Category Archives: Working with Experts

New Scam Targets Expert Witnesses

A new scam in the Indiana area is targeting professionals, demanding money for not appearing as expert witnesses in court.

The Scam

Dr. Allison Bush, a physical therapist, says that she got a phone call from someone claiming to be Sergeant Donald Gilmore from the Vanderburgh County Sheriff’s Office. The caller gave her a badge number and told her that she owed more than $8,000. He claimed that the fee was owed because she had failed to show up as an expert witness at trial. Dr. Bush said that she initially believed the caller because this type of thing could happen in her line of work.

Dr. Bush said that the caller kept saying, “Do you understand this? Do you understand this? Okay 10-4.” The caller told her that someone had signed her name on a subpoena that she had been sent in the mail, but if they determined that the signature was a forgery, they would reimburse her.

Dr. Bush said that the caller insisted that she tell him the make and model of her car and that she meet him on Martin Luther King Boulevard to send the money over on a kiosk. The caller would not let Dr. Bush speak with her lawyer and threatened her with jail time if she did not pay the fine.

Dr. Bush said, “He tells me I have a gag order on me, and that the gag order means I can’t talk to anybody, not even my lawyer.” Dr. Bush eventually hung up on the caller and called the Vanderburgh County Sheriff’s Office to check up on the caller’s story.

Verifying the Facts

When Dr. Bush spoke to a detective at the Vanderburgh County Sheriff’s Office, the detective was not surprised. The detective told Dr. Bush that others had reported the same scam. “Was it Donald Gilmore?,” he said, “You’re the third person today to call me today on this scam.” The detective told Dr. Bush that the call was definitely a scam and not to give the caller any information.

Eyewitness News for spoke to a detective at Vanderburgh County Sheriff’s Office. The detective advised that scammers have been running similar scams for a while. Sometimes the scammers will give victims fake names and badge numbers and speak in police lingo in an attempt to seem legitimate. The detective advised that sheriff’s deputies would never call and request payment for a failure to appear in court. This would be something that would be handled by the court.

The Vanderburgh County Sheriff’s Office has even posted a notice on its website warning that scammers have been calling victims and impersonating law enforcement officers. Sheriff Dave Wedding advised, “At no time would a member of the Vanderburgh County Sheriff’s Office call someone to demand payment. If someone says they are from the Sheriff’s Office and asks for money, request their name and badge number and then call the Sheriff’s Office directly.” The website warned not to trust caller ID, because this can easily be spoofed to make a call appear legitimate.

Supreme Court Building in DC

Federal Advisory Committee Considers Significant Change to Rule 702

After the Supreme Court’s Daubert decision, judges may only admit expert testimony that is based on a reasonable methodology. A question that divides federal courts is whether expert opinions should be admitted if a jury could reasonably regard the expert’s methodology as reasonable even if the judge doesn’t. A federal advisory committee may soon propose a change in the rule that resolves that question in favor of judges rather than juries.

A Brief History of Rule 702

Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. The first version of the rule, adopted with the other Rules of Evidence in 1973, allowed qualified witnesses to express expert opinions if their “scientific, technical, or other specialized knowledge” would “assist the trier of fact to understand the evidence or to determine a fact in issue.” The rule made the expert’s qualifications a matter of “knowledge, skill, experience, training, or education.”

The rule said nothing about the judge’s role in determining whether the expert’s opinions were reliable. When Rule 702 was adopted, federal courts followed the Frye standard of admissibility. Using that standard, courts admitted expert opinions based on scientific techniques that were, in the judge’s opinion, “generally accepted” as reliable in the relevant scientific community.

The Frye standard prevented juries from hearing opinions that were based on new or novel theories that, while reliable, were not yet generally accepted. The standard therefore kept juries from hearing reliable evidence that might help them decide the case. At the same time, the Frye standard allowed juries to hear unreliable testimony because courts had been ruling for years that the testimony was “generally accepted” as reliable. The Frye standard was particularly harmful in criminal cases. Unreliable forensic evidence, including bite mark and hair comparisons, has contributed to the widespread phenomenon of wrongful convictions.

In 1993, the Supreme Court purported to cure the deficiencies of the Frye standard by creating a new rule. The Daubert standard (named after the case in which it was adopted) expands the judge’s “gatekeeper” role in deciding whether evidence is sufficiently reliable to be admitted.

The Daubert decision held that Rule 702 was inconsistent with the Frye standard. The Court noted that the drafting history of Rule 702 did not mention Frye and concluded that “a rigid ‘general acceptance’ requirement would be at odds with the ‘liberal thrust’ of the Federal Rules and their ‘general approach of relaxing the traditional barriers to opinion testimony’.”

The Daubert court jettisoned the Frye standard. To fill the void, it created a new rule that, as interpreted by some judges, is incompatible with the “liberal thrust” of Rule 702 and its goal of relaxing barriers to expert testimony.

The Daubert standard broadened the admissibility of expert opinions by making reliability, rather than general acceptance, the dominant consideration in the judge’s analysis. At the same time, the standard narrowed the admissibility of expert opinions by requiring the judge to exclude expert opinions unless they are based on a reliable methodology that the expert applied to adequate facts in a reliable way.

Rule 702 was amended in 2000 to reflect the Daubert holding. The rule was amended again in 2011 to clarify its language. The current rule states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) The testimony is based on sufficient facts or data;

(c) The testimony is the product of reliable principles and methods; and

(d) The expert has reliably applied the principles and methods to the facts of the case.

Criticisms of Current Rule

The Daubert standard as embodied in the current version of Rule 702 has been criticized for its lack of clarity. Some judges view the Daubert standard as expanding the admissibility of expert testimony. Those judges typically leave it to juries to decide whether to accept or reject expert opinions that could reasonably be regarded as reliable. Other judges view their role as determining reliability according to their own strenuous standards without regard to how a jury might view the evidence.

Critics who believe judges too often allow juries to evaluate expert testimony are advocating another change in the rule. Echoing the views of the insurance defense industry, those critics claim that judges are failing to exercise their role as the “gatekeepers” of reliability.

The critics cite anecdotal evidence to create the illusion of a widespread problem. One journalist, relying on his distant memory of an expert witness who gave allegedly inconsistent testimony in two different cases, recently wrote that he “wouldn’t believe a word from an ‘expert’ witness.” The journalist did not seem to appreciate that experts base opinions on facts and that different facts in different cases lead to different opinions.

Unfortunately, the reporter’s perspective advances the strange but popular belief that expert opinions do not reflect objective reality but are simply what the expert chooses to regard as true. That belief is encouraged by political assertions that objective facts are “fake news” and by attacks upon scientific experts who warn the public about dangers (such as global warming) that politicians would prefer to ignore. Attacks on expertise have given birth to a subculture that rejects expert opinions in favor of biased opinions on the ground that an unsupported opinion is just as valid as one based on facts, experience, education, and sound reasoning.

