Tag Archives: Florida

Seal of State of Florida and Gavel

University Task Force Explores Controversial Denial of Professor Expert Witness Testimony

University of Florida President Kent Fuchs has assembled a task force in the wake of recent controversy after three tenured political science professors were denied requests to serve as expert witnesses in a voting rights lawsuit that has made national headlines.

A High-Profile Voting Rights Case

Plaintiffs in the Florida voting rights case are challenging a new elections law, alleging that it discriminates against Black and Latino voters. The new law (SB 90) will make it harder for Florida Residents to vote by mail. Governor Ron DeSantis signed SB 90 this spring, after approval by Florida’s Republican-controlled Legislature. Secretary of State Laurel Lee and Attorney General Ashley Moody along with supervisors of elections have been named as defendants.

Changes include Florida’s restriction of voting drop box hours, resubmission of vote-by-mail requests for each election cycle, and increased voter identification requirements and limitations on who can deliver vote-by-mail ballots (which is problematic for elderly, disabled or house-bound voters). Critics of the law, including voting rights organizations like the ACLU and the NAACP, are calling SB 90 a voter suppression law. 

University Decision to Block Professors from Testifying Garners National News, Leads to  Professor Lawsuit

Professors Sharon Austin, Michael McDonald and Daniel Smith were to testify in the federal lawsuit as plaintiffs’ witnesses. However, according to a court document filed by the plaintiffs, the University of Florida told the professors that “outside activities that may pose a conflict of interest to the executive branch of the state of Florida create a conflict” for the school, and prohibited Austin, McDonald and Smith from testifying. This decision attracted national criticisms. 

University leadership subsequently took steps to walk the decision back, stating that professors could work as paid expert witnesses in the case on their own time and with their own resources. Fuchs created a task force and scheduled seven meetings to assess the University’s practices “regarding requests for approval of outside activities involving potential conflicts of interest and conflicts of commitment.”

Around this time, the professors filed a lawsuit against Fuchs and other university leaders, citing a stifling of First Amendment rights. They stated in their 18-page complaint that the job role of “public university professors and researchers is not to be mouthpieces for a particular administration—or any administration’s—point of view. It is to develop and share their knowledge with the people of Florida while upholding the university’s values.” 

“I don’t think there are clear definitions right now in the written policies at least, about what is a conflict of interest, what is an ‘outside activity,’ and I think some clarity would be helpful going forward,” stated Laura Rosbury, Dean of the school’s Levin College of Law and task force member.

What Does this Mean for Expert Witnesses in Higher Education? 

While most institutions of higher education have policies recognizing the value of academic freedom, the future of academic expert witness testimony remains unclear.  The result of the professors’ lawsuit may set some precedent. 

Florida Supreme Court

Florida Supreme Court Rejects Daubert Rule

The Florida Supreme Court has rejected a legislative attempt to impose the Daubert standard of expert witness admissibility on Florida courts. As ExpertPages earlier reported, the Florida Bar’s Board of Governors asked the Florida Supreme Court to set aside a legislative attempt to force the state’s judiciary to use the Daubert standard when deciding whether to admit expert testimony.

The Board of Governors narrowly sided with lawyers who represent injury victims when it asked the Court to reject Daubert. They argued that Daubert benefits corporations and other powerful defendants by restricting the evidence that might be used to prove their wrongdoing. The business and insurance community, on the other hand, contended that Daubert provides a safeguard against the use of “junk science” to sway juries.

The Legislature v. The Court

Florida courts have historically followed the Frye standard to determine the admissibility of expert testimony. As applied in Florida, the Frye standard requires trial judges to exclude expert testimony that is based on a new or novel scientific methodology unless it is grounded in principles that have gained general acceptance in the relevant scientific community.

The Florida legislature passed a law that purported to require Florida courts to follow the Daubert standard of expert witness admissibility. That standard generally requires judges to determine the reliability of expert testimony and to exclude opinions that are not based on the reliable application of a reliable methodology to sufficient facts or data.

