Category Archives: Working with Experts

North Carolina

North Carolina Permits Expert Testimony Regarding Shell Casing Ejection Pattern

The North Carolina Court of Appeals faulted an attorney for challenging a decision to admit expert testimony without relying on the North Carolina Rules of Evidence. A doubtful experiment in shell casing ejection by a prosecution expert was deemed admissible because the defense attorney failed to challenge the admissibility of the experiment under Daubert.

Facts of the Case

John Turner shot Nicholas Parker. The two neighbors had a quarrelsome history. They had heated disputes about the location of their property boundary, among other issues.

Turner testified that a stray dog had been causing problems in the neighborhood. Turner said he had tried, without success, to get the dog under control.

Turner testified that he heard gunshots coming from Parker’s property. He then saw that the stray dog was injured. Believing that Parker had shot the dog, Turner armed himself with a handgun. Turner then walked down the road to find the dog.

Turner saw the dog at about the time he encountered Parker. Turner chambered a round in his gun, apparently to ready himself to end the dog’s suffering. He discovered, however, that the dog had already died.

According to Turner, Parker was enraged. Turner testified that Parker said that he shot the dog and would shoot Turner too. Turner also testified that Parker said he had been “waiting for this” and that they would “get this over with.”

Turner testified that he saw Parker reach for his waist. Assuming that Parker had a weapon in his waistband, Turner shot him. Turner testified that he was “stumbling backward” when he fired the shots. Turner then called 911 to request medical assistance for Parker.

The medical examiner testified that Parker was shot eleven or twelve times. All but two of the bullets entered Parker’s back.

Turner argued that he acted in self-defense. Even if Parker had no gun, a mistaken belief that the facts justify killing another person in self-defense could result in a conviction for the lesser crime of voluntary manslaughter under North Carolina law.

The jury found Turner guilty of murder. The jury also found Turner guilty of possessing a firearm as a felon.

Expert Testimony

Investigators discovered eight shells at the crime scene that had been ejected from Turner’s gun. The shells were in a straight line and at various distances from each other.

Kelby Glass, a forensic firearms examiner employed by the sheriff’s department, testified over objection as an expert witness for the prosecution. Glass conducted an experiment to determine the direction and distance that shells would travel after being ejected from Turner’s gun.

Glass testified that when he fired the gun while it was parallel to the ground, the ejected casings traveled backward and to the right for about eight or nine feet. When he angled the gun downward, the ejected casings traveled forward and to the right for about nine to eleven feet.

Glass offered no opinion about Turner’s location or movement when he fired the gun. Given the location of the shell casings, the prosecutor argued that Glass’ experiment disproved Turner’s testimony that he was stumbling backwards when he shot the gun.

The prosecutor argued that the position of the shell casings proved that Turner was moving toward Parker as he fired the gun. The prosecutor asked the jury to infer that Turner shot Parker in the back after Parker was already on the ground, an inference that is inconsistent with self-defense.

Potential Daubert Challenges to Expert’s Experiment

North Carolina has interpreted its Rules of Evidence in a matter that adopts the Daubert standard. Had Turner based his objection on Daubert, he could have challenged Glass’ testimony on the ground that it was not derived from a reliable methodology. Glass did not claim to have fired the gun while stumbling backwards. In the absence of that data, it is difficult to understand how Glass’ experiment could be said to disprove Turner’s testimony.

There is no suggestion in the appellate decision that Glass based his experiment on a peer-reviewed methodology. At least one forensic study concluded that a variety of factors can affect shell casing ejection patterns, including how the shooter gripped the gun. Two different people standing in the same location and holding the same gun at the same angle can produce significantly different ejection patters. That information, if placed before the court, might have convinced the judge that Glass’ experiment was incapable of returning meaningful results.

Moreover, Glass did not interpret his experimental results. The prosecutor, who certainly isn’t a forensic expert, provided an interpretation during closing argument. One wonders how an expert’s testimony about experimental results that fails to recreate the circumstances of the shooting and that is not accompanied by interpretative analysis was relevant. One might also wonder how a prosecutor with no scientific credentials at all was permitted to express opinions about the meaning of an experiment that the expert who conducted it failed to articulate.

Court’s Analysis of Turner’s Challenge

How the court might have analyzed a Daubert challenge is unknown because Turner did not make one. Instead, he relied on an older line of North Carolina cases that he viewed as more favorable to his position. While those cases, which ask whether the challenged experiment was “substantially similar” to the facts of the case, raise questions that are relevant to a Daubert analysis, they do not reflect the totality of the Daubert standard.

The court of appeals concluded that the “substantial similarity” of an experiment is no longer a standalone test in North Carolina. Rather, the Daubert analysis asks whether the expert’s opinion is based on sufficient facts or data, was the product of reliable principles and methods, and derived from a reliable application of those methods to the facts.

A strong challenge to each of those prongs could have been advanced. Turner could doubtless have found a forensic expert of his own to challenge the reliability of Glass’ methodology and the adequacy of the data that his experiment produced. He could also have challenged the relevance of an experiment that the expert witness fails to interpret. Since he didn’t, the court rejected his argument because it was based on precedent that is no longer controlling.

Lessons Learned

Although Turner did not mention the Daubert standard on appeal, the appellate court noted that it would “readily conclude” that the trial court would not have abused its discretion if it had applied the Daubert standard. On the record before the court, that observation might have merit. However, Turner’s counsel didn’t make a record that would allow the court to apply Daubert in a meaningful way.

The appellate court recognized that Glass didn’t know how Turner was gripping the gun and that Glass and Turner were standing on different surfaces when Glass conducted his test. However, Glass testified that those differences weren’t important. That was good enough for the appellate court to conclude that a Daubert challenge would have failed.

Turner could have challenged Glass’ opinion by calling his own forensic expert. The court might have come to a different conclusion after learning that research undermines Glass’ confidence that his failure to consider important variables did not influence his findings. It is difficult to understand how Glass’ experiment could have survived a Daubert analysis if an expert, relying on peer-reviewed studies, had pointed out the obvious flaws in Glass’ methodology.

There are two lessons to learn from Turner’s case. First, in a Daubert state, objections to the admissibility of expert evidence should be framed in terms of the Daubert standard. Second, when the prosecution wants to introduce an expert witness, the defense should always investigate the possibility of calling its own expert to elucidate flaws in the prosecution expert’s methodology.

 

dollar bills

Expert Testimony Causes Monsanto to Ask Ninth Circuit to Dismiss $20M Verdict

Agrochemical and agricultural giant Monsanto has asked the Ninth Circuit to overturn a $20 million jury verdict, arguing that the district court judge allowed the jury to hear from an unreliable expert witness.