Some critics have suggested that judges should restrict expert testimony in civil cases to prevent “runaway juries” from deciding cases based on emotions rather than facts. Since those critics rarely express concern that juries convict innocent defendants because of emotional reactions to evidence of victimization, the critics seem to be more interested in protecting businesses from the consequences of their carelessness or misconduct than in protecting the right of litigants to have disputed facts resolved by juries.

Critics who complain that judges are inadequate gatekeepers often represent or work for industries that are sued for harming the public with dangerous products or environmental hazards. Those critics tend to brand experts as unscrupulous, but only when they testify for plaintiffs. The critics argue that Daubert was meant to limit expert testimony offered by plaintiffs despite the Supreme Court’s recognition that “relaxing the traditional barriers to opinion testimony” was the very purpose of Rule 702.

Proposed Revision of Rule 702

A recent report from the Advisory Committee suggests a change in Rule 702 that the committee may ask the Supreme Court to adopt. The change results from the concern that “in many cases expert testimony is permitted because the judge thinks that a reasonable jury could find the methods are reliable.” Judges do so because they respect the jury’s role in evaluating evidence.

Judges, after all, are not scientists. There is no reason to believe that judges are any more capable than jurors of understanding and evaluating expert testimony. As a Fourth Circuit decision reminded us in 1934, “Questions of fact are questions for the jury; and they do not become questions for the court merely because their solution may require scientific knowledge or expert opinion.”

Some members of the committee, however, have concluded that only judges have the wisdom to decide whether an expert’s methods are reliable. Their argument that judges should substitute their view of an expert’s reliability for a reasonable view that a jury might take is consistent with a disturbing trend to remove cases from juries — a trend that some scholars decry as reflecting a pro-business bias. Their apparent goal is to change gatekeepers into gate closers.

The report proposes “an amendment to Rule 702 that would clarify that expert testimony should not be permitted unless the judge finds by a preponderance of the evidence that each of the prerequisites are met.” In other words, even if a jury could reasonably find that an expert’s methodology was reliable, a judge who feels otherwise can prevent the jury from making that determination. The proposal represents one more effort to chip away at the American ideal that juries, not judges, should decide cases.

As Judge Kathleen O’Malley recently wrote, the jury is a vital tool in deeply divided country that “protects all of us from overreach by the other two branches of government.” In Judge O’Malley’s view, “If two minds are better than one, nine or twelve are better still.” Judge O’Malley is confident that jurors acting collectively are just as capable as judges of evaluating expert testimony, and that it is arrogant for judges to suggest otherwise.

The advisory committee meets again in June 2021. Whether and when the committee will decide to propose a revision of Rule 702 is unclear. Equally uncertain is whether the Supreme Court would agree that it is wise to undermine expert testimony by giving judges more power to prevent juries from considering expert opinions that jurors might reasonably regard as being based on a reasonable methodology.

Gavel and scales

Guilty Verdict Thrown Out for Expert Testimony That Went Beyond Scope

The Michigan Court of Appeals has thrown out a jury’s guilty verdict and granted a new trial after determining that a doctor’s testimony went beyond the scope of what doctors may testify about in criminal sexual conduct cases.

The Crime

A minor child accused Ryan William Cole, 37, of sexually assaulting her three times in 2014. She claims that she told her mother and other relatives about the first incident, but not the others. Her mother claims that the girl never told her about the abuse and that she had learned about the allegations after a claim was made with Child Protective Services.

The Trial

Prosecutors retained Dr. Lisa Markman to testify as its expert witness. At the time of the trial, Dr. Markman was serving as an assistant professor of pediatrics and the associate medical director of the Child Protection Program at C.S. Mott Children’s Hospital at the University of Michigan in Ann Arbor.

At trial, Dr. Markman testified that she had interviewed and physically examined the girl. Dr. Markman testified that the girl told her that Cole had sexually abused here when she was 5 and 6 years old. She also testified that she did not observe any physical signs of abuse and that she concluded that the girl had been sexually abused solely on the basis of the girl’s account of the alleged incidents.

A Lenawee County Circuit Court jury found Cole guilty of two counts of first-degree criminal sexual conduct involving a person younger than 13. Circuit Judge Margaret M.S. Noe sentenced Cole to 25 to 75 years in prison.

The Court of Appeals

Cole appealed to the Michigan Court of Appeals and it denied his appeal. He appealed to the Michigan Supreme Court, which returned the case to the Court of Appeals to determine whether the prosecution’s expert witness had impermissibly vouched for the credibility of the alleged victim.

Upon review, the Court of Appeals determined that Dr. Markman had impermissibly offered testimony about the credibility of the alleged victim beyond what doctors are allowed to testify about in criminal sexual conduct cases.

Court of Appeals Judges Cynthia Diane Stephens, Deborah A. Servitto, and Anica Letica noted that Michigan Rules of Evidence and two earlier court opinions say that one witness is not permitted to comment on the veracity of another witness’ testimony because credibility matters are to be determined by the jury.

Here, the case “turned on the jury’s assessment of the victim’s credibility because there was no physical evidence, no witnesses to the alleged assaults, no inculpatory statements, and the defendant denied the allegations.” Since Dr. Markman’s opinion was based on the girl’s account of the incidents and her opinion of the girl’s truthfulness, her testimony violated the principle that “an examining physician cannot give an opinion on whether a complainant had been sexually assaulted if the conclusion is nothing more than the doctor’s opinion that the victim had told the truth.”

The Court of Appeals threw out the jury’s guilty verdict and sent the case back to circuit court for a new trial.  Lenawee County was not conducting jury trials during the COVID-19 pandemic; however, its numbers have declined below the threshold for conducting jury trials. Because this case is from 2014, it will be the first trial on the schedule once the county gets the go-ahead from the Michigan State Court Administrative Office.

Fee Agreement

Lawyers Claim that Prosecution Expert Threatened Witnesses

The lawyers who represent one of the Minneapolis police officers charged in the death of George Floyd claim that an outside expert prosecution witness coerced the state medical examiner to change his opinion on what killed Floyd.

George Floyd’s Death

On May 25, 2020, George Floyd, who was a black man in handcuffs, died after Derek Chauvin, a Minneapolis police officer pressed his knee against Floyd’s neck for more than nine minutes  as he said he couldn’t breathe. Chauvin and the other three officers who were present were fired and charged with various crimes in connection with Floyd’s death.

Chauvin has been convicted of second-degree murder, third-degree murder, and second-degree manslaughter.

