Tag Archives: Expert Witness Testimony

False Confession Expert Can Testify During Kowalski Murder Trial

A man’s conviction for double murder was vacated when concerns were raised about the relationship between the judge who presided over his case and the murder detective involved in investigating the murders. Now, an appeals court has ruled that a false confession expert, who was not allowed to testify at the first trial, will be allowed to testify at the new trial.

The Underlying Case

In 2008, Richard and Brenda Kowalski were found murdered in their home. In separate interviews with the police, Richard’s brother, Jerome Kowalski, both confessed to and denied murdering his brother and sister-in-law.

At trial, Kowalski’s attorney, Wally Piszczatowski, attempted to call a false confession expert to testify. The American Psychological Association (APA) filed an amicus brief arguing there was an empirical evidence base for admission of false witness expert testimony based on review of the scientific research on false confessions.

Judge Theresa Brennan denied this request. Kowalski was convicted in 2013 and sentenced to life. Brennan’s decision was affirmed on appeal.

Vacated Conviction and New Trial

In January 2019, Michigan Supreme Court officials discovered that Judge Brennan, who had presided over Kowalski’s case, had failed to disclose a previous relationship with Michigan State Police Sgt. Sean Furlong, who had acted as lead homicide investigator on the Kowalski case. Kowalski’s conviction was vacated and he was granted a new trial. Judge Brennan was removed from the bench by the Michigan Supreme Court and charged with three felonies: perjury, tampering with evidence, and misconduct in office in connection with her failure to disclose her relationship.

At Kowalski’s new trial, Judge Matthew Stewart of Shiawassee County Circuit Court ruled that expert witness Richard Ofshe could testify. Ofshe, a Sociology Professor Emeritus at University of California in Berkeley, is an internationally recognized expert on influence interrogation. His work on coercion in interviews, confessions, groups and interrogations have made him a sought-after specialist. Ofshe also serves on the advisory board for the False Memory Syndrome Foundation.

Judge Stewart ruled that Ofshe’s testimony would be limited to generalities on false confessions, with no case-specific testimony. Mark Gatesman and Heather Nalley, Kowalski’s attorneys, appealed the decision, as did the prosecution. Kowalski’s attorneys argued for unlimited testimony and the prosecution argued that no false witness expert testimony be allowed at all.

New Court of Appeals Ruling

The Michigan Court of Appeals agreed with Judge Stewart’s decision. It ruled, “The trial court did not abuse its discretion by finding that Dr. Ofshe was qualified to give expert testimony on police interrogation techniques and that his methodology was sufficiently reliable to admit his testimony.”

Reacting to the decision, Kowalski’s attorney Nalley stated, “We are thankful that the court ruled Dr. Ofshe will be allowed to testify as to how interrogation techniques such as the ones used in this case can be coercive.”

Kowalski had been awaiting a pending new trial since January of 2019. If convicted as originally charged, he faces a sentence of up to life in prison without the possibility of parole.

3D Exhibits May Help Jurors Understand an Expert’s Technical Testimony

Lawyers depend upon expert witnesses to convey their opinions in clear language, breaking down complex ideas into digestible portions that juries and judges can comprehend. While words are an expert witness’ primary tool, juries understand evidence more readily when they can visualize a concept.

Studies suggest that people are more likely to understand new information when it is presented both in narrative and visual form. Brains process information more effectively when they are stimulated simultaneously though multiple senses, including hearing and seeing.

Demonstrative Evidence

An expert’s visual evidence may be real or demonstrative. Real evidence (also known as physical or evidence) is an object that is material to the litigation. A dented fender with a paint transfer or a fragment of a device that exploded are examples of real evidence. Experts exhibit real evidence to juries while explaining how an examination or study of the evidence caused the expert to form particular opinions.

Demonstrative evidence is a representation of real evidence. Demonstrative evidence depicts a scene, object, or condition as it actually existed. Photographs of an accident scene or an x-ray of a broken bone are examples of demonstrative evidence. Experts use those exhibits to assist their narration of opinions just as they would use real evidence.

Expert witnesses have historically prepared diagrams or drawings to illustrate their testimony. A spinal surgeon might draw a picture of vertebrae to illustrate where an injury occurred, while an accident reconstruction engineer might use a diagram to pinpoint the location of skid marks or debris at an accident scene.

