Category Archives: Working with Experts

Tennessee Prohibits Reliance on an Involuntary Expert to Establish Standard of Care

Brenda Pringle had an operation to remove pelvic cysts. Her recovery did not go well. Additional surgeries were required before she could return to work.

Pringle made a complaint against her surgeon, Dr. Christy South, to the Kentucky Board of Medical Licensure. The Board contracted with Dr. Elvis Donaldson to review the complaint. He apparently made a determination that Dr. South did not follow an appropriate standard of care.

Pringle then sued Dr. South for medical malpractice. Pringle disclosed her expert witnesses. All but one were treating physicians. None of the treating physicians offered an opinion that Dr. South breached the applicable standard of care.

Pringle identified Dr. Donaldson as an expert witness but did not retain him to testify. Dr. South subpoenaed Dr. Donaldson to testify in a discovery deposition. The Board moved to quash the subpoena, arguing that its contracted doctors should not be required to repeat the opinions they give to the Board in unrelated court proceedings.

The trial court granted the motion to quash long after the deadline for disclosing experts had passed. Dr. South then moved for summary judgment, arguing that in the absence of expert testimony, Pringle could not prove that Dr. South breached the standard of care.

The trial court agreed and granted judgment in Dr. South’s favor. Pringle appealed.

Appellate Analysis

The Kentucky Court of Appeals affirmed the trial court’s decision. Kentucky follows the general rule that the standard of care in all but the most obvious cases of medical malpractice must be proved by the testimony of an expert. Summary judgment was therefore appropriate unless the trial court erred by refusing to allow Dr. Donaldson’s compelled testimony.

Pringle argued that she was entitled to present Dr. Donaldson’s investigation, findings, and conclusions as memorialized in a report that Dr. Donaldson prepared for the Board. While acknowledging that no Tennessee precedent existed, the Court of Appeals relied on an unpublished decision for the proposition that relevant fact testimony can be compelled by issuing a subpoena, but relevant expert testimony “is not the property of litigants.”

In some contexts, that rule has obvious merit. Expert witnesses should be entitled to pick and choose the persons for whom they work. The leading expert in a field might be deluged with subpoenas to compel testimony if he or she could be forced to give expert opinions.

In addition, unlike fact witnesses, expert witnesses are entitled to be paid for their time. Retained experts can bill for their time and have a contractual right to be paid. An expert who is forced to provide an opinion without being retained might end up testifying for free.

This issue is most likely to arise when the plaintiff visits a physician who opines that the treating physician committed malpractice but is unwilling to say so in court. That happens regularly, given the reluctance of physicians to testify against each other. Forcing that physician to testify as an involuntary expert is not something that most courts are prepared to do.

Accordingly, the appellate court created a blanket rule that a party to a medical malpractice action cannot compel involuntary expert evidence from a physician. Parties must instead retain their own expert witnesses.

Lessons Learned

One might think that a report prepared by a medical expert retained by a state agency for a public purpose would be admissible evidence if it either identified malpractice or exonerated the investigated doctor. Unlike retained experts, who are often disparaged as “hired guns,” Dr. Donaldson was a neutral expert. He formed his opinions at the request of the public, not for an interested party. His opinions might therefore be seen as public property, unlike the opinions of privately retained experts that are, in the view of the court, the property of the party who retains them.

Once an expert’s report prepared for a state agency becomes a public record, there are good reasons to believe a party should be entitled to compel the expert’s testimony. The physician has already chosen to express an expert opinion and has, in fact, done so. The expert has been paid for that work. While the expert would certainly be entitled to additional compensation for testifying in a deposition or in court, the policy considerations that weigh against forcing an involuntary expert to testify have less merit when applied to experts who were retained to provide opinions to a public agency. Depriving litigants of valuable evidence that is already a matter of public record does not seem to promote justice.

Notwithstanding the unique circumstances presented here, lawyers should be guided by the court’s blanket rule. It is unwise to rely on the expectation that an expert witness can be compelled to testify. The better practice is to retain an expert.

Whether the retained expert would be entitled to rely on the report written by the Board’s expert to inform the retained expert’s opinion is a separate question. The answer in most states will likely depend on whether physicians routinely rely on the opinions of other physicians when they form their own expert opinions.