The three other officers, Thomas Lane, J. Alexander Kueng, and Tou Thao, were charged with aiding and abetting Chauvin.  The trials of the three officers have been pushed back until March 2022.  Judge Peter Cahill cited federal charges against the three officers that trump the state charges. He also said that he wants to put distance between the state trial and the publicity that surrounded Chauvin’s murder trial.

The Claims

Defense attorneys for former Minneapolis police officer Officer Tou Thao have filed court documents claiming that Dr. Roger Mitchell, the former chief medical examiner in Washington, D.C., blackmailed Dr. Andrew Baker, who conducted George Floyd’s autopsy, into changing his opinion.

The court records claim that Dr. Baker originally told prosecutors that his May 26, 2020 autopsy done the day after Floyd died, “revealed no physical evidence suggesting that Mr. Floyd died of asphyxiation. Mr. Floyd did not exhibit signs of petechiae, damage to his airways or thyroid, brain bleeding, bone injuries, or internal bruising.”

The criminal complaint filed against Derek Chauvin three days later “stated that the full report of the ME was pending, but that the preliminary findings ‘revealed no physical findings that support a diagnosis of traumatic asphyxia or strangulation.’”

Thao’s lawyers claim that sometime before June 1, 2020, Dr. Mitchell called Dr. Baker and challenged his findings, telling Mitchell that he didn’t think “neck compression” caused Floyd’s death.

Thao’s lawyers claim that Dr. Mitchell called Dr. Baker back and told him he would publish an op-ed in the Washington Post criticizing Baker.  Dr. Mitchell reportedly told Dr. Baker, “You don’t want to be the medical examiner who tells everyone they didn’t see what they saw. You don’t want to be the smartest person in the room and be wrong.” Thao’s lawyers say Dr. Mitchell told Dr. Baker that “neck compression has to be in the diagnosis.”

Dr. Baker’s autopsy findings were released on June 1, 2020. Neck compression was concluded in the autopsy report.  Thao’s lawyers claim that the autopsy report “was contrary to Dr. Baker’s conclusion before speaking with Dr. Mitchell twice.”

Thao’s lawyers claim that Dr. Mitchell’s conduct violated Minnesota’s laws against coercion. They want the case against Thao to be dismissed.

The prosecutors dispute these claims and stated that they plan to file a motion to rebut them. Given that Dr. Baker testified under oath about his findings in Chauvin’s case and that other doctors agreed with his findings, it seems unlikely that a court would find that outside encouragement to tell the truth constitutes blackmail.

Potential Bias of Expert Witness Does Not Create Exception to Florida’s “Learned Intermediary” Doctrine

After being diagnosed with a pelvic organ prolapse, Charlotte Salinero elected to have an abdominal sacrocolpopexy, a procedure that uses a graft to support the top of the vagina. The surgery was performed by Dr. Jaime Sepulveda in 2012.

While the patient’s own tissue can be used as a graft, it is common to perform the procedure using a synthetic mesh. In 2011, the FDA warned that “serious complications associated with surgical mesh for transvaginal repair of [pelvic organ prolapse] are not rare.”

The warning advised physicians that “it is not clear that transvaginal [pelvic organ prolapse] repair with mesh is more effective than traditional non-mesh repair . . . and it may expose patients to greater risk.” Complications typically arise when the mesh erodes, leading to pain, infection, bleeding, and other health concerns.

Dr. Sepulveda elected to implant Artisyn Y-Mesh, a product made by Ethicon, a subsidiary of Johnson & Johnson. Dr. Sepulveda discussed surgical risks with Salinero but did not disclose or discuss his decision to choose Artisyn Y-Mesh as the material he would use for the graft.

Surgical mesh materials can lead to adhesions that cause organs and tissues to stick together. A few years after her surgery, Salinero developed a rectovaginal vesical fistula, a condition that occurs when the rectum or bladder becomes connected to the vagina.

Dr. Sepulveda removed the implant and separated the adhesion of Salinero’s bladder and rectum. Dr. Sepulveda was able to remove the mesh in one piece, apart from two small segments that he subsequently removed. Salinero continued to experience debilitating complications after the surgery that she attributed to the Artisyn Y-Mesh.

Florida’s Learned Intermediary Defense

Salinero sued Ethicon, alleging that a polypropylene mesh is “biologically incompatible with human tissue and promotes an immune response in a large subset of the population.” Among her other claims, Salinero alleged that the Artisyn Y-Mesh “Instructions for Use” did not adequately warn of the risks associated with the implant.

The lawsuit was filed in a federal court in Florida. The court applied Florida law regarding the duty to warn patients of risks associated with a medical device. Under Florida law, a medical device manufacturer only has a duty to warn the physician who chooses the device, not the patient who receives it. The physician is regarded as a “learned intermediary” between the manufacturer and the patient.

As a learned intermediary, the physician weighs the risks and benefits of a particular medical device when deciding whether to recommend it for the patient’s needs. To bring a successful failure to warn claim against a manufacturer, the patient must prove that the physician would not have chosen the device if the physician had been adequately warned.

The court granted summary judgment in Ethicon’s favor because Dr. Sepulveda testified in a deposition that he was fully apprised of the risks associated with the Artisyn Y-Mesh, that he believed his decision to use the Artisyn Y-Mesh was appropriate even in hindsight, that his implantation of the Artisyn Y-Mesh was the best option, and that he would do it again. That deposition testimony made it impossible for Salerno to establish that Dr. Sepulveda would not have implanted Artisyn Y-Mesh if he had been given any additional information about the risks associated with the product.

Learned Intermediaries Who Act as Expert Witnesses

Salerno appealed. Salerno argued that the “learned intermediary” rule assumes that doctors are objective evaluators of medical evidence who put the interests of their patients ahead of the interests of medical device manufacturers. In their view, Dr. Sepulveda did not qualify as a learned intermediary.

For decades, Dr. Sepulveda has had a financial relationship with Johnson & Johnson, the parent company of Ethicon. In addition to being paid as a consultant on product evaluations and mesh trials, he has served as an expert witness for Johnson & Johnson in more than twenty cases. Over the years, Johnson & Johnson has paid Dr. Sepulveda more than $2 million.

Given that financial relationship, it would be reasonable to question whether Dr. Sepulveda would act as an objective intermediary when deciding whether to recommend a Johnson & Johnson product to a patient. Testifying that he would have recommended a different product if the warning had been adequate might have placed a lucrative income stream at risk.

Given his financial interest, a jury might question Dr. Sepulveda’s credibility when he testified that he received adequate warnings and that he would have performed the procedure using the same mesh if the warning had been more complete. A doctor who is paid millions of dollars by a company might be satisfied with inadequate warnings while a doctor with no financial incentive to support the company might testify differently.