Because they are familiar to lawyers and courts, diagrams and drawings are usually uncontroversial. The expert will testify that the exhibit accurately depicts the thing it represents and, while the opposing party is free to challenge that testimony on cross-examination, the jury will usually be allowed to see the exhibit if the expert affirms that is a reasonably accurate representation of the facts and if the court finds that it is not misleading or otherwise prejudicial.

Visualization Evidence

Some demonstrative evidence is intended to allow juries to visualize events described by eyewitnesses or deduced by experts. An animation that demonstrates how an accident occurred (or how an expert believes it must have occurred) allows a jury to visualize the accident rather than relying solely on an explanation of a diagram.

As technology has become more sophisticated, so has demonstrative evidence. Three-dimensional visualizations — commonly used by architects to allow a virtual “walk through” of a planned home — allow experts to change the viewer’s perspective so that a scene can be observed from different angles or perspectives. The explosion of 3D printer technology allows experts to build models of objects to exacting specifications.

Like most people, judges tend to resist change. Judges were once wary of technology creeping into the courtroom. Each new generation of judges, however, has been more accepting of technology that has now become commonplace. While judges were once skeptical about animations, most judges now allow experts to illustrate their opinions with animated evidence if the expert authenticates the animation by testifying that it fairly and accurately represents the expert’s conclusions.

3D Evidence and Verdicts

While studies suggest that demonstrative evidence helps juries understand complex testimony, it is less clear whether 3D visualizations are more helpful to juries than photographs as jurors attempt to understand an expert’s testimony. A forensic scientist, a psychologist, and two colleagues designed an experiment to determine the impact that different kinds of visual evidence have on juries.

The authors conducted mock trials before randomly selected individuals who played the role of jurors. They presented evidence to different jurors using three kinds of demonstrative evidence. Testimony established that two men left a tavern together. One of the men fell and died after suffering a serious skull fracture. The question for the jury was whether the victim fell accidentally or was pushed.

A forensic anthropologist testified as an expert witness for the prosecution. The juries heard the same recorded testimony in each trial. The expert used technical language to explain the damage to the victim’s skull.

The experimenters varied the nature of the visual evidence that was shown to the jury as the expert testified. In one set of trials, the jurors saw a photograph of the victim’s skull. In a second set of trials, the jurors viewed a 3D visualization of the same skull. In the third set of trials, the jurors considered a 3D printed model of the skull. The skull was circulated among the jurors, allowing them to touch and examine the exhibit, during the expert’s testimony.

The jurors did not deliberate. Instead, each juror completed questionnaires at the end of the trial. About three-fourths of the jurors who viewed the photograph or the 3D visualization would have returned a “not guilty” verdict, while only 55{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of jurors who saw the 3D printed model would have acquitted.

The experimenters were cautious about attributing significance to the trial outcome as the experiment was not designed to test whether (as other studies have suggested) demonstrative evidence may induce a pro-prosecution outcome in criminal trials. The experimenters did note that jurors who handled the 3D printed model were more likely to conclude that the amount of force required to damage the skull was indicative of guilt.

Since the expert gave no testimony about the amount of force needed to cause skull trauma, the experimenters suggested that caution should be exercised in allowing jurors to handle 3D printed models of evidence. Perhaps the handling of a skull evoked an emotional response that made jurors more likely to view a defendant as guilty.

3D Evidence and Comprehension

The experimenters asked whether jurors understood the visual evidence and how the visual evidence helped jurors understand the expert’s testimony. About three-quarters of the jurors found the exhibit itself to be comprehensible, regardless of its nature, although jurors were slightly more likely to understand the 3D printed model.

More importantly, the experimenters found that 79{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of jurors who viewed the photograph thought they understood the expert’s technical language. The use of 3D technology improved the jurors’ understanding of the expert’s jargon. When jurors viewed a 3D visualization of the skull, 88{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of jurors thought they understood the expert’s language. When jurors viewed the 3D printed model, 94{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of jurors said they understood the expert’s technical testimony.

The experimenters suggested that the study might offer evidence that jurors are less likely to misinterpret an expert’s testimony when the experts use 3D reconstructions to explain the terms that they use. The study might also suggest that jurors place greater weight on conclusions they draw from 3D exhibits than they place on conclusions drawn from the expert’s testimony.