Expert CV Checklist

Tara Reade’s Expert Witness Credentials Questioned

Tara Reade, the former Senate staffer who has accused Democratic presidential candidate Joe Biden of sexual harassment and assault, is under scrutiny for misrepresenting her qualifications under oath when appearing as an expert witness in domestic violence cases.

Joe Biden Accusation

Tara Reade, 56, has accused 2020 presidential candidate Joe Biden of sexually harassing and assaulting her while she worked in his office in 1993. Since first coming forward with her allegations, Reade’s recounting of the 1993 events has changed and numerous news publications have begun to investigate her allegations.

PBS NewsHour interviewed 74 former Biden staffers to get a “broader picture of his behavior toward women over the course of his career, how they see the new allegation, and whether there was evidence of a larger pattern.” None of the 74 people said that they had experienced sexual harassment, assault, or misconduct by Biden. All of those interviewed said that they had never heard any previous accusations of Biden engaging in sexual misconduct.

In conducting its investigation, CNN interviewed Reade and learned more about her background. Reade told CNN that she had earned a bachelor of arts degree from Seattle, Washington-based Antioch University under a “protected program,” where the former president of the school ensured that her identity was protected while she was attending classes. Reade also claimed that she was a visiting professor at the university, on and off for a period of five years.

When CNN fact-checked Reade’s story, Karen Hamilton, an Antioch University spokesperson confirmed that Reade had “attended but did not graduate from Antioch University.” Hamilton also stated that Reade, “was never a faculty member. She did provide several hours of administrative work.” Antioch University also told CNN that it had never had a “protected program.”

Expert Witness on Domestic Violence

Misrepresenting her past is especially problematic, as Reade has previously served as an expert witness in domestic violence cases.

On December 12, 2018, Reade appeared as an expert witness in California state superior court in Salinas. The Monterey County District Attorney’s Office called Reade as an expert witness on the dynamics of domestic violence. As part of her qualifications, Reade listed a bachelor’s degree from Antioch University. Reade also listed a role as an “ongoing online visiting professor” at Antioch for five years.

According to Roland Soltesz, the lawyer of the woman who was charged for attempted murder in the case where Reade testified as an expert, Reade was “beloved” by local prosecutors. Patrick McKenna, executive director of a legal group that handles appeals for indigent defendants in the Salinas area, said that Reade had  testified as an expert witness over 20 times.

At the time of the trial, Soltesz and another lawyer had challenged Reade’s credentials as an expert, arguing that Reade’s experience “was largely in advocacy work.” The trial court judge rejected the argument, ruling that Reade had the proper educational background and experience to testify as an expert. Cases in which Reade testified might now be reopened, given that the educational background that allegedly qualified Reade as an expert was falsified.


Admission of Cadaver Dog Handler Testimony Affirmed Over Daubert Challenge

Apart from providing faithful companionship, dogs have a variety of useful skills that they gladly contribute to humans. But are dogs reliable expert witnesses? They might possess relevant expert knowledge, but they are handicapped by an inability to express their thoughts in human language. And since no human can read a dog’s mind, the human filter through which a dog’s knowledge must pass is inherently suspect.

The Florida Court of Appeals recently considered a murder conviction that was based almost entirely on dog handlers’ opinions that their cadaver dogs alerted on the defendant’s vehicle. Although no body was ever found, the court affirmed the admission of the expert testimony and thus affirmed the conviction.

Facts of the Case

Cid and Vilet Torrez were married. They separated in September 2011 after Torrez abused Vilet. Vilet remained in the home with their children while Cid moved to an apartment.

The home was in a gated neighborhood. Surveillance footage showed Vilet driving her car through the gate in the early morning. She had returned home after spending the night with a co-worker. The children were with Torrez.

Vilet was not seen again. Days later, Torrez called 911 to report that he had not heard from Vilet and believed her to be missing.

Police officers found Vilet’s car parked on the street. A search of the home found small blood stains at various locations. The police found no evidence that Vilet traveled or made telephone calls after the morning when she was last seen.

Suspecting that a homicide had occurred, the police summoned a cadaver dog named Jewel to the scene, along with her handler, Officer Gregory Strickland. Jewel alerted to several spots on the lawn near the front door. Strickland interpreted the alerts to mean that Jewel detected the odor of a dead body in those locations. No physical evidence supported that interpretation.