The “learned intermediary” doctrine may work to the disadvantage of patients who retain doctors who worked as expert witnesses for medical device manufacturers. Salerno accordingly argued that a physician who is paid for expert testimony by a company cannot stand as a learned intermediary between the company and an injured patient.

No “Financial Interest” Exception

The Court of Appeals for the Eleventh Circuit affirmed the summary judgment. The federal court noted that Florida courts have not been asked to recognize a “financial bias exception” to the learned intermediary rule. When a state court has not decided a controlling question of state law, federal courts usually try to decide how the state court would decide the issue.

Federal courts in other states have declined to apply the learned intermediary doctrine when there is evidence that the intermediary might be biased. Others require evidence of actual bias. The Eleventh Circuit declined to follow those decisions on the ground that the Florida Supreme Court would probably reject them. The evidence of how the Florida Supreme Court would decide the issue is nevertheless slim.

In a different context, the Florida Supreme Court decided that the learned intermediary defense does not apply when the manufacturer “provides an incentive to the intermediary to withhold the necessary information from the consumer.” In the Eleventh Circuit’s view, paying a doctor to act as an expert witness more than twenty time does not provide an incentive to the doctor to look the other way when warnings about a medical device might be inadequate. A jury might think otherwise.

Regardless of how a jury might view the credibility of a doctor who earsns significant income testifying as an expert for a medical device manufacturer, the court of appeals essentially held that all doctors can be trusted to do what’s right. Since the Florida Supreme Court has not decided the precise issue before the court, the Eleventh Circuit declined to adopt an exception to the learned intermediary doctrine that Florida courts have not adopted.

social media facebook

Expert’s Testimony About Behaviors that Are Common to Chat Room Participants Who Engage in “Age Play” Deemed Inadmissible

The Colorado Court of Appeals relied on a New Yorker cartoon to illustrate the issue it confronted in People v. Battigalli-Ansell. The cartoon features a dog at a keyboard telling another dog, “on the internet, no one knows you’re a dog.”

The internet site Omegle is essentially a chat room. The site connects users randomly and encourages them to engage in anonymous conversation. Users probably won’t chat with a dog, but they might be connected to someone who has created a false persona. The site encourages users to “have fun” and does not require them to disclose their true identity.

David Battigalli-Ansell began chatting with a user who identified herself as “Brooke.” Brooke claimed to be a fourteen-year-old girl. Omegle does not require users to be adults, so it was possible that the user was telling the truth. Battigalli-Ansell is an adult.

Battigalli-Asell and Brooke exchanged sexually suggestive messages. Brooke then sent Battigalli-Asell her telephone number. To confirm that the person to whom he was chatting was actually a female and not a male engaged in role playing, Battigalli-Ansell texted the number and asked Brooke to send him a picture. In response, he received a picture of an 18-year-old woman. Battigalli-Ansell then sent Brooke a picture of his penis.

A Colorado statute makes it illegal to invite, by means of a computer network, “a person whom the actor knows or believes to be under fifteen years of age and at least four years younger than the actor, to . . . observe the actor’s intimate parts.” Battigalli-Asell was charged with violating that law.

At trial, Battigalli-Ansell testified that he assumed Brooke was a role-playing adult. If he actually made that assumption, he was correct. “Brooke” was a part played by an adult male law enforcement officer. The picture that “Brooke” sent Battigalli-Ansell was a picture of an adult intern. At no time did Battigalli-Ansell communicate with a 14-year-old.

The statute, however, makes it unlawful to send an intimate picture by text or internet message if the sender “believes” the recipient to be under the age of 15. The prosecution contended, and the jury agreed, that Battigalli-Ansell believed Brooke was a 14-year-old girl based on the law enforcement officer’s false representations about his true identity.

Exclusion of Expert Testimony

The question of what Battigalli-Ansell believed is difficult to answer. Nobody can read minds. The jury knew that Battigalli-Ansell was told that Brooke was 14, but it also knew that Battigalli-Ansell received a photo of an 18-year-old that purported to be a photo of Brooke. It is not beyond the realm of possibility that Battigalli-Ansell believed he was talking to an adult female who was playing the role of a 14-year-old girl.

To bolster his defense, Battigalli-Ansell retained an expert witness. Marty Klein, a licensed marriage and family therapist and certified sex therapist, proposed to testify that:

  • scientific studies establish that fantasy role playing is a normal part of human sexual interaction;
  • millions of adults play erotic games centered around age play;
  • fantasy age play does not necessarily indicate a desire to have sex with actual minors or to repeat role-playing behaviors outside the realm of fantasy;
  • transcripts of the chats in which Battigalli-Ansell engaged with “Brooke” are consistent with fantasy age play by an individual who has no desire to move the fantasy behaviors to reality; and
  • “the normalcy of sexual fantasies is not well understood in the general population and . . . often intimate partners fail to recognize and accept, without therapeutic help, the benign nature and normalcy of such fantasies in their partners.”

The trial court agreed that Klein could explain the nature of fantasy role playing in the context of a chat room. The court also allowed Klein to give “brief testimony that sexual fantasies about adult and adolescent sex partners are common and are not abnormal,” but did not permit more extensive testimony on the ground that it would be “a needless waste of time, might create confusion and would not be helpful to the jury.”

In particular, the judge excluded the testimony summarized in the bullet points above. However, when the prosecutor asked Klein on cross-examination whether people “fantasize about having sex with children,” the question opened the door to additional testimony. The court allowed Klein to testify on redirect that people fantasize about sex with “teenagers” and that “fantasies about having sex with minors [do] not predict . . . sexual behavior with minors.”

Battigalli-Ansell was convicted. He based his appeal, in part, on the exclusion of Klein’s full opinions.

Appellate Opinion

Battigalli-Ansell argued on appeal that Klein offered additional opinions in his expert report that were improperly excluded. However, the trial judge expressly asked whether Klein would be offering opinions other than those summarized in the bullet points above. Battigalli-Ansell’s counsel said that he would not. That statement waived the right to challenge the exclusion of other opinions.

The appellate court agreed that the opinions described in the bullet points were inadmissible. The question before the jury was whether Battigalli-Ansell believed he was sending an intimate photo to a person who was 14 years old. According to the court, whether fantasy role playing is a normal part of sexual interaction, whether millions of Americans engage in age play, and whether age play is a predictor of pedophilia are not opinions that shed light on Battigalli-Ansell’s beliefs.

It is true that pedophilia was not an issue in the case. Pedophilia is, by definition, a condition that describes an attraction to prepubescent children, not to 14-year-olds.