The Injury

Ed Hardeman and his wife spent many years living in Sonoma County on 56 acres of land. In the 1980s, Hardeman began using Roundup products to treat the poison oak, overgrowth, and weeds on his property. Hardeman continued to use Roundup products regularly until 2012.

In February 2015, Hardeman was diagnosed with B-cell non-Hodgkin lymphoma (NHL). The following month, the International Agency for Research on Cancer (IARC) classified glyphosate, one of the key ingredients in Roundup, as a “probable human carcinogen.”

The District Court Case

In 2016, Hardeman filed a lawsuit against Monsanto in federal district court, claiming that Roundup was a substantial factor in causing his non-Hodgkin lymphoma. Numerous other plaintiffs also filed similar suits against Monsanto. These cases were consolidated. The judge presiding over the cases, Judge Vince Chhabria, chose Hardeman’s case as the lead case in this matter.

Monsanto disputed Hardeman’s claims, arguing that his non-Hodgkin lymphoma was more likely caused by his prior history with Hepatitis C, cirrhosis of the liver, and two different forms of skin cancer.

At trial, Hardeman’s attorney’s presented expert witnesses to strengthen his case. Monsanto challenged the admissibility of these experts. Following a week of hearings, Judge Chhabria ruled that three of Hardeman’s experts on the causal connection between glyphosate and cancer were “shaky but admissible.”

One of Hardeman’s witnesses was Dr. Dennis Weisenberger, a Southern California pathologist who specializes in cases of non-Hodgkin lymphoma. Dr. Weisenberger testified that the lack of protective gear combined with heavy Roundup use for almost three decades meant that Hardeman had high exposure to Roundup, which increased his risk for developing non-Hodgkin lymphoma. Dr. Weisenburger testified, “Roundup was a substantial contributing cause for him with regard to his developing non-Hodgkin lymphoma.”

A six-person jury awarded Hardeman about $5 million in compensatory damages and $75 million in punitive damages. Judge Chhabria later reduced the punitive damages award by $50 million, finding it to be excessive.

The Appeal

Monsanto appealed the decision to the Ninth Circuit Court of Appeals. On appeal, Monsanto argues that Dr. Weisenberger should not have been allowed to testify because he failed to meet the standard set in Daubert v. Merrell Dow Pharmaceuticals.

A three-judge panel heard argument on the matter. Attorney for Monsanto, Seth Waxman, argued that the trial should have never taken place. He argued that Judge Chhabria applied a more lenient standard than other circuits. Waxman noted that 70{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} or more of non-Hodgkin’s lymphoma cases have no known cause.

Attorney for Hardeman, David Wool, argued that Dr. Weisenberger was uniquely qualified to testify about causation because of his work studying the cause and effect of non-Hodgkin lymphoma as it relates to pesticides for over 30 years. Wool noted that Daubert does not require that an expert prove causation beyond a reasonable doubt. Wool argued that Dr. Weisenberger’s testimony would pass any interpretation of Daubert’s expert standard. He noted, “We had statistically significant, fully adjusted epidemiology showing an odds ratio of over 2.0, which Monsanto concedes is sufficient infer specific causation.”

The panel took the arguments under submission.

Police Officer Was Not Qualified to Testify as an HGN Expert

Kayin Love was charged with driving under the influence of alcohol (DUI). She appealed her conviction, contending that the arresting officer should not have been permitted to testify as an expert witness.

In an unpublished opinion, the Maryland Court of Special Appeals concluded that a police officer must be qualified as an expert to give testimony about the horizontal gaze nystagmus (HGN) test. The court ducked the issue of whether the arresting officer was an expert by concluding that the trial court did not regard the officer as an expert. The court then faulted the defense attorney — who had already objected that the officer was not qualified to testify about the HGN — for not objecting again when the officer testified about the HGN result.

Facts of the Case

Officer Robert Farmer testified that Love did not stop her vehicle behind the crosswalk of an intersection. Although she stopped before she entered the intersection, the vehicle encroached upon the crosswalk in violation of Maryland law.

Farmer detained Love and questioned her while she still in the driver’s seat. Farmer gave familiar testimony that Love had a flushed face and watery, bloodshot eyes. He asked Love if she had been drinking and she said she had one drink and one beer an hour and a half before she started driving. That quantity of alcohol in that time frame would not cause most drivers to exceed the legal limit.

A second officer arrived who apparently had more familiarity with the process of making DUI arrests. Officer William Weill provided inevitable testimony that he smelled the odor of alcohol coming from Love’s vehicle — an odor that Farmer apparently failed to detect.

Weill administered a walk-and-turn test, a one-leg stand test, and a horizontal gaze nystagmus (HGN) test to Love. Based on Love’s performance on those field sobriety tests, Weill decided he had probable cause to arrest Love for DUI.

Field Sobriety Tests

The three standardized field sobriety tests that Weill administered were developed and endorsed by the National Highway Traffic Safety Administration (NHTSA). The same contractor that developed the tests for NHTSA also validated the tests. The validation assessed the tests in controlled laboratory conditions, not as they are actually administered — on the side of road, often on an uneven surface, at night, in a variety of weather conditions. The agency’s failure to subject the tests to real-world validation and to an objective peer-review process suggest that NHTSA was more interested in helping the police justify arrests than in producing good science.

While courts routinely regard the standardized field sobriety tests as evidence that a driver has a blood alcohol content in excess of the legal limit, the tests were developed with little scientific rigor. An independent analysis of the tests found that “research that supports their use is limited, important confounding variables have not been thoroughly studied, reliability is mediocre, and that their developers and prosecution-oriented publications have oversold the tests.”

Even NHTSA agrees that the tests are not valid unless the arresting officer follows the exact procedure described in the training manual. On cross-examination, officers often reveal that they can’t recall the details of the procedure they are supposed to follow.

A larger issue arises when officers testify that the tests are valid. Officers claim the tests are valid because NHTSA says they are valid, not because the officers are familiar with the research methodologies that underlie the tests. Traffic officers simply lack the scientific knowledge and education that is required to give an expert opinion about the validity of field sobriety tests.

The HGN Test

The most doubtful of the three standardized tests is the HGN. The test assumes that a driver has a blood alcohol concentration in excess of 0.08 based on whether and when the driver’s eyes “twitch” or “jerk” while following a pen or some other object.

