Category Archives: Working with Experts

Utah Supreme Court Upholds Lower Court Decision to Disallow Testimony of Eyewitness Identification Expert

At the end of 2015, the Utah Supreme Court reversed a decision the Utah Court of Appeals that granted a new trial to a defendant who was not permitted to call an eyewitness identification expert at his trial. The decision, based on a conclusion that the trial judge did not abuse its discretion in disallowing the expert testimony, reaffirms the Utah Supreme Court’s recognition that eyewitness identification experts are, at least in some cases, an essential safeguard of a defendant’s right to a fair trial. The decision also stands as a reminder that lawyers who want to call expert witnesses must be prepared to explain why the expert’s testimony is important.

Eyewitness Identification Experts

Juries often consider eyewitness testimony to be the strongest evidence in a criminal trial. While jurors have faith in eyewitness identifications of people who are charged with a crime, studies have established that eyewitnesses are often wrong when they identify a suspect. A 1996 review of 28 wrongful convictions in which the defendant was exonerated by DNA evidence revealed that each conviction was supported by one or more false identifications of an innocent defendant. The Innocence Project reports that mistaken identifications play a role in more than 70% of all convictions that are later overturned as a result of DNA evidence.

Research confirms that eyewitness identifications are tainted by:

  • Suggestive lineups or photo arrays in which police subtly encourage a witness to identify a particular suspect.
  • The likelihood that a witness will misidentify a suspect after seeing that suspect’s picture in a photo array or newspaper.
  • The difficulty of focusing on the details of a criminal’s appearance and imprinting a memory under stressful conditions that usually exist while the crime is occurring, particularly when a weapon is present.
  • The malleability of memory — that is, the fact that what we “remember” changes as we receive new information, so that memories we believe to be reliable have in fact been altered.
  • The absence of a strong correlation between a witness’ certainty that a memory is accurate and the actual accuracy of that memory.
  • The difficulty that eyewitnesses have when they attempt to identify a suspect of a different race.
  • Conditions that impair the ability to make a careful observation, including poor lighting, distance, and the brevity of time during which the criminal is in view.

A comprehensive review of these and other factors by the National Academy of Sciences points to the important role that psychologists and neuroscientists play in explaining perception and memory to juries when a prosecution is founded on an eyewitness identification. Expert testimony conveys research findings to juries that explain why “common sense” understandings of memory and perception are often mistaken.

Studies of jury decision-making establish that eyewitness identification experts have a beneficial impact on jury deliberations. Research also confirms that cautionary jury instructions, advising a jury of potential pitfalls of eyewitness identifications, have no significant impact on a jury’s evaluation of eyewitness testimony.

Clopten Decision

Prior to 2009, appellate court decisions in Utah discouraged trial judges from admitting expert witness testimony. The decisions created a presumption that, in most cases, jurors were capable of evaluating eyewitness identifications without the assistance of an expert. Expert testimony was seen as invading the jury’s province as the sole evaluator of witness credibility. The Utah Supreme Court repeatedly held that an instruction regarding the evaluation of eyewitness testimony was adequate to guide the jury, and that expert testimony would be superfluous and confusing.

The Utah Supreme Court jettisoned that presumption in 2009 when it decided State v. Clopten. The Clopten decision acknowledged that jurors rarely understand the limitations in human perception and memory that are critical to the accuracy of an eyewitness identification. The court determined that cross-examination and cautionary jury instructions are inadequate substitutes for expert testimony as tools for conveying the reasons that an eyewitness identification might be mistaken. The court decided that expert testimony is the best method for educating the jury about the vagaries of eyewitness identification. Accordingly, the court followed a growing trend by ruling that trial courts should admit expert testimony whenever it might help the jury evaluate the reliability of an eyewitness identification.

Guard Decision

In a case decided on December 31, 2015, the Utah Supreme Court revisited the issue of expert testimony in eyewitness identification cases. In that case, a stranger tried to kidnap a 9-year-old girl at knifepoint. The girl kicked and punched her assailant, freeing herself from his grasp. She then ran home.

When the police interviewed her, the girl described a man with curly hair and a beard, but said she did not see his face. She was able to describe some of his clothing, including his shoes and a distinctive t-shirt and cap. The next day, a police detective showed her six photographs, and she identified the photograph of Jimmy Guard with certainty. Further investigation found two neighborhood residents who, after looking at Guard’s photograph, said they saw a man who looked like Guard in the area of the assault on the day that it occurred. Another child, who was a block away when the assault occurred, confirmed the victim’s general description of the assailant.

The police arrested Guard two days later. They searched his home but could not locate the cap, t-shirt, or shoes that the victim described. Guard described stores he had been in at the time of the assault. The police waited a week before they interviewed the store employees, none of whom recalled Guard. Guard also told the police that he visited a library in addition to the stores. Unclear photographs from a surveillance camera at a library may have depicted Guard’s image.

Guard’s attorneys wanted to call an expert witness to testify about the problems with attention, perception, and memory that influence eyewitness identifications. The trial court refused to allow the expert testimony. After Guard was convicted and while his appeal was pending, the Utah Supreme Court decided Clopten.

The Utah Court of Appeals decided that Clopten should apply retroactively to Guard’s case. It made that decision notwithstanding a Utah Supreme Court decision that declined to apply a newly announced rule of criminal procedure to cases that are pending on appeal when the new rule represents a “clean break” from past decisions. Since Guard’s case went to trial at about the same time as Clopten’s, the Court of Appeals thought it would be fundamentally unfair to deny Guard the protection of the new rule.

