INABILITY TO CALCULATE MARGIN OF ERROR NO BAR

INABILITY TO CALCULATE MARGIN OF ERROR DOES NOT BAR EXPERT TESTIMONY

Introduction

In the case of Mark Jones v Harley-Davidson (2016 U.S. Dist. LEXIS 48060 ), the present motion to exclude expert witness of the defendant arises out of a suit for damages involving a motorcycle accident. The plaintiff filed this motion seeking to dismiss the expert testimony of David Thom, who was introduced as an expert by the defendant to opine on the injuries caused to the plaintiffs in this case. The defendant had alleged that the expert’s testimony on injuries caused was neither relevant nor reliable and should be excluded under Rule 702 of the Federal Rules of Evidence. The Court analysed these claims and found that the defendant’s claims attacked the weight rather than the admissibility of the expert testimony. Thus the Court only excluded that part of Mr. Thom’s testimony which was deemed to be beyond his qualifications to opine on. Continue reading “INABILITY TO CALCULATE MARGIN OF ERROR NO BAR”

Explaining cell phone connectivity and data entry are not subjects of expert testimony

Introduction

In the case of United States v Graham [2015 U.S. App. LEXIS 13653], there was an appeal from the district court conviction. The appellants in this case were accused of a number of armed robberies. Among other things, the appellants contended that expert testimony was admitted erroneously as lay testimony which merited a reversal of the conviction. The Court of Appeals examined both the testimonies (one of records custodian at Spritz/Nexel, Jeff Strohm and the other of FBI agent Colin Simons) and held that the district court had not erred on this count of admitting the testimonies of the experts named above as lay testimonies.

Continue reading “Explaining cell phone connectivity and data entry are not subjects of expert testimony”

Coin grading can be subject of expert testimony under Rule 702

Introduction

In the case of United States v Romanov [2015 U.S. App. LEXIS 12937], the defendants appealed against their conviction for charges related to mail and wire fraud. The defendants were in the business of selling coins: the character, purity and re-sale value of which they grossly misrepresented. In the district court, there were two expert coin graders who provided testimony as to the discrepancies in the grading of the coins. The defendants claimed an abuse of discretion under Rule 702 of the Federal Rules of Evidence in admitting the evidence of coin graders (“expert coin graders” hereinafter). The defendants claimed that grading of coins was a subjective exercise and hence the expert coin graders’ testimony could not be admitted under Rule 702. The Court disagreed, upheld the decision to allow the testimony based on its reading of Rule 702 that mere subjectivity in the analysis does not take the particular expert out of the purview of Rule 702. If the Daubert test is satisfied in spirit, the particular expert evidence can be admitted.

Continue reading “Coin grading can be subject of expert testimony under Rule 702”

Translation: Not necessarily word for word to be admitted as evidence

Introduction

In the case of United States v Khan [2015 U.S. App. LEXIS 12724], the Court of Appeals affirmed the conviction of Khan on terrorism related charges. In 2011, a grand jury had convicted Khan and sentenced him to twenty five years in prison. He was charged with using his madrassa (or school) in Pakistan as a front to send funds to incarcerated and injured Taliban fighters. One of the critical parts of the challenge in the Court of Appeals that was brought by the defense was that the district court erred in allowing the government translator to add comments to the transcript of phone calls between the accused and his associates in Pakistan. The Court of Appeals rejected the challenge and held that the translator had done his work with sufficient methodology and that the district court had not overstepped its discretion in allowing the testimony to be admitted.

Continue reading “Translation: Not necessarily word for word to be admitted as evidence”

Differential diagnosis: Scientific methodology required to ‘rule out’ causes

Introduction

In the case of United States v Bailey [2015 U.S. Dist. LEXIS 97288], the district court rejected the expert witness of the plaintiff on the ground that the testimony had failed to meet the requisite standard required under Rule 702 of the Federal Rules of Evidence. The Court used the differential diagnosis test which the expert medical testimony used by the plaintiff failed to satisfy. With the expert opinion being excluded, the Court allowed the defendants’ motion for a summary dismissal.

Continue reading “Differential diagnosis: Scientific methodology required to ‘rule out’ causes”

Mere law enforcement experience not enough to act as expert witness

Introduction

In the case of Krein v State Police [2015 U.S. Dist. LEXIS 97299], the District Court looked into question of expert testimony in case of application of excessive force by State Troopers in West Virginia. The Court used Rule 702 of the Federal Rules of Evidence to analyze the observations of an ex-law enforcement officer with regards to position of a shooter based on bullet trajectory and shell casings. The Court found that the requirements of Rule 702 were not fulfilled by the expert in that he failed to provide sufficient scientific and factual backing to his methodology and conclusions. The Court held that mere experience in law enforcement was not sufficient in the absence of scientific and technical expertise. Continue reading “Mere law enforcement experience not enough to act as expert witness”

Expert testimony irrelevant to analyze child pornography

Introduction

In the case of United States v Silva [2015 U.S. App. LEXIS 12489], the defendant challenged his conviction on the charge of possession of child pornography. He based his challenge on various counts which included an incorrect dismissal of expert testimony. The Court upheld the conviction and held that there was no abuse of discretion on part of the lower court to dismiss the testimony of the proposed expert witness. Continue reading “Expert testimony irrelevant to analyze child pornography”

Testimonial Hearsay, if reasonably harmless, does not require conviction to be overturned

Introduction

In the case of United States v Garcia [2015 U.S. App. LEXIS 12141], the defendants were accused of number of crimes relating to shooting, robbery and home invasion. The defendants challenged the district court conviction on various grounds, one of which related to the expert testimony. The defendants contested a certain expert opinion which they claimed was hearsay. Thus, they argued, this evidence was erroneously admitted in violation of their Sixth Amendment Rights. The defendants’ argument that their conviction be reversed because the expert testimony of the prosecution affected their Sixth Amendment Confrontation Right, was not accepted by the Court. The Court of Appeals held that even when it is proved that an expert was merely repeating hearsay without any application of expertise, if the expert’s testimony was harmless to the defendants’ case beyond a certain reasonable standard of doubt, the conviction would stand. Continue reading “Testimonial Hearsay, if reasonably harmless, does not require conviction to be overturned”

Temporal Proximity not Adequate, need Expert Testimony: holds Court of Appeals

Introduction

In the case of United States v Mathison [2015 U.S. App. LEXIS 12272], the Court of Appeals held that the plaintiff’s suit of negligence against the United States government required an expert testimony to support it. The case in question involved loss of hearing due to increase in volume of public address system of a federal prison. The Court held that just because the two events (increase in volume of the PA system and the loss of hearing) happened at around the same time, one cannot be said to the cause of the other. This link requires proof of a nature not available to lay persons and hence the need for an expert witness. Continue reading “Temporal Proximity not Adequate, need Expert Testimony: holds Court of Appeals”

Medical Expert required to establish Link between Chlorine Leak and RADS in Negligence Suit

Introduction

In the case of Higgins v Koch Development Corporation [2015 U.S. App. LEXIS 12491], the US Court of Appeals held that a medical expert was required to prove the causation of the onset of RADS in the plaintiff by the chlorine leak that the plaintiff was exposed to at the amusement park run by the defendant corporation. The Court also held that a practicing physician experienced with a particular disease cannot be automatically considered to be an expert in the factors leading to the causation of that disease. The Court also held the methodology employed by the medical expert to be insufficient and upheld the district court’s decision to dismiss the case. Continue reading “Medical Expert required to establish Link between Chlorine Leak and RADS in Negligence Suit”

Excluding expert evidence in connection to witness credibility and self-explanatory evidence

Introduction

In the case of United States v Robert McDonnell [2015 US Dist. LEXIS 88874], the Court of Appeals held that exclusion of expert evidence was not abuse of discretion on part of the district court as expert evidence could not be used solely to discredit a witness. In the present case, the Appellants used a legal expert to explain the unusual nature of the immunity agreement of one of the witnesses. This was done with a view to highlight the possibility that the witness had incentive to exaggerate facts in his testimony. The Court held that the sole purpose of this testimony was to discredit the particular witness which the district court was justified in exercising its jurisdiction to exclude. The Court also held that the expert testimony was not needed to explain the complexity of a Statement of Economic Interest to the jurors. Continue reading “Excluding expert evidence in connection to witness credibility and self-explanatory evidence”

Valuation expertise not a prerequisite to assess flood damage

Introduction

In the case of Cori Rigsby v State Farm Fire & Casualty Company [2015 U.S. App. LEXIS 12060], the plaintiffs had filed a case against State Farm alleging that State Farm had filed incorrect claims in its role as an assessor in wake of the insurance claims after Hurricane Katrina. The plaintiffs had succeeded in their suit in the district court by relying on the testimony of an expert. This expert verified that the damage caused to the property in question was caused primarily by wind and not by flooding. The case of the defendants depended upon the argument wherein they asked the court to hold the testimony of the expert as inadmissible. The court held that an expert need not specifically be an expert on valuation but even a combination of adjuster’s report and testimony of the insured individual would suffice as testimony for damage. Continue reading “Valuation expertise not a prerequisite to assess flood damage”

Legal Opinion as Expert Testimony?

Introduction

In the case of Garrett Bean v Minerva Alcorta (2015 US Dist. LEXIS 88874), the question arose as to whether legal opinion amounted to an expert opinion. The Court upheld previous decisions of the Fifth Circuit Court in holding that legal opinion did not count as expert opinion. The Court also discussed whether it required an expert to determine bullet trajectories from the gunshot wounds. It held in the affirmative that retracing bullet trajectories to pinpoint the location of the shooter required skill which would bring it under the ambit of Rule 702 of the Federal Rules of Evidence as a specialized skill requiring an expert witness to be admissible. Continue reading “Legal Opinion as Expert Testimony?”

Expert Need not opine specifically on the disputes issue

When experts are brought into court proceedings and asked to give their testimony regarding issues in dispute they need not opine specifically on the alleged offence. As long as they are qualified to opine on the particular issue, follow a sound methodology to arrive at the final opinion and present an opinion which proves to be helpful to the trier of facts (jury) their opinions would be given importance and should be admitted by the Courts.

In this case, (2015 US App Lexis 5413) the petitioner, Carlos Alfonso Almanza Sanchez, was first recruited by a  Columbian naval officer, Oscar Agusto Gutierrez Garcia to work as a mechanic for $50,000 in an Ecuadorian submarine that smuggled cocaine. The attempt was foiled by the Ecuadorian Army which besieged the submarine before it set sail towards its destination. Immediately after, Carlos got another opportunity to work as a co-captain in another Columbian submarine for a fee of $100,000. This time too, the Columbian law enforcement officials waylaid the troupe and apprehended Carlos before the commencement of the voyage. Since the officials found 3,000 kilograms of cocaine and a weapons cache near the place where the submarine was captured, they charged Carlos and his crew members, for attempt to smuggle cocaine to USA in violation of 21 U.S.C. §§ 959(a)(2) and 963.