All eyes twitch (that is, they all show nystagmus) when people move their eyes as far as they can to the left or right. According to NHTSA, there is a correlation between an unlawful blood alcohol concentration and the onset of twitching before the eyes reach a 45-degree angle as they move to the left or right.

Unfortunately, eyes might twitch for dozens of other reasons, particularly if the driver is facing oncoming headlights or gazing in the direction of the police car’s flashing red-and-blue lights. Perhaps more problematic is that the validity of the test result depends on the officer’s accurate determination of whether the driver’s eyes have reached a 45-degree angle. Since officers do not carry a protractor in their tool belts, their estimates are unverifiable and may be wholly unreliable.

Even when the officer performs the HGN perfectly, NHTSA found that the test produces an inaccurate result 22{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the time. Other researchers have determined that nystagmus may appear before the eyes reach a 45-degree angle in drivers who are well under the legal limit. Given the frequent reliance on HGN results as trial evidence, whether a test that is so prone to error meets the reliability standard of Daubert is an important question.

Weill’s Expert Testimony

At Love’s trial, Weill testified that he had “specialized training in alcohol-related offenses,” consisting of the 40-hour course that most police officers take before they are assigned to traffic duty. He also testified that he had made a large number of DUI arrests, although that testimony sheds little light on whether he conducted field sobriety tests correctly before he made the arrests.

Courts commonly hold that police officers can testify about HGN results if they have been “trained.” Yet the training only teaches officers how to administer the test. Whether the test itself satisfies the Daubert requirement that expert evidence must be based on sufficient facts and a sound methodology is not the subject of law enforcement training. Learning how to administer a test is not the same as learning whether the test has a sound scientific basis.

When Weill testified that he performed an HGN test on Love, defense counsel objected that Weill was not qualified to testify as an expert witness regarding the validity or interpretation of HGN test results. The prosecutor initially indicated that Weill would not be asked to testify about the HGN results but proffered Weill as an expert on the other two field sobriety tests. After a confusing colloquy, the court agreed that Weill was an expert on the strength of his testimony that he had been “trained.” Weill then testified about the HGN test result.

The appellate court acknowledged that Maryland precedent requires an expert witness to testify about HGN results. Weill was clearly not an expert. The appellate court overcame that obstacle by deciding that the trial court did not actually intend to qualify Weill “as an expert regarding the HGN test.”

The appellate court concluded that Love’s objection — “the State had failed to lay a sufficient foundation to qualify Officer Weill as expert with respect to the standard field sobriety tests” — did not address Weill’s testimony about the HGN test because the prosecutor claimed that Weill would not testify as an expert regarding that test. According to the appellate court, when the trial court ruled that Weill could testify as an expert, the ruling only applied to Weill’s testimony regarding the other two field sobriety tests. Because defense counsel did not object to Weill’s lay testimony about the HGN results — testimony that was plainly improper under Maryland law — she failed to preserve the issue for appeal.

Lessons Learned

Courts often bend over backwards to preserve DUI convictions. This appears to be one of those cases. The prosecutor clearly understood that the trial judge had agreed that Weill could testify as an expert regarding the HGN. Since the admissibility of an HGN result depends on a foundation of expert testimony, it would have been improper for the prosecutor to try to place the test results before the jury through lay testimony. It seems disingenuous to conclude that the trial judge and parties did not believe that Weill was testifying as an expert. Since there was no evidence of his expertise, the testimony should not have been allowed.

It is always problematic when police officers testify as expert witnesses. It is even more problematic when an officer testifies as an expert to support the officer’s own decision to make an arrest. The testimony is inevitably self-serving and rarely helpful to the jury. While defense attorneys should always object to police officers who testify as expert witnesses, Love’s case is a reminder that those objections should be lodged against every question that asks an officer to give testimony that only an expert witness is qualified to provide.

 

Idaho Justice Legal System Concept

Medical Malpractice Decision Reversed for Improperly Excluded Expert Testimony

The Idaho Supreme Court has ruled that an Idaho family will have another chance to prove that a hospital is vicariously liable for the actions of doctors because a lower court improperly excluded its expert witness testimony.

The Injury

In May 2015, Duane Dlouhy went to the emergency room at Kootenai Health because of rectal bleeding. Dr. Robert Seeley performed a CT scan on Dlouhy and found “no obvious mass,” but noted the presence of “dark red blood.” A radiologist noted that a “neoplasm could not be excluded.” Dlouhy was discharged from the hospital.

Just hours later, Dlouhy went back to the hospital when the rectal bleeding resumed and his wife found him passed out in the bathroom. Another doctor saw Dlouhy and noted that the CT scan that had been performed earlier that day revealed “some thickening of the lateral aspect of the rectum.” Dr. Michael James performed a colonoscopy on Dlouhy but was unable to get a complete view of the rectum. Dr. James suspected that the bleeding was diverticular and noted that there was a large amount of blood and clotting in the mid-ascending colon. Dlouhy was discharged and followed up with his primary care physician in June 2015.

Dlouhy had additional follow-up visits related to his gastrointestinal issues in June 2015, September 2015, and January 2016. The possibility of colorectal cancer was not discussed or charted at any of these visits. In August 2016, Dlouhy was diagnosed with stage IV colorectal cancer.

The Lawsuit

In May 2017, the Dlouhys filed a complaint against the Kootenai Clinic and two physicians, alleging medical malpractice.  On June 5, 2017, Dlouhy died of colorectal cancer. Amended complaints were filed, adding Dlouhy’s children as plaintiffs and adding additional doctors, Western Medical Associates, and Kootenai Health as defendants. The parties settled claims against all defendants, with the exception of Kootenai Health.

The Dlouhys retained expert witnesses to testify on their behalf. Two experts, Kenneth J. Hammerman, M.D., and Judy L. Schmidt, M.D., were retained to testify about the standard of care. Kootenai Health filed a motion for summary judgment, arguing that the Dlouhys failed to establish an essential element of their claim because they had not presented experts with “actual knowledge” of the applicable community standard of care. The district court agreed with Kootenai Health and granted the motion for summary judgment. The Dlouhys appealed.

Dlouhy v. Kootenai Hospital District

The Idaho Supreme Court reviewed the district court’s ruling for an abuse of discretion. In Idaho, for an expert to testify about the applicable community standard of care, “he or she must have actual knowledge of the community standard as it existed ‘at the time and place of the alleged negligence.’” Plaintiffs may use local experts (who practice in the same community as the defendant health care provider with actual knowledge of the community standard of care that applies) or out-of-area experts (who must also explain how he or she came to be familiar with the community standard of care). Both Dr. Hammerman and Dr. Schmidt were out-of-area experts.