In any event, it is unlawful in Colorado to send an intimate picture to a 14-year-old, whether or not the sender is a pedophile. Whether Battigalli-Ansell actually wanted to have sex with the recipient of the photo was not relevant. Sending the photo to someone whom the sender believes to be a minor (even if the belief is mistaken) is unlawful regardless of the sender’s desire to have contact with the recipient.

On the other hand, the normalcy of age play does tend to make Battigalli-Ansell’s position easier to understand. A jury that does not know that age play is widespread might conclude that “nobody would do that.” Evidence that millions of people do, in fact, play fantasy games is relevant because it would tend to make the jury understand that Battigalli-Ansell might be part of that very large group.

Improper Comment Upon Credibility

Klein’s key opinion was that transcripts of the chat were “consistent” with fantasy age-play. The appellate court noted that prosecution experts in child sexual assault cases often testify that an allegedly abused child’s behavior (such as failing to report abuse) is consistent with the behavior of child abuse victims. Klein’s opinion that the chat was consistent with behavior observed by fantasy role players was arguably admissible on the theory that experts are generally allowed to educate jurors about common behaviors of individuals that are outside the ordinary experience of most jurors.

The court nevertheless observed that prosecution experts cannot give opinions about perceived behaviors of child abuse victims that tend to bolster the alleged victim’s credibility. Courts generally prohibit testimony when an expert’s testimony would suggest that the expert believes a child is telling the truth. The veracity of a witness is not a proper subject of expert testimony. The court saw no reason not to apply the same rule outside the context of sexual assault cases.

The issue that the court confronted is tricky. Testimony that a person’s behavior was consistent with behavior that is common to a particular group does not invariably suggest that the expert believes a witness is telling the truth. Police officers routinely testify that a driver’s behavior was consistent with the behavior of drunk drivers. Courts routinely admit that testimony on the theory that it assists the jury, even if it might suggest that the officer disbelieved the driver’s claim to be sober. There is no obvious reason to disallow expert testimony that signals a belief that a witness is telling the truth while allowing testimony that signals a belief that a witness is not telling the truth.

The court acknowledged that the “line between opinion testimony that improperly bolsters a witness’s credibility and admissible testimony that may only collaterally enhance the witness’s credibility is sometimes a difficult one to draw.” Experts who testify about the prevalence of delayed reporting by child sexual assault victims might be seen as bolstering the credibility of a child who delays reporting an alleged assault, but that testimony is routinely permitted. Doctors often diagnose health conditions by determining that a patient’s symptoms and behaviors are consistent with those of other patients who suffer from a particular condition. When doctors testify about a diagnosis that is based on symptoms disclosed by the patient and on consistency with other patients who have the same condition, the doctor signals a belief that the witness is telling the truth about her symptoms.

The court nevertheless concluded that Klein was bolstering Battigalli-Ansel’s testimony by stating that Battigalli-Ansel acted in conformity with the behavior of people who engage in age play. According to the court, Klein was signaling his belief that Battigalli-Ansel was telling the truth, at least in part because “Klein was not acting as a ‘cold’ expert —one who ‘knows little or nothing about the facts of the particular case, often has not even met the victim, and has not performed any forensic or psychological examination of the victim,’ and who educates the jury regarding certain general characteristics.” Klein’s testimony was accordingly inadmissible.

Lessons Learned

Courts are notoriously inconsistent in deciding whether an expert can opine that a person’s behavior was consistent with behaviors seen in members of particular groups. Battigalli-Ansel might have been better served by an expert opinion that simply avoided using the words “consistent with.” It isn’t clear whether Klein ever met Battigalli-Ansel, but establishing that he was a “cold” expert might have improved the chance of making his opinions admissible.

The court suggested that the outcome might have been different if Klein had confined his testimony to explaining “what characteristics of a dialogue generally inform his determination that the dialogue is ‘consistent with’ role-playing, as opposed to opining on the nature of the specific communications between Battigalli-Ansell and ‘Brooke’.” Unfortunately, the opinion does not make clear whether the trial judge gave Battigalli-Ansell the option to introduce more limited testimony. Had the trial judge parsed the testimony as carefully as the appellate court, Klein might have been able to give the limited testimony that the appellate court thought would be proper.

It is always perilous for experts to testify that the behavior of one person is “consistent with” the behavior of a group of persons. Unless precedent clearly establishes that such testimony is not an inadmissible comment upon credibility, experts might want to couch their opinions in terms that avoid making such comparisons.

Medical Malpractice Sex Assault Case Fails for Lack of Expert

A patient who claims that her medical provider touched her inappropriately during an exam lost her medical malpractice suit because she didn’t have an expert witness to testify about the appropriate standard of care.

The Alleged Assault and Battery

In September 2016, Erica Vipond had a medical appointment with Lance Beebout, a physician’s assistant with Heartland Orthopedics Specialists.  Vipond had been experiencing knee pain, shooting pain in her back and legs, and numbness and tingling.

Vipond claims that during the examination, Beebout instructed her to remove all of her clothing from the waist up, including her bra, to examine her for scoliosis.  Vipond claims that Beebout did not leave the room while she undressed and that he instructed her to bend over and straighten her back several times, while her clothes were removed.  After she was fully clothed and on the exam table, Vipond claims that Beebout examined her spine and lower body.  Allegedly, the exam included Beebout touching Vipond on the front of her pelvic bone and on the inside of her leg near her pelvic area.

Minnesota District Court

Vipond sued Beebout in Douglas County District Court, alleging that Beebout had committed tortious assault and battery against her during the examination.

Vipond submitted an affidavit from expert witness Mark R. Halstrom, M.D.  The affidavit stated that Dr. Halstrom had read the complaint, that he was “familiar with the standard of care” for such situations, and that Beebout had “deviated from the applicable standard of care and by that action caused injury to Vipond.”

Beebout filed a motion to dismiss, arguing that the affidavit did not meet the specificity requirements of Minn. Stat. § 145.682.  The district court agreed and dismissed Vipond’s claims.

Minnesota Court of Appeals

Vipond appealed.  On appeal, the Minnesota Court of Appeals noted that Minn. Stat. § 145.682 requires an expert witness affidavit to “contain specific details of the plaintiff’s claims, including (1) identification of any experts expected to testify, (2) ‘the facts and opinions to which the expert is expected to testify,’ and (3) ‘a summary of the grounds of each opinion.’”

Vipond argued that no expert testimony was required at trial to make a finding of malpractice because her claims fell “within the general knowledge or experience of laypersons” or that Dr. Halstrom’s affidavit was sufficient.  The court disagreed.