The District Court found him guilty under the above charges and awarded him an imprisonment term of 135 months. Carlos appealed against this order to the United States Court Of Appeals for the Eleventh Circuit. He challenged a few things: and the most relevant one for our discussion is his opposition to the admission of the testimony of the expert, Agent Holm, by the District Court which was brought in by the government against Carlos.

The government had got a US Coast Guard, Agent Holm as an expert witness to support their case against Carlos and testify about drug trafficking routes from South America to Mexico and the United States via the Pacific Ocean. Holm had 22 years of extensive experience in investigating Drug Trafficking route in the eastern Pacific region and therefore was a desirable choice.

However Carlos alleged that by admitting Holm’s testimony the District Court had abused its power of discretion. Carlos asserted that Holm’s testimony was not useful to the jury and was in fact unfairly prejudicial to him. The District Court heard his objections but allowed Holm’s to testify for the government, so long as the statement was not related to Carlos’ specific knowledge about the cocaine’s intended destination. The District Court had only allowed Holm to generally opine only on the alleged existence of the drug trafficking route and nothing more.

On appeal the Court of Appeal went on to investigate about the propriety of Carlos’ allegation. The Court assessed the present fact situation against the requirements laid down in the Daubert case[1] and Sheriff of Monroe Cnty case[2].  These cases required the court to ensure that the deposition of the expert would be beneficial to the trier of facts (jury in this case) to understand the evidence presented before it a little better; and that the witness was qualified to opine on the contentious issues at hand and that his opinion was arrived at by following a sound methodology. If the expert witness ticked all these boxes then the court could not be held to have abused its power of discretion in allowing the expert testimony.

Records presented before the court proved that the expert had more than 22 years of experience in investigating drug trafficking in the eastern pacific channel. He had in fact prior familiarity in deposing as an expert on semi-submersible drug trafficking operations and he also recognized practices of cocaine smugglers operating out of South and Central America quite well. All of this was apart from his skill at interviewing drug traffickers and extracting information from confidential informants. The Court considered these facts and concluded that there could be no doubt about Holm’s qualification as an expert on drug trafficking routes and therefore the District Court had not erred in admitting his opinion. Besides the court also noted that the lower court had asked him to depose generally regarding the trafficking routes that he believed existed between South America to Mexico and the United States via the Pacific Ocean; and was not asked to surmise if Carlos had the definite knowledge of the route that the submarine was venturing out for. Since he was not asked to give his opinion regarding Carlos’ knowledge regarding the trafficking route, his opinion was admissible and therefore the Court of Appeal held that allegation of bias did not hold water.

The Court of Appeal also rejected the other issues raised by the appellant and upheld the conviction awarded to Carlos Alfonso Almanza Sanchez by the District Court.

[1] Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)

[2] Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cnty., Fla., 402 F.3d 1092, 1107 (11th Cir. 2005)

Expert testimony addressing drug trafficking routes in general without referring to the particular knowledge of the defendant not cumulative and prejudicial: Eleventh Circuit

Identification of the routes through which illegal trafficking of commodities take place is essential to determination of the modus operandi of any criminal organization engaged in such acts. The Court of Appeals for the Eleventh Circuit recently had the opportunity of evaluating expert testimony regarding drug trafficking routes in United States of America v. Carlos Alfonso Almanza Sanchez (2015 U.S. App. LEXIS 5426).

The defendant and various co-conspirators planned to use a submarine to transport drugs to the United States. The defendant was convicted by the District Court of the Southern District of Florida, of conspiracy to manufacture and distribute cocaine, knowing that the cocaine was bound for the United States. Appealing the conviction before the Eleventh Circuit Court, the defendant challenged, inter alia, the admission by the district court of expert testimony given by Agent Erik Holm of the United States Coast Guard on behalf of the government as to drug trafficking routes. It was contended on behalf of the defendant that Agent Holm’s testimony was cumulative, without being of much help to the jury, and unfairly prejudicial.

The Eleventh Circuit took due note of the fact that Agent Holm served on active duty with the US Coast Guard for more than twenty-two years and acquired extensive experience in investigating drug trafficking in the eastern Pacific, which included working with confidential informants, interviewing drug traffickers as well as testifying as an expert on semi-submersible drug trafficking operations. The Court found his testimony adequately reliable and useful for the jury to understand the evidence, satisfied as to his familiarity with the practices of cocaine smugglers operating out of South and Central America and the trafficking routes from this region to the US, explaining that the majority of substance smuggled through the eastern Pacific towards Central America or Mexico ends up in either the US or Mexico. The Court also held that Agent Holm’s testimony was not cumulative or unfairly prejudicial as he only addressed the routes generally used in the drug trafficking business, and did not testify as to the defendant’s personal knowledge or the particular submarine operations in the present case. Thus, the Eleventh Circuit held that the the district court did not abuse its discretion by admitting the expert testimony of Agent Holm.

Historical expert testimony comprised of out-of-court statements may be admitted if presented in the course of assessing historical facts: First Circuit

Historians may have to play a role as expert witnesses where factual determinations depend on the evaluation of social, political, economic or cultural situations in the relevant past. Like all expert witnesses, historians must satisfy the requirements of Rule 702 of the Federal Rules of Evidence before their testimony can be admitted. The Court of Appeals for the First Circuit recently, United States of America v. Prudence Kantengwa (2015 U.S. App. LEXIS 4864), had the opportunity of evaluating the testimony of a historical expert in a matter involving issues related to crimes of international and political character.

The defendant, who is a member of a prominent political family allegedly involved in the Rwandan genocide, appealed her conviction by the District Court of Massachusetts for perjury and obstruction of justice based on false statements made in connection with her 2004 application for asylum in the United States and subsequent removal proceedings. One of the issues on appeal was whether the district court abused its discretion in admitting the testimony if a professional political scientist and historical expert on the Rwandan genocide, Dr. Timothy Longman, as to the existence of a roadblock in front of Hotel Ihurio in Butare before the defendant’s departure at the end of May 1994. The defendant argued that Dr. Longman’s opinion that there was a particular roadblock in a particular location at a particular time was based merely on the repetition of out-of-court statements of various individuals interviewed by him and thus liable to be excluded as it amounted to “little more than testimonial hearsay”.

The First Circuit Court acknowledged that a party cannot call an expert simply as a medium for introducing hearsay statements, but evaluating the nature of Dr. Longman’s testimony, the Court felt that it was not merely a reproduction if the statements of the individuals interviewed in connection with the various events in Butare between April and May 1994. The Court understood the expert testimony to be based partly on the consistency of the accounts of the interviewees, along with the timing of other political events, deeming it capable of comparing these to the conflicting versions of other details about the events in Butare. The Court contrasted the particulars of the present case with those in Marvel Characters, Inc., v. Kirley [726 F.3d. 119 (2d. Cir. 2013)] on the ground that the testimony of the historical experts in Marvel had been correctly excluded because their conclusions were merely assessments of the attitudes of freelance artists regarding Marvel’s general practices towards its artists, and sought to speculate on the motivations and intentions of the parties involved. In contrast, the Court found that Dr. Longman’s testimony was intended to be an assessment of a particular historical detail and not merely of the states of mind of certain individuals, and thus, the district court was well within the limits of its discretion in admitting the expert testimony as evidence.

Expert testimony regarding battered woman syndrome not affecting the question of defendant’s responsibility is not crucial to duress defense: First Circuit

Of the numerous defenses available to a defendant during the course of any particular criminal proceeding, the defense known as the battered woman defense has a special place in the defense pleas taken by someone alleges herself to be a victim of domestic violence. The battered woman defense is a defense used in court that the person accused of a wrongdoing was suffering from battered person syndrome at the material time. Battered person syndrome is a physical and psychological condition of a person who has suffered persistent emotional, physical, or sexual abuse from another person. Because the defense is most commonly used by women, it is usually characterised in court as battered woman syndrome or battered wife syndrome (BWS). The Court of Appeals for the First Circuit, United States of America v. Yamil Navedo-Ramirez (2015 U.S. App. LEXIS 5016), recently dealt with a matter which involved a duress defense taken by the defendant, who claimed that she suffered from BWS at the time of the commission of the offenses for which she was convicted by the District Court for the District of Puerto Rico, and introduced expert testimony to support the claims.

The brief facts of the case are as follows: The defendant provided armed protection at a sham drug transaction orchestrated by the Federal Bureau of Investigation as a part of a sting operation designed to identify corrupt police officers in Puerto Rico. She took a duress defense alleging that she had been subjected to domestic violence at the hands of several men, and most recently, Wendell Rivera-Ruperto, who she claimed had led her to the drug transaction site without her having notice of the same. The defense had called upon and examined Dr. Carol Romey as an expert on the subject of BWS. However, the district court refused to admit the expert testimony into evidence, and convicted of aiding and abetting an attempt to possess with an intent to distribute five kilograms or more of cocaine and possession of a firearm in furtherance of a drug trafficking crime. The defendant appealed the conviction, challenging, inter alia, the decision of the district court to exclude the expert testimony of Dr. Romey.

The First Circuit Court understood that the defendant had intended to introduce Dr. Romey’s testimony as an expert commentary on the general nature of BWS and the impact of domestic abuse on women to provide context for the defendant’s duress defense, such that would link the potential impact of the violence that the defendant had been subjected to with a case for total or partial mitigation of her criminal responsibility. The district court had reasoned that the expert testimony would not play a crucial role as the defendant’s testimony had already satisfied the jury as to her contention that she had participated in the drug transaction because she feared for her son’s life and her own. The First Circuit upheld this view, observing that the real issue was not whether domestic abuse could produce duress, but whether the defendant’s testimony was credible enough to attribute her participation in the crime to duress. The Court acknowledged it to be obvious enough that “any person might well be placed under duress if her child’s life were threatened by a supposed hit man, or if she were raped while involuntarily intoxicated”, as were alleged by the defendant. But the Court distinguished the case as not being one where the defendant had to further satisfy the judge whether she was in duress, but whether her association with the criminal acts could be solely accounted for by the fact of duress. It was concluded that Dr. Romey’s testimony would not have come to the aid of the jury in the determination of the latter, and thus, the district court did not err in its discretion in choosing to exclude the testimony from evidence.