Five months later, having made no progress in determining Vilet’s location, the police did a “line-up” of cars in their parking lot. Torrez’ vehicle was one of the cars. Jewel sniffed each car and, according to Strickland, alerted on the trunk and back seat of Torrez’ car. Strickland interpreted the alert to mean that Jewel detected the scent of a dead body.

The local police then asked for the assistance of Palm Beach Sheriff’s Detective Juliana Martinez and her dog Piper, who was also trained as a cadaver dog. Martinez had Piper sniff Torrez’ vehicle and interpreted Piper’s response as an alert to the odor of human remains in the trunk and back seat.

Vilet’s body has never been found. On the strength of human interpretations of “alerts” given by two dogs, Florida charged Torrez with murder. A jury convicted him. Torrez appealed, challenging the expert testimony given by the dogs’ handlers.

Challenge to Dog Handling Expert

Most people are familiar with the story of the horse that could do arithmetic. When asked “What is two plus three?” the horse would stamp its hoof five times. It was eventually determined that the horse could only perform the trick when its owner was present. The horse was reacting to visual cues from its owner, not to any understanding of numbers.

During the car “line-up,” Strickland claims not to have known which vehicle belonged to Torrez. Whether Jewel was able to see other officers in the parking lot who did know which vehicle belonged to Torrez is unclear. Perhaps both dogs alerted to Torrez’ car because they were responding to visual cues rather than scents.

Prior to trial, Torrez challenged the admissibility of the expert testimony that Strickland and Martinez proposed to give. Strickland testified that Jewel had hundreds of hours of training in the detection of human remains. She was certified as a cadaver dog by a police association that certifies police dogs. Strickland testified that he was only aware of one instance in which Jewel alerted in the absence of human remains. On that occasion, she apparently detected the odor of a bucket of shrimp.

Martinez and Piper’s trainer testified about the training and certifications that Piper received. They agreed that Piper is a reliable cadaver dog. Martinez explained that when Piper isolates the source of the odor of human remains, she “snaps her head, sometimes closes her mouth, sniffs certain areas, slows down and then sits as a final response.”

Kenneth Furton, a professor of chemistry, testified about the scent molecules that cadaver dogs are trained to detect. He contended that scent molecules can linger for “a very long period,” particularly in an enclosed area. He opined that Piper and Jewel, in combination with their handlers, were reliable teams because of their certifications.

Furton did not believe that the absence of a body in Torrez’ back seat or trunk invalidated the alerts. He speculated that the dogs may have alerted to bodily fluids that leaked into materials and were not detected by other means, or they may have alerted to residual odors that remained after the body was removed. Furton admitted that dogs, like humans, can make mistakes.

The trial court purported to apply Florida’s newly established Daubert standard. It determined that the dogs were trained and accurate in detecting human remains and that their handlers were qualified to interpret the dogs’ alerts. Vilet’s disappearance was circumstantial evidence of her death that, in the court’s view, corroborated the handlers’ conclusions that her body had been transported in Torres’ car.

Appellate Analysis

The Florida Court of Appeals noted that the United States Supreme Court has approved determinations of probable cause based on alerts given by properly trained drug dogs. But probable cause to search for evidence is not itself evidence. The question on appeal is whether a handler’s expert interpretation of a dog’s alerts is sufficient to satisfy the Daubert standard for the admissibility of expert evidence in a trial.

The court nevertheless concluded that the opinions of the cadaver dogs’ handlers satisfied the Daubert standard. The court held that the reliability of dog sniff evidence can be based on the handler’s experience with the dog. The court must be satisfied that the handler is “qualified to work with the dog and to interpret its responses.” But since no handler can read a dog’s mind, it is difficult to imagine any circumstances that qualify a handler to “interpret” a dog’s actions reliably.

The dog must also be “proved successful and reliable” and be “sufficiently trained.” There must also be evidence that corroborates the dog’s opinion as interpreted by its trainer. Finding an actual body would presumably be corroborative, but “corroborative evidence need not be evidence which, standing alone, links the defendant to the crime.” That holding is unfortunate for Torrez, given that there was precious little evidence linking him to the crime beyond the handlers’ opinions that their dogs were smelling evidence that a body had been in Torrez’ car and trunk almost five months earlier.

Remarkably, the appellate court held that “courts need not consider the science underlying testimony relating to cadaver dog evidence.” In civil cases, Daubert hearings are almost entirely devoted to the adequacy of the underlying science that supports an expert’s opinion. Why should a lesser standard be applied in a criminal case, where the evidence may lead to a deprivation of liberty?

