Category Archives: Working with Experts

gun and bullets

California Court Limits Admissible Testimony of Ballistics Expert

Tuala Auimatagi is accused of committing two murders in August 2019. The first charge involves a drive-by shooting in West Sacramento. The second shooting took place a week later in Richmond, California. Both victims were shot with a rifle.

No eyewitness identified Auimatagi as the shooter in West Sacramento. The only eyewitness to the Richmond shooting was the victim’s girlfriend. She told a police detective that Auimatagi broke into her home to retrieve a handgun that she had given to the victim. The victim’s girlfriend claimed she saw Auimatagi shoot the victim. However, the girlfriend died before the case went to court, leaving the prosecution with no eyewitness.

The prosecution was able to use the girlfriend’s hearsay statement at a preliminary hearing. Based on that statement, the court found that there was probable cause to charge Auimatagi with the Richmond homicide.

Forensic Expert’s Opinion

Images from street cameras established that Auimatagi was in a black BMW on nearby roads in West Sacramento on the day of the first shooting. The prosecution relied on the expert testimony of Alex Taflya to link Auimatagi to that shooting.

Taflya is a forensic expert employed by the Yolo County Sheriff’s Office. He compared the bullets that killed both victims. Tayfla testified that the two bullets shared markings that suggested they were fired from the same firearm. However, Tayfla could not evaluate the firearm and therefore could not be certain that the bullets were fired from the same gun.

Tayfla testified that, assuming the similar markings were not made by characteristics that are common to the same make and model of firearm, they were fired by the same gun. In the court’s view, Taflya’s testimony was sufficient to establish probable cause to support the prosecution’s charging decision. Whether that testimony would be admissible at trial was a separate question.

Subclass Markings

Fans of the CSI series might believe that ballistics is a rigorous science. A critique of firearms identification prepared by a committee of the National Research Council (NRC) in fact been described ballistics as “part science and part art form.”

Markings are made on bullets as they travel through the barrel of a gun. Some of those markings (known as class characteristics) might be made by thousands of firearms of a particular model and manufacturer. Other markings (known as individual characteristics) are made by particular guns and may be unique to an individual gun.

In a middle range between class characteristics and individual characteristics are subclass characteristics. The NRC notes that subclass characteristics are caused by the gun’s manufacturing process. They may be present in only a small subset of guns that were manufactured in the same place and at the same time, but they are not uniquely caused by a particular gun. Two different guns can produce identical subclass characteristics.

The Limits of Firearms Identification Evidence

The NRC review makes clear that it is impossible to be certain that two bullets were fired from the same gun without examining every gun that could have fired the bullets. The fact that two bullets share similar markings does not rule out the possibility that they were fired from two guns that happen to cause similar markings. The President’s Council of Advisors on Science and Technology (PCAST) agreed that ballistics evidence, like much other evidence involving forensic standards, is too subjective to produce consistently reliable results.

In addition, to know whether markings are individual characteristics or subclass characteristics, it is necessary to know the manufacturer and model of the gun from which the bullet was fired. Firearms examiners can generally rule out the possibility that two bullets were fired from the same gun when their markings are different. Concluding that two bullets were fired from the same gun is much more difficult. It is usually impossible to draw that conclusion with any certainty if the examiner does not have the gun from which the bullets were fired.

Expert Opinion Limited

As Auimatagi’s case approached trial, his lawyers filed a motion to exclude Talfya’s opinions on the ground that they were not reliable. The trial judge decided that Talfya would be allowed to testify, but that his testimony will be limited.

The judge decided that Talfya can testify that he saw similar markings on the bullets recovered in the two shooting. The judge allowed Talfya to describe how guns leave markings on bullets. Talfya will also be allowed to testify about the characteristics of the markings he saw on each bullet.

Talfya will not be allowed to testify, as he did in the preliminary hearing, that the bullets came from the same gun “assuming” that the similarities were not characteristics produced by all guns within the same subclass. The judge recognized that Talfya’s assumption was “not supported by the facts or the science and misstates the level of scientific certainty of his findings and is therefore misleading.”

If he is asked on direct or cross-examination, Talfya will also be allowed “to testify that he cannot exclude or eliminate the bullets as coming from different guns.” He “will not be permitted to describe any greater level of scientific certainty than the bullets may or may not have come from the same gun.” Since Talfya doesn’t know whether the bullets came from the same gun, he shouldn’t be permitted to hint that they probably did.

