Brogdon shared his thoughts on the question in a recent issue of Texas Lawyer.

Think About the Kind of Expert You Want

Not every case requires an expert. In small cases, the anticipated recovery may outweigh the cost of retaining an expert. In other cases, lay witnesses can convey facts and juries can form their own opinions about liability and damages without expert guidance. In fact, under the rules that apply in most states, expert testimony is permitted only if it would be helpful. Many judges interpret that rule to mean “more helpful than lay witness testimony alone.”

In many cases, however, expert testimony is vital. In those cases, Brogdon suggests that lawyers consider an expert’s background and examine the expert’s performance in other cases. Any of the following might be red flags that should cause the lawyer to look for a different expert:

  • Difficulties in communicating effectively.
  • Ethical lapses in other cases.
  • A history of professional discipline.
  • A court found the expert to be unqualified.
  • Willingness to testify in many areas of alleged expertise.
  • No history of using expertise as anything other than an expert witness.
  • Overreaching promises about the results the expert will help the lawyer attain.

Some experts are difficult to work with, simply because they overestimate their importance to the case. Experts who bombard a lawyer with emails, unreasonably demand that scheduling orders be changed so they have more time to prepare reports, or second-guess trial strategies might be more trouble than they are worth.

Conversely, experts who communicate well, who are modest, who have a realistic sense of what they can contribute, and who are committed to providing unbiased testimony are likely to win the admiration and respect of juries. Those experts help lawyers win favorable verdicts.

Ask the Right Questions

Brogdon suggests thirteen questions that lawyers should ask during the initial interview with a proposed expert. The questions provide valuable guidance to lawyers, but they also give experts an idea of how to prepare for that interview. Some questions seek information about the expert’s training and experience while others address the issues identified above (such as whether the expert has ever been disciplined or disqualified and whether the expert will be able to meet deadlines established in a scheduling order).

Among the remaining questions, the ones that experts should think about as they prepare for an interview are:

  • Are you the best expert for this issue? An honest expert should recognize when the issue is beyond the scope of the expert’s realm and should be prepared to explain why an expert with different experience or qualifications might be better suited to address the issue.
  • What testimony, documents, and information will you need to formulate and support your opinions in this case? Experts base opinions on facts. They might find some facts through independent investigation, but other facts will need to be provided by the lawyer. Experts should be able to explain what they need so that the lawyer can make appropriate discovery requests to uncover the facts that will drive the expert’s opinion.
  • Do you have any misgivings about this case? If the expert fears that he or she will not be able to form an honest opinion that supports the party’s claim or defense, the lawyer needs to know that as soon as possible.
  • Have you ever testified for or against the opposing party (or been hired by the lawyers representing that party)? Prior experience with a party or the party’s lawyers might present a conflict of interest. If the expert obtained confidential information in the course of that employment, the adverse party might move to disqualify the expert to assure that the information is not used against the party in the current litigation.
  • Are there other types of experts with whom you typically work in these types of cases? There’s nothing wrong with a team approach to expert testimony since no one person can be an expert on all the issues that might arise. For example, in a products liability case, a product design expert might need to work with a metallurgist to determine whether a product defect was caused by poor design, improper materials, or both. The sooner the team can be identified, the more quickly the lawyer can move forward with the case.

Finally, Brogdan recommends asking “pointed Daubert-based questions.” Even if the Daubert standard does not apply in the jurisdiction where the expert will testify, the lawyer will need to understand how well the expert will withstand cross-examination. The lawyer needs to know about the methodology the expert will use to arrive at an opinion, whether that methodology is widely accepted, whether it has been subjected to peer review, and whether it has a known error rate.

Asking the right questions helps lawyers find the right experts. Anticipating and giving prior thought to those questions helps experts prove their value to attorneys.

Texas flag and gavel

When Expert Opinion Amounts to Speculation

Attorneys do not often serve as expert witnesses, in part because only the judge who presides in a trial is the expert in the law that controls the case. In some cases, however, attorneys do serve as expert witnesses. They do so most often in legal malpractice cases, when they testify about the quality of representation a reasonable lawyer should provide and express opinions as to whether a particular lawyer met that standard.

An attorney was allowed to testify in a Texas malpractice case involving a technology company and its patent lawyers. The Texas Court of Appeals recently ruled, however, that the expert’s testimony was based on speculation rather than facts. Since the testimony failed to establish that the plaintiff was harmed by the alleged malpractice, the plaintiff could not prevail.