The court held that it is common knowledge that dogs can distinguish different kinds of odors. But it isn’t common knowledge that dogs can distinguish the scent of a decaying body several months after the body could have been present in the location that the dog sniffed, or that they can reliably explain what they smelled to a human.

This case cries out for scientific evidence, but the court pointed to no peer-reviewed studies suggesting that scent molecules can be detected by a cadaver dog almost five months after the cadaver was no longer present. Nor did the court point to peer-reviewed studies suggesting that the scent molecules associated with cadavers can be reliably distinguished from the scent molecules associated with shrimp or other substances.

Finally, the court held that challenges “to an expert’s measurements, methods and determinations do not render inadmissible an expert opinion based on them but goes to the weight of the evidence, raising factual questions to be determined by the jury.” The court cited only pre-Daubert criminal cases for that proposition. After Daubert, expert opinions have been routinely excluded because an expert’s methods were unreasonable and because an expert’s determinations were not founded on the application of a reasonable methodology to adequate facts.

The appellate court said that it was applying Florida’s new Daubert standard to dog sniff evidence, but its shoddy opinion rests entirely on pre-Daubert understandings of whether expert evidence is admissible. The unfortunate result for Torrez is that his conviction was affirmed based largely on the opinions of police officers about what their dogs might have smelled in his car.


Florida Computer Expert Arrested for Lying About Credentials Under Oath

Florida Supreme Court Throws Out Circumstantial Evidence Standard

The current version of the Florida Supreme Court is no respecter of precedent. The Court recently upheld the conviction of a man for the murder of his estranged wife. In doing so, the court threw out a legal standard about circumstantial evidence in criminal appeals.

Murder of Nicole Elise Bush

In 2011, deputies from the Jacksonville Sheriff’s office went to the home of 35-year-old Nicole Elise Bush for a welfare check. The deputies found Nicole, shot six times, stabbed, and beaten with an aluminum bat. She died later at a Jacksonville hospital. Her children were at school at the time of the attack.

Following an investigation, the Sheriff’s Office obtained a warrant for the arrest of Nicole’s estranged husband, Sean Alonzo Bush. The gun and the weapon that were used to attack Nicole were never found. However, investigators developed circumstantial evidence against Bush, including a life insurance policy that named him as a beneficiary. In the absence of any better suspect, Sean Alonzo Bush with charged with the murder of his estranged wife.

Trial of Sean Alonzo Bush

Following a jury trial, Sean Alonzo Bush was convicted of first degree murder, felony murder, and burglary of a dwelling with an assault and while armed with a firearm. The jury unanimously recommended a death sentence. Circuit Court Judge Howard Maltz followed the jury’s recommendation and sentenced Bush to death.

Appeal to the Florida Supreme Court

Bush appealed his conviction to the Florida Supreme Court. The court upheld Bush’s conviction. The court pointed to the fact that Bush was in financial trouble, he was aware that he was the beneficiary of Nicole’s $815,240 life insurance policy, and he submitted a claim for the policy proceeds a few weeks after the murder. All of those facts are entirely consistent with innocence. The court nevertheless wrote, “Because a rational trier of fact could, and did, find from this evidence that Bush committed the first-degree murder of Nicole under both premeditated and felony murder theories, Bush is not entitled to relief.”

The court also took the opportunity to abandon the “special appellate standard” for circumstantial evidence that had previously been the law in Florida.

The court explained that Florida had previously used a different standard to evaluate wholly circumstantial evidence on appeal than it used in a case with some direct evidence: “Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” The court noted that this standard was confusing and also in conflict with the standard that has been adopted by all federal courts and the majority of state courts after the United States Supreme Court had called the standard into question in 1954.

The court stated that, moving forward, Florida appellate courts should use a standard like the one used in cases with some direct evidence, “whether the state presented competent, substantial evidence to support the verdict.” One might think that evidence should be more that speculative to prove guilt beyond a reasonable doubt, but the absence of evidence that Bush actually committed the murder did not appear to trouble the conservative majority.

The per curiam opinion was joined by Chief Justice Canady, and Justices Polston, Lawson, and Muniz. Justice Labarga concurred in part and descended in part, writing separately to note disagreement with the majority’s decision to abandon its circumstantial evidence standard of review.