While it is the legislature’s responsibility to make law, the Florida Supreme Court considers it the judiciary’s responsibility to craft the procedural rules that govern court proceedings. Since rules of evidence are generally regarded as procedural rules rather than substantive laws, the Florida Supreme Court has the power to decide whether evidentiary rules enacted by the legislature will be followed by the courts, at least to the extent that they are procedural.

Florida Bar Recommendation

The Florida Bar’s Code and Rules of Evidence Committee recommended that the Florida Supreme Court decline to adopt the legislatively enacted Daubert standard. The Committee’s Majority Report noted that the legislature wanted to prohibit “pure opinion testimony” in Florida courts, while Florida courts have long endorsed the admissibility of “pure opinions” from qualified experts.

Florida precedent establishes that “pure opinion testimony,” such as a doctor’s diagnosis or a psychologist’s conclusion that a defendant is not competent to stand trial, does not need to satisfy the Frye standard. “Pure expert opinions” are those that are based on training and experience and that might assist the jury even if other experts might dispute them.

Florida precedent cautions trial courts to “resist the temptation to usurp the jury’s role in evaluating the credibility of experts.” Whether conclusions drawn by experts are credible is a question for juries, not judges, to resolve. The Committee argued that a litigant’s constitutional right to trial by jury would be diminished if judges were to decide in the first instance whether an expert’s conclusions are reliable.

The Committee also raised practical objections to Daubert, noting that the standard places an unreasonable burden on courts and litigants while prompting judges to make inconsistent decisions that are based on their own preferences rather than a consistent rule of law. In the end, however, it was the constitutional concern that carried the day in the Florida Supreme Court.

Florida Supreme Court Rejects Daubert

In a brief opinion, the Florida Supreme Court noted that it typically follows a policy of adopting procedural rules that the state legislature enacts. When the Court has doubts about the constitutionality of a procedural change, however, the Court may decline to adopt it.

The Court noted that the Committee raised “grave constitutional concerns” about the impact that the Daubert rule would have on the right to a jury trial and on access to the courts. For that reason, the Court declined to adopt the legislature’s changes to Florida’s rule regarding expert witness admissibility.

The argument that the Daubert standard is unworkable, that it leads to inconsistent results, and that it increases the cost of litigation might have played a behind-the-scenes role in swaying the Florida Supreme Court. Court decisions applying Daubert have been described as “nonuniform, inconsistent, and irreconcilable.”

Constitutional concerns, on the other hand, have not prevented the federal government and the majority of states from adopting the Daubert rule. The Florida Supreme Court made no attempt to address or resolve those concerns, but merely indicated that they were sufficiently grave to warrant its rejection of the Daubert rule “to the extent it is procedural.”

Whether some or all of the Daubert standard is substantive or procedural is a question that will probably need to be resolved in a future case. It is generally recognized, however, that rules governing the admissibility of evidence are procedural since they tell courts how to conduct trials without affecting the substantive rights of litigants. It is therefore likely that the Supreme Court’s decision spells the death of Daubert in Florida, at least for the near future.

Mallet and Florida Flag

Sanctions Reversed Against Florida Expert Who Made Mistake in Affidavit

A Florida jury found James Clark guilty of causing the death of an 85-year-old woman while driving after drinking. Frank Fore, an accident reconstruction expert, was hired to help Clark’s lawyer overturn the manslaughter DUI conviction.

In support of the lawyer’s challenge to the conviction, Fore prepared an affidavit expressing the expert opinion that Clark was driving at 55 mph at the time of the accident. He based his opinion on his understanding of data that was taken from the accident victim’s vehicle. Prosecutors had contended that the car was traveling at 85 mph.

Fore’s Mistake

Fore thought he was relying on pre-impact data from the victim’s air bag control module. However, the victim’s car was not able to provide that data.

Fore explained that he relied on a flawed tool that appeared to download the data from the victim’s car. He mistakenly believed the data reported by the tool was accurate.

Fore realized that he misunderstood the data when he was provided with a report prepared by the prosecution’s expert. Fore notified Clark’s attorney of the error but he was not asked to, and therefore did not, revise his affidavit. Clark’s attorney failed to notify the prosecutor of the error in Fore’s affidavit.