Medical Expert should be engaged in active clinical practice to give a valid testimony

Testimony of a medical expert would not be accepted by the courts unless the expert meets the necessary qualification that is prescribed by the rules (in this case Rule 9(j) of North Carolina Rule of Evidence 702). One such requirement is to ensure that the expert in question has been engaged for the majority part of the previous year in actual clinical practice preceding the alleged act of medical malpractice.

In this case (2015 U.S. App. LEXIS 4211) the plaintiff, Timothy Hines was a federal inmate in the New Hanover County Detention Center in North Carolina. He had undergone a kidney transplant and allegedly needed to be on regular anti-rejection medication to ensure that his body did not reject this transplant. Hines unfortunately had to resume his dialysis treatment soon.

He alleged that this could have been avoided had the defendants not been negligent in carrying out their responsibility. Hines brought cumulative claims against the defendants: the Medical Director of the Detention Center (Dr. James Pence), the Clinical Director (Brandi Brunette), Correct Care Solutions, LLC and two of its employees for allegedly having failed to ensure that he was regularly given the anti-rejection medicine. He complains that had the defendants made sure that he was on his prescribed medication he would not have had to resume the dialysis treatment.

He sought $3 million as compensatory damages and $3 million as punitive damages for this alleged breach of the accepted standard of care by the defendants.

To prove his case of medical malpractice the plaintiff brought in an expert to depose in his favor. And the defendants sought to exclude the testimony of the expert on the ground that the expert did not meet the requirements laid down in Rule 9(j) of the North Carolina Rule of Civil Procedure. Now, Rule 9(j) of the North Carolina Rule of Civil Procedure provided that an expert witness should meet the standards prescribed under Rule 702 of Rule of Evidence before he can be allowed to examine the medical care in question, evaluate the medical records pertaining to the case, and give his opinion regarding the standard of care in a court of law.

Now, the defendants argued that the Supreme Court of North Carolina had already clarified (in Moore v. Proper, 366 N.C. 25, 726 S.E.2d 812, 816 N.C. 2012) that the part in Rule 9(j) of the North Carolina Rule that referred to Rule 702 of the Rules of Evidence was in essence a reference to North Carolina Rule of Evidence 702, and not to the Federal Rule of Evidence 702.

Therefore according to the defendant, the expert in question needed to meet the condition laid down in North Carolina Rule of Evidence 702 which stated that an expert should have spent the majority of his time in the preceding the year of the alleged act, in active clinical practice and not in doing some supervisory work. Hines’ agreed that his expert witness had not treated enough patients personally and had in fact been involved mostly in the supervision of physicians, physicians’ assistants and nurse practitioners in the preceding year.

The District Court accepted the point raised by the defendant and rejected the testimony of the plaintiff’s expert and his case stating that the complaint did not meet the standard laid down in Rule 9(j).

Hines appealed to the United States Court Of Appeals for the Fourth Circuit from this decision and inter alia argued how clinical practice could include in its ambit supervisory roles as was engaged in by his expert. But the court rejected this contention of the plaintiff and held that previous decisions [ For my Duval v. Bunn, 138 N.C. App. 381, 530 S.E.2d 96, 103 (N.C. Ct. App. 2000); Barringer v. Forsyth Cnty. Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App. 238, 677 S.E.2d 465, 477 (N.C. Ct. App. 2009) ] had clarified that supervising others could not be regarded the same as being involved in “active clinical practice”.

The court explained that Rule 9(j) was specifically enacted by North Carolina General Assembly to ensure that a Court only entertained a medical malpractice petition after it had received the reviewed opinion of a competent medical professional on the standard of care that was exercised in the alleged malpractice case by the impugned medical professional. This was to ensure that medical professionals didn’t have to deal with defending themselves in frivolous medical malpractice claims.

Highlighting this objective of Rule 9(j) the Court of Appeals rejected the appeal and affirmed the District Court ruling.

Admissibility of an expert testimony should not be confused with its weight

An expert opinion need not be proved to be correct for it to be admitted in the court. So long as it is given by a duly qualified expert (not necessarily a very highly qualified person) and by one who applies a reliable methodology to the facts of the case before affirming an opinion, it would in all probability be accepted by the court.

The present case, titled Thomas L. Taylor v. U.S. Bank National Association (2015 U.S. Dist. LEXIS 14194), discussing the admissibility of the opinion of an expert witness, is an ancillary matter to another case in which a securities fraud was committed by a group of bodies called the Evolution entities comprising Evolution Capital Advisors, LLC (“ECA”), Evolution Investment Group I, LLC (“EIGI”), and Damian Omar Valdez. This fraud, labeled by the Securities Exchange Commission SEC as ponzi scheme, was allegedly committed between February, 2008 and August, 2010, in which Evolution entities attracted investors to buy their bond/notes by making misleading and incomplete representations. SEC had acquired an injunctive relief from the court on December 22, 2011 against Evolution entities, which then had formally appointed a receiver to take control of and liquidate the Receivership assets.

Receiver Thomas L. Taylor (plaintiff), while investigating potential claims arising from the said ponzi scheme, also investigated a contract that Evolution entities had drawn up with the US Bank (defendant) before floating the impugned scheme. Valdez (founder and manager of Evolution entities) in 2007 had sought for a corporate indenture trustee which would administer the ECA Notes and also represent the interests of its Noteholders. This trustee is the defendant – US Bank.

It was alleged by the plaintiff that the US Bank’s Trust Department had not carried out proper due diligence checks before entering into a relationship with its new client (the Evolution entities). There were provisions in the Trust Agreement that sought to absolve the US Bank of any (and all) potential action and omission that its client could engage in.

It is at this point where this ancillary case comes into the picture. The plaintiff’s (Receiver) case is that if the US Bank had been cautious enough in doing its job as the Evolution indenture trustee then the ponzi scheme would not have come into being in the first place. He alleged that it were the actions and omissions of the US Bank that allowed the growth of this ponzi scheme.

Based on this alleged conduct the receiver brought several claims against the defendant that the latter resisted vehemently. To prove its case the defendant brought in an expert witness whom the plaintiff sought to exclude – one of the issues that were discussed by the United States District Court for the Southern District of Texas, Houston Division in this case.

Mr. Landau produced by the defendant was an expert in corporate trust industry having more than fifty years of experience in this field. The receiver did not challenge either his qualification or the relevance of his testimony. What he challenged was that the expert’s testimony was not based on sufficient facts of the case and that, his findings about US Bank abiding by prevalent industrial standard was incorrect.

The court said that both the concerns of the receiver could be addressed by his counsel at the time of cross examination. In fact, there were at least two instances when Mr. Landau opined against the US Bank when the relevant conduct of the Bank was brought to his notice by the receiver’s counsel.

The court referred to the Supreme Court decision of Daubert v. Merrell Dow Pharmaceuticals in which the conditions for admitting the an expert opinion was discussed at length before pronouncing its findings on the issue of admissibility of the expert testimony in this case. Federal Rule of Evidence 702 requires an expert opinion to be scientific or technical in nature or one relying on specialized knowledge that could assist the trier of fact to understand the evidence or to determine a fact in issue.

The court stated that the principles laid down in the Daubert case were applicable to both scientific and non-scientific expert opinion and therefore also to this case, as long as the opinion was based on the facts of the case. It was not even essential for the expert in question to be highly qualified since his qualification would only matter when the weight of his opinion would need to be determined. In fact there is no need for the party presenting the expert opinion to exemplify in any way that the expert opinion is correct. As long as the expert in question is reasonably qualified, and applies a reliable methodology to the specific facts of the case, his testimony, the court said, would be admissible.

Applying the above principles to the facts of this case, the Court disagreed with the objections of the receiver and held that concerns regarding the factual basis of Mr. Landau’s opinion only go to the weight of the opinion, and not to its admissibility and that mere disagreement with an opinion is not a sufficient ground to render said opinion inadmissible.

Since the US Bank had sufficiently proved that Mr. Landau fulfilled all the basic qualifications of an expert and since his testimony also met the above requirements for admitting it in the court, the plaintiff’s (receiver’s) motion for excluding the expert testimony was rejected.

Expert witness may testify only as to the matters disclosed in expert report

Recently, the District Court for the Middle District of Florida (Jacksonville Division) ruled that an expert witness may testify only as to the matters disclosed in his expert report. This observation was made in Leslie Woodruff v. R.J. Reynolds Tobacco Company and Philip Morris USA, Inc. (2015 U.S. Dist. LEXIS 14470). In this case, Leslie Woodruff, the plaintiff, alleged that George Woodruff, whose estate the plaintiff represents, succumbed to bladder cancer caused by smoking. He sued the tobacco manufacturing companies R.J. Reynolds Tobacco Co. And Philip Morris USA, Inc., accusing them of certain business malpractices which resulted in increased health dangers to consumers of their products.

The defendants argued that Dr. Neil Grunberg, one of the plaintiff’s expert witnesses, cannot testify about smoking cessation aids because, inter alia, because he failed to disclose this opinion in his expert report. The Court granted their motion for excluding Dr. Grunberg’s testimony to this extent.

Another trend emerging from the observations of the Court was that expert evidence apparently irrelevant to the facts of the case may be admitted in certain situations. Firstly, the court allowed speculative opinions by Dr. Steinberg, an expert witness for the defendants. Dr. Steinberg in his testimony had commented about the possibility and likelihood of exposure of Mr. George Woodruff, who worked as a tool-and-die maker, to certain carcinogenic substances such as petroleum based products, nitrosamines and aromatic hydrocarbons, and about the likelihood of certain metabolic, genetic and environmental factors contributing to his ailment. The plaintiffs contended this opinion to be “baseless and prejudicial”. However, the Court, reading from the opinion of the 11th Circuit in Aycock v. R.J. Reynolds Tobacco Co. (769 F.3d 1063), noted that while a defendant may offer evidence for a potential alternative cause for a disease or injury, he does not have to prove the alternative-cause theories with certainty or probability. The Court denied the plaintiff’s motion on this point stating that the expert opinion provided enough support for the argument of the defendants for an alternative cause than the one alleged by the plaintiff.

On the other hand, the Court denied the defendant’s motion to exclude the opinion of Dr. Burns, another expert witness for the plaintiff, that changes in cigarette design have increased the risk of developing lung cancer. The defendant argued that this opinion was irrelevant by virtue of the fact that Mr. Woodruff suffered by bladder cancer, not lung cancer. The Court, however, was persuaded by the plaintiff’s submission that such opinion would only be introduced only for the purpose of rebutting any evidence offered by the defendants to show that cigarettes have become safer over the years. The court also allowed the plaintiff to introduce the expert opinion of Dr. Robert Proctor that the defendants have failed to admit certain facts as to the addictive nature and health effects of cigarettes, as such opinion would be relevant with respect to the defendants’ statute-of-repose defence and the determination of punitive damages.