Expert Witness

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

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

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

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

The Locality Rule in Malpractice Cases

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

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

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

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

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

The “Licensed to Practice” Rule

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

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

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

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

Appellate Decision

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

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

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

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

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



Expert Testimony About the Value of a Statistical Life Rejected by Federal Court in Montana

The United States District Court for the District of Montana recently confronted an ongoing controversy in the measurement of wrongful death compensation. While different jurisdictions apply different standards for the compensation of wrongful death plaintiffs, a recurring question is whether damages should include the value of a statistical life. The district court decided that expert testimony regarding the damages was inadmissible.

Facts of the Case

Johnny Gibson was experiencing chest pain, heartburn, pressure between his shoulder blades, and fatigue. He was evaluated by Kimberlee Decker, a nurse practitioner at the federally funded Central Montana Community Health Center (“CMCHC”).

Decker referred Gibson for an ultrasound of his gall bladder. She did not order a heart workup, an EKG, or a stress test. Nor do the medical records suggest that she considered a heart problem as the cause of Gibson’s symptoms.

About a week later, Gibson had a heart attack. He died in surgery. The federal government, which employed Gibson, conceded her negligent deviation from the appropriate standard of care for a patient presenting with Gibson’s symptoms.

Gibson’s wife, children, and estate brought a wrongful death claim under federal law based on medical malpractice. Liability was not contested. The issues at trial involved the damages that the government should pay.

Damages Experts

Gibson’s wife testified that Gibson earned between $10,000 and $25,000 per year as a ranch worker and painter. He was often paid in cash or in-kind services (such as free lodging and hunting privileges) that was not reflected on tax returns.

The plaintiffs called Dr. Ann Adair, an Associate Professor of Economics, as an expert witness regarding damages. Gibson was about 63 years old when he died. Adair testified that Gibson would have worked another 4 years. Based on average earnings of Montana farm workers, she calculated his lost earning capacity to be about $150,000.

Sean Black, a CPA, testified as an expert for the government. He calculated lost earning capacity of about $17,000 based on Gibson’s reported earnings prior to his death.

The court accepted the testimony that Gibson’s earnings included unreported income, making Black’s calculation inaccurate. After finding Adair’s methodology to be reliable, the court accepted Adair’s estimate as the most reasonable approximation of lost earning capacity. The court also accepted Adair’s undisputed estimate that the lost value of household services that Gibson provided to his family was about $144,000.

Based on the testimony of Gibson’s cardiac surgeon and family members, the court found that Gibson experienced pain and suffering before his surgery. The court concluded that Gibson would have needed similar surgery and would have experienced similar symptoms even in the absence of medical malpractice. The court awarded only $10,000 for pain and suffering attributable to the failure to diagnose Gibson’s heart condition.

Value of a Statistical Life

The primary disagreement among the experts was whether the plaintiffs were entitled to compensation for the value of a statistical life, in addition to lost earning capacity. The value of a statistical life is not the value of a life, which is incalculable, but the value of reducing risks to life.

Adair testified that the value of a statistical life can be measured under either the revealed preference or stated preference theory. The revealed preference theory measures the extra compensation that workers require to take substantially more dangerous jobs or the amount people are willing to pay for insurance, safety gear, and safer products. The stated preference theory imputes a value from studies that ask individuals what they would do to avoid certain risks.

Adair calculated the value of a statistical life according to guidance provided by the United States Department of Transportation and by the Environmental Protection Agency. The Transportation Department methodology resulted in a value of $9.6 million while the EPA methodology resulted in a value of $7.4 million without adjusting for inflation.

The district court noted that many federal courts “have expressed skepticism” about basing wrongful death damages on the value of a statistical life. Government agencies value a statistical life for the purpose of making cost-benefit decisions about safety measures (such as pollution reduction technology) that reduce the risk of death. The court concluded that the government’s decision-making tools do not provide a reasonable or reliable measurement of damages for a wrongful death. Making a Daubert ruling, the court accordingly disregarded Dr. Adair’s testimony regarding the value of a statistical life.

The court did not explain why Dr. Adair’s methodology was unreliable. It seemed to decide as a policy matter that the value of a statistical life cannot be awarded as damages in a wrongful death case. Curiously, it did so without considering whether controlling law — in this case, Montana state law — would permit an award of damages for the value of a statistical life. Other federal courts might reach a different decision about the reasonableness of an expert’s opinion concerning the value of a statistical life, depending on state court precedent regarding wrongful death damages.