The prosecutor took Fore’s deposition. During questioning, Fore acknowledged that his affidavit contained erroneous information. The prosecutor then asked the court to impose sanctions on Fore. At a hearing on that request, the judge found that the affidavit was “materially false” and that Fore had been “recklessly indifferent” to the truth.

The court treated the request for sanctions as a motion to hold Fore in contempt of court. In a civil contempt proceeding, the remedy is remedial, not punitive, so the court could not assess a criminal punishment against Fore. The court decided, however, that it had the power to impose a monetary sanction as compensation “for losses sustained.” It ordered Fore to pay $6,667.70 to compensate the state for the cost of ordering transcripts and hiring its own expert witness.

The court also sanctioned Clark’s attorney. The attorney did not appeal. Fore, on the other hand, appealed the award of sanctions.

Civil Contempt Sanctions Against an Expert Witness

Under Florida law, civil contempt can be imposed as a sanction for the intentional violation of a court order. In most cases, contempt sanctions are imposed to coerce compliance with an order. Somebody who is ordered to produce a document might therefore be jailed or made to pay a daily fine until the document is produced.

The Florida Supreme Court long ago recognized the judicial power to impose a “compensatory fine” in civil contempt cases. While that is what the trial court purported to do when it fined Fore, the District Court of Appeal concluded that the trial court had no authority to impose that sanction. The appellate court noted that contempt fines may only be imposed when a court order has been violated. Fore was not ordered to prepare an affidavit and his inclusion of erroneous information, even if reckless, did not violate a court order.

The appellate court also noted that civil contempt sanctions are only available for intentional violations of a court order. The trial court found that Fore was negligent and even reckless when he prepared the affidavit, but it did not find that he intentionally included false information. For that additional reason, no civil contempt sanction could be imposed.

Other Sanctions Against Expert Witness

The prosecution argued that the trial court had inherent authority to sanction the expert, even if the court incorrectly characterized its decision as the imposition of a contempt sanction. The prosecution pointed to a line of Florida cases that allow trial courts to sanction lawyers who act in bad faith. Those sanctions typically involve an order to pay some or all of the other party’s attorney fees.

The appellate court concluded that the doctrine permitting sanctions against lawyers who act in bad faith should not be extended to expert witnesses. The court noted that the threat of sanctions might deter expert witnesses from testifying for fear that they will be punished if they make a mistake. In addition to the chilling effect that the threat of sanctions might have on expert testimony, the court expressed concern that sanctioning an expert witness might violate the expert’s right to freedom of speech, access to the courts, and due process.

Lessons Learned

Experts should always take care to double-check the facts upon which they base opinions. Unfortunately, mistakes happen. Fore did the right thing when he reported the mistake to the defense attorney. To protect himself, however, he probably should have been more aggressive about following through with the attorney, and should have drafted a revised affidavit based on correct information.

Still, the appellate decision sends the message that experts should not be sanctioned if they make unintentional errors. Experts should try not to make mistakes and should correct any mistakes they discover, but they should not be intimidated by the possibility that an opposing lawyer might ask a judge to sanction them if their opinions turn out to be wrong.

Seal of State of Florida and Gavel

Florida Computer Expert Arrested for Lying About Credentials Under Oath

While awaiting trial on more than a dozen felonies involving sexual abuse of a child, Jason Eugene Daniels got a tip from his cellmate about an expert witness who could assist his defense. The expert, Chester Kwitowski, had testified as a computer forensics expert in other Polk County, Florida cases.

Daniels passed the expert’s name to his defense attorney, who asked Kwitowski for his resume. Impressed with Kwitowksi’s credentials, the attorney decided to engage his services. That turned out to be an unfortunate decision, particularly for Kwitowski. After he testified, Kwitowski was arrested for perjury. Even more unfortunate is the opportunity Kwitowski gave the Polk County Sheriff to criticize defense experts.