Abandoning the “clean break” rule, the Utah Supreme Court agreed that the Clopten decision should apply to Guard’s case. The court nevertheless ruled that the trial judge was entitled to disallow the expert’s testimony. The court held that Guard failed to establish that the proposed testimony was reliable. Following Utah’s version of the Daubert test, the Utah Supreme Court concluded that Guard failed to make a pretrial showing of the eyewitness identification factors that the expert deemed relevant or how those factors could have influenced the identifications in Guard’s case. Responding to the trial court’s confusion, Guard’s counsel had offered to provide a written summary of the expert’s proposed testimony before trial, but failed to do so. Under those circumstances, the supreme court concluded that the trial court did not abuse its discretion in disallowing the expert testimony.

The Guard decision should not be viewed as an abandonment of the Clopten ruling, which the Utah Supreme Court expressly reaffirmed. Instead, Guard illustrates the importance of making a strong pretrial showing of the relevant testimony that an eyewitness identification expert will offer. Guard’s attorney probably could have made that showing and might have rendered ineffective assistance of counsel by failing to do so. In the end, Guard is the unfortunate victim of poor advocacy rather than poor rules governing the admission of expert testimony.

Prosecutor Accused of Improperly Influencing Expert Witness

Jane Laut is charged with killing her husband, Dave Laut, a 1984 winner of an Olympic bronze medal in shot-putting. Prosecutors allege that Laut shot her husband at their Oxnard, California home on Aug. 27, 2009.

At least at this stage, Laut’s likely defense appears to be that she suffered from battered women’s syndrome, a post-traumatic stress disorder, at the time of the shooting. The defense has engaged the services of Gail Pincus, an expert on battered women’s syndrome, and Kay Emerick, a clinical psychologist, who may testify as expert witnesses during her trial.

A defense based on battered women’s syndrome is typically used to explain why victims use force that, under ordinary circumstances, would be considered excessive to defend themselves from an attack. It can also be used to explain why the use of deadly force when a victim is not facing imminent danger can be a delayed response to violence that the victim faced in the past.

Since the defense experts based their opinions at least in part on interviews with Laut, the court granted the prosecution’s motion to allow its own expert, forensic psychologist Kris Mohandie, to interview Laut. The court required the prosecution’s expert to record the interview and prohibited him from asking Laut about events that occurred on the night of the killing. The court did allow Mohandie to ask Laut about her state of mind when the shooting occurred.

Defense Allegation of Improper Influence

The defense alleged that Senior Deputy District Attorney Rameen Minoui (or an investigator from his office) improperly influenced Mohandie by speaking to him prior to his interview with Laut. The defense relied on telephone records showing that Mohandie talked to Minoui for 47 minutes before Mohandie contacted Laut. Minoui responded that it is “no surprise that a party who hires an expert is going to communicate with that expert.”

At a motion hearing, Mohandie testified that after he met with Laut, he wanted to ask her some additional questions. Since he was going out of town, he called Minoui to ask whether he could contact Laut by telephone to ask those questions.

Asked whether Minoui told Mohandie what questions he should ask, Mohandie answered “Absolutely not.” The defense contends that Mohandie asked about issues he could only have learned about from Minoui. The judge did not allow Laut’s lawyer to ask Mohandie how he arrived at the follow-up questions he posed to Laut.

On the basis of the evidence presented at the hearing, the judge ruled that he would not limit the testimony that Mohandie would be allowed to give. The case is scheduled for trial early next year.

What “Influence” of Expert Testimony is Improper?

Laut’s lawyer faced an uphill battle. As a general rule, it is not improper for a lawyer who hires an expert to talk to the expert. Lawyers need to understand the expert’s opinions and generally need to prepare them to testify. On the other hand, it is improper for a lawyer to tell an expert witness what the witness should say. The line between preparing testimony and influencing testimony is not always easily drawn.

The rules of ethics require a lawyer to walk a line between two distinct duties. The first is the duty to provide competent representation. That rule requires a diligent investigation of the facts, including the basis for any opinions an expert witness has formed. Competent representation also demands preparation for trial. That includes preparing witnesses to testify.

The second duty prohibits lawyers from offering evidence that they know to be false. Lawyers cannot elicit evidence that they know to be untrue and cannot assist witnesses in giving false testimony. A comment to the Model Rules of Professional Conduct suggests that “improperly coaching witnesses” is forbidden. But what coaching is improper?

Witness preparation generally includes telling the witness what questions the witness will be asked in court and listening to the responses the witness plans to give. The lawyer can ask a witness to think about rephrasing an answer if the answer that the witness gives is confusing, incomplete, or inaccurate. The lawyer can even suggest alternate wording for the witness to consider, provided that the wording does not change the meaning that the witness intends.

Courts have held that lawyers “must respect the important ethical distinction between discussing testimony and seeking improperly to influence it.” Influencing testimony is clearly improper if the lawyer coaches the witness to give an answer that is untrue or misleading. Suggesting that the expert testify about opinions the expert does not actually hold would be improper.

Provided that lawyers do not try to change the intended meaning of the answers an expert witness proposes to give, it is proper to influence testimony by encouraging an expert to explain concepts in simpler language, to give shorter or more direct answers, and to avoid jargon. Meeting with an expert to learn how the expert plans to form an opinion, and meeting again to discuss the opinions that the expert will give in court, is simply part of the lawyer’s duty to provide competent representation.

Are Disputed Expert Opinions Sufficient Proof of Fraud Under the False Claims Act?

A federal judge in the Northern District of Alabama has ruled that a difference of opinion among medical experts is not sufficient to prove that a healthcare provider filed false claims for Medicare payments. If that decision is adopted by other courts or affirmed on appeal, the government’s ability to bring false claim lawsuits that rely entirely on expert testimony will be severely undermined.

Whistleblower Claims Against AseraCare

The decision came in a whistleblower lawsuit filed against AseraCare, a hospice provider that has facilities in 19 states. AseraCare has received millions of dollars in Medicare payments that the Department of Justice (DOJ) contends were the result of fraudulent claims. It is seeking more than $200 million in damages for payment of Medicare claims that it alleges to be false.