Lessons Learned

The defense relied on two expert witnesses, Dean David Faigman and Nicholas Scurich. Faigman was a Senior Advisor to the PCAST Report, “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods.”

The Auimatagi prosecution underscores the importance of consulting with a defense expert whenever the prosecution relies on a forensic expert. Expert witnesses can provide vital testimony at trial to counter the prosecution expert’s opinions.

As importantly, defense experts can support a challenge to the admissibility of a prosecution expert’s testimony. Given the tendency of prosecution experts to overreach, employing a defense expert early in the case can assure that juries never hear harmful opinions that amount to improper speculation.

Improper Testimony by Expert Witness Did Not Require New Trial in Florida Negligence Case

Beverly Bowers sued Andrew Tillman for negligence. Tillman was driving a truck in Florida that collided with Bowers’ vehicle. Bowers contended that Tillman’s negligence caused painful injuries to her neck and back, including migraine headaches. The defense argued that those symptoms were caused by a preexisting condition.

At her initial trial, the lawyers for both sides engaged in gladiatorial behavior. They were rude to each other, sometimes in the presence of the jury. After five days of trial, the trial judge had enough and granted a mistrial.

The unprofessional conduct continued in the second trial. At the end of the trial, the jury awarded Bowers $58,248 for her past medical expenses and $27,300 in lost wages. The jury determined that her injuries were not permanent and awarded her nothing for future medical care or loss of earning capacity. Remarkably, the jury made no award for pain and suffering.

Bowers moved the trial court for a new trial. She based her motion in part on improper comments made by an expert witness for the defense. The judge denied the motion and Bowers appealed.

Defense Expert’s Comments

Dr. Robert Kowalski testified as an expert for the defense. Prior to trial, Bowers asked the court to exclude any testimony referring to matters outside the record. The court granted that motion. In particular, the court precluded any reference to the content of medical records that Dr. Kowalski had not seen.

The defense had complained that Bowers did not produce her chiropractic records. The court ruled that the defense could not speculate that the records would “show x, y, or z about the Plaintiff” or to argue “we just don’t know because the Plaintiff did not give them to us.”

Notwithstanding that order, Dr. Kowalski testified on direct examination that he believed certain records of Bowers’ chiropractic treatment would support his opinion that her injuries were caused by a preexisting condition. The records were not in evidence and Dr. Kowalski’s suspicions about their content were therefore unsupported.

Dr. Kowalski’s testimony was a blatant violation of the order limiting his testimony. Whether Dr. Kowalski was aware of that order was unclear to the appellate court, but ignorance is no defense. The insurance defense lawyer had a duty to instruct Dr. Kowalski to follow the court’s order. Whether the fault lay with the lawyer or the expert witness has no bearing on whether the improper testimony deprived Bowers of a fair trial.

Bowers objected to the testimony. The court sustained the objection and instructed the jury to disregard the comments. The court denied a motion for a mistrial.

Hidden Medical Record

Bowers originally claimed that certain abdominal symptoms were caused by the accident. She withdrew that claim well before trial. The court entered an order prohibiting reference to her abdominal issues.

Tillman’s attorney assembled a 140-page exhibit that purported to include medical and billing records related to Bower’s injury claims. In the middle of that exhibit, the attorney buried a single page from a urology record that related to the abdominal treatment. Bowers’ attorney did not notice that the page was included in the lengthy exhibit.

During his closing argument, the defense attorney placed the urology record on a screen for the jury to view. The attorney directed the jury’s attention to a urologist’s comment that Bowers’ attorney had referred Bowers to a chiropractor. After Bowers objected, the defense lawyer continued to display the exhibit to the jury until the court ordered him to shut off the display.

No other evidence at trial suggested that Bowers saw a chiropractor at the suggestion of her attorney. The court determined that defense counsel deliberately smuggled an improper exhibit into the compilation of medical records so that he could present otherwise inadmissible evidence to the jury during his closing argument. The court ordered the urology record to be removed from the exhibit, ordered defense counsel not to comment upon it further, and instructed the jury to disregard it.