The court ruled that an expert affidavit was necessary because all of the alleged conduct occurred during a medical examination and an average layperson would not be equipped to know whether this examination fell outside the standard of care.  The court also ruled that Dr. Halstrom’s affidavit was insufficient to satisfy the disclosure requirements of Minn. Stat. § 145.682 because he failed to state what the applicable standard of care is or how it was violated.  He also failed to identify any facts that he used to formulate his opinion, aside from referencing that he read the complaint.

The Minnesota Court of Appeals affirmed the dismissal of Vipond’s complaint.

a doctor and a child

Child Abuse Pediatrician Removed from Roster of Expert Witnesses After Making False Statements in Court

Medical experts can play a significant role in diagnosing child abuse. As medical science has evolved, however, the judicial system has come to realize that expert testimony about whether an injury or death was caused by abuse can be problematic.

Medical experts are not present when an injury occurred and have no firsthand knowledge of its cause. To decide whether an injury was caused accidentally or intentionally, experts must engage in deduction. The line between deduction and speculation can be exceedingly thin.

Until recently, a pediatrician in Tacoma was regarded as one of Washington’s leading child abuse experts. Authorities believed she had an uncanny ability to detect “subtle” signs of child abuse. Unfortunately, “subtle” evidence is usually synonymous with “ambiguous” evidence. The pediatrician’s opinions have been called into question, in part because she provided untrue information about her expertise.

Dr. Elizabeth Woods

Government authorities in Washington routinely relied on Dr. Elizabeth Woods to provide expert opinions about child abuse. Those opinions provided the foundation for criminal proceedings and for civil actions to remove children from their parents.

Until recently, Dr. Woods was the director of the child abuse intervention program at Mary Bridge Children’s Hospital in Tacoma. On several occasions, Dr. Woods’ professional opinions were controversial.

In one case, Dr. Woods opined that a mother had abused her 5-year-old daughter by seeking excessive and harmful medical treatments. Authorities responded by removing the 5-year-old and the mother’s 8-year-old (who was never alleged to be a victim) from the mother’s custody.

In another case, Dr. Woods concluded that a 2-year-old child’s bruise was caused by abuse. Although her opinion contradicted a pediatrician’s opinion that the bruise was consistent with the parent’s explanation that the child accidentally fell on a heating grate, authorities who regarded Dr. Woods as a child abuse expert removed the child from the parent’s home.

Those cases and others were the subject of an extensive investigation by NBC News and one of its affiliates. NBC discovered that Dr. Woods “lacks key medical training for assessing potential abuse cases.”

Lack of Credentials

In some cases, the results of child abuse are so obvious that most pediatricians can readily determine that injuries could only have been inflicted with the intent to harm the child. In other cases, the evidence is less clear.

Pediatricians who specialize in child abuse now receive extensive training that helps them identify abuse. In addition to general training in pediatrics, a child abuse pediatrician completes a 3-year child abuse pediatrics fellowship. The physician must then pass an examination to become board certified in child abuse pediatrics.

In the case of the 5-year-old who was allegedly subjected to unnecessary treatment, Dr. Woods admitted on cross-examination that she did not complete the medical fellowship that is required to specialize as a child abuse pediatrician and was not board certified in the field. She claimed that the training is unnecessary.

While the necessity of specialized training might be a matter of opinion, Dr. Woods also testified about facts that are simply untrue. Dr. Woods testified that there “are approximately 250 of us nationwide that function as child abuse consultants” and “a very small minority of those have received training.” She also claimed that she had not completed the training because it was first offered three years before she testified.

NBC reported that the child abuse subspecialty was created in 2009, while Dr. Woods was still in medical school. NBC also reported there are 375 certified child abuse pediatricians in the United States, all of whom either completed the training or were allowed to take the board exam based on years of experience prior to the 2009 creation of the subspecialty.

The pediatrician who determined that a child’s bruise was consistent with accidentally falling on a grate was astonished that child welfare authorities accepted Dr. Woods’ claim that the bruise was caused by abuse. The authorities claimed they believed Dr. Woods because of her “extensive training,” prompting the pediatrician to ask, “Where’s the extensive training?”

How Training Shapes Opinions

Certified child abuse pediatricians have been trained not to give opinions that exceed the bounds of medical knowledge. For example, Dr. Woods prepared a report that claimed two young parents probably abused their child because, in her opinion, they didn’t display an appropriate emotional reaction when they learned that their baby had suffered several fractures. Medical knowledge does not allow a doctor to identify abusers by their emotional reactions. In any event, certified child abuse pediatricians are trained to understand that their role is to identify abuse, not to identify the abusers.

In another case, Dr. Woods reported that twin babies who suffered multiple fractures must have been the victim of abuse because “a motor vehicle collision” would be the only possible alternative cause of those injuries. Dr. Woods identified no medical basis for that opinion, but child welfare authorities accepted it without question and removed custody of the children from their parents.

Three medical experts later concluded that the fractures were probably caused by a mineral deficiency that weakens bones, a potential cause that Dr. Woods failed to identify. A well-trained specialist would have ruled out all potential alternative causes of the injuries rather than jumping to the conclusion that they resulted from abuse.

Having appropriate training is important because child welfare authorities generally defer to medical experts. If an expert claims that an injury was likely caused by abuse, child welfare authorities tend to err on the side of protecting the child. That often means removing children from their parents, even if the parents are entirely innocent. Authorities who base decisions on suspicions rather than solid evidence often harm, rather than help, the children they are charged with protecting.

Slow Response

Hospital leaders were slow to recognize that Dr. Woods held herself out to be an expert in the absence of credentials possessed by actual experts. A spokesperson for Mary Bridge Children’s Hospital claimed that Dr. Woods “has treated thousands of children over her many years of dedication to this field.” There is a difference, however, between treating an injured child and determining the cause of the injury. The fact that Dr. Woods has years of experience doesn’t mean she has a history of correctly identifying child abuse when the medical evidence is ambiguous.

The spokesperson also praised Dr. Woods for being “an ally to the vulnerable children in our community.” Unfortunately, experts who regard themselves as an ally for a cause often slant their opinions to serve that cause. An expert who regards herself as an advocate for children will tend to find abuse when the evidence is ambiguous. An expert witness should be an advocate for the truth, not for a cause, even if the cause is as worthy as preventing child abuse.

For a time, officials at Mary Bridge and Seattle Children’s Hospital, which manages the state’s child abuse medical consultation network, simply ducked questions about Dr. Woods’ misstatements under oath. They apparently did not consider whether Dr. Woods should be trusted to form reliable opinions about child abuse if she could not give reliable answers about her credentials.