Medicare pays for hospice care, including care provided by a hospice inpatient facility, if a hospice doctor certifies that the patient’s life expectancy does not exceed six months. Hospice benefits are available only to terminally ill patients who have elected to seek comfort care rather than treatment for their illness.

Whistleblowers notified the DOJ that AseraCare received Medicare payments for a number of patients who survived in hospice facilities for more than six months. A DOJ investigation concluded that AseraCare was falsely certifying patients as eligible for hospice care in order to collect Medicare payments for patients who were not entitled to hospice coverage.

The AseraCare Lawsuit

The lawsuit was initiated by two former employees of AseraCare who alleged that they were pressured to admit patients for hospice care who did not need end-of-life treatment. The lawsuit was based on the False Claims Act, a federal law that prohibits the submission of fraudulent claims for payment to federal agencies. The False Claims Act permits whistleblowers who report fraud to the government to share in the damages that the government recovers. The DOJ intervened in the litigation, taking the lead role in prosecuting the allegations.

The judge made the unusual decision to divide the liability portion of the trial into two phases. The first phase asked the jury to decide whether the claims were objectively false. In the second phase, the jury would be asked whether AseraCare knew the claims were false when they were submitted. During that phase, the jury would hear evidence that AseraCare pressured doctors and nurses to sign up patients for Medicare-funded hospice care.

Experts testified for both DOJ and AseraCare during the trial’s first phase. The DOJ’s expert concluded that 121 AseraCare patients had been certified as eligible for Medicare coverage when their medical records established that they were likely to live longer than six months. After considering the conflicting testimony at trial, the jury decided that 104 of the 121 patients were ineligible for Medicare coverage.

On the day the second phase of the trial was scheduled to commence, however, the judge granted a new trial on the first phase. The judge decided that she erred by failing to give the jury complete and accurate instructions concerning the False Claims Act. In particular, she decided that she should have instructed the jury that claims are not false if reasonable persons could disagree about whether the claims were legitimate.

Disagreement Among Experts

The new trial may never occur in light of the judge’s most recent concern about the government’s case. The judge has ordered the DOJ to identify the evidence it presented during the two month trial, apart from a difference of medical opinions as to whether AseraCare’s patients were terminally ill, to prove that AseraCare made false claims for Medicare payments.

The judge noted that this is not a case in which the hospice owner forged physicians’ signatures, gave false information to physicians who certified Medicare eligibility, billed for services that were not rendered, or submitted claims for fictitious patients. Fraud in those instances is clear. The legal standard for proving fraud when a doctor certifies that a patient will probably die within six months and turns out to be wrong is less certain.

The judge ruled that an “expert’s opinion disagreeing with the clinical judgments of the certifying physicians, without more, is not enough to prove falsity” under the False Claims Act. Since the government agreed to prove that the claims were false without relying on the testimony of the whistleblowers or on other evidence that doctors were pressured to admit patients to hospice care who were not eligible for Medicare hospice coverage, the government may not be able to show that it met its burden of proving falsity without relying on the testimony of its expert. If the judge decides that the government did not prove the claims were objectively false, the case will be dismissed.

Perhaps the court is correct that a “mere difference of opinion” is not enough to prove that a certification is false. Experts commonly disagree, and it would not be surprising for two experts to make different predictions of mortality based on their review of the same medical records. On the other hand, if one expert testifies that no reasonable physician could certify a particular patient was eligible for Medicare-funded hospice care, and if a jury could find that expert’s testimony to be credible, that seems like the kind of expert testimony upon which juries commonly rely in resolving disputed facts.

Opinion is divided among lawyers who handle False Claims Act cases whether an expert’s opinion that medical records did not support certification of eligibility for Medicare-funded hospice care is sufficient proof that the certifications were false. The question may ultimately need to be settled by the Court of Appeals for the Eleventh Circuit or by the Supreme Court.

Expert Opinions Conflict in Benzene Exposure Claim

Last year, a worker’s compensation court in Louisiana rejected a worker’s claim that exposure to benzene caused him to suffer from non-Hodgkin’s lymphoma. The Louisiana Court of Appeal recently affirmed that decision. A key issue on appeal was whether the worker’s compensation court gave due attention to the conflicting opinions of expert witnesses.

The Benzene Controversy

Benzene is widely used in the production of lubricants, plastics, pesticides, adhesives, and other common household products. Employees who work with chemicals in manufacturing plants may be at risk from occupational exposure to benzene.

Outside of the workplace, the most common sources of benzene exposure are cigarette smoke, gasoline, vehicle exhaust, and industrial emissions. Within the home, paints, furniture wax, and glues are among the products that might lead to low levels of benzene exposure.

Long-term exposure to benzene can harm bone marrow and lead to decreased production of red blood cells. Whether benzene exposure causes cancer has been the subject of some controversy. Over time, however, a number of agencies that conduct health research, including the World Health Organization, the National Toxicology Program, and the Environmental Protection Agency, have concluded that benzene is a human carcinogen.

Allensworth’s Claim

David Allensworth cleaned storage tanks for Gulf South Systems and later for Grand Isle Shipyard. The tanks contained petroleum products, including gasoline, diesel fuel, and crude oil. Allensworth entered the tanks and cleaned chemical residue by hand, using suction hoses, pressure washers, scrapers, and similar equipment.

Allensworth wore a respirator and an air mask, as well as rubber gloves and a Tyvek suit, when he entered the tanks. He testified that the suits often ripped, exposing his skin to the contents of the tank, including sludge, fumes, and chemical residue. He also testified that he breathed chemical fumes when he was outside the tank and not wearing a respirator.