Appellate Decision

As the appellate court recognized, Dr. Kowalski’s testimony about the presumed content of the chiropractic records bolstered his opinion about a preexisting condition. It was clearly improper to violate an order that was entered to protect Bowers from improper speculation about the content of records that Dr. Kowalski had never seen.

The improper testimony was compounded by defense counsel’s reference to a urology record that he buried in the middle of a compilation of medical records. The appellate court condemned counsel’s “gotcha” tactic and observed that lawyers, as officers of the court, have a special duty “to avoid conduct that undermines the integrity of the adjudicative process.” Defense counsel fell well short of fulfilling that duty.

In her motion for a new trial, Bowers argued that the trial court should take notice of other cases in which defense counsel had engaged in improper trial tactics that prompted a new trial. The trial judge decided that the bar association, rather than the court, should determine whether counsel had engaged in a pattern of misconduct. The appellate court held that the trial court did not err by basing its decision on the case before it rather than other cases in which defense counsel participated.

The ultimate question before the appellate court was whether the expert’s improper testimony, combined with the improper closing argument, deprived Bowers of a fair trial. The jury’s failure to award her any compensation for pain and suffering is strong evidence that the jury believed Bowers was unworthy of compensation. The improper expert testimony and closing argument would be a reasonable explanation of the jury’s conclusion.

The appellate court, however, decided that the trial judge was in the best position to decide whether the improper conduct probably had an impact on the jury. That’s true, but it is likely true that the trial judge didn’t want to preside over another contentious trial involving the same lawyers. The appellate court did not evaluate the trial court’s reasoning. It also failed to offer any alternative explanation for the jury’s failure to award damages for pain and suffering after awarding substantial compensation for medical expenses and lost wages. Whether the appellate court reached the correct result is difficult to determine when the appellate court defers to a decision that it fails to analyze.

Lessons Learned

A lawyer might be tempted to learn from the Bowers decision that introducing inadmissible testimony through an expert witness is the path to victory. A better lesson to learn is that lawyers jeopardize their reputations by engaging in sharp practices.

It isn’t clear whether the expert knew about the order limiting his testimony. It therefore isn’t clear whether the expert knowingly did anything wrong. It is nevertheless a lawyer’s duty to acquaint a testifying expert with limitations that a court has imposed on the expert’s testimony. A lawyer’s failure to do so places a favorable verdict at risk. While the improper expert testimony did not lead to a new trial in Bowers’ case, lawyers should never assume that eliciting improper testimony from an expert witness will have no consequences.

Disabled man, wheelchair

Suit Claims Requiring Disabled Attorneys to Present Experts is Discriminatory

A new suit filed in California district court claims that the California State Bar discriminates against attorneys with mental disabilities by requiring them to present expert witnesses to attest to their condition when they are facing discipline.

The Requirement

The Rules of Procedure of the State Bar of California outlines ten mitigating factors that a respondent may rely upon in disciplinary proceedings. Standard 1.6(d) specifies that “Mitigating circumstances may include:…(d) extreme emotional difficulties or physical or mental disabilities suffered by the member at the time of the misconduct and established by expert testimony as directly responsible for the misconduct, provided that such difficulties or disabilities were not the product of any illegal conduct by the member, such as illegal drug or substance abuse, and the member established by clear and convincing evidence that the difficulties no longer post a risk that the member will commit misconduct.”

The Lawsuit

On June 24, 2021, Michael Potere filed a lawsuit against The Board of Trustees of the State Bar of California and Donna S. Hershkowitz, the Interim Executive Director of The Board of Trustees of the State Bar of California.

Potere is disabled according to the definition provided by the Americans with Disabilities Act, which defines disability as “a physical or mental impairment that substantially limits one or more of the major life activities” or the individual in question and “mental impairment” to include “any mental or psychological disorder, such as…emotional or mental illness.” Potere has been diagnosed by numerous medical professionals as suffering from depression or major depression.

Potere claimed that he was harmed by Standard 1.6(d) because he was financially unable to hire an expert witness in his California State Bar Court proceedings. Because he was unable to provide an expert witness, the Hearing Department and the Review Department both found that Potere failed to prove that his mental disability caused his misconduct.

In his suit, Potere claimed that Standard 1.6(d) discriminated against persons with disabilities because it is the only group of respondents who are required to use expert testimony to establish a mitigating circumstance. Additionally, the respondents would be required to provide that expert witness at their own expense.