Belated Removal from Role as Child Abuse Expert

While reluctant to accept an uncomfortable truth, Washington authorities and hospital administrators belatedly acknowledged that Dr. Woods’ credibility is open to challenge. Dr. Woods is no longer the director of the child abuse intervention program at Mary Bridge. Internal documents obtained by NBC imply that hospital officials initiated the change in response to a review of the program that the hospital asked an outside expert to conduct.

Last month, Dr. Woods was removed from the roster of doctors who provide expert medical reports to Washington’s child welfare agency. Dr. Woods’ removal was celebrated by parents whose children were taken away based on Dr. Woods’ expert opinion. Some of those parents have told their stories in a Facebook group devoted to wrongly accused families.

At least two Washington prosecutors have taken the honorable step of reviewing cases in which Dr. Woods testified. One prosecutor is notifying defense attorneys in those cases that grounds exist for challenging Dr. Woods’ credibility. Prosecutors in two counties added Dr. Woods to their list of potentially discredited expert witnesses, and the prosecutor in Kitsap County is considering whether it should add Mary Bridge Children’s Hospital to that list.

Lessons Learned

Expert witnesses for both the prosecution and the defense provide critical testimony in criminal cases. Expert reports in civil cases can persuade child welfare authorities to take the drastic but common step of separating children from their parents out of an abundance of caution, an action that may inflict more harm on children than it prevents.

Given the importance of expert opinions, it is vital that child abuse experts have appropriate training. It is just as vital for experts to have integrity. Experts should base opinions on their best assessment of medical evidence, not on a well-intentioned desire to protect children. Any bias that grows out of an expert’s desire to advance a cause necessarily compromises the expert’s objectivity and impairs the expert’s value to prosecutors and child welfare agencies.



Expert Witnesses Properly Barred After Removal of Case from State to Federal Court

After a case is removed from state court to federal court, the federal rules of evidence apply. A federal appellate decision regarding a lawsuit that was filed in Massachusetts makes clear that lawyers cannot expect to be rescued by reliance on state rules when they fail to make the expert witness disclosure required by federal rules. Nor can lawyers gain back door admissibility of expert opinions by filtering them through a disclosed expert who lacks the qualifications to render those opinions.

Facts of the Case

A doctor in Massachusetts prescribed Levaquin to Kevin Carrozza. Levaquin is a quinolone antibiotic. Carrozza took the prescription to a CVS pharmacy to be filled. Neither Carrozza nor the prescribing doctor knew that Carrozza had an allergy to quinolones.

The CVS computer system alerted the pharmacist on duty, Richard Wokoske, of Carrozza’s allergy to quinolones. Wokoske checked Carrozza’s patient profile, which indicated that Carrozza had been prescribed Levaquin in the past and had denied knowledge of a quinolone allergy.

Pursuant to CVS policy, Wokoske used his own judgment in deciding how to resolve the conflicting information. He chose to dispense the prescription.

Carrozza took the Levaquin and suffered an allergic reaction. He alleged that the reaction caused permanent damage to his eyes. Carrozza sued CVS for dispensing the medication after being alerted to his allergy.

Carrozza’s lawsuit was removed to federal court. CVS filed a motion to preclude the testimony of Carrozza’s expert witness, Dr. Kenneth Backman. Carrozza filed a motion to take a deposition of a second expert witness, Dr. Stephen Foster. The trial court denied the motion to take Dr. Foster’s deposition because the discovery deadline had passed. The court then granted summary judgment in favor of CVS.

Dr. Foster’s Opinion

Carrozza initially based his case on information provided by Dr. Foster, an ophthalmologist. Dr. Foster executed an affidavit in which he opined that Carrozza’s ingestion of Levaquin caused his eye injuries.

The affidavit was arguably admissible evidence under Massachusetts law, which makes an exception to its hearsay rule for certain sworn statements from physicians, including “the opinion of such physician or dentist as to proximate cause of the condition so diagnosed.”

Federal law has no corresponding exception. When the case was removed to federal court, Carrozza could no longer rely on Dr. Foster’s affidavit as trial evidence. Carrozza nevertheless filed a motion, relatively early in the case, to admit the affidavit as evidence. The district court ruled that the affidavit was essentially an expert report. The court advised Carrozza that if he wanted to rely on Dr. Foster’s affidavit, he needed to designate Dr. Foster as an expert witness and to comply with federal rules governing the disclosure of expert opinions.

Dr. Backman’s Opinions

Carrozza did not designate Dr. Foster as an expert. He instead designated Dr. Backman. Carrozza supplied an affidavit from Dr. Backman opining that Wokoske’s decision to dispense Levaquin despite the warning was a breach of the standard of care. Dr. Backman also opined that Carrozza’s ingestion of Levaquin was the likely cause of his injuries.

Dr. Backman’s medical background includes a specialization in allergies and immunology. During his deposition, Dr. Backman admitted that he did not know the standard of care applicable to pharmacists. Dr. Backman also testified that he based his opinion about Carrozza’s eye injuries on Dr. Foster’s affidavit.

Denial of Motion to Depose Dr. Foster

CVS moved to exclude Dr. Backman’s testimony on the ground that he had no relevant knowledge of Carrozza’s injuries but was merely channeling the information in Dr. Foster’s affidavit. In response to that motion, Carrozza asked the court for permission to take Dr. Foster’s deposition so that he would have an admissible expert opinion.

The district court denied the motion. The court noted that Carrozza had never disclosed Dr. Foster as an expert witness despite having ample time do so. The court had warned Carrozza that Dr. Foster’s affidavit would be inadmissible hearsay at trial. Dr. Foster’s opinions might have been admissible as the opinions of an expert witness, but Dr. Foster was never designated as an expert. Taking his deposition would not result in admissible evidence because expert opinions can only be offered by witnesses who have been identified as experts.

The court of appeals determined that the district court reasonably exercised its discretion in denying the motion. Carrozza did not explain why he failed to designate Dr. Foster as an expert witness despite having sufficient time to do so after his motion to admit Dr. Foster’s affidavit was denied. In the absence of that designation, Carrozza had no grounds to reopen discovery so that he could take Dr. Foster’s deposition.

Exclusion of Dr. Backman’s Testimony

There isn’t much doubt that a party who fails to disclose an expert can’t use the expert. The more meaningful question in Carrozza’s case was whether he was entitled to use Dr. Backman as an expert. There was no dispute that Carrozza made a timely disclosure of Dr. Backman.

Dr. Backman testified that he had no personal knowledge of the standard of care that applied to pharmacists. Carrozza argued that as an allergist, Dr. Backman understood whether a pharmacist should dispense Levaquin to a patient after being alerted of the patient’s allergy to quinolones.