Gavel and scales

Ninth Circuit Panel Questions Precedent

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

The District Court Case

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

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

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

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

The Ninth Circuit

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

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

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

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

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

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

Netflix Series Highlights Issues With Bite Mark Evidence

A popular Netflix series has called attention to the faulty science behind bite mark evidence.

Bite Mark Evidence

Bite mark evidence purports to be a branch of forensic odontology, where dentists attempt to match marks that were found at crime scenes to dental impressions of suspects. When a victim has been bitten during the commission of a crime, dentists claim the ability to match the bite mark to the teeth of a suspect.

Bite mark evidence has been used for many years in criminal prosecutions. Oftentimes, bite marks are found at the scene of violent crimes such as murders and assaults on areas like skin, clothing, and soft tissue.

Opponents to the use of bite mark evidence argue that is flawed because it is subjective to the person examining the evidence. Since skin stretches, it can easily be maneuvered into a position that seems like a match.

The California Innocence Project notes that, “Different experts have found widely different results when looking at the same bite mark evidence. Such subjectivity has no place being touted as science in the courtroom, as it is extremely persuasive to a jury, especially where someone has been wrongfully accused.”

Netflix Series “The Innocence Files”

The popular streaming company, Netflix, recently released a limited series entitled, “The Innocence Files,” which examines cases of wrongful convictions. In the first three episodes of the series, bite mark evidence is called into question.

In the first episode, the series introduces two men from Noxubee County in Mississippi: Levon Brooks and Kennedy Brewer. In 1992, Brooks was convicted of the capital murder of three-year-old Courtney Smith. His conviction was supported by eyewitness testimony and bite mark evidence. Later that year, Brewer was convicted of the rape and murder of three-year-old Christine Jackson. His conviction was in part supported by bite mark evidence.

Forensic odontologist Dr. Michael West testified in both trials. In Brooks’ trial, Dr. West testified that “Levon’s dental impressions were a ‘really good match’ for a potential bite left on the victim’s wrist.” In his medical report, Dr. West opined “that ‘indeed and without a doubt the bite marks on Courtney were made by Levon Brooks.” In Brewer’s trial, Dr. West offered testimony about the presumed bite marks found on the victim and Brewer’s dental impressions. Brewer’s defense team retained a world-renowned forensic odontologist, Dr. Richard Souviron, to rebut Dr. West’s claims; however, the jury ultimately found Brewer guilty.

In 2000, Brewer reached out to the Innocence Project for help proving his innocence. The Innocence Project tested the DNA of the victim’s rape kit, which excluded Brewer as the source of the semen. Further investigation revealed another possible suspect for the murders of Christine Jackson and Courtney Smith—a man who had a previous record of multiple home invasions in the same community, Justin Albert Johnson. Johnson’s DNA matched the DNA found in Christine Jackson’s rape kit. He eventually confessed to the murder of both girls; however, he denied ever biting either one.

As a result of Johnson’s confessions, Brooks and Brewer were exonerated for their convictions. According to the documentary, Dr. West’s expert testimonies have contributed to 6 known wrongful convictions.


Court Dismisses Expert Witness Lawsuit Against Professional Association

Texas Case Illustrates Why Defense Lawyers Must Fight for Expert Witness Funding

Bryan Gutierrez died three months before his second birthday. Efforts to revive him after he stopped breathing were futile. A paramedic eventually used forceps to extract a wad of paper towels, about the size of an egg, from his throat. By that time, however, his brain had been deprived of oxygen for too long. His body was kept alive for another three months, but he suffered brain death.

Suspecting that a toddler could not have ingested such a large mass of paper towels on his own, police officers interrogated Rosa Jimenez, who was babysitting Bryan at the time of his death. Jimenez was caring for her own son while she babysat Bryan.

Jimenez told the police that she used paper towels to wipe the noses of both boys after they woke up from a nap. The boys then started rolling paper towels into balls and throwing them at each other. Jimenez told them to stop, then went into the kitchen to make lunch.

Bryan soon entered the kitchen in distress. He appeared to be choking on something. Jimenez could not find anything in his mouth. Slapping him on the back had no result, so she rushed him to a neighbor for assistance. The neighbor called 911.