Potere points out that California is the only state that requires disabled respondents to hire an expert witness to prove that they have a disability. Every other state either follows the ABA Standard 9.32(i), which requires only “medical evidence,” or has no evidentiary requirement at all.

Potere argues that Standard 1.6(d)’s heightened evidentiary burden for disabled respondents violates their constitutional right to due process and equal protection, along with their right to be free from discrimination based on their disability pursuant to the American with Disabilities Act.

Potere brought the lawsuit on behalf of himself and those similarly situated. He asked for the court to issue a declaratory judgment that Standard 1.6(d) violates the due process and equal protection clauses of the U.S. Constitution and violates Title II of the Americans with Disabilities Act. Potere also asked the court to permanently enjoin The State Bar of California for using or enforcing Standard 1.6(d) as it is currently written.

Ethics

Is It Ethical for a Medical Examiner to Testify for the Defense?

Medical examiners are employed by state and local governments to determine a cause of death. Television shows tend to portray medical examiners as forensic detectives. While medical examiners often find information that helps investigators solve crimes, their mission is simply to determine why someone died.

In routine cases, the cause of death is not a mystery. Most states require an autopsy to be performed when the cause of death is suspicious or unknown. Medical examiners often perform autopsies when a death probably resulted from homicide, suicide, an accident, or an occupational hazard. In those cases, a medical examiner typically dissects and examines the body and reviews results of lab tests to determine why a person died. Sometimes the medical examiner will need to sort through multiple causes to determine whether any of them would have been sufficient to cause death in the absence of the others.

In some cases, the cause of death is disputed. Those disputes may arise in criminal cases or in wrongful death lawsuits. When a medical examiner draws conclusions from medical evidence that is open to interpretation, a party may retain a pathologist as an expert witness to offer alternative explanations for a death. It is then up to a jury to decide whether to accept the medical examiner’s opinion.

The Importance of a Second Opinion

While medical examiners are usually reliable witnesses, no witness is infallible. In homicide prosecutions, defense attorneys often submit autopsy reports to independent pathologists to determine whether the medical examiner’s opinion is open to doubt.

Writing for MedPage Today, Dr. Judy Melinek relates the story of a forensic pathologist who was asked by the family of a man who died in police custody to perform a second autopsy. The pathologist noted that the man’s neck had not been fully dissected. When she opened the neck, she found a bag of drugs that was blocking the back of the man’s throat. The pathologist who performed the first autopsy missed a likely cause of death.

The privately retained pathologist told Dr. Melinek that she was accused of planting the drugs. Since autopsies are usually performed in the presence of photographers and lab assistants, planting evidence would typically be a difficult task. Nor was there any reason to believe that the private pathologist had any incentive to do so.

According to Dr. Melinek, however, attacks upon the integrity of privately retained experts are common. One pathologist, for example, discovered a broken hyoid bone that the first autopsy missed. A fractured hyoid bone is rare and is typically caused by strangulation. The pathologist who found the fracture was accused of breaking the bone himself. He was eventually exonerated, but only after years of fighting the false accusation. The accusation has followed the pathologist, making lawyers reluctant to hire him as an expert witness.

The Ethics of Testifying

Medical examiners work for the government. They don’t work for prosecutors. Their job is to advance the truth, not to advance a prosecution. Unfortunately, as Dr. Melnick points out, “there is a subset of prosecutors who believe, and will not be dissuaded, that the investigative work done by a medical examiner always ought to align with the goals of law enforcement. Some forensic pathologists feel the same way.” Those pathologists serve a law enforcement agenda when discovering the truth should be their only agenda.

Dr. Melnick reports that some medical examiners refuse to speak to defense attorneys. A medical examiner should have nothing to hide. Refusing to discuss findings with a defense attorney sends the message that the medical examiner is an advocate for the prosecution rather than an advocate for the truth.

Doctors who are employed by the government sometimes disparage forensic pathologists who are hired by defense attorneys. In fact, an expert who is called to testify by a defense lawyer is bound by the same ethical obligations that should govern the testimony of a medical examiner. The primary obligation is honesty. When a cause of death is a matter of probability and other causes remain possibilities, an honest witness should readily admit that fact.

