A Utah Judge has ordered California attorney Don Howarth to pay an unsuspecting expert witness $1,000 for administering an electric shock during a particularly bizarre cross-examination demonstration. Howarth questioned the testimony of Dr. A.P. Meliopoulos, an electrical engineering professor at Georgia Tech, by use of a children’s toy gag pen, capable of delivering a minor electrical current – a tactic deemed unacceptable by Judge James Brady.
Dr. Meliopoulos Provides Electrical Expert Witness Testimony
Meliopoulos offered his expert testimony in Gunn Hill Dairy v Los Angeles Department of Water & Power – a multi-million dollar lawsuit over dairy cattle in Utah receiving electrical shocks due to stray current on the ground between a local power plant and Los Angeles. Dr. Meliopoulos was called by the defense to testify that a 1.5 volt shock, the voltage allegedly transmitted through the ground, is equivalent to the power generated by a AAA battery, and cannot be felt by a human – much less a cow. Dr. Meliopoulos’ expert testimony was fairly standard, and designed to illustrate to jurors what type of electrical current was at issue by relating it to an everyday item. However, things took an interesting turn on cross examination.
Attorney Shocks Electrical Expert Witness
When cross-examining Dr. Meniopoulos, attorney Don Howarth approached the stand with a pen and the following instruction: “Sir, in this pen, I put a AAA battery. The circuit will be completed when you press the back of the pen. Would you like to see whether you can feel the AAA battery, sir?” What Howarth allegedly failed to disclose was that the pen was a shock pen, which can produce an enhanced electrical current due to an internal transformer within the device. The pen performed its duty, and Dr. Meniopoulos received an unexpected, and unwelcome, surprise in the form of an electrical shock upon complying with Howarth’s request to touch the pen.
Judge Brady took strong exception to the attorney’s behavior, noting that the shock pen used was capable of generating up to 750 volts – more than enough to cause pain. Further, the packaging on Howarth’s shock pen specifically warned against its use on people over 60 years old – meaning the over-60 Dr. Meniopoulos should not have been an unknowing target of Howarth’s unusual demonstration.
Judge Orders Sanctions for Electric Shock Demonstration
Writing, “A witness is entitled to be safe and protected from assaults or physical intimidation,” Judge Brady delivered what he considered to be “appropriate sanctions” against Howarth for witness battery. Brady went on, “Had Mr. Howarth disclosed his intent to deliver a shock to Dr. Meliopoulos, the court would not have allowed it. Witnesses … are called up to answer questions testing their qualifications, memory and truthfulness, to recall their prior testimony and explain any inconsistencies. To add a requirement that they do this in a physically hostile environment where they may be subjected to electrical shocks without warning is far removed from the decorum and professionalism required by attorneys, and has no place in a courtroom.”
Howarth and co-counsel Jefferson Gross disputed Judge Brady’s decision arguing that the children’s toy pen was not capable of delivering serious damage – even to a man over 60 years old. Claiming the pen caused more surprise than harm, Howarth argued that he used an effective demonstration to refute Meliopoulos’ claim that a minor electric current cannot be felt by humans or cattle. Gunn Hill has a long way to go before resolution, but Howarth’s side-show antics provide a useful example of how not to question an expert during cross examination. While in-court demonstrations can be useful when confronting an expert witness, causing physical shock or pain is widely held to be an unacceptable approach to rebutting testimony.