Allensworth noticed a variety of symptoms during his twelve-hour shifts, including nausea, vertigo, and headaches. He did not seek medical attention for those symptoms. He also smoked a pack of cigarettes each day.

About three months after Allensworth’s last employment, he visited a clinic because he was experiencing abdominal pain. He was later diagnosed with non-Hodgkin’s lymphoma. Although the cancer is in remission following treatment, Allensworth is unable to work. He filed a worker’s compensation claim, contending that exposure to benzene at his workplaces resulted in a disability.

Expert Opinions

At his worker’s compensation trial, Allensworth submitted an affidavit of Dr. Jack Saux as an expert oncologist. Dr. Saux expressed the opinion that Allensworth’s non-Hodgkin’s lymphoma was more likely than not caused by toxic exposure to benzene in gasoline and crude oil.

Dr. Saux did not personally examine Allensworth. He relied instead on information supplied in an affidavit that Allensworth prepared, on Allensworth’s medical records, on studies documenting the relationship between benzene exposure and non-Hodgkin’s disease, and on studies regarding benzene exposure and tank cleaning.

The employers both relied on the expert testimony of Dr. William Nassetta. While Dr. Nassetta acknowledged the association between benzene and lymphoma, he testified that benzene does not cause lymphoma and therefore could not have been the cause of Allensworth’s disease. Dr. Nassetta also opined that, even if benzene could cause cancer, Allensworth’s use of a respirator and Tyvek suit broke the causal connection between benzene exposure and cancer by denying a pathway for benzene to have a toxic effect.

The worker’s compensation court accepted Dr. Nassetta’s testimony and rejected the opinion expressed by Dr. Saux. It accordingly denied Allensworth’s claim for compensation. Allensworth appealed, claiming that the worker’s compensation judge did not decide the dispute between the experts correctly.

Resolution of Appeal

The court of appeals noted that expert testimony is required to support a finding of occupational disease. When expert testimony is in conflict, it is the duty of the worker’s compensation judge to determine whether the evidence presented by the employee establishes that the employee’s disease was caused by his employment. The appellate court does not second-guess that determination, provided that the judge exercised appropriate discretion in reaching a decision.

The appellate court decided that it was reasonable for the worker’s compensation judge to give less weight to Dr. Saux’s opinion because Dr. Saux’s knowledge of Allensworth’s benzene exposure was limited to the information that Allensworth stated in his affidavit. That affidavit claimed that Allensworth wore only coveralls and a regular shirt when he cleaned the tank. Had Dr. Saux known that Allensworth regularly wore a respirator and a Tyvek suit, he might have formed a different opinion.

In addition, the worker’s compensation judge was entitled to credit Dr. Nassetta’s opinion that Allensworth’s history of smoking and his family history of cancer were greater risk factors for the development of cancer than his exposure to benzene. The judge was also entitled to accept Dr. Nasetta’s testimony that Allenworth’s Hepatitis C could have caused his non-Hodgkin’s lymphoma.

Expert Opinions in Affidavits

Because there was a reasonable basis for the judge’s ruling, the appellate court rejected Allensworth’s appeal. One lesson to be learned is that experts should be given as much information as possible before they render an opinion. If Dr. Saux had known about Allensworth’s use of a respirator and Tyvek suit, he could have accounted for those facts in his affidavit.

A second lesson is that, in proceedings where evidence can be presented by affidavit, there may be an advantage to presenting live or deposition testimony instead. If Dr. Saux had been cross-examined about Allensworth’s smoking or his Hepatitis C, Dr. Saux could have explained why those factors were less likely to have caused non-Hodgkin’s lymphoma than exposure to benzene. Presenting opinions in the form of an affidavit makes it impossible for an expert to counter unanticipated arguments that are presented in opposition to the expert’s opinion.

Can Expert Witnesses Be Sued for Careless Opinions?

Like everyone else, expert witnesses sometimes make mistakes. When those mistakes affect the outcome of litigation, they can be costly. In some cases, experts might need to worry that their failure to render a careful and informed opinion will expose them to a lawsuit for negligence.

Maritime Experts Sued for Negligence

A dispute that illustrates the potential risks experts take when they provide opinions involves a cargo ship that was heavily damaged by fire. The owners contended that the ship was a total loss, meaning that the cost of repairs exceeded the ship’s value. The insurers disagreed. The insurance companies offered the ship’s estimated repair costs — an amount that they contended was less than the ship’s value — to settle the claim.

The owners eventually scrapped the ship and offered to settle for about $1.1 million. When the insurance companies declined that offer, the owners sued. The insurers hired a marine consultancy firm to provide an expert opinion concerning the vessel’s repair costs. The firm based its opinion on information provided by the ship’s builder and by two Chinese shipyards.

The primary dispute involved the amount of steel that would be required to repair the accommodation block (the portion of a cargo ship in which crew cabins are located). The marine consultancy firm estimated that the repairs would require 312 metric tons of steel. The owners’ technical expert estimated that 542 metric tons would be needed. The price differential between the two estimates was substantial. The cost of 542 metric tons of steel would have exceeded the ship’s value prior to the fire, while 312 metric tons would have produced a repair cost that was less than the ship’s value.

The experts eventually met and, as a result of the meeting, the marine consultancy firm revisited its opinion. It decided that it relied on faulty information and that the actual cost of repair would be almost $4 million more than the ship’s insured value. The insurance companies then settled the owners’ claim for $1.3 million, plus legal fees.

The insurers brought a claim for negligence against the consulting firm, arguing that they could have settled for a lesser amount if they had been properly advised. They also would have been responsible for lower legal fees. The insurers’ claim against the consulting firm was settled after mediation.