The court noted that for board-certified specialists, the local standard of care is equivalent to the national standard of care. Both of the proposed experts were board-certified in gastroenterology.  By reviewing the record, the court determined that Dr. Hammerman learned that the community standard of care did not deviate from the national standard of care by reviewing depositions. The court also determined that Dr. Schmidt had not given a timely affidavit or declaration in response to the motion to summary judgment. The court concluded that the district court had erred in excluding Dr. Hammereman’s testimony only.

The Idaho Supreme Court reversed the order granting summary judgment and remanded the case to the district court for additional proceedings.

 

MA-Massachusetts

Lawyer Faulted for Failing to Retain Expert Witness Regarding Voluntariness of Confession

Kenneth Richards beat his wife to death with a baseball bat in their Massachusetts home. He testified at trial that he acted in self defense after his wife stabbed him in the chest. A jury found him guilty of first-degree murder.

While Richards was in the hospital recovering from his stab wound, he gave the police a statement that was used against him at his trial. On appeal, Richards argued that an effective lawyer would have called an expert witness to challenge the voluntariness of that statement. The appellate court agreed that the lawyer erred but affirmed the conviction.

Facts of the Case

The Rowley police received a 911 call from Richards’ young daughter, who advised the dispatcher that her father had a hole in his stomach. When the dispatcher asked why, the daughter said that her mother might have dug the hole. She also told the dispatcher that there might also be something wrong with her mother.

An EMT found Richards covered in blood with a knife at his side. Richards had the kind of lacerations on his hands and arms that are consistent with defending against a knife attack. The EMT also observed that Richards’ wife was dead and that her skull had been fractured.

Richards was rushed to the hospital. Emergency surgery saved his life. Just prior to the surgery, he was given anesthesia and muscle relaxants. During surgery, he was given powerful opioids, including fentanyl and morphine.

As Richards was being transferred to the ICU following his surgery, a nurse asked him if he knew why he was in this hospital. Richards responded, “I stabbed myself and I killed my wife.” He complained of pain and was given additional morphine.

Twenty minutes later, while Richards was still under the influence of narcotics, the police questioned him in the ICU. Interrogating suspects while they are under the influence of thought-altering drugs is an unfortunate but common police practice.

Although Richards was mumbling, not always coherent, and complaining of pain, the police gave him a Miranda warning and accepted his statement that he understood his rights and was willing to waive them. The police made no inquiry into the effect of narcotics on his thought process.

Richards told the interrogating officers that he beat his wife with a bat because she was cheating on him. When asked whether she provoked him, he answered “no.” During another interview a few hours later, while he was still being treated with narcotics, Richards provided similar information and added that he stabbed himself in the chest after cutting his wrists and neck.

Trial Testimony

A state crime lab employee, identified as a forensic biologist, testified about bloodstain patterns. In the expert’s view, some of the bloodstains were consistent with hitting the victim after she stopped moving.

A medical examiner who autopsied the victim testified that she died from blunt injuries to the head. He opined that the victim died about fifteen to thirty minutes after the attack.

The defense consisted almost entirely of Richards’ testimony. He testified that he argued with his wife about her decision to stop taking medication for her bipolar condition. Richards said that at some point after they went to bed, he woke to find his wife kneeling over him. He fell out of bed and had difficulty breathing. At that point he noticed a hole in his chest.

Richards testified that he picked up a bat and used it as a crutch to help him stand. He saw his wife coming toward him and he swing the bat. He told the jury that he was in fear for his life and wasn’t thinking rationally. He said he only recalled hitting her once but conceded that he might have hit her multiple times.

Voluntariness of Confession

Richards’ trial testimony could be reconciled with the physical evidence but it was wholly inconsistent with statements he gave to the police while he was hospitalized. Although Richards’ lawyer challenged the admissibility of those statements, he failed to support that challenge with expert testimony.

The constitutional right to be free from self-incrimination has two components. First, it allows statements a defendant makes to the police to be used as evidence only if they were made voluntarily. Police officers cannot torture suspects to produce a confession. Nor can they use coercive tactics, although courts have a narrow definition of “coercive.” For example, the police can lie to suspects about evidence they don’t have in order to trick a suspect into giving a confession.

Second, suspects must be warned that they have the right to remain silent. The Supreme Court’s Miranda decision was a response to decades of inconsistent court decisions about whether a confession was voluntary — decisions that often excused the infliction of psychological abuse as a tactic to encourage confessions. If a suspect is warned that a statement will be used against him, and is warned that he can choose to remain silent or to consult with a lawyer before deciding whether to answer questions, a suspect who chooses to talk is presumed to have given a voluntary statement.

The Miranda warning is only required if the suspect is in custody. Whether a hospitalized suspect is “in custody” depends on the facts, but the issue did not arise in Richards’ case because he was given a Miranda warning before he was questioned. The question was whether, given his drugged condition, he was capable of understanding his rights or of making a voluntary statement.

Richards’ Expert Witness on Voluntariness

After Richards lost his appeal, he filed a post-conviction motion asking for a new trial. He contended that his trial lawyer was ineffective for failing to use expert testimony in support of his motion to suppress his confession.

Richards’ motion for a new trial relied on the affidavit of Dr. Adam J. Carinci, the director of the Massachusetts General Hospital Center for Pain Medicine. Dr. Carinci is board certified in anesthesiology and pain medicine. Based on a review of medical records, Dr. Carinci concluded that over a five-hour period, Richards was administered “at least eight distinct medications classified as either general anesthetics, benzodiazepines, opioids, cholinesterase inhibitors, or anticholinergics.”

Dr. Carcini stated as a “medical fact that the residual effects of” these medications “detrimentally impact consciousness, awareness, cognition, orientation, concentration, dexterity, comprehension and recall.” He concluded that the drugs “negatively impacted” Richards’ “ability to comprehend his Miranda rights at the time that they were read to him and the voluntariness of the statements that he made to [Trooper] LaBarge.”

Effective Assistance of Counsel

Richards argued that a reasonably effective attorney would have presented the expert testimony of Dr. Carcini or another medical expert to establish that Richards was in no condition to understand the Miranda warnings or to make a voluntary statement. To his credit, Richards’ trial attorney agreed that he should have done so. The attorney stated that he might not have recommended that Richards testify at trial if his incriminating statements had been suppressed.