On the whole, the study offered some evidence that 3D exhibits help jurors understand an expert’s technical language. Lawyers may wish to consider 3D exhibits as an alternative to photographic evidence or diagrams if experts feel comfortable using those exhibits to explain their opinions.

Court Requires Dual-Hat Expert to Produce Materials He Created as a Consulting Expert

Some lawsuits repeatedly showcase the nuances of the federal rules governing expert testimony. The multi-district litigation involving C.R. Bard’s mesh products has produced multiple rulings that offer guidance to lawyers who rely on expert testimony in federal court. The latest ruling sheds light on the circumstances under which dual-hat experts must disclose the materials they prepare when they form opinions.

Facts of the Case

Steven Johns is one of thousands of plaintiffs who sued C.R. Bard after suffering injuries allegedly caused by defects in the company’s polypropylene hernia mesh products. Those lawsuits have been joined in multidistrict litigation. Johns’ lawsuit is the first “bellwether” case that will be tried. Last year, an ExpertPages blog discussed the court’s decision to admit the testimony of Johns’ causation expert.

Johns contends that the company’s Ventralight ST mesh device is defective. The mesh was implanted in Johns to repair a hernia. Johns had a gap in the layer of connective tissue called the fascia. The mesh implant was intended to close that gap.

One side of the Ventralight ST mesh is coated. The side with “ST coating” is placed against an organ, such as the patient’s bowels. The uncoated polypropyIene side is placed over the gap in the fascia.

The coating is intended to delay resorption of the mesh into the organ. The plaintiffs allege that the mesh resorbs too quickly, exposing organs to damage caused by the bare polypropylene. Johns alleges that after his hernia repair, he developed adhesions in a fatty structure associated with the bowel called the omentum. Johns attributes the adhesions to the defective mesh.

Competing Expert Testimony

Bard intends to present the expert testimony of Stephen Badylak, who examined photomicrographs of slides from Bard’s clinical animal study on the Ventralight ST. Bard wants Badylak to testify that the ST coating remained on the mesh device 28 days after it is implanted. The testimony is arguably important because the plaintiffs contend that the coating was generally gone within a week.

The plaintiffs had hired Tamas Nagy to conduct a similar analysis. Nagy reviewed slides from the animal study, took photomicrographs of the slides, reviewed them using a score sheet (as did Badylak), and made notes of his findings. After consulting with Nagy, the plaintiffs represented that Nagy would not offer any expert opinions.

Nagy did not prepare an expert report. On that basis, the defendants moved to strike him as an expert. The parties disputed whether the plaintiffs properly redesignated Nagy as a consulting rather than a testifying expert. The court took no immediate action on the motion to strike Nagy.

In a second supplemental expert report, Badylak advanced his opinion about the presence of ST coating after 28 days of implantation. The plaintiffs challenged the admissibility of Badylak’s opinion. The court determined that Badylak’s methodology was sufficiently reliable to permit his testimony.

The court also allowed the plaintiffs to call Nagy as a rebuttal expert to challenge Badylak’s conclusion that coating remained after 28 days. Based on that ruling, the court denied the motion to strike Nagy as an expert.

Nagy re-reviewed the slides and prepared a rebuttal expert report. When Bard deposed him, he failed to produce materials related to his initial review of the slides, including his photomicrographs, notes, and score sheets. Bard then paused the deposition and moved to compel production of those materials.

Motion to Compel

The court began with the proposition that an opposing party is entitled to production of all materials “considered” by an expert before or while forming an expert opinion, whether or not the expert relies on those materials in the expert’s report. An expert “considers” materials when the expert receives, reads, reviews, or authors those materials, provided that their subject matter relates to the opinions that the expert expresses. The party resisting disclosure bears the burden of showing that the expert did not consider the materials.

Nagy testified that he re-reviewed the photomicrographs before he produced his rebuttal report. He therefore “considered” them in connection with the opinions he formed. There seems to be little dispute that Nagy’s photomicrographs were discoverable.

Nagy authored his notes and score sheets. Since those documents relate to the general subject matter of the opinions Nagy expressed in his rebuttal report, the court began by asking whether the plaintiffs met their burden of showing that Nagy did not consider them in reaching the opinions he expressed.