The officer who interrogated Jimenez pressed his own theory, telling her that she must have wanted a few moments of peace and stuffed paper towels into Bryan’s throat to silence him. Jimenez protested that she loved Bryan like her own son and insisted that the officer’s version of events was false. After five hours of intense interrogation, Jimenez was released, only to be arrested in her home at 11:00 p.m.

Unfair Trial

Jimenez was charged with injury to a child. Despite the absence of any physical evidence suggesting that Jimenez had abused Bryan, a jury found her guilty. In 2005, Jimenez was sentenced to 99 years in prison.

Since then, at least four judges have questioned the fairness of Jimenez’ trial. A Texas Monthly investigation notes that each time Jimenez was granted a new trial, Texas prosecutors appealed, causing the verdict and sentence to be reinstated.

Federal Magistrate Judge Andrew Austin is one of the judges who recommended a new trial. When the case came before him for a second hearing, Magistrate Austin noted that Jimenez received “a very infirm trial and that there is likely an innocent woman who is sitting in a jail for seventeen years.”

It isn’t unusual for innocent defendants to spend many years behind bars before the slow-moving judicial system corrects the errors that caused their wrongful convictions. Delay is particularly tragic in Jimenez’ case, however, because she suffers from stage-four chronic kidney disease. She is likely to die in prison if her appeal is not expedited.

The state is doing everything it can to delay a final decision in Ms. Jimenez’ case. Its apparent strategy is to run out the clock, allowing her to die so that the unjust conviction it obtained will never be exposed.

Prosecution’s Expert Evidence

In the absence of an eyewitness or any physical evidence suggesting a crime had been committed, prosecutors attempted to prove that a boy as young as Bryan could not have stuffed paper towels so far down his throat. Since Jimenez was the only adult present, the prosecution theorized that she must have done it.

Prosecutors relied on four expert witnesses to make its case. The ER doctor who treated Bryan testified that his gag reflex would have pushed the wad of paper out of Bryan’s mouth if it had not been forced down his throat.

A pediatric ICU doctor echoed the ER physician’s testimony and expressed the opinion that there was “no way” Bryan could have placed the paper towels in his mouth by himself. She testified that Bryan must have been forcibly held down, despite the absence of any bruises that would have supported that testimony.

A forensic pathologist testified that Bryan’s throat was too narrow to ingest the paper towels voluntarily. A pediatrics and child-abuse specialist testified that Bryan’s death was not accidental. All of that expert evidence seems to be based on speculation rather than scientific studies.

Defense Evidence

The defense pointed out Jimenez’ DNA was not found on the paper towels. The defense also argued that the untrained officer who first arrived on the scene may have forced the paper towels farther into Bryan’s throat while attempting to administer CPR.

The defense called witnesses who testified that Jimenez was a good babysitter who never lost her temper. The defense also emphasized that Jimenez had no motive to harm Bryan.

The defense wanted to call its own expert witness, but two potential witnesses declined. One was still owed a fee for testimony provided in an earlier case; the other thought the fee that Jimenez’ court-appointed lawyer offered was insufficient.

The defense retained Ira Kanfer, a Connecticut medical examiner. He regarded the lack of trauma on Jimenez’ face as evidence that the choking was accidental. But Kanfer had no pediatric training and did not belong to any forensic science organizations. He apparently formed his opinions by printing out articles he found on the internet.

Kanfer also testified that a toddler could wad up paper towels and swallow them, particularly if they were wet. There was evidence that Bryan had a history of throwing paper into the toilet.

Kanfer lost his cool after a cross-examination questioned his credentials. During a break in his testimony, he confronted the prosecutor in the hallway and made a rude remark to her. She questioned him about the remark when he resumed his testimony. Whether the judge would have deemed the remark to be relevant is unclear since defense counsel did not object to it.

After the Trial

A filmmaker who covered Jimenez’ case is convinced of her innocence. Jimenez was a poor Mexican who did not have immigration documents. The filmmaker suspected that the jury would never have convicted a white middle-class woman on the basis of such flimsy evidence.

The documentary caused a stir in Mexico that eventually prompted the Mexican government to fund Jimenez’ defense. New lawyers located Dr. Karen Zur at the Children’s Hospital of Philadelphia. Dr. Zur is the associate director of the Center for Pediatric Airway Disorders. Dr. Zur reviewed the evidence and swore in an affidavit that the size of the paper towel wad was not inconsistent with accidental choking. She also explained that the gag reflex could actually result in paper towels being pulled deeper into the throat.