When Dr. Melnick worked as a pathologist for a medical examiner’s office, she did some consulting work in civil and criminal cases, including work for prosecutors in other counties. Her employer told her that her testimony created a conflict of interest. In fact, there is no conflict in testifying for “the other side” because the truth does not take sides. As Dr. Melnick puts it, “We are neither defense witnesses nor prosecution experts. We are witnesses for the voiceless. We speak for the dead.”

Government employers that restrict the work of pathologists are interfering with a justice system that depends on the honest testimony of expert witnesses. Government employees who launch “whisper campaigns” to destroy the reputations of pathologists who give honest testimony for other parties place their own reputations, and the reputations of honest colleagues, at risk. Nobody trusts an expert who makes groundless attacks upon other experts simply because they follow the evidence to the truth that it reveals.

Courtroom

When Must a Summary Witness Testify as an Expert?

Federal courts may allow a summary witness to explain how documents and testimony fit together. The Court of Appeals for the Fifth Circuit recently rejected the argument that a summary witness needed to testify as an expert to explain the government’s case.

Facts of the Case

Carl Nicholson is a certified public accountant. He was charged with eleven tax crimes, including filing false tax returns for himself and assisting clients in the preparation of false tax returns. A jury found Nicholson guilty on all counts. A judge sentenced him to five years in prison.

Nicholson was a partner in an accounting firm. Pursuant to firm policy, Nicholson was entitled to use his personal credit card for business expenses and to request reimbursement from the firm. Nicholson was reimbursed for charges to his American Express (“Amex”) account that were incurred for personal reasons, including family travel.

Nicholson did not report the improper reimbursements as income on his personal tax returns. Some of the criminal charges related to his failure to disclose taxable income.

Nicholson’s partners bought out his interest in the firm in 2015. To calculate the amount of profit Nicholson earned from that sale, Nicholson claimed to have paid $150,000 for his interest in the company and an additional $300,000 that he paid overtime on the firm’s behalf. The firm’s managing partner testified that the additional payments of $300,000 were never made. Although the managing partner recalled that Nicholson made an initial investment of $150,000, financial statements showed that he actually paid $100,000. Nicholson was thus accused of inflating his investment in the firm by $350,000 to reduce the amount of taxable profit he made when he sold that interest.

Summary Witness

The government relied in part on testimony given by IRS Agent Bradley Luker. Through Luker, the government introduced summary charts of Nicholson’s tax returns. The charts also summarized Nicholson’s Amex reimbursement requests.

The Federal Rules of Evidence allow summaries to be introduced into evidence “to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.” However, the summaries may not introduce evidence that the jury has not already heard.

All of the information in Luker’s charts was taken from earlier testimony and documents that had been received into evidence, including tax returns and bank statements. The jury was instructed that “summary charts and witnesses are no better than the underlying testimony and the documents upon which they are based and are not themselves independent evidence.”

In the Fifth Circuit, at least, a summary witness is entitled to “sort through the evidence” to show how the documents that were introduced into evidence “related to each other and to the charges in the indictment.” However, summary evidence may not be used to “fill in holes” in the party’s case by assuming the existence of facts that have not been independently established.

Was Lurker an Expert Witness?

Nicholson argued that Lurker should not have been allowed “to state his conclusions about whether Nicholson’s income tax returns were ‘false’ and what the ‘correct’ amounts should have been.” Lurker was not an accountant and did not testify as an expert. Nicholson argued that only an expert should be allowed to state opinions about tax matters.

The court of appeals concluded that Lurker was merely summarizing other testimony and therefore did not testify as an expert. Since the court did not quote Lurker’s testimony, it is difficult to evaluate whether he offered his own opinion about how income should have been reported.

Nicholson also contended that Lurker’s testimony was not summative but was in conflict with other testimony. Lurker testified that a $66,000 payment from one of Nicholson’s clients was not for accounting services. The client testified that he was billed for accounting services and, while he disputed whether the money was owed, he paid the bill. Since the client had an agreement with Nicholson’s firm that he would not be charged for accounting services, there was evidence to support the conclusion that the $66,000 was not for accounting services. The court found no conflict in the testimony despite evidence that the client told Nicholson to record the funds as a payment for accounting services.

Nicholson also complained that Lurker contradicted the managing partner, who testified that he recalled Nicholson making an initial investment of $150,000 in the firm. The court of appeals noted that Lurker did not characterize the managing partner’s testimony as false but did testify about the $100,000 investment shown on financial statements. Since those statements were in evidence, there was no conflict between Lurker’s testimony and facts in evidence.