Nagy testified that he did not need to re-score the score sheets when he formed his rebuttal opinion. The court did not regard Nagy’s testimony as a denial that he considered the original score sheets when he formed the opinions expressed in his rebuttal report. In any event, an expert’s denial that he considered certain data or facts does not control the dispute because the defendants are not required to believe an expert’s testimony.

The court also rejected the plaintiffs’ assertion that Nagy made the notes and score sheets during his initial review for an unrelated purpose — to examine the degree of inflammatory response in the tissue. Nagy’s rebuttal report discussed inflammatory response as evidence that the ST coating was or was not present on the mesh, suggesting that his first and second review did not address entirely different subjects. Ambiguity about the scope of the first analysis made the notes and score sheets discoverable.

Work Product Objections

The plaintiffs also resisted production of the notes and score sheets on the ground that they are not discoverable “facts and data.” The plaintiffs argued that the notes and score sheets contain Nagy’s interpretation of and commentary about the slides he reviewed and are thus work product that is protected from discovery.

The court declined to make an expert’s thought processes “categorically undiscoverable.” Nagy testified that the notes represented his visual observations of the slides. Since “visual observation” was the testing process that Nagy employed, the court did not see how else Nagy could capture the presence or absence of the characteristics he observed. The notes and score sheets were therefore discoverable “facts and data.”

To the extent that the attorney work-product privilege protects communications between an expert and an attorney, it does not extend to an expert’s own development of the opinions he expressed. The attorney work-product privilege protects an attorney’s mental impressions, not those of an expert. Since no attorney’s mental impressions or legal theories were reflected in the score sheets or notes, they were not entitled to work-product protection.

Dual Hat Expert

Perhaps the most meaningful challenge to the production of Nagy’s notes and score sheets was rooted in the notion that Nagy was a consulting expert when he created those materials and only became a testifying expert when it became necessary to rebut Badylak’s report. A non-testifying, consulting expert is generally immune from discovery. Redesignation as a testifying expert does not cause a loss of immunity as to materials that were considered “uniquely” in the expert’s role as a consultant.

The court concluded that the plaintiffs failed to carry their burden of demonstrating that Nagy prepared his original notes and score sheets “uniquely” in his role as a consulting expert. The court did not believe that Nagy could “draw a line in the sand” between information he considered in a consulting context and information he considered when he formed his rebuttal opinions. Given the similarity of the subject matter that Nagy was asked to draw conclusions about as a consultant and later as a testifying witness, and given that his conclusions in each instance were based on a review of the same slides, the court thought it likely that Nagy’s score sheets and notes were not “unique” to the work he performed as a consulting expert.

Expert Testimony Excluded Because It Was Based on Unauthenticated Fax Logs

Experts often base opinions upon data contained in documents. Sometimes the accuracy of that data seems self-evident. A log of fax transmissions printed out by a fax machine may seem like reliable data, but a recent decision from the Court of Appeals for the Sixth Circuit held that the data in the log needed to be authenticated. Since it was not, the expert’s opinion was inadmissible.

The Sixth Circuit decision reminds lawyers that they cannot assume the accuracy of data in documents that an expert relies upon to form an opinion. Rather, the lawyer may need to authenticate the documents with testimony from someone who has personal knowledge of the accuracy of the information contained in the document.

TCPA Lawsuit

Brian Lyngass is a dentist in Michigan. Twice in March 2016, he received an unsolicited fax on his office fax machine. Both faxes advertised a toothbrush. The company that manufactures the toothbrush, Curaden AG, is a Swiss corporation. It distributes and promotes its products in the United States through Curaden USA, a subsidiary that is incorporated in Ohio.

Curaden USA began an advertising campaign that included sending unsolicited faxes to dentists like Lyngass. The advertisements included Curaden USA’s contact information, including a fax number, phone number, email address, website, and social media accounts.

Lyngass began a class action lawsuit against Curaden USA and Curaden AG on behalf of dentists who received faxes from Curaden USA. The Telephone Consumer Protection Act (TCPA) allows individuals who receive unsolicited faxes to sue for actual damages or $500 in statutory damages. A judge may award attorneys’ fees to a prevailing plaintiff.