Three other experts, including another pediatric otolaryngologist, a critical care surgeon, and a forensic pathologist, all agreed that it was possible for a toddler to accidentally swallow the paper towels. The otolaryngologist explained that he had removed a wad of bread of a similar size from the throat of a 28-month-old child.

The forensic pathologist had conducted autopsies on children who choked to death. He testified that it is not unusual for children to place a large wad of paper towels in their mouth. He faulted the prosecution experts for basing opinions on speculation rather than medical science.

Defense Lawyers Must Identify Effective Expert Witnesses

Had Jimenez’ defense lawyer called an expert in pediatric otolaryngology —  an expert with appropriate credentials who would not have been so easily flustered on the witness stand — the trial outcome might have been different. Unfortunately, publicly funded defense lawyers in states like Texas are unable to match the resources available to prosecutors.

Politicians are typically more willing to fund experts for prosecutors than for the defense, while pro-prosecution judges are skeptical about paying defense experts the fees that they deserve. The scales of justice are thus rigged to favor the prosecution.

Child abuse justifiably makes people angry. Some prosecutors seize upon that anger to convince juries to base verdicts on their emotions rather than the facts. An evidence-based appeal to rationality is the only strategy that counters that emotion. The strategy begins by identifying and finding a way to fund the right expert witness.

Jimenez’s trial attorney testified that he informally asked the trial judge for more funding, a claim that the judge denied. The lawyer now acknowledges that he should have placed his request in writing. Whenever a verdict in a court-appointed case may turn on expert evidence, lawyers need to make a written record of the need for a qualified expert witness and of the reasons a defendant will be deprived of the right to a fair trial without one.


Florida Case Over Whether Expert Required to Corroborate Request for Fees Gains Attention

A dispute over legal fees is gaining attention in Florida as its courts are examining whether attorneys need expert witnesses to corroborate their requests for legal fees.

Underlying Dispute

The case began as a fee dispute between the Law Offices of Granoff & Kessler and its client, Richard Randal Glass. Attorney Roy E. Granoff was attempting to collect fees owed to him under a retainer agreement for his representation of Glass. The parties had an agreement that provided for an initial retainer plus $325 per hour for out-of-court services and $375 per hour for time spent in court. The total amount of the dispute was $34,345.

Granoff sued Glass in Miami-Dade Circuit Court. The Miami-Dade Circuit Court ruled that Granoff needed an independent expert to provide testimony to validate his fees. Granoff appealed.

Third District Court of Appeal

On appeal, the Third District Court of Appeal reversed the circuit court’s decision and ruled in favor of Granoff. The court remanded the case back to trial court to enter a judgment in Granoff’s favor. The court also certified a conflict with Florida’s Second District of Appeal’s decision in Snow v. Harlan Bakeries Inc.

Mark Goldstein, attorney for Glass, announced that he plans to ask for a rehearing en banc before all of the judges of the Third Circuit Court of Appeal. Goldstein claims that the appellate court’s decision “gutted a lot of law.”

Goldstein stated, “They essentially held when a lawyer directly sues his client for breach of contract, the rules of requiring a corroborating expert witness don’t apply.”

Granoff disagrees with Goldstein. He notes that his case has an important distinction. He said, “I was seeking it in the separate breach-of-contract action, and the case law holds you do not need an expert witness. Glass owed me attorney fees. I sued him in a separate lawsuit just for the fees he owed me. When I do it that way, I do not need an expert witness corroborating the fees.”

Granoff gave the following example as a comparison, “If there was an architect and he sued for fees, he would not have to bring in another architect to testify to the reasonableness to the fees. If there was a doctor, he wouldn’t have to bring in another doctor. But with lawyers, the law had been they have to bring in another lawyer.”

Granoff argued that this process makes no sense because an attorney would simply “bring an attorney friend of his who is going to testify to say his fees are reasonable.” He cited a Florida Bar Journal article by Robert J. Hauser, Raymond E. Kramer III, and Patricia A. Leonard, “Is Expert Testimony Really Needed in Attorneys’ Fees Litigation?,” where the authors opined that the “practice is cumbersome and unnecessary, and should no longer be required.”

Granoff noted that several attorneys have reached out to him and expressed an interest in representing him on appeal, intending to take this matter all the way to the Florida Supreme Court.