Further, the Court denied the defendants’ motion to exclude Dr. Grunberg’s opinion alleging that he lacked the requisite expertise to offer expert opinion on vertain issues. The Court took note of the prior observations made in Kerrivan v. R.J. Reynolds and Dover v. R.J. Reynolds, concluding that the fact that the fact that Dr. Grunberg is not a medical doctor does incapacitate him to testify as an expert witness, as he has the necessary qualification and experience to opine on the medical cause of Mr. Woodruff’s smoking related disease and on the minimum effective dose of nicotine.

ofnenicotine causing addiction.

Party bringing expert has to additionally prove expert’s reliability – rules Fourth Circuit

The testimony of a scientific expert witness may be instrumental in tipping a judgment in favour of its proponent but it can nevertheless be excluded if it has the tendency to delude rather than making clear the issue at hand. Moreover, recently the Fourth Circuit, in the matter of U.S.A. v. Ryan Christopher Fultz (2015 U.S. App. LEXIS 1730), added an extra burden on the shoulders of the party proposing to adduce expert evidence by imposing on it the onus of proving its reliability.

If being a convicted felon was already not good enough, Ryan Christopher Fultz, by committing a bevy of iniquitous acts gave additional reasons to the law enforcing agencies to be displeased with him. He was convicted on charges of possessing firearm, in violation of 18 U.S.C. § 922(g)(1) (2012); possessing the same with the intention of distributing a mixture and substance containing a detectable amount of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2012); possessing, brandishing, and discharging a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (2012); and aiding and abetting the latter two offenses, 18 U.S.C. § 2 (2012).

An expert witness proffered to testify in favor of Fultz before the United States District Court for the Eastern District of Virginia. He proposed to state under oath that it would be unfeasible to consider Fultz as the shooter of the AR-15 Bushmaster especially keeping in mind the spot in the crime scene where the .223 caliber shell casings were found. At trial, the district court excluded a portion of the testimony of Fultz’s expert witness. Fultz preferred an appeal before the United States Court of Appeals for the Fourth Circuit. Fultz claimed that the district court was guilty of two transgressions. Firstly, it abused its discretion by excluding the expert testimony and secondly, it failed to grant a new trial to Fultz on the ground that the testimony was wrongfully excluded.

In exercising its power of review, the Fourth Circuit referred to Federal Rule of Evidence 702 – a benchmark for district courts when determining the admissibility of an expert opinion [United States v. Wilson, 484 F.3d 267, 274 (4th Cir. 2007)] under which the district court acts as a concierge “ensuring that an expert’s testimony both rests on a reliable foundation and is relevant” to the fact at issue [Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993)].

Reliability of the expert’s opinion was the primary issue before the trial and the Appellate court. The Fourth Circuit appreciated the importance of carefully scrutinizing the reliability of the expert’s testimony primarily because of its ability of being powerful and misleading, at the same time. In Daubert, the Supreme Court had enlisted five factors that could act as a ready reckoner for district courts when evaluating the reliability of scientific expert testimony. But the Appellate court observed that the list was neither “definitive nor exhaustive” [United States v. Crisp, 324 F.3d 261, 266 (4th Cir. 2003)] since in the end, the burden of proving the reliability of the testimony would be borne by the one who would advocate it [Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001)].

The Fourth Circuit concluded that Fultz had failed to prove the reliability of his expert’s opinion on two counts.

Firstly, Fultz could not espouse the validity of his expert witness’s methodology- that the shooter’s position could be gauged by merely examining the location of the shell casings. Fultz had provided additional support for his expert’s method in his motion for a new trial, but he had failed to do so at or before trial and there was nothing which could prevent him from so doing bearing in mind the fact that the Daubert factors were well-established.

Secondly, even if the expert witness’s methodology was accepted in the relevant scientific community, the crime scene in the case had been disturbed to such a great extent that any estimation of the shooter’s position based on the physical evidence would be pure guesswork.

On appeal, the Fourth Circuit affirmed the decision of the district court of excluding the expert’s testimony because it had “a greater potential to mislead than to enlighten” (Westberry, 178 F.3d at 261)

Naprapaths may testify as experts even if licensed to practice in a State outside the one where the cause of action arises

Evidence obtained from health care professionals may be crucial in tort cases involving physical injury, especially on issues such as the proximate cause of the injury and the nature and extent of the same. However, in one such case in the State of Indiana, it became a point of contention whether the deposition of a naprapath licensed to practice in another State should be admitted into evidence. Naprapathy is a branch of alternative medicine that employs no medications but uses manipulation of muscles, joints, ligaments, etc., to stimulate the natural healing process.

In Walnut Creek Nursery, Inc., d/b/a Alsip Home & Nursery v. Barbara Banske (2015 Ind. App. LEXIS 100), the Court of Appeals of Indiana upheld the decision of the Lake Superior Court to award the plaintiff-respondent damages of US$ 243000 against the appellant-defendants, after having admitted on record excerpts from the deposition made by a naprapath who treated the plaintiff after she sustained the physical injury in issue. The primary facts of the case are as follows:

Barbara Banske, a resident of Lansing, Illinois, slipped on a floor mat and fell on her side while on Alsip’s floor mat and fell on her side while on Alsip’s premises located in St. John’s, Indiana. Subsequently, Bankse sought treatment from Laura Grice, a naprapath licensed in Illinois, whose services the plaintiff had obtained on a few previous occasions as well.

Banske had filed a complaint against Alsip seeking to recover damages for the injuries alleged to have sustained from the fall. Alsip took a discovery deposition of Grice in Illinois, and both counsel for Alsip and Banske questioned her. Later, Alsip filed a motion in limine requesting the exclusion of Grice’s deposition on various grounds. Judge Sedia of the Lake Superior Court, who initially heard the case denied the motion, deeming Grice to be fit to testify, provided the extent of the testimony remained “within the confines of her skill”. However, Judge Sedia later recused herself from the case and the matter was transferred to Judge John R. Pera. Alsip renewed the motion in limine after Banske introduced excerpts from Grice’s deposition. The excerpts were admitted as evidence during the trial, and a verdict finding Alsip 90% at fault for Banske’s injury was returned by the jury.

Alsip appealed against the judgement, challenging, inter alia, the admissibility of Grice’s testimony. The Court of Appeals found that Alsip had waived all issues but one regarding the admissibility of the deposition testimony, on account of its failure to raise objections with respect to the same during the trial. Thus, the only issue left for the Court to rule on was, whether a naprapath who is licensed in a different state be allowed to testify as to the treatment of a patient where the cause of action lay in Indiana.

The Court observed that Grice was qualified to testify as an expert in so far it dealt with the treatment accorded to Banske in the State of Illinois. The Court understood that such testimony would be helpful in the determination of the nature of the injuries Grice attempted to treat and the naprapathic methods employed for this purpose.

Further, applying the rationale expressed in an earlier decision, in Kyowski v. Burns (388 N.E. 2d 770 (Ill.App. Ct. 1979)), the Court of Appeals concluded that the trial court did not err in law by admitting Grice’s testimony as it was sufficiently connected to Banske’s injury, keeping in view the fact that Banske had previously subjected herself to Grice’s treatment, which placed Grice in good stead to testify about the difference in Banske’s health, before and after the fall, from the standpoint of a naprapath.

Compliance of expert’s methodology with Federal Rule of Evidence 702 and Daubert- a must for including expert’s opinion

The testimony of an expert witness may be excluded in part if the methodology backing his ultimate opinion does not satisfy the standards set forth in the Federal Rules of Evidence, 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. [509 U.S. 579,(1993)]. This was held by the United States District Court for the District of Nebraska – Omaha and recently affirmed by the Eight Circuit on appeal in the matter of Union Pacific Railroad Company v. Progress Rail Services Corporation (2015 U.S. App. LEXIS 2114).

The case owes its origin to a rule of Federal law (49 C.F.R. § 215.105.) that prohibits railroads from placing or continuing in service any rail car axles that have certain defects, including cracks and pitting (corrosion of the axle in the form of round pits on the surface of the dust guard, fillet, or journal-components of the outside end of the axle).

 In July 2007 and January 2010, two trains of 135 and 123 loaded coal cars derailed near DeWitt, Iowa and Martin Bay, Nebraska, respectively, on the tracks of Union Pacific Railroad Company due to failed rail car axles which had been reconditioned by Progress Rail Services Corporation. Union Pacific filed a suit against Progress Rail alleging negligent reconditioning of the DeWitt and Martin Bay axles.

The Plaintiff adduced the testimony of its expert – a professional mechanical engineer with a master’s degree and more than twenty-five years of experience in derailment investigation. After examining inter alia the fractured axles, Plaintiff’s expert surmised that the corrosion pits which the Defendant had failed to remove triggered the failure of the rail car axles and the ultimate derailments.

 Although the expert could not identify the corrosion pits which caused the axles to fail, or determine which of the pits developed after Progress Rail reconditioned the axles, in his opinion the fact that they failed within fifteen and five months after being reconditioned bore testimony to the fact that there could have been impairments like pitting, cracking, etc. to indicate that the axles should not have been returned to service.

The Defendant moved in limine to exclude Plaintiff’s expert opinion. The District Court ordered that Union Pacific’s expert would be permitted to testify that certain corrosion pits and fatigue cracks in the axle were present at the time Progress Rail reconditioned them, which it failed to remove and the same could have resulted in the axle failure. The District Court however, did not allow the expert to furnish his ultimate opinion – corrosion pits and/or fatigue cracks present in the axles before they were refurbished by Progress Rail actually caused or more likely than not caused the axle failures since this portion of the opinion was not “supported by methodology that satisfied the standards of the Federal Rule of Evidence, 702 and Daubert.”

The case proceeded to trial, and once again the District Court rejected the ultimate “really pretty narrow” opinion of Plaintiff’s expert since it was not persuaded by any particular methodology described by the expert that he could vouch for with a fair amount of certainty.

 Defendant’s expert testified that the axles had been properly refurbished and their failure was due to some fatigue-inducing mechanism other than corrosion pitting. Plaintiff did not file a motion in limine to exclude Defendant’s expert testimony but it did object to the basis of his opinions at the trial which was overruled by the District Court.

The decision of the District Court to exclude in part the testimony of its expert while admitting the same of the Defendant, prompted the Plaintiff to prefer an appeal before the Eight Circuit on the ground that the District Court had abused its discretion.