Both the trial judge and the appellate court agreed that Richards’ lawyer deprived Richards of his constitutional right to effective advocacy by neglecting to retain an expert witness. The recorded interviews should have made it apparent to Richards’ lawyer that Richards “remained, to some extent, impaired by the medications he had received at the hospital and by the physical pain he was suffering from his wounds and from the surgical procedure.”

The appellate court held that “it was manifestly unreasonable for trial counsel not to retain a medical expert to help him understand the effects of the defendant’s medications and physical pain on the voluntariness of his statements or the knowing and voluntary nature of his Miranda waivers.” In other words, the lawyer neglected his duty to his client by not hiring an expert witness.

The trial judge held that he would not have suppressed the evidence even if the expert had testified. The judge was aware that Richards was under the influence of drugs but considered his recorded responses to be coherent and consistent with a clear understanding of his situation. The appellate court deferred to that conclusion. Since the failure to call an expert at the suppression hearing would not have changed the outcome, that failure did not entitle Richards to a new trial.

The appellate court also concluded that expert testimony at trial would not have changed the verdict. Had the expert testified, the jury might have been instructed to disregard Richards’ confession if it concluded that he did not give the confession voluntarily. In the appellate court’s view, however, Richards’ apparent understanding of the Miranda warnings and his clear-headed answers during the interrogation would likely have convinced the jury that Richards’ acted voluntarily, notwithstanding the expert’s opinion.

Lessons Learned

Appellate opinions necessarily make predictions about whether an outcome would have been different if errors had not been made. Those predictions amount to best guesses. The fact is, nobody — including the trial judge — knows whether the trial judge would have suppressed the confession if he had heard Dr. Carcini’s expert testimony before ruling. Nor does anybody know what a jury would have done if it had heard the same testimony.

The odds may be that Richards would still have been convicted if he had hired an expert witness, but defense attorneys have an obligation to assure that a client, innocent or guilty, receives a fair trial. This case stands as a reminder that retaining an expert witness can be a critical part of assuring that trials are fair.

Judge in courtroom

Judge Refuses to Hear Expert Testimony in FTC’s Deceptive Practices Lawsuit

To satisfy the Daubert test, some judges require expert witnesses to explain their reasoning in exhaustive detail. When experts fail to support their conclusions with a high level of detail, parties risk the exclusion of expert testimony.

The Federal Trade Commission (FTC) sued Innovative Designs, Inc. for violating a federal law that prohibits using “unfair or deceptive acts or practices” in commerce. The FTC supported its claim with the expert testimony of David Yarbrough. At the conclusion of a bench trial, the court decided that Yarbrough’s testimony failed to satisfy Daubert because Yarborough did not explain potential deficiencies in his reasoning. The court struck the testimony and later dismissed the case.

Facts of the Case

Innovative Design sells a product called Insultex. The product is marketed as a house wrap that is installed just behind the exterior walls of homes. House wraps are intended to prevent rain from penetrating a home and to allow water vapor to escape so moisture does not accumulate inside the walls.

Innovative Design advertised Insultex as an energy saving product. Its advertising claimed that Insultex products have specific R-values. An R-value is a measurement of a product’s ability to restrict the loss of heat. The FTC argued that Innovative Design overstated the product’s R-value and thus misrepresented the energy-saving properties of its product.

The heart of the dispute at trial concerned the measurement of R-value. The FTC maintained that a particular ASTM standard is the “consensus standard” to measure R-value. ASTM standards are developed by an international organization that creates voluntary technical standards that various materials and products should meet. The court agreed that the ASTM standard for R-value measurement is the prevailing industry standard.

Innovative Design advertises the submitted products as having an R-rating of R-3 and R-6. Innovative Design submitted Insultex for testing to two laboratories in 2009. Using standard testing, the laboratories rated the products as R-0.2 and R-0.3, far less than their claimed R-values.

Innovative Design then paid a different laboratory to build a modified testing device. The new device incorporated air gaps that aren’t present in the standard testing device. A third-party accreditation company inspected the device and accredited it to determine an R-value.

Using the modified device, the testing lab certified that Insultex Products had an R-3 or R-6 value. The certificates of analysis stated that the testing complied with ASTM testing guidelines. Whether a testing device that departs from the ASTM standard by incorporating air gaps is reliable was a disputed question at trial.

Pretrial Rulings Regarding Experts

Innovative Design argued Yarborough’s testimony should be excluded because Yarborough had an employment relationship with a company that Innovative Design once hired to test Insultex. Since Insultex did not provide Yarborough with any confidential information, the court disagreed that he was disqualified from acting as an expert witness.

The FTC also disclosed Anastassios Mavrokefalos as an expert witness and Jonathan Malen as a rebuttal expert. Mavrokefalos had been disclosed as an expert witness for Innovative Design. When the FTC took his deposition, however, he changed his opinions. Innovative Design then withdrew Mavrokefalos as an expert witness. The FTC disclosed that it might use Mavrokefalos’ deposition as evidence in support of its case. The judge denied Innovative Design’s motion to exclude that evidence.

Innovative Design designated Donald Garlotta as an expert witness. The court denied the FTC’s Daubert motion to exclude his testimony after finding that the motion should be treated as a challenge to Garlotta’s credibility. The court said it would determine Garlotta’s credibility at trial. However, Innovative Design did not call Garlotta, or any other witness, to provide expert testimony.

Yarborough’s Testimony

Yarborough testified that an experienced lab technician tested Insultex under his supervision. Applying the relevant ASTM standard, Yarborough concluded that, regardless of the thickness of the specific product, Insultex’s R-value was “negligible at best.” Yarborough also testified that, given the structure of Insultex, the claimed R-values are not theoretically possible.

On cross-examination, Yarborough testified that the lab technician’s testing device was calibrated with a fiberglass board, not with a material that is similar to Insultex as the ASTM standards require. Yarborough explained that testing modifications were necessary because Insultex is an unusual material. If no material with a known R-value is similar to Insultex, it is obviously impossible to calibrate the machine using a similar material.

Examining these and other difficulties with Yarborough’s methodology, the court decided that Yarborough’s explanation of his departure from standardized testing methods was conclusory. While the court recognized that nonstandard testing techniques may be necessary when nonstandard materials are tested, the court concluded that departures “need to be well explained.” The court was not satisfied that Yarborough’s explanation of his decision to calibrate the machine with a fiberglass board established the reliability of his methodology.

The FTC argued that Yarborough employed methods used by other testing labs. The court was not persuaded by that argument because the FTC did not establish that the methods used by other labs are generally regarded as acceptable by the relevant scientific community. The court therefore concluded that Yarborough’s testimony did not satisfy Daubert and declined to rely upon it.