Lawsuit Background

Axcess International markets radio frequency identification (RFID) products and services. Axcess improved its technology by creating a “dual-frequency RFID system.” It hired Baker Botts, a Texas law firm, to act as its intellectual property counsel. Baker Botts began filing patent applications for Axcess in 1999. A year later, Axcess’ chief competitor, Savi Technologies, hired Baker Botts to seek patents of its own dual-frequency RFID system.

In 2002, when Savi announced the release of its new product, the Axcess employee who developed its dual-frequency RFID system thought that the Savi product might be using the same technology that Axcess had patented or that pending applications were seeking to patent. Axcess asked its Baker Botts attorney for advice. Axcess alleges that Baker Botts failed to provide the requested assistance.

Axcess then hired a new firm, Haynes and Boone, which wrote to Savi and suggested that Savi might need to license the patents that had been issued to Axcess in order to avoid infringing upon that patent. Savi forwarded the letter to its attorney at Baker Botts, who realized that Baker Botts had represented Axcess in its patent applications. Since a conflict of interest existed, Baker Botts told Savi it would need to have a different firm represent it in the case. Represented by new counsel, Savi advised Axcess that it was not infringing the Axcess patents and therefore would not license them.

A third competitor in the RFID industry, AeroScout, later challenged the validity of Savi’s patents. It based its challenge in part on the claim that Baker Botts should have disclosed Axcess’ patent applications to the patent office when it applied for patents on behalf of Savi.

Apparently in response to AeroScout’s contentions, Axcess hired yet another firm to sue Savi for patent infringement. Savi responded by asking the Patent Office to invalidate Axcess’ patent on the ground that the patented technology had already been patented by others. The Patent Office agreed and Axcess lost its patent. Axcess then sued Baker Botts, alleging that Baker Botts committed legal malpractice and that it breached its fiduciary duty to Axcess during its dual representation of Savi and Axcess.

Expert Evidence on Causation

To win its case, Axcess needed to prove not just that Baker Botts committed malpractice or breached a duty of loyalty, but that its alleged misconduct caused harm. The Texas Court of Appeals held that Axcess introduced no competent evidence to prove that it was harmed by Baker Botts.

Axcess relied on the expert testimony of a patent attorney to establish causation. The attorney testified that if Baker Botts had disclosed to Axcess that it was pursuing patents on behalf of its competitor Salvi, Axcess would have hired counsel that did not have a conflict of interest. The attorney then testified that, with new counsel, Axcess would have initiated an interference proceeding with the Patent Office. Under the law in effect at that time, the party that first invented something (rather than the party that first filed for a patent) was entitled to patent it. An interference proceeding resolves conflicts about entitlements to patents.

The attorney testified that a successful interference proceeding would have caused Salvi’s patent rights to shift to Axcess, placing Salvi’s lucrative government contracts that relied on the patents at risk. That would have placed Axcess in a stronger position to negotiate a resolution with Salvi, which would have benefitted Axcess.

According to the appellate court, the attorney’s expert opinion as to causation rested on (1) his belief that Axcess would have prevailed in its interference proceeding, and (2) his belief that Salvi would have negotiated a resolution to the dispute that would have benefitted Axcess. The court concluded that the attorney’s beliefs amounted to speculation rather than factual evidence.

The court decided that the attorney had no basis for deciding how the patent office would have responded to the interference proceeding. He pointed to no facts, such as similar disputes that the Patent Office had decided, to support his opinion that the Patent Office would have ruled in Axcess’ favor. The fact that the Patent Office ruled in Salvi’s favor with regard to another patent suggested that the attorney’s opinion was not grounded in the specific facts that separate a reasonable conclusion from conjecture.

In addition, the court decided that the attorney’s opinion as to what Salvi would have done if, in fact, Axcess had prevailed in the interference proceeding was entirely speculative. His testimony about what Salvi might have done was, in the court’s view, a conclusory opinion that was not based on fact.

Since Axcess needed expert evidence to prove that it was harmed by the actions of Baker Botts, and since the evidence it produced was based on speculation rather than facts, Axcess was not entitled to prevail. The case is a reminder that no matter how knowledgeable or qualified an expert might be, an expert’s opinion must still be grounded in demonstrable facts before a court will rely upon it.