Kwitowski’s Arrest

The Tampa Bay Times reports that a sheriff’s detective who was serving as a prosecution expert in Daniels’ case became suspicious about “inconsistencies in Kwitowski’s qualifications.” The Sheriff’s Office began an investigation. Kwitowski was arrested after detectives discovered that some of his credentials were falsified.

Kwitowski was charged with committing perjury when he testified about his education, his professional certifications, and his military service. Kwitowski falsely claimed to have a master’s degree in computer science and engineering and to have multiple computer forensics certifications. He also gave false testimony about having a “Top Secret clearance” and working on “sensitive government projects.”

An investigation by the Tampa Bay Times also cast doubt on Kwitowski’s claim that he had “information technology and systems support contracts” with two government offices. Those offices had no record of contracting with Kwitowski.

Kwitowski said he testified as a computer forensics expert at least fifty times in state and federal courts. The Sheriff’s Office is investigating that claim to determine whether it was exaggerated.

Sheriff Criticizes Defense Experts

An interview that the Polk County Sheriff gave to a news station suggests that the Sheriff’s Office had a grudge against Kwitowski. The Sheriff said, “We call him Chester who defends the molesters.”

The implication is that expert witnesses should not testify for the defense in child pornography or child molestation cases. The Sheriff’s uncharitable attitude is inconsistent with the presumption of innocence and the constitutional right to present a defense.

Experts should not be impugned simply because they testify for one side or the other in a criminal prosecution. Experts are advocates for the truth, not for a particular party.

The Importance of Defense Experts

Computer forensics experts play a crucial role in assuring that juries understand the evidence against individuals who are accused of crime. Sloppy work by a prosecution expert, left unchallenged, can lead to a wrongful conviction.

Julie Amero is a case in point. While working as a substitute teacher, Amero used a classroom computer to check her email. The computer began to display pornographic images in a series of popups. As quickly as Amero closed one, another would take its place.

Students in the classroom saw the images. She reported it to school officials, who told her not to worry. Concerned parents, however, pressured the school to report Amero to law enforcement authorities. Amero was accused of surfing pornographic websites in the classroom. The accusations led to her arrest for causing a risk of injury to a minor.

The prosecution called a computer forensics expert who testified that the computer could not have displayed pornographic popups, as Amero claimed. The defense did not call an expert and Amero was convicted.

If Amero’s defense attorney had hired an expert, it is likely the case would have been dropped. After her conviction, forensic computer experts volunteered to help her. They explained that her version of events was consistent with a malicious spyware program. Their assistance shamed the prosecution into sending the computer’s hard drive to the state police forensics laboratory. An analysis found evidence that supported Amero and that contradicted the state’s expert witness.

Based on the new expert evidence, a judge overturned Amero’s conviction. The judge also found that the prosecution’s computer forensics expert had given false testimony. But for the willingness of experts to step in and remedy an injustice, Amero’s wrongful convictions would still be haunting her.

Lessons Learned

Jack Townley, the president of the Florida chapter of the Forensic Expert Witness Association, told the Tampa Bay Times that once someone has testified as an expert, lawyers tend to assume that the expert’s credentials have been verified. That isn’t always the case, as Kwitowski’s history demonstrates.

It never hurts to ask an expert to verify claims made on a resume. Producing a copy of a diploma or of certifications shouldn’t be burdensome for most experts, and a failure to do so should cause lawyers to raise an eyebrow and ask whether the expert might be hiding something.

Only a small percentage of expert witnesses fabricate their resumes, which might lull lawyers into a false sense of security. As Townley notes, the more time lawyers spend verifying credentials, the less time they have available to prepare for court. At the same time, an attorney who fails to check credentials runs the risk that a lawyer on the other side of the case will do so. It’s better to learn about an expert’s problematic resume before making a decision to put the expert on the witness stand than to watch the expert’s credibility be destroyed on cross-examination.

Florida’s Third Circuit Issues First In-Depth Treatment of Daubert

A recent decision from Florida’s Third District Court of Appeal provided an in-depth discussion on the differences between the old Frye standard of expert witness admissibility and the currently used Daubert test. In Perez v Bell South, the Court considered expert witness testimony in a personal injury claim, and clarified for future litigants how the Daubert requirements differed from the state’s previous Frye test. Although the decision applies only to Florida, analyzing the case is useful to attorneys who need to be aware how Daubert expert witness admissibility rules compare to the older standard.