Mavrokefalos’ Expert Testimony

At trial, the FTC contended that Innovative Design engaged in deceptive advertising by promoting values of R-3 or R-6 when standard testing never found a value above R-0.3. The FTC hoped to persuade the court that Innovative Design was trying to game the system by creating a modified testing device that would return the results it wanted without revealing the modification in its advertising.

After Yarborough’s testimony was excluded, the only expert evidence that the FTC introduced in its case-and-chief consisted of Mavrokefalos’ deposition testimony. The FTC wanted to use the deposition because it was more favorable to the FTC’s position than the report Mavrokefalos wrote on behalf of Innovative Design.

After reviewing Yarborough’s report, Mavrokefalos investigated the modified testing device and concluded that it did not always return reliable results. Mavrokefalos believed that the modified device used to test the R-value of Insultex distorted the results by “incorporating the value of the air gaps into every reading.”

Based on his own testing, Mavrokefalos expressed the belief that the Insultex’s R-value was less than R-1. He essentially changed his mind about the reasonableness of Innovative Design’s R-value claims after conducting his own testing.

Court’s Ruling

Since Innovative Design moved for pretrial judgment before putting on any evidence, the court did not consider Malen’s expert opinions when it addressed the motion after the trial concluded. Since Malen had been designated as a rebuttal expert, his opinions could not be used to bolster the FTC’s case-in-chief.

While the FTC claimed that Innovative Design misrepresented the R-value of its product, the court concluded that the claim could only be proved by expert testimony. Since Yarborough’s opinions did not satisfy Daubert and Malen’s could not be considered, the FTC was left with only the expert opinion of Mavrokefalos.

The court declined to credit Mavrokefalos’ testimony because he relied on non-standard testing and failed to give a satisfactory explanation of his departure from the standard testing. Moreover, Mavrokefalos had no experience with the tests that he employed. He did not explain whether those tests are relied upon by the scientific community to determine an R-value. He did not explain whether the tests had a known error rate and did not testify that his methods had been peer-reviewed.

The court faulted some of the tests because they were performed on components of Insultex rather than the product as a whole. Finally, the court found that Mavrokefalos’ credibility was impaired by writing a report that favored Innovative Design and then changing his opinions.

A different court might have deemed Mavrokefalos’ credibility to have been enhanced by his willingness to admit that he was wrong, even after he was paid to give an opinion that favored Insultex. While experts are often condemned for being “hired guns,” Mavrokefalos’ opinions were clearly not influenced by money.

Lessons Learned

Although the laboratories that used standard tests found that Insultex has a minimal R-value, the FTC did not introduce those test results as expert evidence. Since the court did not know whether the testing comported with ASTM standards, the earlier tests could not be relied upon as proof that Innovative Designs made deceptive representations.

The FTC was apparently confident in the opinions formed by Yarborough. However, this case stands as a reminder that even the most competent expert must explain opinions in detail.

When an expert departs in any way from an accepted methodology, the expert must be prepared to justify the departure by explaining why the departure was necessary and why it returned reliable results. The failure to elicit that testimony may result in a trial loss even when the evidence in support of a party’s position seems compelling.

 

Painkillers

North Carolina Court Disallows Expert Testimony About Impact of Methamphetamine Consumption Upon Shooting Victim

A defendant who alleges that he committed a violent act in self-defense must usually establish a reasonable basis for believing that his safety was threatened. Courts have recognized that evidence of drug use may be relevant when the defendant was attacked by a drug user whose violent conduct can be explained by the ingestion of drugs. An expert witness can help a jury understand why the use of a particular drug may have caused the attacker’s aggressive behavior, thus posing a threat to the defendant.

The defendant in a recent North Carolina case argued that he should have been allowed to use an expert witness to bolster his theory that he acted in self-defense after being attacked by a methamphetamine user. In an opinion that fails to recognize the important role that expert witnesses play in helping juries understand evidence of drug intoxication, an appellate court affirmed the decision to disallow the expert testimony.

Facts of the Case

Shirley Hollifield left her home at midnight to put gas in her car. A man confronted her. The man was later identified as Chris English. Hollifield texted Jerry Echols, the boyfriend with whom she lived, to tell him about the confrontation. She was sobbing when she returned home twenty minutes later.

Echols wanted to know why English had approached Hollifield late at night. Echols and Hollifield drove to a neighborhood where they spotted English. They testified that English was babbling before he got down on all fours and started growling at them. English then charged at Echols and Hollifield.

English fought with Echols, who got on top of him. After Echols let English go, English again got on all fours, started growling, and rushed toward Echols. Echols pulled a handgun from his pants and shot English. Echols testified that he believed English was armed. Echols and Hollifield then drove away.

English had been a regular user of methamphetamine since his release from prison about a year earlier. English suffered from paranoia and hallucinations. On the night of the shooting, English was “talking crazy” and “not making any sense” before he was seen to use drugs. He then began smoking methamphetamine with other users. One of those users testified that English was growling like a dog when she last saw him.

The police discovered English’s body at 1:00 a.m. A couple of days later, Echols fled from a police officer who tried to pull him over for running a red light. The officer arrested Echols and, during a search of his car, found the handgun he used to shoot English.

Expert Evidence

Echols was charged with murder. At his trial, an expert witness testified that she matched Echols’ handgun to the shell casings found at the scene of the shooting.

Echols wanted to introduce the expert testimony of Wilkie A. Wilson, a neuropharmacologist. Wilson would have testified that English’s aggressive and bizarre behavior was consistent with methamphetamine intoxication. Echols contended that Wilson’s testimony would have bolstered his contention that he was acting in self-defense after being attacked by a person who was seemingly deranged.

The trial judge ruled that Wilson’s proposed testimony was based on speculation rather than a reliable application of scientific principles and methods to the facts of the case. The defense countered that the evidence established English’s use of methamphetamine and that Wilson’s specialized knowledge of the behavioral effects of methamphetamine ingestion supplied a reliable basis for his expert opinion.

The trial judge also ruled that the relevance of Wilson’s testimony was outweighed by its prejudicial nature because English was behaving strangely before he ingested methamphetamine. Yet there was no evidence that English was behaving aggressively, much less getting on his hands and knees and growling like a dog, until he used the drug.

Appellate Analysis

In a decision that strikes a blow to the ability of defendants to use expert witnesses to educate juries, the North Carolina Court of Appeals ruled that Wilson’s testimony was inadmissible. According to the court, Wilson’s testimony was not supported by sufficient facts and was therefore speculative. The court noted that Wilson did not examine English, but failed to explain why an examination was necessary to opine about the pharmacological effects of methamphetamine ingestion.