The TCPA lends itself to class action lawsuits. Recipients of unsolicited faxes are all victims of an identical TCPA violation. Since statutory damages for each violation are small, victims have little incentive to sue individually. A class action allows all victims to band together to bring a lawsuit for significant damages.

Curaden AG argued that it took no action in the United States and did not approve Curaden USA’s unlawful fax distribution scheme. The appellate court concluded that the district court had jurisdiction over Curaden AG because it established Curaden USA in the United States and had the right to approve marketing plans and entered into distribution agreements with its worldwide distributors. The more important ruling from the standpoint of an expert witness blog concerned Lyngass’ reliance on expert testimony to support class certification and an award of damages.

Class Certification

Before a lawsuit can proceed as a class action, the district court must certify that the plaintiffs have satisfied the standards for class action litigation. The court was satisfied that the class of dentists who received Curaden faxes should be certified. On appeal, Curaden argued that the district court improperly relied on inadmissible evidence to support its certification decision.

The companies argued that class certification was inappropriate because the evidence before the court did not establish that all of the class members received unlawful faxes. If some dentists in the class received the fax but others did not, the plaintiffs would need to prove which members of the class were entitled to collect damages, rather than relying on classwide evidence to prove that they were all entitled to damages.

The plaintiffs relied on “summary-report logs that purportedly listed each successful recipient of the two fax advertisements by fax number.” The logs were printed by the fax machines that transmitted the ads. The plaintiffs argued that the summary-report logs would establish that each class member received an unlawful fax. Curaden argued that logs were inadmissible because the plaintiffs did not authenticate them. In other words, the plaintiffs offered no evidence that the logs actually identified the class members who received unlawful faxes.

Courts have been divided in deciding whether they may rely on inadmissible evidence when certifying a class. The Sixth Circuit joined the Eighth and Ninth Circuits in holding that evidence need not be admissible at the certification stage if it is reliable and may become admissible at trial. When documents are probably authentic, they are reliable. Since the plaintiffs advised the court that they would be able to authenticate them after further discovery, the judge was entitled to consider them.

The court limited its decision to inadmissible but reliable nonexpert evidence. The court made it a point to avoid deciding whether expert testimony must be reliable to support class certification.

Expert Testimony

After certifying the class and denying summary judgment to Curaden, the district court held a trial. The court excluded from evidence both the summary-report logs and the opinions of the plaintiffs’ expert witness, Lee Howard. However, the court determined that the Curaden companies violated the TCPA. The court then established a claims administration procedure that required individual dentists who wanted a share of the damages to file an affidavit stating that they received a Curaden fax and did not give Curaden permission to send it.

On appeal, the plaintiffs argued that the logs were admissible. The appellate court agreed with the district court that the plaintiffs offered no witness to “attest as to how the logs at issue were created or to personally vouch for their accuracy.” Perhaps a fax machine expert or an employee of the company that manufactured the machine could have vouched for the accuracy of the summary-log reports, thus overcoming the court’s doubtful concerns that a fax machine might malfunction or produce inconsistent results.

The court excluded Howard’s expert opinion about the number of successful fax transmissions because it was premised on the inadmissible summary-log reports. Howard also relied upon “an affidavit from the president of WestFax that was filed in another case and thus did not address the specific data at issue in the present case.” The court concluded that Howard’s opinions did not satisfy Daubert because they were not based on “known facts” but on speculation that the fax machine created an accurate record of the faxes that it transmitted.

Lessons Learned

The Lyngass decision teaches that expert opinions based on documents may be rejected as unreliable if the documents are not authenticated. Authenticating documents is not always easy. Employees of the company Curaden hired to send the faxes may have been unwilling to testify that they knew the summary-log reports were accurate. Perhaps someone with expert knowledge of the particular make and model of fax machine at issue would need to supply that information. Perhaps an expert would need to examine the machine to determine that was functioning properly. It is difficult to know what evidence would satisfy the court of the reality that fax machines nearly always print accurate logs of the faxes they transmit.

Given the absence of any reason to suspect that the fax machine produces an inaccurate record of the faxes it transmitted, making lawyers jump through hoops to prove their accuracy seems silly. Still, lawyers should keep in mind that if they want an expert to offer opinions that are based on documents, a court will probably require them to prove that the data in the documents is accurate, even if accuracy seems obvious.