American Law Concerning Expert Liability

The case involving the cargo ship arose under British law, which in 2011 abandoned the immunity that experts who are hired for litigation previously enjoyed. Would the result be different in the United States? The answer depends upon the law of the state in which the expert has been hired.

The traditional rule in the United States has given witnesses — including experts — immunity for their courtroom testimony, even if the testimony is mistaken. Whether experts who are hired in anticipation of litigation should receive immunity for erroneous opinions that are rendered outside the courtroom is less clear.

What is clear is that the law is changing, at least in some states. In half a dozen jurisdictions — California, Connecticut, Louisiana, Massachusetts, Missouri and Pennsylvania — litigants are permitted to sue the experts that they hire for malpractice or breach of contract. At least two states (New Jersey and Vermont) allow court-appointed experts to be sued for negligence. Other states, including Michigan, continue to give experts immunity from suit for their testimony, but permit the party that hired the expert to sue for damages that result from reliance on the expert’s mistaken opinion.

The standard of absolute immunity for expert testimony is eroding as courts increasingly ask whether the truth-finding function of a trial is assisted by granting immunity to experts who form their opinions carelessly. How many American states will eventually follow the lead of the United Kingdom by abolishing immunity for expert witness testimony is uncertain. It is certain, however, that experts should exercise care and adhere to professional standards when they form their opinions. The failure to do so will hurt their reputations and might subject them to disciplinary sanctions imposed by professional organizations or licensing boards. If they are hired in a state that permits malpractice actions against expert witnesses, rendering careless opinions might also hurt an expert’s pocketbook.

Gold Scales of Justice on wood table

Florida Continues to Debate Standard for Expert Testimony

Until the state legislature decided it was time for a change, Florida followed the Frye standard for the admissibility of expert testimony. The state legislature adopted a rule governing expert evidence that parallels Rule 702 of the Federal Rules of Evidence. Widely known as the Daubert standard, that rule arguably raises the bar for the admission of expert evidence.

ExpertPages analyzed a Florida appellate opinion in 2014 that provided the state’s first in-depth discussion of how Florida trial courts are to apply the new rule. That case rejected proposed medical testimony because the expert’s opinion was not based on scientific research. The expert would have testified that a stressful employment environment caused the premature birth of the plaintiff’s baby.

About 35 states have either adopted the Daubert standard (sometimes with slight modifications) or have interpreted their existing evidentiary rules as being consistent with Daubert. The Daubert standard is widely endorsed by the business community, which regards it as a check against expert opinions that are based on “junk science” or that are unsupported by scientific research or a reliable methodology. Critics of Daubert suggest that the standard is designed to make it more difficult for plaintiffs to recover damages from businesses and insurance companies for injuries that were caused by a defendant’s negligence.

Florida Debates Daubert

The Florida Bar is considering a proposed recommendation that the Florida Supreme Court abandon the Daubert standard and return to the Frye standard. A committee of the Florida Bar that considers procedural rules and codes (including the state’s evidence code) narrowly favored the rejection of Daubert. The Bar’s Board of Governors tabled the vote at a meeting on October 16, 2015, but placed the issue on the agenda of a meeting in December.

The separation of powers doctrine arguably gives the state Supreme Court the final say over rules of evidence governing expert testimony, regardless of the state legislature’s attempt to impose the Daubert standard on the state’s judicial system. Even if the Board of Governors decides to make the recommendation, it is not clear whether the Florida Supreme Court would give the Bar’s recommendation greater weight than the legislature’s attempt to amend the evidence code.

A lawyer from the state’s largest personal injury firm argues that “Daubert only benefits rich, powerful people, and corporations or insurance companies.” Plaintiffs’ lawyers argue that Daubert increases the cost of litigation by requiring judges to hold extensive hearings before ruling on the admissibility of expert testimony. Not surprisingly, the Orlando Sentinel reports that opposition to the proposed recommendation “is coming from business groups and defense counsel.” They argue that Daubert is an essential safeguard that protects litigants from verdicts that are based on unreliable expert testimony.

Does the Standard Matter?

For all the effort that lawyers make to convince courts to adopt standards that might favor the clients they represent, it seems likely that the standard makes little difference in most cases. In the Florida case that rejected expert testimony attributing a premature birth to a stressful work environment, the trial court applied the Frye standard in rejecting the proposed expert testimony. The appellate court applied the Daubert standard and arrived at the same result.

Some have argued that the Frye standard, which admits expert evidence only if it is based on principles that are generally accepted in the scientific community, is actually more restrictive than the Daubert standard. The Daubert decision condemns Frye’s “generally accepted” standard as being too rigid. By focusing on the reliability of the expert’s methodology rather than its general acceptance, the Daubert decision may have opened the door to the admission of evidence that would have been excluded under the Frye standard.

Daubert and Supreme Court cases that followed in its wake gave trial judges substantial discretion to admit or exclude expert testimony. Most expert testimony (a DNA analysis, for example) is relatively uncontroversial and will be admitted routinely. In toxic tort and product liability cases where expert testimony is more often challenged, whether the judge will admit borderline evidence often hinges upon how the judge views expert testimony in general. Some judges are skeptical of expert testimony while other judges trust juries to decide whether experts are worthy of belief.

Florida’s struggle with the choice between Daubert and Frye may therefore be much ado about nothing. A study by Professors Cheng and Yoon concluded that basing admissibility on the Daubert standard or the Frye standard “does not make any practical difference.” Judges who are inclined to let juries evaluate expert evidence will admit expert testimony using either standard while judges who are suspicious of expert testimony are more likely to exclude it, regardless of the standard that governs their decision.

government assistance for indigent defendants

Expert Medical Examiner Accused of Being Gun for Hire

Can a medical examiner who is employed by the state serve as an expert witness for private parties? Assuming the state imposes no barrier to outside consulting, the question is whether testifying for private parties might create a conflict of interest.