In reviewing the decision of the District Court, the Eight Circuit reiterated the tenets of Fed. R. Evid. 702. and the holdings of the Supreme Court in Daubert where it had mandated the District Courts to focus on principles and methodology of the expert testimony rather than the conclusions that they generate.

The Appellate Court did not find the trial Court guilty of abusing its discretion in excluding the Plaintiff’s expert’s ultimate opinion since neither could the expert gauge the time when the corrosion pits formed, nor could he trace the fatigue cracks that caused the axle failures. During discovery the expert had also acknowledged that “corrosion rates are inherently difficult to predict.” In light of this evidence, the District Court had rightfully concluded that a gap existed between the data and the expert’s ultimate opinion.  (Joiner, 522 U.S. at 146)

The Plaintiff’s argument that its expert rejection of other probable causes for the axle failures was a reliable methodology for his opinion also failed as the Eight Circuit found the expert incapable of distinguishing between the corrosion pits that the Defendant allegedly failed to remove and those that formed after the axles left their facility. The Eight Circuit therefore held that the District Court had exercised its gate keeping function in excluding the ultimate opinion of the Plaintiff’s expert as unreliable (Daubert 509 U.S. at 589)

The Plaintiff’s second contention was that the District Court had abused its discretion in admitting the Defendant’s expert testimony although (i) his opinions were unrelated to the facts of this case, (ii) he had not taken into account pertinent facts and (iii) had examined and considered one piece of evidence—the axle.

 The Defendant’s expert had opined that in the absence of corrosion pitting at the initiation sites, the derailments could not be attributed to their presence. He had further testified that fretting caused the accumulation of stress which in turn allowed a fatigue crack to initiate and grow. Thus, although the Defendant’s expert was unable to associate the cause of the fatigue cracks to corrosion pitting, he was successful in identifying fretting as the cause behind the crack in the axle.

The judgment of the District Court was thereby affirmed.

Expert Testimony based on temporal evidence and differential diagnosis can be admitted if they fulfill certain criteria

ELLA MAY CROSS, et al PLAINTIFFS VS. FOREST LABORATORIES DEFENDANT

2015 U.S. Dist. LEXIS 19730

In toxic tort cases the specialist who is called in as a causation expert is allowed to arrive at his conclusion by availing the method of differential diagnosis as long as it is reliable and established through a scientific method. There is no mandatory stipulation by the court or any rule book that requires such expert to explore all reasons and eliminate all factors that could have led to the concerned toxicity in the case if s/he can satisfactorily explain his opinion in spite of the presence of other unexplored alternative causes. Opinions can also be based on temporal proximity of the treatment with that of the act as long as it is also formed on a basis of a scientific method and supported by sufficient circumstantial evidence.

The present case is a diversity suit comprising tort claims. Inter alia the defendant sought to exclude the testimony of the plaintiff’s specific causation expert, Mr. George S. Glass (M.D).

One Mr. Leon Cross, aged 81 years old was suffering from tremendous stomach ache for quite a few months and had consulted a doctor for it on May 20, 2004. He was advised to undergo a colectomy (a surgery) which was scheduled for June 4, 2004. However while the surgery date was approaching he grew anxious about it and revisited his doctor with the complaint. The latter had prescribed him a selective serotonin re-uptake inhibitor or SSRI drug called Lexapro, to control this anxiety. This drug was manufactured by the defendant (Forest Laboratories).

After two days of having taken that medicine Mr. Cross killed himself by shooting in his stomach. Plaintiff Ella May Cross ; Ellis Donnell Cross; William Cross, Theodore Cross; and Sandra McFadden bought this suit against the defendant contending that had it not been for the intake of Lexapro Mr. Cross would not have had such a sudden mood swing and ventured to kill himself. They supported their claim by the following facts: three pills of lexapro were missing; the mishap had taken place two days after he was prescribed the drug and the toxicology report had also suggested the presence of lexapro in his blood sample. To prove the alleged connection between lexapro and the sudden suicidal tendency of Mr. Cross, the plaintiffs had brought in a specific causation expert, Mr. George S. Glass to depose in their favor.

As reiterated before, the toxicology report had revealed the presence of selective serotonin re-uptake inhibitor (SSRI) in his blood. Mr. Glass had used differential diagnosis to omit alternative risk factors and considered only two from the various possible factors that could have resulted in Mr. Cross taking his life. The expert had explained that stomach pain was one such factor that could have been considered; but since Mr. Cross had taken adequate measure to deal with it by visiting his doctor and agreeing to undergo the suggested surgery such potential risk could be logically excluded. The other risk specifically excluded by Mr. Glass was the risk of anxiety that Mr. Cross was experiencing as he moved close to the date of surgery. But there was nothing to suggest that such anxiety felt by Mr. Cross was unnatural from what another person in his position would have felt. Besides the defendant had not produced any evidence show what could have caused the abrupt

When the elimination of other risks is made to the satisfaction of the court, the next step for the expert witness is to establish the chain of causation. This is a two-pronged test-a general and a specific one. The general test requires the expert to show if there was enough evidence to show that Lexapro could cause suicidal tendency amongst general public. If the answer to this question is in the affirmative then the expert is laden with the task of showing whether the intake of the drug, lexapro actually contributed to Mr. Cross’s decision to terminate his life.

The court cited another case (In re Celexa & Lexapro Products Liab. Litig., 927 F. Supp. 2d 758, 768 (E.D. Mo. 2013) where the testimony of the causation expert Dr. Healy was accepted. Dr. Healy in that case had proved to the contentment of the court that Lexapro could develop the tendency to commit suicide in a person in three ways: (1) akathisia; (2) emotional blunting and disinhibition; and (3); psychotic decomposition. Dr. Glass specifically excluded mechanism 1 and 3 and identified a seemingly new mechanism called “egodystonia”; which essentially referred to an action not typical or consistent with the concerned person’s personality. But the court notes that in his deposition, Dr. Glass had consistently insisted upon the fact that it seemed that the deceased was experiencing “emotional blunting and disinhibition”  (i.e. mechanism 2)

Keeping all the above records in mind the United States District Court for the Northern District of Mississippi, Eastern Division rejected the arguments raised by the defendant. Forest Laboratories had also argued that Mr. Glass, it seemed was basing his entire opinion on “temporal connection evidence” that since Mr. Cross’ death was proximate to the ingestion of lexapro the latter must be the significant contributing cause.

But the court held that the expert had considered sufficient facts, (like how lexapro was the only new factor introduced in Mr. Cross’ lifestyle before he experienced the fatal mood swing, how traces of lexapro was detected in the blood sample through the toxicology report and how there was enough evidence to support the finding that exposure to SSRI to the general public, especially to elders could make patients feel the suicidal urge) before drawing the chain of causation. It was clarified by the court that a finding arrived at only through temporal connection would usually be given very little weightage in the determination of causation; unless, (like in this case) it is supplemented by adequate established scientific method and circumstantial evidence.

The Court therefore allowed and accepted the testimony of the causation expert, Mr. George S. Glass.

In toxic tort cases the specialist who is called in as a causation expert is allowed to arrive at his conclusion by availing the method of differential diagnosis as long as it is reliable and established through a scientific method. There is no mandatory stipulation by the court or any rule book that requires such expert to explore all reasons and eliminate all factors that could have led to the concerned toxicity in the case if s/he can satisfactorily explain his opinion in spite of the presence of other unexplored alternative causes. Opinions can also be based on temporal proximity of the treatment with that of the act as long as it is also formed on a basis of a scientific method and supported by sufficient circumstantial evidence.

The present case is a diversity suit comprising tort claims. Inter alia the defendant sought to exclude the testimony of the plaintiff’s specific causation expert, Mr. George S. Glass (M.D).

One Mr. Leon Cross, aged 81 years old was suffering from tremendous stomach ache for quite a few months and had consulted a doctor for it on May 20, 2004. He was advised to undergo a colectomy (a surgery) which was scheduled for June 4, 2004. However while the surgery date was approaching he grew anxious about it and revisited his doctor with the complaint. The latter had prescribed him a selective serotonin re-uptake inhibitor or SSRI drug called Lexapro, to control this anxiety. This drug was manufactured by the defendant (Forest Laboratories).

After two days of having taken that medicine Mr. Cross killed himself by shooting in his stomach. Plaintiff Ella May Cross ; Ellis Donnell Cross; William Cross, Theodore Cross; and Sandra McFadden bought this suit against the defendant contending that had it not been for the intake of Lexapro Mr. Cross would not have had such a sudden mood swing and ventured to kill himself. They supported their claim by the following facts: three pills of lexapro were missing; the mishap had taken place two days after he was prescribed the drug and the toxicology report had also suggested the presence of lexapro in his blood sample. To prove the alleged connection between lexapro and the sudden suicidal tendency of Mr. Cross, the plaintiffs had brought in a specific causation expert, Mr. George S. Glass to depose in their favor.

As reiterated before, the toxicology report had revealed the presence of selective serotonin re-uptake inhibitor (SSRI) in his blood. Mr. Glass had used differential diagnosis to omit alternative risk factors and considered only two from the various possible factors that could have resulted in Mr. Cross taking his life. The expert had explained that stomach pain was one such factor that could have been considered; but since Mr. Cross had taken adequate measure to deal with it by visiting his doctor and agreeing to undergo the suggested surgery such potential risk could be logically excluded. The other risk specifically excluded by Mr. Glass was the risk of anxiety that Mr. Cross was experiencing as he moved close to the date of surgery. But there was nothing to suggest that such anxiety felt by Mr. Cross was unnatural from what another person in his position would have felt. Besides the defendant had not produced any evidence show what could have caused the abrupt

When the elimination of other risks is made to the satisfaction of the court, the next step for the expert witness is to establish the chain of causation. This is a two-pronged test-a general and a specific one. The general test requires the expert to show if there was enough evidence to show that Lexapro could cause suicidal tendency amongst general public. If the answer to this question is in the affirmative then the expert is laden with the task of showing whether the intake of the drug, lexapro actually contributed to Mr. Cross’s decision to terminate his life.

The court cited another case (In re Celexa & Lexapro Products Liab. Litig., 927 F. Supp. 2d 758, 768 (E.D. Mo. 2013) where the testimony of the causation expert Dr. Healy was accepted. Dr. Healy in that case had proved to the contentment of the court that Lexapro could develop the tendency to commit suicide in a person in three ways: (1) akathisia; (2) emotional blunting and disinhibition; and (3); psychotic decomposition. Dr. Glass specifically excluded mechanism 1 and 3 and identified a seemingly new mechanism called “egodystonia”; which essentially referred to an action not typical or consistent with the concerned person’s personality. But the court notes that in his deposition, Dr. Glass had consistently insisted upon the fact that it seemed that the deceased was experiencing “emotional blunting and disinhibition”  (i.e. mechanism 2)

Keeping all the above records in mind the United States District Court for the Northern District of Mississippi, Eastern Division rejected the arguments raised by the defendant. Forest Laboratories had also argued that Mr. Glass, it seemed was basing his entire opinion on “temporal connection evidence” that since Mr. Cross’ death was proximate to the ingestion of lexapro the latter must be the significant contributing cause.