Perez v Bell South Emphasizes Use of Daubert

Maria Perez filed a personal injury claim on behalf of her developmentally disabled son, Osmany, against her former employer for negligently creating a stressful work environment that resulted Osmany being born 20 weeks early. Ms. Perez alleged that Bell South caused her such significant difficulty that she suffered a placental abruption, which led to Osmany’s premature birth and subsequent developmental deficits. As part of her case, Maria called upon the medical expert testimony of Dr. Isidro Cardella, a board-certified obstetrician and gynecologist. Dr. Cardella testified that, in his opinion, Bell South’s refusal to allow Ms. Perez frequent bathroom breaks or limit her working hours to 40 created such stress on her body that she suffered the placental abruption.

The trial court dismissed Dr. Cardella’s expert testimony and Ms. Perez’s case because it was based solely on his opinion as a medical expert. Applying the Frye test, the trial judge determined that an opinion not supported by medical evidence or research is inadmissible.  Ms. Perez appealed, arguing that “pure opinion” testimony does not fall within the guidelines of Frye. On appeal, Florida’s Third District Court correctly made the dispute over Dr. Cardella’s testimony moot by analyzing under the state’s newly adopted Daubert standard – clarifying for attorneys, and judges, how expert witness testimony, including opinion, is to be evaluated in the future.

Daubert Test v Frye Test

Created by the 1993 Supreme Court decision in Daubert v Merrell Dow Pharmaceuticals, the Daubert standard sets forth an evidentiary rule that determines whether or not expert witnesses are permitted to testify at trial. Over the last two decades, all federal jurisdictions and over half of the states have implemented the Daubert test, however, a number of states, including California and Illinois, have yet to make the switch. Relevant to the Perez case, Florida’s legislature enacted a law that made the Daubert standard the official state rule as of July 2013.

Prior to Daubert, courts analyzed expert witness testimony under a test established in the 1923 case, Frye v United States. The Frye test simply required courts to determine if an expert witnesses testimony was based on scientific methods that are “sufficiently established” in, and generally accepted by, the scientific community to which the expert belongs. As the Perez Court pointed out, the Daubert standard, as adopted by Florida’s legislature in 2013, requires additional analysis. Ensuring that an expert’s methods are accepted and established by the greater scientific community is one of many factors that a court must consider under Daubert, as now codified in Florida’s rules of evidence.

Florida courts must consider a number of factors to ensure expert witness testimony is scientifically reliable – most notably determined by analyzing an expert’s methodology and scientific knowledge. In addition to an expert’s approach being generally accepted, courts must also consider the level of peer review it has been subjected to, the error rate that can influence his results, and the existence of professional standards that govern the operation of an expert’s investigation. The Daubert standard requires courts to look at a variety of factors, and the Perez case noted that a simple Frye evaluation of expert witness testimony is no longer sufficient in Florida.

Understanding the Daubert Standard

Reviewing Dr. Cardella’s testimony through a Daubert lens, Florida’s Third District Court of Appeal arrived at the same conclusion – his testimony was inadmissible. The pathway to the correct decision is important, however, because, as Ms. Perez’s attorneys pointed out, a Frye analysis is not sufficient to evaluate a pure opinion testimony. Using the Daubert test, which applies to any expert witness testimony, Florida courts can determine the admissibility of an expert’s analysis of facts and his opinion of the case. Under Daubert, Dr. Cardella’s testimony still fell short because he did not back his conclusions with scientifically reliable support.

Attorneys who intend to use expert witnesses must understand the proper application of the Daubert standard and be prepared to use an expert who can provide reliable, scientific knowledge to support testimony. With limited exception, the Daubert standard controls expert witness admissibility, and, as Florida’s Perez v Bell South demonstrates, Daubert is more comprehensive and thorough than the once widely-used Frye test.