The potential peril of acting as an expert witness for private litigants is illustrated by a special report in the Atlanta Journal Constitution that criticizes Dr. Kris Sperry, the chief medical examiner for the Georgia Bureau of Investigation. The AJC investigation accuses Sperry of acting as a “hired gun” who tailors his testimony to suit the needs of the lawyers who pay him.

Since 2003, Sperry has worked on more than 500 cases as a paid forensic consultant, all while being employed fulltime by the State of Georgia. The AJC investigation suggested that Sperry’s outside consulting, which doubles the $184,000 salary he earns from the State of Georgia, undermines his credibility as a witness for the state.

Sperry’s Critics

In 2013, Sperry testified as an expert witness for federal prosecutors who accused a former police officer of committing murder by shooting a victim with a sniper rifle. The victim’s body was burned beyond recognition and no bullet was ever found. Without examining the body, Sperry confidently asserted that the victim was shot in the back by a high-powered rifle. Sperry was paid $5,000 for that testimony.

Sperry based his opinion on his review of an X-ray. Although Sperry claimed that “any competent forensic pathologist” would agree with his opinion, four pathologists condemned his opinion as the product of supposition rather than forensic science.

The medical examiner in New Orleans concluded that the X-ray showed metal fragments from the car. According to that expert, no other explanation could account for the missing bullet, which would not have been destroyed by the fire.

Dr. Steven Karch, an Oakland pathologist, said that Sperry was relying on “junk science” to support his opinion. Dr. Jerry Spencer, the former chief medical examiner for the Armed Forces Institute of Pathology, agreed that no credible medical examiner would base a conclusion that a victim was shot by a high-velocity rifle on an X-ray.

The most prominent of Sperry’s critics in the New Orleans case was Dr. Vincent DiMaio, the medical examiner in San Antonio, Texas. DiMaio is the author of several leading forensic science treatises, including one on gunshot wounds. MiMaio not only disagreed with Sperry’s interpretation of the X-ray, he testified that Spencer’s testimony about entrance and exit wounds and the bullet’s supposed path through the body was insupportable without examining the body.

Credibility and Controversy

Not all of Sperry’s detractors focus on his alleged willingness to tailor testimony to the needs of the lawyers who hire him. An Atlanta television station criticized Sperry a few years ago for contradicting the medical examiners in other states when he testified privately. That criticism was probably unjustified, since Sperry exposed testimony that was arguably slanted to favor the examiners’ employer. That’s exactly what an expert should do, making it all the more ironic that Sperry now seems to be slanting his own testimony to favor the people who hire him.

Prosecutors have been accused of intimidating state medical examiners who act as expert witnesses for criminal defendants. Some prosecutors apparently feel that medical examiners should always be on the side of the prosecution, when in fact they should be on the side of the truth. Science is a process of discovering the truth, even if the truth contradicts a prosecutor’s theory of how a crime was committed.

There is nothing inherently wrong with a state medical examiner doing private consulting for a private party. Testifying for the prosecution, the defense, and civil litigants may help medical examiners retain their independence. On the other hand, there is something very wrong with a medical examiner who departs from objective scientific findings by slanting testimony to favor the party that pays the examiner, particularly when that testimony has no foundation in science.

Double Billing

Sperry testified 13 times for the State of Georgia between 2010 and 2014. During that same period, he testified 42 times for private parties.

Sperry told his boss that he puts in his 40 hour weeks for Georgia and works for private clients during his free time, including his leave time. He also told his boss that he doesn’t recall much about his private work and shreds his files after he is done testifying.

Motion for New Trial Based on Art Valuation Experts

Luke Brugnara made the mistake of representing himself in a federal criminal trial. Brugnara was convicted of mail fraud, wire fraud, and a number of lesser charges.

A lawyer would probably have hired an expert to testify for Brugnara during his trial. Expert testimony might have persuaded the jury that Brugnara was the victim of fraud rather than the perpetrator.

Brugnara’s Trial

The fraud charges were based on Brugnara’s agreement to pay millions of dollars to a New York art dealer for paintings, drawings, sketches, and sculptures by Willem de Kooning, Edgar Degas, George Luks, Joan Miró, and Pablo Picasso. The art was shipped to Brugnara in April 2014 but, according to the government, Brugnara refused to pay and refused to return the art.

An FBI search found four crates containing most of the art in Brugnara’s garage. A fifth crate, containing a Degas sculpture, was never recovered.

Brugnara, a former real estate investor and casino owner, consistently proclaimed his innocence. He represented himself in federal district court in San Francisco during a three week trial that was described as chaotic. Despite frequent outbursts that might have turned the jury against him, Brugnara managed to win acquittals on two charges of wire fraud and two charges of making false statements.

Brugnara has not yet been sentenced. With the help of counsel, he is seeking a new trial. His lawyers argue that new evidence if the form of expert testimony establishes Brugnara’s innocence.

Expert Testimony

Brugnara apparently based his defense on the argument that he did not pay the $11 million that he promised the art dealer because the art he received was “fake” and “worthless.” Unfortunately, his defense was based on his own rants rather than expert testimony. He also undermined that defense by making the arguably inconsistent claim that the dealer gave him the art as a gift.

Lawyers filed a motion for a new trial on the ground that expert testimony supports Brugnara’s view that the art dealer tried to swindle him. Brugnara’s expert testified that, viewed collectively, the art objects were worth $895,000, not the $11 million that Brugnara agreed to pay. The government’s expert agreed that much of the art the dealer sold to Brugnarra had no commercial value.

Even if the art was worth less than 10 percent of the amount Brugnarra agreed to pay, he might still have defrauded the dealer by refusing to return the art. The judge reasoned that Brugnara was not entitled to defraud the art dealer just because the art dealer tried to defraud Brugnara.