But the court held that the expert had considered sufficient facts, (like how lexapro was the only new factor introduced in Mr. Cross’ lifestyle before he experienced the fatal mood swing, how traces of lexapro was detected in the blood sample through the toxicology report and how there was enough evidence to support the finding that exposure to SSRI to the general public, especially to elders could make patients feel the suicidal urge) before drawing the chain of causation. It was clarified by the court that a finding arrived at only through temporal connection would usually be given very little weightage in the determination of causation; unless, (like in this case) it is supplemented by adequate established scientific method and circumstantial evidence.

The Court therefore allowed and accepted the testimony of the causation expert, Mr. George S. Glass.

 

 

 

 

Expert opinion can be based on opinions presented by other medical personnel

LARRY D. JOHNSON, Plaintiff, v. STELLA-JONES CORPORATION, Defendant

2015 U.S. Dist. LEXIS 19185

Though it is generally desirable that experts base their opinion on first hand information or their own examination, Rule 703 of the Federal Rule of Evidence also allows them to base their opinion on information received outside of the court as long as there is a considerable chance of acceptability of the said information by other experts in the said field. A good expert opinion is also, usually characterized by its reliance on objective evidence, on consideration of proper facts, on the use of a tried and tested methodology and where such theory enjoys general acceptance in the scientific community.

The defendant requested for the exclusion of the expert testimony on causation at the trial stage that was given by Dr. Belinda Merritt.  The defendant, Stella-Jones Corporation (the company) owned a wood treatment facility in Fulton County, Kentucky. On August 24, 2012 he had got the plaintiff, Larry D. Johnson to deliver crossties at his facility. While the crossties were being taken down a heap of lumber fell on Johnson’s right hip and foot and hurt him real bad. He was not able to move from the pain for a long while and complained of tremendous ache in his neck, and right foot.

On that very day he was examined by physicians of the Jackson-Madison County General Hospital, where a CT scan and an MRI was performed on his cervical spine. The CT scan revealed a bony projection (i.e osteophytes) in two of his vertebrae C3 and C4. The MRI report also showed the accumulation of some fluid (endema) in the bony projection arising from the C4 vertebrae of Johnson. The language wasn’t definite in either of these reports and both said that all the injuries noted in them were probably reflective of the fracture in the vertebrae.

Prior to this accident Johnson had been diagnosed with diffuse idiopathic skeletal hypertrophy, or DISH. And this condition, (DISH) is known to cause the spurring down of the vertebrae. However there were no pre-accident reports to compare the post-fall CT scan and MRI scan report.

This was acknowledged by Dr. Belinda Meritt, a physiatrist who later treated Johnson on three occasions between August 28 2012 and September 28, 2012, when he was admitted for care at the Cane Creek Rehabilitation Hospital. She is also the expert that the defendant sought to exclude in this case.

Dr. Merritt had not conducted any form of primary examination on Johnson’s fracture before proceeding to treat him. Neither had she perused his radiological report. She had started her treatment only on the basis of the summary report of the diagnosis that Jackson-Madison County General Hospital had provided Johnson with before discharging him from their care.

Dr. Merritt had deposed in favour of Johnson’s accusation against the defendant in this case. She had stated that there was a reasonable medical probability that Johnson’s injuries, especially the fractures, were caused from the collapse of the pile of lumber on him.

However the Company contended that the fact that Dr. Merritt had not diagnosed Johnson herself who had also agreed in her cross examination that the plaintiff’s prior condition of DISH could have had a chance in weakening his vertebrae, and the fact that the language of the MRI and CT scan report were speculative in nature—made her testimony anecdotal and unreliable for the consideration of the court.

In response to this, Johnson cited Rule 703 of the Federal Rule of evidence that allowed experts to base their opinion on both personally observed facts and also on information that they have discovered or been made aware of outside of the court. Such secondary information would only be required to be something that other experts in that particular field could reasonably place their reliance on.

The court accepted this argument of the plaintiff and noted that the company misinterprets the language of the MRI scan and the CT scan report. Besides there were other medical records that diagnosed the fracture in definite terms (the discharge summary report, the X ray and the imaging reports). Keeping all these findings in mind the Court allowed the testimony of Dr. Merritt and reiterated that because she had based her diagnosis and opinion on most of the reports prepared by the medical professional/body, of Jackson-Madison County General Hospital’s her testimony could be admitted.

Compliance with Rule 26(a) of Federal Rule of Civil Procedure – a sine qua non for inclusion of expert witnesses

Failure to comply with the disclosure requirements of Rule 26(a) of Federal Rule of Civil Procedure results in automatic and mandatory exclusion of the proffered witness “unless the failure was substantially justified or harmless” [Fed. R. Civ. P. 37(c)(1)] ruled the Seventh Circuit in Patrick Novak v. Board of Trustees of Southern Illinois University 2015 U.S. App. LEXIS 2090

 Patrick Novak, a student of the Southern Illinois University’s Curriculum and Instruction department’s doctoral program had post-traumatic stress disorder (“PTSD”). As per the norms of the University all doctoral students are obligated to pass a Preliminary Examination consisting of three “Days” in order to continue and become a candidate for a doctoral degree. Novak cleared the Day 1 exam on his first attempt, Day 2 on his second attempt but failed to clear Day 3 even after four attempts. Considering Novak’s recurrent failure to pass Day 3, the C&I Department terminated his participation in the doctoral program and offered to convert his doctoral credits into a master’s degree. Mr. Novak accepted the department’s offer and became the recipient of a master’s degree in May 2011.

 In January, 2012 Novak instituted an action in the District Court for the Southern District of Illinois against the University and three of its professors on the ground that he had been terminated from the  doctoral program on the basis of his PTSD, in violation of section 504 of the Rehabilitation Act, 29 U.S.C. § 794 and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.

The District Court gave a scheduling and discovery order that required the plaintiff to make known any expert witnesses on or before October 1, 2012. The order also required the parties to file any dispositive motions on or before December 15, 2012. On November 9, 2012 the magistrate judge rescheduled the deadlines for discovery and the filing of dispositive motions and ordered that that “all present deadlines and hearings are stricken.” However, the order made no reference to extending the time for the disclosure of experts.

On the plaintiff’s request, the magistrate judge yet again set new deadlines for discovery and the filing of his dispositive orders, but neither did the plaintiff plead to extend the time for the disclosure of experts nor did the order make any such reference. On December 16, 2013 the day the discovery in the case was to be concluded, the plaintiff’s counsel sent two emails to the defense counsel containing purported disclosures of the plaintiff’s two expert witnesses with letters signed by the plaintiff’s counsel rather than the proposed experts and contained bulleted lists of the content of their testimony.

The defendants filed their motion for summary judgment, and one to exclude plaintiff’s experts.
The magistrate judge granted the defendants’ motion to exclude plaintiff’s experts. The District Court adopted this order despite the plaintiff’s request for review. The plaintiff accordingly preferred an appeal before the Seventh Circuit alleging abuse of discretion on the part of the District Court in granting the defendant’s motion to exclude his expert witnesses.

 At the outset the Appellate Court recounted the essentials of Federal Rule of Civil Procedure 26(a)(2) which requires parties to make timely disclosures of their expert witnesses in accordance with any deadlines set by the District Court and inter alia the requirement of disclosing a “written report, prepared and signed by the witness,” and containing several other details.

 The disclosures of the plaintiff’s experts did not include the information required under Rule 26(a)(2)(B). Further, the witnesses were revealed after more than a year had elapsed from the court’s deadline but the plaintiff was aware of the witnesses since he had listed them as potential experts in his May 2012 interrogatory responses. Moreover, the deferred disclosures had destroyed the defendants’ opportunity of challenging the admission of their testimony under Daubert  509 U.S. 579, (1993), besides precluding their chance of identifying opposing experts.

The plaintiff claimed his December 2013 disclosure to be timely since the court had ordered – “all present deadlines and hearings are stricken.”  Seventh Circuit found this argument lacking in merit since the only deadline ever announced by the District Court for the disclosure of expert witnesses was in its April 18 order that enlisted separate dates for the close of discovery and for the disclosure of expert witnesses.

 The plaintiff felt that other deficiencies in his disclosures were harmless because he had substantially complied with Rule 26. He relied on the decision of the Seventh Circuit in Jenkins v. Bartlett, 487 F.3d 482 (7th Cir. 2007), where the Court had not found the District Court guilty of abusing its discretion, in allowing the admission of a party’s experts, even though that party’s Rule 26(a) disclosure was prepared and signed by the attorney and not the proffered experts. The Seventh Circuit reiterated that in Jenkins the absence of the witness’s signature was the ‘primary flaw’ in the defendant’s disclosure. Since both the witnesses had subsequently submitted affidavits which reflected the contents of the attorney’s letter, it had determined that the disclosure had substantially complied with Rule 26(a) and any failings in the defendant’s disclosure were harmless.

Seventh Circuit further ruled that akin to the defendants in Jenkins, plaintiff’s expert witnesses had submitted affidavits that seemed to remedy the noteworthy deficiencies in the disclosure, but in contrast to Jenkins, the plaintiff’s initial disclosure failed to comply with almost every requirement of Rule 26(a)(2)(B). Hence, the Appellate Court emphasized on the point that although Jenkins indicated that minor errors in a Rule 26(a) disclosure, may be exempted , it did not imply that a District Court should allow parties to make belated attempts of mending a disclosure that significantly fall short of Rule 26(a).

 Seventh Circuit thereby affirmed the decision of the District Court of refusing to accept the plaintiff’s inopportune submission.

 

 

 

 

District Court for the Eastern District of New York maintains that toolmark and firearm identification is an appropriate subject for expert testimony

Ballistics is the study of the dynamics of projectiles or the study of the internal action of firearms. In most cases, an expert ballistics examiner can identify what type of firearm was used, where it was fired from and how many shots were fired. Ballistics experts attempt to identify a weapon by the markings left behind on a bullet or bullet casing after firing. They can determine where the gun was fired from by analyzing the angle of entry, the caliber of bullet, and the depth of the wound. The discipline is based on the theory that tools used in the manufacture of a firearm leave distinct marks on various firearm components, such as the barrel, breech face or firing pin.