Car Accident Reconstruction Expert Faces Aggressive Challenge from Prosecutor

A vehicular manslaughter trial in Ithaca, New York turned heated last week when the lead prosecutor accused the defendant’s car accident expert witness of being a “mercenary” willing to testify to anything for money. While every expert witness testifying at trial does so for money, the contentious back-and-forth highlighted concerns that some experts prioritize financial interests over relevant testimony.

Vehicular Manslaughter Case Relies on Accident Reconstruction Analysis

Last New Year’s Eve, a Chevrolet Monte Carlo driven by 19-year-old James Crosby collided with a Jeep driven by Samantha Aarnio. The collision killed one passenger in each vehicle: Kathy Lattimore, Aarnio’s 67-year-old mother-in-law, and Derek Nichols, Crosby’s 20-year-old friend, and, after investigation, Crosby was charged with vehicular manslaughter for both deaths. He is also charged with second-degree assault, third-degree assault, second-degree reckless endangerment and reckless driving for his role in causing the accident. Judge John Rowley is presiding over a bench trial that will not use a jury to come to a verdict, and prosecutors are asking that Crosby be found guilty and sentenced to 4 – 12 years in jail.

In his defense, Crosby’s attorneys have taken issue with the police report detailing the investigation. The results of the police report suggest that Crosby’s Monte Carlo was traveling at a speed between 84 – 91 mph before colliding with Aarnio’s Jeep, which was traveling at 45 mph. Pointing to this data, prosecutors have argued that Crosby was clearly in violation of traffic laws and was moving at such an unsafe speed that he was acting recklessly in such a way that he should have known would endanger the lives of others. Concluding that his clearly reckless actions were the direct cause of two deaths in the resulting accident, prosecutors relied on the accident diagnosis found in the police report to convince Judge Rowley that Crosby is guilty of two counts manslaughter.

William Fischer, a crash reconstruction expert witness hired by the defense, disagreed with the information found in the report and took police investigator’s to task for shoddy and incomplete analysis of the accident.

Defense Car Accident Expert Testifies During Manslaughter Trial

Mr. Fischer began his testimony by informing the Court that his independent investigation concluded that Crosby was traveling at 55 mph – a speed much closer to the posted speed limit. Further, Fischer testified that Aarnio’s Jeep was moving much slower than 45 mph, meaning that the accident happened at a far lesser speed than reported by police. Fischer directly contradicted the police report’s analysis of the speed of the accident, allowing defense attorneys to argue that Crosby was not driving at a negligently high rate of speed prior to the crash.

Additionally, Mr. Fischer found fault in the police investigation because officers declined to perform skid tests at the scene. Saying that police need to gather an estimation of the coefficient of friction in order to get accurate speed tests, Fischer called the investigation incomplete and prone to error. Calling the police’s tactics a “bastardized” test of determining speed, the defense expert witness claimed that his calculations, which were more complete, represented a reliable estimate of the speed of the two vehicles.

Fischer also testified that a lack of deformity in the filaments of the rear taillights suggest that Aarnio’s Jeep may not have had its lights on at the time of the crash – a relevant fact considering the accident happened 19 minutes after sunset. Taken together, Fischer’s car accident reconstruction expert testimony targeted potential flaws in the prosecution’s analysis which suggested Crosby was driving negligently at the time of the accident. By calling Fisher, Crosby’s defense team attempted to introduce reasonable doubt to the question of his negligence, hoping to convince Judge Rowley that manslaughter is not an appropriate charge.

Prosecutors Challenge Defense Car Expert Witness

In response to Fischer’s criticism of the police accident reconstruction, lead prosecutor Eliza Filipowski challenged the car accident expert on a number of points. First, Filipowski pointed out that Fischer has been openly critical of skid tests, raising questions about why he condemned the police for not using one in their calculation of Crosby’s speed. Although Fischer responded that any test of friction would be better than none, Filipowski followed her line of questioning by contrasting the techniques used by police investigators, which relied on electronic optical measurements of speed, to Fischer’s calculations of speed, which featured an inaccuracy that the defense expert could not adequately explain.