On the other hand, the jury might have resolved the charges in Brugnara’s favor if he had called an expert witness during his trial. The jury might have concluded that Brugnara’s refusal to pay $11 million for art that was worth less than $1 million was based on a desire to avoid being cheated rather than an intent to defraud.

While the judge has not yet ruled on the motion, the judge did point out that Brugnara claimed during his trial that the art was worthless. Brugnara had the opportunity to cross-examine the art dealer concerning its value but added to his woes by choosing to ask no questions. The judge suggested that Brugnara might need to live with the consequences of that decision.

Authenticity Versus Value

The government and defense experts both testified that their expertise lies in valuing art, not in authenticating it. Yet both experts expressed reservations about the genuineness of the art they inspected.

The government expert testified that the paintings by de Kooning were stylistically inconsistent with his authenticated work and that they appeared to have one signature painted over another. The defense expert testified that he had examined many paintings by de Kooning and that the artist’s signature on genuine works differed from the signature on the works that Brugnara purchased. At the same time, he testified that there is a market for art forgeries and that “suspect” de Koonings might have some commercial value.

The judge, who apparently engages in rants of his own, expressed reservations about the value of expert testimony. He told the defense expert: “All experts do is speculate” and “You’re an expert; all you’re doing is speculating anyway.” That attitude, more common among jaded judges than juries, explains why so many litigants opt for jury trials rather than allowing a judge to decide the case.

Valuing a Missing Sculpture

The value of the Degas sculpture is particularly difficult for the experts to assess, given that the sculpture was not recovered. The government claims that a similar bronze cast from the same foundry recently sold in a Hong Kong auction for $1.8 million. The defense expert testified that established auction houses like Sotheby’s and Christies refuse to sell bronzes from that foundry and questioned whether the Hong Kong buyers had an informed sense of the object’s true worth.

The defense expert was troubled that the auction house refused to disclose the auction catalog that would have established the auctioned sculpture’s value and history. The judge responded: “You’re putting this beyond the reach of any ordinary mortal to put a value on it. You’re discounting based on not knowing.”

The Value of Expert Testimony

Given the judge’s acerbic comments, it seems unlikely he will give Brugnara a new trial. It also seems doubtful that Brugnara can prove the expert evidence is “newly discovered” (the standard he must meet to win a new trial) since expert evidence was available to Brugnara and he chose not to pursue it. On the other hand, whether a conviction should be based on outright lies about value is a question that may need to be resolved on appeal.

The immediate lesson to learn from Brugnara’s case is that attempting to call an expert witness in order to win a new trial is an uphill climb. Expert witnesses should be consulted as soon as a litigant realizes that an expert opinion might influence the outcome of a trial.

Expert Witness Will Be Allowed to Explain Alleged Victim’s Recantation

Expert witnesses are commonly called by both the prosecution and defense to testify concerning accusations that a defendant sexually assaulted a child. Defense experts usually explain why children are susceptible to influence that may cause them to believe that false accusations of sexual assault are actually true. Prosecution witnesses include medical experts who testify that certain injuries are consistent with sexual abuse, as well as experts in child psychology who explain why children delay reporting incidents of sexual abuse.

A federal prosecutor in a Pennsylvania trial wants to have an expert explain why children might make truthful accusations of abuse and later recant them. The defense unsuccessfully objected that the expert, who has never interviewed the alleged victims, should not be allowed to testify.

Allegations in the Maurizio prosecution

Although sex offenses are typically state crimes rather than federal offenses, Rev. Joseph Maurizio, a former priest at Our Lady Queen of Angels Parish in Central City, Pennsylvania, has been charged with eight federal crimes concerning the alleged abuse of children in Central America. The crimes include traveling to a foreign country to engage in illicit sexual contact with a minor, possession of child pornography, and transporting money out of the country for an illegal purpose.

Father Maurizio allegedly had illicit contact with minors over a ten year period during his visits to orphanages in several Central American countries. The indictment focuses on a six year period during which Father Maurizio visited an orphanage in Honduras. Alleged victims reportedly told Homeland Security agents that Father Maurizio had sexual contact with minors, offered them money or candy for sexual favors, and attempted to take nude photographs of them. Father Maurizio was relieved of his duties in September 2014, after federal agents seized computers and electronic storage devices from his parish home and chapel.

The Child Sexual Abuse Accommodation Syndrome controversy

The prosecution proposes to call a clinical psychologist, Veronique Valliere, as an expert witness. Although federal procedural rules require the nature of proposed expert testimony to be disclosed in advance of trial, there is some dispute as to exactly what Valliere will say if she testifies.

According to the defense, Valliere is expected to testify about the Child Sexual Abuse Accommodation Syndrome (CSAAS). That controversial syndrome, developed to account for the behaviors of sexually abused children, purports to explain why abuse victims delay reporting or fail to report incidents of sexual abuse and why they retract truthful accusations.

Critics of CSAAS argue that the syndrome is meaningless because it suggests that reporting, failing to report, and denying sexual abuse are all evidence of sexual abuse. Critics suggest that CSAAS ignores the possibility that a child delayed reporting abuse, denied abuse, or recanted a past allegation of abuse because the abuse never happened. Advocates of CSAAS, on the other hand, argue that the syndrome provides a scientifically valid explanation of the behaviors of child sexual assault victims.

Court decisions concerning the admissibility of CSAAS have been mixed. Whether they apply the Frye or the Daubert standard for the admissibility of expert testimony, most courts have guardedly permitted experts to base testimony about the reaction of children to sexual abuse on CSAAS research, at least when the defense relies upon delayed reporting or recantation to attack the accuser’s credibility. Courts generally conclude that the testimony is helpful since most jurors do not have firsthand experience upon which to base judgments about how children react to sexual abuse.