The District Court for the Eastern District of New York, in United States of America v. Yasser Ashburn, Jamal Laurent and Trevelle Meritt (2015 U.S. Dist. LEXIS 20625), recently had the opportunity to consider whether the field of firearms identification and microscopic analysis meets the standard for admission as expert testimony. The primary background of the case are as follows:

Defendants Yasser Ashburn, Jamal Laurent, and Trevelle Merritt are charged by a fourteen count indictment with numerous racketeering crimes committed in connection with their membership in the Six Tre Outlaw Gangsta Disciples Folk Nation (“Six Tre Folk Nation” or “Six Tre”), which was allegedly responsible for numerous acts of gang-related violence, including homicides, non-fatal shootings, and commercial robberies in Brooklyn and elsewhere beginning in 2007 through 2011. The indictment alleges that during those years, members and associates of Six Tre engaged in several acts of violence, including murder, attempted murder, robbery, and assault.

The Government notified the defendants that it expects to call Detective Salvatore LaCova to testify as an expert in the field of firearms identification and microscopic analysis. Counsel for Jamal Laurent moved in limine to preclude LaCova from testifying on the ground that the field does not constitute an appropriate subject for expert testimony, alleging it to be deficient of sufficiently objective methodology. In the alternative, Laurent prayed for certain limitations to be placed on LaCova’s testimony and sought a Daubert hearing. Thus the core issue as identified by the Court was whether the field of firearm identification and microscopic analysis, also known as toolmark and firearms identification or ballistics, is a proper topic of expert testimony in the case.

The Court observed that ballistic analysis follows the principles adopted by the Association of Firearms and Toolmark Examiners or AFTE, and the governing standard is that of “sufficient agreement”, i.e., the agreement, qualitative as well as quantitative, between the items in comparison, that the likelihood another tool could have made the mark is so remote as to be considered a practical impossibility. Deliberating on the question whether a Daubert hearing is necessary to ascertain the reliability of the AFTE methodology, due note was taken of the findings made in numerous federal cases in this regard and the motion was denied as a well-documented record about the methodology was available before the Court already.

Next, the Court proceeded to consider the motion to exclude LaCova’s testimony completely. Testing the subject matter of his testimony against Rule 702 standards, the Court found that the opinion of a ballistics expert is not necessarily antithetic to Rule 702. Analyzing the characteristics of the field of toolmark and firearm identification with respect to each of the Daubert factors, firstly, it was found that the AFTE methodology has been repeatedly tested in the recent history of criminal jurisprudence in the country. Secondly, the Court acknowledged that there has been considerable academic discussion subjected to peer review and publication in this discipline. Thirdly, the Court found that despite the lack of a sound statistical foundation for estimation of error rates of the AFTE methodology due to its subjective nature, the error rate appears to be low. Fourthy, the Court conceded that despite the AFTE standard of “sufficient agreement”, the methodology remains in nature essentially a “subjective inquiry”, but did not render it fatal to the cause for admission of LaCova’s testimony, persuaded by the 2006 opinion of the District Court of Massachusetts in United States v. Monteiro (407 F. Supp. 2d 351) that “a court may admit well-founded testimony based on specialized training and experience”. Lastly, it was also recognized that the AFTE methodology is generally accepted within the field of toolmark and firearms identification, weighing in favor of admission of the expert testimony.

On the other hand, Laurent tendered an alternative prayer that LaCova not be allowed to testify that his opinion is based on any degree of “certainty,” and that he limit his opinion to conclusions that are “more likely than not.” The Court granted this motion, citing the subjectivity of the AFTE methodology, irrespective of the fact that LaCova had a perfect record in identifying matches so far. Keeping in mind that “the scientific knowledge base for toolmark and firearms analysis is fairly limited”, the Court observed that determining whether a match demonstrates “sufficient agreement” is dependent primarily on the training and experience of the examiner, instead of a specific protocol or methodology.

Modus operandi expert testimony that inter alia fulfils the requirements of Federal Rule of Evidence 702 may be admitted, rules Ninth Circuit

Expert testimony of a law enforcement officer that besides being relevant, reflects on the modus operandi of the illegal importation of marijuana, and which does not pose an undue risk either of confusing the jury or creating unfair bias can be admitted in consonance with Federal Rule of Evidence 403 ruled the Ninth Circuit in United States of America v. Lorenzo Osvaldo Gonzalez- Robles 2015 U.S. App. LEXIS 4132 in appeal while affirming the decision of the United States District Court for the Central District of California.

 A strong case was instituted against Lorenzo Gonzalez-Robles in the District Court for the Central District of California subsequent to his arrest on a ‘panga’ boat laden with marijuana. He admitted that he knew of the presence of marijuana from the time he boarded the boat, and also declared that he was a mechanic in need of money. Further, an expert witness, Special Agent LeVan also testified that it is typical of the panga crews to take within their folds a mechanic who is paid up to $10,000, and that marijuana smugglers never take on passengers who have no role to play in the smuggling.

This expert testimony was admitted by the district court which eventually paved the road for the defendant’s conviction on the grounds of conspiracy to import marijuana, 21 U.S.C. § 963, importation of marijuana, 21 U.S.C. §§ 952(a)960(a)(1)(b)(1)(G), possession with intent to distribute marijuana, 21 U.S.C. §§ 841(a)(1)(b)(1)(A)(vii), and possession with intent to distribute marijuana on board a vessel, 46 U.S.C. § 70503(a)(1).

Gonzalez appealed his convictions and sentences, inter alia the improper admission of expert testimony before the United States Court of Appeals for the Ninth Circuit.

During a pre-trial hearing on motions in limine, before allowing Special Agent LeVan to give expert testimony, the judge of the district court,

  • acknowledged the topics of Agent LeVan’s proposed testimony,
  • acknowledged his CV,
  • appreciated the fact that “modus operandi” testimony was acceptable,
  • cited Ninth Circuit case law to support this finding,
  • acknowledged that Rule 702 requires an expert to be qualified and the testimony to aid the jury, and
  • concluded that “it would appear that Agent LeVan can testify.”

 The Ninth Circuit accordingly held that the district court had appropriately performed its gatekeeper functions under Federal Rule of Evidence 702.

 The Ninth Circuit also found that Agent LeVan’s modus operandi testimony had satisfied the reliability requirements of Rule 702 and in so holding it relied on its decision in United States v. Valencia-Amezcua [278 F.3d 901, 909 (9th Cir. 2002)] and United States v. Kearns [61 F.3d 1422, 1427 (9th Cir. 1995)] where it had held time and again that law enforcement are empowered to give modus operandi testimony in drug smuggling and conspiracy cases. Moreover, Agent LeVan was qualified, and his testimony was grounded in specialized knowledge.

Agent LeVan’s testimony addressed Gonzalez’s mental state but he “never directly commented on the defendant’s mental state.” Moreover, the district court had ruled that the jury could have accepted his testimony and still inferred that what the defendant had done was out of character. In this regard the Appellate Court did not find Agent LeVan’s testimony to be in contravention with Federal Rule of Evidence 704(b) although it had dealt with Gonzalez’s mental state.

The expert witness did not allude at any specific statements, arguments, or information from other sources, but merely made general declarations about panga boat smuggling. The Ninth Circuit further noted that the testimony of the expert witness did not feed or direct others’ statements or assertions in violation of the Confrontation Clause. Citing its observation in United States v. Gomez [725 F.3d 1121, 1129-30 (9th Cir. 2013)], the Appellate Court held that an expert witness’s reliance on evidence that would be barred by Crawford. . . only becomes a problem “where the witness is used as little more than a conduit or transmitter for testimonial hearsay.”

Accordingly, the Ninth Circuit did not find the district court guilty of abusing its discretion in admitting the modus operandi expert testimony and thereby affirmed its decision.

 

Excluding expert testimony not satisfying the foundational reliability standard does not amount to abuse of discretion: Court of Appeals of Minnesota

Criminal trials may see defendants calling expert witnesses for strengthening their plea of innocence or for arguing for diminished responsibility. The case State of Minnesota v. Jay Dean Uldrych (2015 Minn. App. Unpub. LEXIS 209) was an instance where the defendant, accused of second-degree criminal sexual conduct, took the plea that he suffered from a sleep disorder condition known as sexsomnia at the time of the alleged offence, which should mitigate his responsibility for the same, and took the help of an expert witness for establishing this.

The defendant’s expert had testified during the trial that the defendant had been diagnosed with sexsomnia, which exhibits sexual behavior while sleeping. The expert, based on his review of the defendant’s sleep study and supporting materials, the incident that formed the basis for the criminal charges resulted from a sexsomnia-related episode. The district court refused to include the expert testimony on the ground that there was insufficient foundational reliability to admit the evidence at trial because the expert did not comply with relevant safeguards and controls in formulating his diagnosis.

Hearing the defendant’s appeal, the Court of Appeals of Minnesota agreed with the district court, reasoning that the expert’s testimony did not meet the second prong of the Frye-Mack standard – foundtional reliability, i.e., whether the methodology with the aid of which the expert witness has arrived at his opinion conforms with appropriate standards and controls. From the literature submitted by the defendant to the district court, the Court of Appeals noted the necessary tests and procedures for an accurate sexsomnia diagnosis:

These tests include narcotics screening, a sleep study conducted over multiple nights with the subject’s normal bed partner, a daytime sleep latency test, general medical evaluation, a sleep disorder questionnaire, clinical interview of the subject and his or her bed partner, clinical evaluation for specific physical signs of sleep disorders, a neurological and psychiatric evaluation, and a neuroimaging.”

However, the Court found that the defendant’s sleep study, which was performed by a different physician, lasted for less than seven hours, without his normal bed partner, and that the expert did not conduct formal medical evaluations, neurological screenings, or clinical interviews with appellant or his bed partner. Such non-compliance with the requisite controls robbed the expert testimony of its reliability, concluded the Court, upholding the opinion of the district court.

Expert’s theory regarding the rate of equilibration in a human fetus supported by studies involving sheep fetuses admissible, rules Supreme Court of Kentucky

Neonatology is a subspecialty of pediatrics that consists of the medical care of newborn infants, especially the ill or premature newborn infant. Expertise in the discipline can be instrumental in the context of tort cases involving issues of prenatal injury. Recently, the Supreme Court of Kentucky, in Richard C. Oliphant, M.D. and Louisville Physicians for Women, PLLC, v. Billy Jo Ries, Lauren Elizabeth Ries and Kevin Ries (2015 Ky. LEXIS 4), considered whether the opinion of a neonatologist as to the rate of equilibration of blood in human fetus which are based on studies made on fetal sheep is admissible under Daubert. Equilibration is a process where the cardio-vascular system takes fluids from other parts of the body to increase blood volume, following loss of blood.