The appellate court disagreed. While Dr. Backman is qualified to discuss the standard of care an allergist would follow, the question here is how a pharmacist should react when the pharmacist has inconsistent information about a customer’s possible allergy to a particular drug. Dr. Backman’s admission that he did not know the standard of care that applies to pharmacists made him unqualified to render an expert opinion.

Nor did Dr. Backman’s testimony establish his familiarity with the cause of Carrozza’s eye injury. Dr. Backman relied on Dr. Foster’s affidavit in forming the opinion that Levaquin caused the injury.

Experts are entitled to rely on the opinions of other experts to the extent that experts in the field would generally do so, but that rule does not permit experts to serve as a back door conduit to admit an expert opinion that is otherwise inadmissible. Since Dr. Backman had no expertise of his own in ophthalmology and was not familiar with the causes of an eye condition like Carrozza’s, he was not qualified to render an expert opinion as to the cause of Carrozza’s injury.

Lessons Learned

A standard of care expert is nearly always needed to prove a professional negligence claim. Lawyers risk exclusion of expert testimony if their expert does not have experience in the same field as the negligent professional. An allergist is unlikely to have significant knowledge about the standards that are routinely followed by pharmacists when they determine whether it is safe to dispense medications. A pharmacist would have been an appropriate expert on standard of care in Carrozza’s case.

Dr. Foster might have been an appropriate expert to prove that Levaquin caused Carrozza’s eye injury. However, Dr. Foster was not identified as an expert. Lawyers who are accustomed to filing cases in state court and following state rules of evidence should take note of the Carrozza case. When a lawsuit is removed to federal court, the federal rules of evidence apply, including rules governing the disclose of expert witnesses and their reports. The failure to follow those rules will doom a party’s ability to rely on an expert witness.


Forensic Pathologist and Other Expert Witnesses Help Innocent Woman Avoid a Return to Prison

Kimberly Long was convicted of murder in 2005. It took years for lawyers, with the assistance of forensic experts, to establish her innocence.

Long spent seven years in prison before she was released. The prosecution’s appeal of the order granting her a new trial left her wondering whether she would return to prison for a crime she didn’t commit. Fortunately, her freedom is now assured.

Facts of the Case

Long returned to her home in Corona, California, where she found the body of her boyfriend, Oswaldo Conde. Lacking any obvious suspects, the investigating officers in the Corona Police Department focused their investigation on the belief that Long had murdered him. They based that belief on the fact that Long was in an intimate relationship with Conde, she admitted having an argument with him before he died, and she called the police to report finding his body.

Long passed a polygraph test. Polygraph results are inadmissible in court, but the police like to use them to confirm their own suspicions. When the polygraph does not confirm their suspicions, they tend to dismiss the results.

A man named Jeff Dills told the police that he dropped Long off at her home 49 minutes before she called 911. Long told the police that she called 911 immediately after she discovered Conde’s body. The police viewed the discrepancy between Dills’ and Long’s timelines as evidence that confirmed Long’s guilt. Dills was also a suspect until he offered to cooperate with police.

Long was charged with murder based on Dills’ statement. Dills testified at a preliminary hearing but he died before Long’s trial. His preliminary hearing testimony was introduced as evidence at Long’s trial.

The first jury to hear the case hung, with nine jurors voting for acquittal. The second jury found her guilty. The verdict surprised the trial judge, who said that he would have acquitted her if the case had been tried to the court. California’s appellate courts nevertheless affirmed the conviction.

Federal courts that reviewed the conviction declined to vacate it, in part because federal statutes governing habeas corpus review severely restrict the power of federal judges to do justice in state criminal prosecutions. A district court judge said it was “unfortunate” that Long was convicted on the basis of preliminary hearing testimony given by a witness who died before trial. An appellate judge opined that it would have been nearly impossible for Long to commit the murder and eliminate all evidence of her involvement in the 49 minutes that she was allegedly with Conde before she called 911.

New Forensic Evidence

Eleven years after her conviction, Long asked for a new trial based on expert evidence that her trial lawyer failed to present. A forensic pathologist determined that Conde died hours before the time that Dills claimed he brought Long home. That evidence destroyed the prosecution’s weak theory of Long’s guilt.

Long also presented an expert opinion that Conde’s blood would have splattered onto his killer. Crime scene photos showed that blood had splattered in all directions from Conde’s body. No blood was found on Long’s clothing or body.

Finally, DNA evidence was detected at the crime scene that had not been previously analyzed. The DNA belonged to an unknown male.

The trial judge decided that Long’s attorney failed to provide Long with effective legal assistance. The lawyer should have retained experts and presented the evidence that Long identified eleven years later. The lawyer should also have discovered and presented evidence of death threats that Conde received from his ex-girlfriend.

Rather than conceding that it prosecuted an innocent person, the state appealed the judge’s order granting Long a new trial. The court of appeals decided that the performance of Long’s attorney was not deficient.

Supreme Court Decision

Long appealed to the California Supreme Court. The supreme court reversed the court of appeals’ decision.

The court recognized that an effective attorney would have consulted a time-of-death expert. The prosecution’s case depended entirely on the assumption that Long killed Conde less than an hour before she called 911. Given that fact, it was important for the defense to determine whether Conde actually died within that limited window.

The only expert consulted by Long’s lawyer was an accident reconstruction expert. That expert was an engineer who had no medical training that would allow him to determine a time of death.

A law professor with years of experience as a criminal defense lawyer testified that a reasonable lawyer would consult with a pathologist to obtain time-of-death evidence when time of death is critical to the prosecution’s case. Relying on an engineer was unreasonable.

The supreme court agreed with the trial court’s decision to grant Long a new trial. Facing a complete lack of evidence that Long murdered Conde, the prosecution recently announced that it would not retry Long. Whether the police will make a belated attempt to identify the actual killer is unclear.

Lessons Learned

The defense attorney testified that he didn’t do more because he assumed that time of death estimates cover a wide range of time and that the range would not have excluded Long as a possible killer. The supreme court pointed out that the lawyer made that assumption without consulting an expert witness.

The supreme court acknowledged that time-of-death estimates are often inexact. Yet the lawyer had no reason to believe “that any range derived from the available evidence would necessarily encompass the prosecution’s time frame — a time frame that tended to rule out the possibility that someone other than Long committed the crime.” The supreme court held that it was unreasonable to “write off the possibility that a time of death estimate would help exculpate Long” without first consulting with an expert.

Lawyers can make a reasonable judgment not to call an expert witness, but only an informed judgment is reasonable. The supreme court’s decision is a reminder that defense attorneys must consult with experts whenever an expert opinion might assist the defense. Lawyers should not assume that an expert witness will be unhelpful without consulting with an expert to determine whether an expert opinion might help create a reasonable doubt about a client’s guilt.