At the same time, courts generally hold that experts cannot themselves assess the credibility of alleged abuse victims, since that assessment can only be made by a jury. Some courts instruct jurors that testimony about CSAAS is being admitted solely to show that a victim’s recantations are not necessarily inconsistent with having been molested, not as proof that the recantation is truthful.

A minority of courts have concluded that CSAAS is not generally accepted by the scientific community and that CSAAS is therefore inadmissible, or that that testimony based on CSAAS creates an unacceptable risk that jurors will view the expert testimony as evidence that abuse actually occurred. As the Iowa Court of Appeals noted, there is “a very thin line” between an admissible expert opinion that helps a jury evaluate a child’s testimony and an inadmissible expert opinion that the jury will take as substantive proof of a defendant’s guilt.

The prosecution’s response

The prosecution in Father Maurizio’s case wants Valliere to testify in its case-and-chief, not as a rebuttal witness to rehabilitate any child witnesses who recant. The defense argued that the prosecution’s tactic amounts to using CSAAS evidence as proof of the defendant’s guilt.

The prosecution denies that Valliere will testify about CSAAS. The defense suggested that Valliere will rely on CSAAS even if she does not identify the syndrome by name. The defense also argued that Valliere has never interviewed the children and that no studies have validated CSAAS in children from Honduras, who may (for cultural reasons) respond to sexual abuse in ways that differ from American children.

The court denied a defense motion to exclude Valliere’s expert testimony. Father Maurizio’s trial is scheduled to begin in September. It is expected to last three weeks. The defense may decide to call its own expert to counter Valliere’s testimony.

Wisconsin Court Applies Relaxed Standard to Medical Expert Evidence

To recover damages in a medical malpractice lawsuit, Wisconsin law requires the injured party to prove that the physician accused of negligence failed to provide the same standard of care that would have been provided by reasonably prudent physicians who practice in the same field of medicine and in the same locality. Expert testimony is nearly always required to establish both the prevailing standard of care and the negligent failure to meet that standard.

But does the medical expert need to rely on medical literature and other scientific data when he or she expresses an opinion about the prevailing standard of care? The Wisconsin Court of Appeals recently decided that the state’s version of the Daubert test allows medical experts to base their opinions on their own experience rather than published studies.

The malpractice case

The lawsuit alleged that a baby suffered nerve damage during its birth, causing a permanent disability in the baby’s left arm. The lawsuit was filed against the obstetrician who provided prenatal care to the mother. The obstetrician also delivered the baby.

Evidence at trial established that the baby’s shoulder became stuck (a condition known as shoulder dystocia) after the baby’s head emerged. After the baby was born, he was diagnosed with an injury that inhibits the growth and use of his left arm. The baby’s family attributed that injury to the obstetrician’s use of excessive traction to dislodge the shoulder during the baby’s delivery.

The plaintiff’s expert witness testified that the obstetrician erred in three ways. First, the obstetrician estimated the baby’s likely weight at birth by tracking the mother’s weight gain during her pregnancy. The expert testified that the obstetrician should have performed an ultrasound to estimate a more accurate birth weight. Knowing the baby’s actual birth weight (one pound and four ounces more than the obstetrician’s estimate) would have alerted the obstetrician to the heightened risk of shoulder dystocia.

Second, the expert testified that the obstetrician should have followed up an abnormal one-hour glucose test with a three-hour test to determine whether the mother had gestational diabetes. That condition can result in an elevated birth weight which again increases the risk of shoulder dystocia.

Finally, the expert testified that the obstetrician should not have performed a vacuum-assisted birth, given the mother’s weight and the baby’s birth weight. The expert opined that vacuum-assisted births are the largest risk factor for shoulder dystocia.

The jury concluded that the obstetrician was negligent. It awarded damages of almost $900,000.

Medical opinions compared to other expert evidence

Wisconsin has adopted a version of the familiar Daubert test, which permits the testimony of a qualified expert if it will be helpful to the jury, if the testimony is the product of reliable principles and methods, and if the witness has applied the principles and methods reliably to the facts of the case. The question in Siefert v. Balink was whether the expert based his testimony on reliable principles rather than personal preferences about the medical procedures an obstetrician should follow.

The defense founded its objection to the expert’s testimony on the expert’s failure to ground his opinions in medical literature. The Wisconsin Court of Appeals rejected that argument. The court relied on federal cases that recognize a distinction between medical evidence and other kinds of scientific evidence. The kinds of double-blind experiments that underlie statistical proof in other fields of science are often unavailable to medical experts given ethical prohibitions against experimentation on humans.

In addition, medicine is an uncertain science that addresses complex human organisms. It does not lend itself to the same level of certainty as physical sciences. Rather, it calls upon physicians to make sound judgments based on experience in addition to training.

Admissibility of the expert’s opinion

The expert based his opinion about known and generally accepted factors that determined the standard of care (birth weight, maternal obesity, and glucose testing) on his professional experience. The expert was not required to rely upon medical literature or on laboratory experiments in addition to his own experience as a basis for that opinion. The trial court noted that the Daubert standard is intended to shield the jury from “junk science” and determined that the expert’s training and experience assured that his opinions were not the product of junk science.

The court of appeals accepted the trial court’s reasoning. Although one part of the expert’s opinion was contradicted by medical literature that supported the obstetrician’s decision to regard the one-hour glucose test as normal, the expert was assessing the glucose test in light of the mother’s obesity and his own experience. It was up to the jury to weigh competing evidence and decide whether to believe the expert. The fact that an expert’s opinion can be impeached does not mean that the opinion is based on an unreliable methodology or that the methodology is not reliably applied to the facts of the case. Debatable evidence that is supported by experience should be assessed by the jury, not excluded from evidence.