Finally, Filipowski attacked Fisher’s credentials, which have not been updated recently, and challenged his history of testifying only for defendants in car accident reconstruction cases. Pointing out that Fischer, who was paid $12,000 for his expert witness testimony, failed to provide a complete or consistent critique of police tactics or an accurate reconstruction method, Filipowski attacked the reliability and credibility of the defense expert in an effort to promote the state’s case for a manslaughter conviction.

Accident Reconstruction Expert Testimony Rejected by Oklahoma Court of Appeals

An interesting expert witness case out of Oklahoma this past week, as the state’s Court of Appeals dismissed expert testimony regarding the cause of an accident that injured a 12-year-old boy who was struck by a car while walking in the street. On an appealed decision, Oklahoma’s second highest court rejected two accident reconstruction expert witnesses for taking their testimony beyond the facts, and speaking directly to the key determination of negligence.

Defense Accident Reconstruction Witnesses

The incident in Moore v Blackwell occurred in September of 2007 when 12-year-old Jerrit Moore was walking alongside an interstate service road in Norman, Oklahoma. The boys were walking at night without reflective clothing or lights of any kind, and decided to cross the street in order to walk with traffic. As they crossed, the defendant, Robert Blackwell, was driving along the road. Blackwell swerved to avoid the boys, who were in the middle of crossing, and clipped Jerrit, causing him injury. Jerrit’s father filed a negligence claim seeking $10,000 in damages for Jerrit’s injuries.

As part of his defense, Blackwell called the investigating police officer, Michael Thomson, and an accident reconstruction expert, Terry Harrison. Thomson testified that his investigation concluded that Jerrit, who was in the middle of the road, was more at fault than Blackwell. Officer Thomson did not issue a citation to Blackwell for the accident because, in his opinion, the driver had not acted inappropriately considering the circumstances.

Accident reconstruction expert Harrison reaffirmed Officer Thomson’s investigation by testifying that he found no negligence on the part of Blackwell. According to Harrison’s expert analysis of the accident, Blackwell was driving within the speed limit, recognized a danger in the road, and reacted appropriately considering the circumstances. Although striking Jerrit was unfortunate, accident experts Thomson and Harrison testified that, in their opinion, Blackwell was not negligent in striking the young man.

Oklahoma Court Rules Accident Reconstruction Expert Testimony Inadmissible

At trial, Moore unsuccessfully attempted to have both experts prevented from testifying before a jury ruled in favor of Blackwell due to lack of negligence. On appeal, the Oklahoma Court of Appeals agreed with Moore and sent the case back to trial without the specific testimony offered by Thomson and Harrison. Finding that the experts spoke to the ultimate issue in the case – negligence and the cause of the accident – the Oklahoma court found that both experts had failed to provide the type of testimony that was permissible for expert witnesses.

Judge Jane Wiseman wrote, “The ultimate opinions of these two witnesses that Blackwell was fault-free and that Jerrit Moore’s negligence caused the collision are not opinions requiring special skill or knowledge, nor do such opinions constitute technical matters requiring special skill to interpret the evidence and reach a conclusion.” Neither expert offered an analysis of the facts that required their particular expertise, but instead spoke only to which party’s negligence caused the accident. According to the Court, Oklahoma law requires experts to limit their testimony to opinions of the facts and not speak to issues of negligence or fault.

Dissent Supports Use of Accident Reconstruction Experts

The difference between testifying to negligence, and offering expert accident reconstruction opinion seems difficult to comprehend, and dissenting members of the Oklahoma Court of Appeals voiced a strong argument against the decision. Judge John Fischer claimed that the majority had misinterpreted the law, and under the Daubert standard, which has been adopted in Oklahoma, both of Blackwell’s experts offered reliable and scientifically sound testimony that interpreted the facts and allowed jurors to make the necessary decision regarding negligence.

Accident reconstruction experts walk a fine line between diagraming an accident and offering their opinion on which party is negligent. Attorneys in car accident negligence cases must be acutely aware of the relevant state law, and ensure that their accident reconstruction experts carefully word testimony to explain the cause of an accident without offering conclusions that experts are not permitted to make. In Moore v Blackwell, the defendant’s attorneys allowed his experts to drift away from offering technical analysis and instead speak directly to the ultimate question of negligence – violating Oklahoma’s standards for expert witness admissibility.

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