Finally, the managing partner testified that he did not authorize reimbursement of funds for family vacations and other expenses for which Nicholson charged the firm. The managing partner did testify that whether some of those expenses were legitimate might be a matter of opinion, but in his opinion they were not. Lurker testified that he based his chart of improper expense reimbursements on the managing partner’s testimony.

The court of appeals rejected the claim that Lurker essentially testified as an expert who agreed with the manager’s opinion as to the legitimacy of the expense reimbursements. The court also rejected the argument that Lurker improperly bolstered the managing partner’s testimony. It was up to the jury to decide whether to believe that Nicholson improperly reimbursed himself for nonexistent business expenses and failed to claim those reimbursements as income.

The court of appeals nevertheless recognized that the case involved issues of accounting, business arrangements, and tax preparation that went beyond the knowledge of average jurors. Given the thin line between showing how documents relate to each other and explaining the documents, perhaps the government should have relied on an expert witness to help prove its case. Since Lurker merely summarized testimony and documents that were already in evidence, however, he did not testify as an expert. To the extent that an expert might have been in a better position to give that testimony, the court regarded any error as harmless.

Expert Witness writing report

Damages Expert Excluded for Failure to Do Independent Verification

A plaintiff damages expert has been excluded in a false advertising case under the Lanham Act for failure to do any independent verification of the plaintiff’s cost estimates.

The Dispute

Natera and CareDx are manufacturers of kidney transplant tests. Natera created an advertising campaign aimed at showing that its kidney transplant rejection test is superior to CareDx’s AlloSure organ transplant diagnostics.

CareDx sued Natera, claiming false advertising. CareDx argued, “Natera has begun a false advertising campaign designed to deceive doctors, healthcare professionals, insurance companies, and patients — as well as investors — into believing that Natera’s ‘me too’ test is superior to AlloSure when that has simply not been shown… Natera’s dissemination of false and misleading claims about AlloSure is an attempt to poison the marketplace and must be stopped.”

CareDx specifically accused Natera of one count of false advertising in violation of the Lanham Act, one count of trademark disparagement under the Lanham Act, one count of common law unfair competition, and one count of unfair or deceptive trade practices under Delaware law.

Lanham Act Damages

According to CareDx, under the Lanham Act, 15 U.S.C. § 1117(a)(2), “a successful false advertising plaintiff can recover the costs of any completed advertising that actually and reasonably responds to the defendant’s offending ads.”

CareDx presented James Malackowski as a damages expert at trial to establish the actual costs of corrective advertising spent in 2019 and the first half of 2020 and the projected costs of continued corrective advertising for the second half of 2020 and 2021. Malackowski did not perform independent analysis of the marketing spend. Instead, Malackowski relied solely on the CareDx Chief Executive Officer’s deposition testimony containing an estimate of the company’s expenditures on corrective advertising.

Natera moved to exclude CareDx’s proposed expert under Rule 702 and Rule 403 of the Federal Rules of Evidence. Federal Rule of Evidence 702 requires that an expert be qualified, reliable, and fit. Federal Rule of Evidence 403 allows a court to exclude relevant evidence “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

The United States District Court for the District of Delaware agreed with Natera. The court determined that Malackowski’s corrective advertising opinions failed to meet all three requirements of Rule 702:

(1) The challenged opinions did not contain specialized knowledge outside a juror’s common understanding; therefore, they failed both the qualification and fit requirements.

(2) The challenged opinions were also unreliable. The expert’s efforts were limited to reading the CareDx CEO’s deposition, interviewing the CEO, and reviewing one SEC filing. The court noted that Malackowski failed to review ledgers, invoices, or interview any marketing or other personnel who could provide more specific data.

The court also noted that even if the challenged testimony were admissible under Rule 702, it should be excluded under Rule 403 as unfairly prejudicial, misleading to the jury, and needlessly presenting cumulative evidence.

The court excluded Malackowski’s testimony.

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 TriStateHomepage.com 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.” The Committee appeared to be horrified by the thought that jurors are just as capable of evaluating the reliability of evidence as judges. A who allows jurors to evaluate testimony that they could reasonably view as reliable does so because the judge respects 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 a deeply divided country, a tool 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.