Wilson based his opinion about English’s drug use on the testimony of other witnesses, as experts are entitled to do. Those witnesses saw English smoking methamphetamine. Wilson explained that abundant studies prove that methamphetamine ingestion causes the kind of behaviors that English exhibited. That evidence supplied a factual basis for Wilson’s conclusion that English was suffering from methamphetamine intoxication when he attacked Echols.

The trial court ruled that there was “a real problem” concerning whether the facts upon which Wilson relied were correct. But deciding whether facts are correct is the jury’s duty. Courts improperly deny parties the benefit of a jury determination when they take it upon themselves to decide disputed facts. Since the evidence would have permitted the jury to rely upon the facts that informed Wilson’s opinion, the opinion should not have been rejected simply because the court had a “real problem” with those facts.

The trial court drew a distinction between testimony that methamphetamine makes people behave in the way that English behaved — a conclusion that, as the court conceded, is well established by science — and testimony that English was violent because he used methamphetamine. That distinction is illusory. Would a court say that an expert can testify that alcohol impairs driving but disallow testimony that the driving ability of a driver who drank a bottle of bourbon was impaired by alcohol consumption?

Courts routinely allow experts to draw conclusions about human behavior, at least when the experts testify for the prosecution. Disallowing Echols the opportunity to use an expert in his defense was plainly unwarranted.

Judge Rules “Mask Experts” Unqualified to Testify

A Connecticut judge has ruled that a psychologist and ophthalmologist lacked the expertise required to testify as expert witnesses on the use of masks.

The Mask Mandate

In June 2020, the State of Connecticut Department of Education released a publication titled, “Adapt, Advance, Achieve: Connecticut’s Plan to Learn and Grow Together.” The publication was Connecticut’s comprehensive plan for returning to in-school, full-time instruction for the 2020-21 academic year.

The plan required students to be educated and engaged in new health practices and protocols to prevent the spread of diseases.The publication specifically mentioned social distancing, frequent hand washing and the use of hand sanitizer, the use of face coverings that completely cover the nose and mouth, respiratory and cough etiquette, and enhancing cleaning and disinfection of surfaces.

CT Freedom Alliance Lawsuit

In August, four families and the CT Freedom Alliance filed a suit against the State of Connecticut Department of Education and Miguel Cardona, the commissioner of the Department of Education.  The plaintiffs alleged that the mask requirement was a violation of Conn. Gen. Stat. § 4-168(a), Article Eight of the Connecticut Constitution, the right to due process of law, and a form of negligence.

The complaint asked the court to order the Department of Education to rescind all requirements regarding the use of face coverings, masks, and face shields by students in schools. The plaintiffs also requested the court to issue an order stating that no educational agency or school within the State of Connecticut can require the wearing of face masks at any time during the school day, during after-school programs, or during transport to and from school property.

Proposed Expert Testimony

The CT Freedom Alliance presented two experts to testify on its behalf, psychologist Andrew Kaufman and ophthalmologist James Meehan Jr. Attorney for the state, Darren Cunningham, challenged the qualifications of the proposed experts, arguing that their work made them “ideological advocates for one side of the issue rather than experts on whether masks can cause harm.”

Superior Court Judge Thomas Moukawsher held a hearing on the issue. At the hearing, Kaufman testified that he believed that viruses do not exist and that COVID-19 is a hoax. It was revealed that Meehan had authored a blog post that stated that herd immunity will protect the vulnerable members of society and prevent pandemics.

Judge Moukawsher determined that the two proposed experts lacked specific expertise and held anti-science views that made them unsuitable to testify in this case. He stated that while Meehan is an expert ophthalmologist, he was not credible to testify on anything related to COVID-19. Judge Moukawsher ruled that Kaufman was not qualified because he could not allow an expert testimony “on a matter of life or death” from “a man who defies science so firmly established as to be beyond rational dispute.”

Judge Moukawsher gave the CT Freedom Alliance one week to come up with new experts.  CT Freedom Alliance proposed two new experts, epidemiologist Knut Whittkowski, Ph.D., Sc.D., and psychiatrist Mark McDonald, M.D.  The court has scheduled a future hearing to determine if these two proposed experts are qualified to testify in this matter.

 

Timesheet

Expert Who Did Not Keep Time Records Deemed Unqualified to Testify in Maryland Medical Malpractice Case

At the urging of the medical and insurance industries, Maryland adopted an unusual law that limits the ability to call an expert witness in malpractice cases. At the time Brown v. Falk & Karim P.A. was litigated, Maryland law prohibited the use of an expert witness in malpractice cases if the expert spent more than 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of his or her professional time acting as an expert witness.

The question in Brown was whether an expert’s word about the time spent working as an expert witness is sufficient to satisfy the 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} rule. On appeal, the court decided that an expert should be prepared to surrender detailed time records to prove the percentage of time spent in medical practice versus the time spent as an expert witness.

Facts of the Case

Brenda Brown sued Dr. Joel Falik for medical malpractice after her husband died. Brown alleged that Falik’s negligence during her husband’s back surgery caused her husband’s death.

Maryland law required Brown to certify, at the time the lawsuit was filed, that her case was supported by an expert opinion. Brown certified that Dr. Sanford Davne, an orthopedic surgeon, would testify that Dr. Falik failed to recognize that Brown’s husband was a high-risk patient and failed to advise Brown’s husband about less dangerous treatments for his back pain.

Dr. Davne’s certification stated that less than 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of his annual activities were devoted to testifying as an expert. Dr. Davne testified in a deposition that the statement was accurate, but explained that he kept no records of time devoted to expert witness work and time devoted to other work.

The trial court eventually ordered Dr. Davne to produce his tax returns. The defense apparently regarded his income from various kinds of work as a proxy for the amount of time he spent working to produce that income.

At trial, the defense claimed that Dr. Davne had not produced sufficient tax returns to prove that he satisfied the 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} rule. The judge denied a motion to disqualify Dr. Davne and denied a motion for judgment after Brown presented her case.

The jury returned a verdict in Brown’s favor and awarded her more than $900,000 in damages. The judge eventually concluded that Dr. Davne was not qualified to testify and granted a motion for judgment notwithstanding the verdict. Brown appealed.

The 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} Rule

For decades, the medical and insurance industries have worked diligently to make it more difficult for victims of medical negligence to prove their cases. Some of their efforts have focused on vilifying experts who testify for plaintiffs. Compliant legislators have responded to industry lobbyists by enacting a variety of laws to prevent qualified experts from testifying for plaintiffs.

Maryland’s 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} rule was one such law. The law was later amended to exclude expert witnesses who devoted more than 25{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of their time to testifying as an expert during the previous year.

The fact that a doctor often testifies as an expert has no rational relationship to whether the doctor is competent to testify. While the medical and insurance industry refers to such experts as “hired guns,” they use that term exclusively to refer to experts hired by plaintiffs. Insurance companies hire the same experts to testify over and over in toxic tort cases, but they never refer to their own experts as hired guns. Whether the frequency of testimony affects an expert’s credibility is a decision that should be made by juries, not by legislators who serve the interests of corporate lobbyists.

As the Baltimore Sun argued, the 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} rule is an arbitrary standard. It applies only in medical malpractice cases because the insurance industry knows how difficult it is for plaintiffs to find a doctor who is willing to testify against another doctor. Brave experts who are willing to give truthful testimony in response to a malpractice epidemic are in demand, so the insurance industry strives to limit their availability.

Notably, nobody claims that Dr. Davne’s lacks the training or experience to advance an expert opinion. Nor does anyone claim that, but for the 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} rule, a jury would not be entitled to accept Dr. Davne’s testimony as credible. The 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} rule therefore took compensation away from the widow of a malpractice victim that a jury decided she deserved.

Appellate Opinion

At the time of trial, Maryland law required a plaintiff to prove that the expert witness did not “devote annually more than 20 percent of [his] professional activities to activities that directly involve testimony in personal injury claims.” Maryland courts view the statute as requiring a mathematical calculation. Courts divide the amount of time that the witness is directly involved in expert testimony by the amount of time that the witness spends performing all professional activities.

After disavowing the need for an “exhaustive accounting of an expert’s timesheets,” the court criticized Dr. Davne for failing to produce timesheets that accounted for the time he spent on patient care and other professional activities. The court also faulted him for not producing a list of every case in which he had ever provided services as an expert.

Dr. Davne did provide an affidavit that described the time he spent on professional activities and expert witness activities, but Dr. Davne’s word was not good enough for the appellate court. He also produced his tax returns, but the court wasn’t satisfied that a calculation could be made from the income information supplied to tax authorities.

The court also thought that Dr. Davne’s testimony about the income he received from expert testimony undermined his affidavit. Since expert testimony often commands a higher hourly rate than other work, it is difficult to correlate time spent on an activity with income received from that activity. In any event, the court of appeals agreed that Dr. Davne’s failure to produce detailed records of his time spent as an expert and in professional practice disqualified him from testifying.

Lessons Learned

Whether an expert has the training, experience, and knowledge to opine about a standard of care is wholly unrelated to how much time the expert devotes to giving that testimony. The Maryland rule harms malpractice victims by depriving juries of valuable testimony while shielding negligent doctors from the consequences of their malpractice.

In light of the Maryland rule, however, plaintiff’s lawyers bringing malpractice cases in Maryland must be careful to select experts who keep track of the time they spend in their professional practices and the time they spend working as an expert witness. Gathering that data will not be as easy as the court seems to suggest.

Since billing records do not reflect the hours a doctor spends reading medical journals or engaging in other nonbillable work that is part of the practice of medicine, witnesses may need to estimate their hours in practice by examining the hours they spend in the office (or attending continuing education seminars) each year. They can probably rely on hourly billing records to determine the time they spend testifying as an expert witness. Doctors who regularly testify as experts should take note of Maryland law and retain those records so that they are qualified to testify in Maryland.

 

Utah

Utah Supreme Court Rules That Expert Testimony Went Too Far

The Utah Supreme Court has ruled that a district court went too far when it allowed an expert to offer undisclosed causation testimony.

The Injury

Noe Arreguin-Leon was injured while installing an exit sign on the shoulder of I-15. A driver had fallen asleep at the wheel and the car veered off the road and into a ladder, where Arreguin-Leon was standing.

At the time of his injury, Arreguin-Leon was employed by Highway Striping & Signs. This company had been hired by Hadco, a general contractor, to install signage for the Utah Department of Transportation. Part of Hadco’s task was to implement a “traffic control plan” to protect workers from traffic and drivers from the construction site. Hadco had failed to do so. At the time of Arreguin-Leon’s accident, there were no traffic control measures in place.

Arreguin-Leon suffered significant injuries and sued the driver and Hadco.

District Court

In district court, Arreguin-Leon retained Bruce Reading to testify as an expert on traffic control standards. Hadco’s counsel chose to depose Reading instead of receiving an expert report. At trial, Reading testified “that Hadco or its subcontractor had violated five specific engineering practices, regulatory standards, and contractual provisions and that there was no traffic control plan in place at the accident site.”

Arreguin-Leon’s counsel asked Reading, “If [200 yards from the construction project is] where [the driver] started to exit the roadway, what effect would a correctly installed buffer zone have had on his driving?” Hadco’s counsel objected, arguing that this testimony was going toward causation and was beyond the scope of the opinion that was disclosed. Arreguin-Leon’s counsel argued that because a deposition had been elected instead of a report, Reading’s testimony was not limited. The court overruled the objection.

Reading testified that a proper traffic plan would have included an area where the driver would have to have hit one or more plastic barrels and “would have had closer to six seconds to wake up and take corrective action.” He also testified that if the accident had still taken place, it would not have taken place in the same location.

A jury ultimately found that Hadco was partially liable for Arreguin-Leon’s injury. Hadco appealed.

Court of Appeals

On appeal, Hadco argued that the district court erred by allowing Reading to offer an undisclosed opinion on causation. Arreguin-Leon argued that Hadco could not make this argument without relying on the expert disclosures and deposition transcript, but these were not a part of the trial record. The court of appeals acknowledged that these documents were not officially part of the trial record, but considered them because of the unique facts of the case.

The court of appeals concluded that the district court abused its discretion in allowing Reading to testify about causation at trial. It determined that the error was harmful and required a new trial.

Utah Supreme Court

Arreguin-Leon petitioned the Utah Supreme Court for certiorari. The court granted his request.

In reviewing the case, the court determined that the expert disclosures and deposition transcript were not necessary to Hadco’s argument or the court of appeals’ ruling. The court noted that the fact that a party’s opponent chooses a deposition instead of an expert witness report does not mean that the expert’s trial testimony can be a “free-for-all.”

The Utah Supreme Court agreed with the court of appeals that Reading improperly testified about causation and that the error was harmful. The court affirmed the court of appeals’ decision and remanded the case to the district court for a new trial.