The matter arose out of an alleged injury occurring to Lauren Ries at the time of her birth. On January 20, 1997, Billie Jo Ries, who was 36 weeks pregnant at that time, noted that she was bleeding vaginally. She was taken to the Baptist East Hospital, where she delivered a daughter, Lauren, by C-section. Due to the loss of approximately one-third of her blood, Lauren suffered multiple organ failure and brain damage. As a result, Lauren, who was thirteen years old at the time of trial, is unable to care for herself. The Rieses filed suit against the Hospital, Dr. Oliphant, who delivered Lauren, and Dr. Robinson, the neonatologist who treated Lauren after her birth, arguing that the majority of Lauren’s blood loss occurred after she arrived at the hospital, and her injuries could have been prevented if she had been delivered earlier by Dr. Oliphant, or if she had received appropriate treatment from Dr. Robinson after delivery. The defendants submitted that they complied with their respective standards of care, further arguing that the majority of Lauren’s blood loss occurred before she arrived at the hospital which rendered them practically incapable of of preventing her injuries.

The issue in contention was the expert testimony given by Dr. Jay Goldsmith, a neonatologist retained to testify on behalf of Dr. Robinson. Dr. Goldsmith opined that Lauren, still inside her mother’s uterus, had lost approximately one-third of her blood volume at the time when Billie Jo noted her vaginal bleeding. While Dr. Goldsmith had never produced any studies or literature to support his opinion that the equilibration rate in intrauterine human fetuses is the same as it is after birth, and the details of his mathematical formula calculating the rate of equilibration as utilized to arrive at the opinion as deposed, Dr. Robinson submitted studies involving the equilibration rate in intrauterine sheep fetuses, purporting to support Dr. Goldsmith’s position. Dismissing the Rieses’ motion to exclude the expert testimony questioning the reliability of the formula so used, the trial court stated that Dr. Goldsmith’s testimony was “appropriate” and the Rieses’ arguments went to the weight rather than the admissibility of Dr. Goldsmith’s opinions.

The Court of Appeals held that the trial court erred in admitting Dr. Goldsmith’s testimony, stating that it could find no evidence in the record to support the finding of reliability by the trial court. The Court of Appeals emphasized that Dr. Goldsmith had not provided any “objective sources” which supported his mathematical formula, and it was not clear whether he had based his opinion on any of the studies cited by Dr. Robinson in support of his position. Further, it was observed that no medical expert offered an opinion as to the significance of these studies or whether these studies supported Dr. Goldsmith’s assumption. The Court of Appeals also noted that this assumption had not been subjected to adequate peer review through publication and that it has also been rejected by some of his peers, deeming it to substantially erode the credibility of the theory.

The Supreme Court of Kentucky proceeded to test Dr. Goldsmith’s evidence against Daubert factors and found his opinion relevant to the determination of Laurent’s blood loss as a crucial fact in issue. Dealing with the question of reliability, the Court criticized the approach of the Court of Appeals. Firstly, it was opined that the trial court had enough material on record in the form of the articles submitted by Dr. Robinson to determine for itself the significance of the same with respect to Dr. Goldsmith’s theory, overruling the Court of Appeals’ position requiring the expert opinion of medical experts on the same. Secondly, the fact that there existed no “objective sources”, i.e., studies on equilibration in human fetuses did not necessarily render the theory unreliable, opined the Court, keeping in mind the ethical and legal injunctions against human testing in such matters. It was also noted that extrapolation of results acquired from tests on non-human subjects is permitted in appropriate cases. Thirdly, the view of the Court of Appeals that the theory was untenable because it has been rejected by some of his peers was found to be inappropriate as accepting this view would result in the rejection of expert testimony in most, if not all, cases. Unanimity about the accuracy of a theory, observed the Court, is not the only determinant test of its reliability. Therefore, Keller, J., delivering the opinion of the Court, held that the trial court’s finding that Dr. Goldsmith’s theory was sufficiently reliable to submit to the jury was supported by evidence of substance, and the trial court did not abuse its discretion by admitting Dr. Goldsmith’s testimony.

Testimony of a forensic interviewer who is unaware of the circumstances of the particular child abuse case may be admitted: Court of Appeals of Arizona

Forensic interviewing is a first step in most child protective services investigations, one in which a professional interviews a child to find out if he or she has been maltreated. In addition to yielding the information needed to make a determination about whether abuse or neglect has occurred, this approach produces evidence that will stand up in court if the investigation leads to criminal prosecution. Properly conducted forensic interviews are legally sound in part because they ensure the interviewer’s objectivity, employ non-leading techniques, and emphasize careful documentation of the interview. Recently, the Court of Appeals of Arizona, in State of Arizona v. Julio Cesar Garcia-Meza (2015 Ariz. App. Unpub. LEXIS 299), had the opportunity to review the admissibility of the expert testimony of a forensic interviewer in a trial involving allegations of child sexual abuse where the expert has no knowledge of the circumstances of the case.

The defendant was charged with several sex-related offenses committed over approximately ten years beginning when the victim was six years old – among which five were for molestation of the child, and four of the charges were for sexual abuse. During the trial, Wendy Dutton, a forensic interviewer at Phoenix Children’s Hospital, testified on behalf of the state regarding research of child sexual abuse and her experience working with such cases. Interestingly, Dutton was not aware of the circumstances of the particular case and her testimony was restricted to explaining topics such as the behavior patterns of child victims and their diverse reactions to sexual abuse.

The defendant, appealing from the trial court verdict having found him guilty on all counts, challenged, inter alia, the admission of Dutton’s testimony, arguing that it was not helpful to the the jury in appreciation of the facts of the case as Dutton stated that all minor victims might not respond to sexual abuse in the same manner. The Court of Appeals interestingly found this very aspect of Dutton’s testimony to be weighing in favour of its relevance during trial. The Court observed that the expert testimony in this case was instrumental in determining the credibility of the victim, as the opinion expressed by Dutton that ‘almost any behavior could be consistent with being a victim of child sexual abuse’ sought to dispel common misconceptions that such victims will always react or respond to abuse in the same manner. Therefore, the Court concluded that Dutton’s opinions were properly admitted to help the jury to understand the testimony of the victim and evaluate her credibility.

Courts can use their discretion to exclude expert testimony

The courts have enough discretion to decide upon the reliability of an expert testimony. To gain a reversal of the verdict of the lower court, the resisting party would need to successfully prove to the appellate court that the lower court had misused its power of discretion by basing its opinion on erroneous facts, application of wrong law, following of an incorrect procedure or by making an error of judgment.

Shedrick Hollis, the accused in this case (2015 U.S. App. LEXIS 3833) was being hunted down by the Police for a parole violation and also for engaging in possible illegal drugs and arms peddling activities. The police officers of Phenix City, Alabama, and agents of the United States Marshals Service had been tipped off about a probable location (allegedly known as the Drug House) where the accused could be nabbed. The police had followed this tip-off and had arrived at the suspected location to take Hollis into custody. After his arrest they had conducted two search operations: the first one was a protective sweep carried out immediately after the arrest of the accused and the second one was after obtaining a subsequent search warrant. In these two search operations they found large amounts of marijuana, cocaine, weapons, ecstasy, scales and cash. And on one of these scales they located a latent finger print of Hollis that they intended to produce as evidence against the accused at trial.

Hollis was aware of this plan of the police to produce at trial evidence against him that was gathered at the Drug house. So before the police could do so, Hollis moved a petition to withhold the production of such evidence in the court. He alleged that the evidence gathered by the police were illegal, warrantless and in violation of his rights under the Fourth Amendment.

He also argued that the evidence sought to be produced by the police against him was not reliable. To prove this he had brought in a fingerprint expert, Lawden Yates Jr. to testify in his favor. But the government had resisted this move and sought the exclusion of the expert’s testimony.

A District court hearing was set to rule on Yates’ qualification as an expert that was disputed by the government. The court ruled in favor of the government and held that Yates was indeed not qualified to compare finger prints. It however did not opine on Yates’ ability to reliably comment on whether the quality of the finger print was sufficient to make a comparison in the first place.

But since Yates had himself said that in his opinion the qualification required to remark upon the quality of fingerprints were the same as those required to make fingerprint comparisons, the government used his alibi against Hollis to contend that Yates by his own explanation was incompetent to do either of the two evaluations: comment on quality of fingerprint and reliably compare fingerprints.

The District Court accepted this argument of the government and denied to include the testimony of Yates. The jury favorably considered the evidence produced by police of the finger print evidence attributed to the accused and convicted Hollis of all charges that were brought against him:- : U.S.C. § 841(a)(1), felon in possession of a firearm, 18 U.S.C. §924(c)(1)(A), and possession of a firearm in furtherance of a drug-trafficking crime, id. §§ 922(g)(1), 924(e); and the Court sentenced Hollis to a term of  imprisonment of 420 months, followed by eight years of supervised release.

Hollis appealed to United States Court of Appeals for the Eleventh Circuit from this decision. There were two issues for the Court of Appeals to adjudge upon: 1) whether the evidence procured in the drug house and sought to be presented against the accused violated his right under the fourth amendment? 2) Whether the district court had abused its discretion to deny Yates, a forensic expert, to testify about the “sufficiency of a latent finger print for comparison”?

Since we are only concerned with the take of the court on the testimony of an expert we shall directly discuss the second issue.

The landmark judgment of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993), Inc, had clarified that a district court had the authority to assess the reliability of an expert’s testimony. Therefore the Court of Appeals held that there was no dereliction or abuse of power by the District Court when it did use this power of discretion to hold Yates incompetent to give his expert testimony.

It held that the only way the accused could convince the appellate court to reverse the ruling was by successfully proving that the lower court applied the wrong procedure/law, abused its power, based its opinion on clearly erroneous facts, or made a clear error in judgment.

But since Hollis had failed to prove any of the above points there was no reason for the Court of Appeals to reverse the edict. It held that in fact the lower court had proceeded quite correctly in setting up a hearing in tune with the requirements laid down in the Daubert case, when the government petitioned against the competency of the expert testimony. Keeping all these facts in mind the Court of Appeals upheld the verdict of district court on the exclusion of the expert’s testimony and also affirmed the conviction of Hollis.

What are the most challenged disciplines?

Since its inception in 2000, the Daubert Tracker, Expert Witness Profiler’s sister company, has been cataloging challenges to the admissibility of expert witness testimony on a discipline by discipline basis.  When required, the Daubert Tracker also assigns a sub-discipline, as well.  For example, the general discipline of Medicine has over 130 sub-disciplines.  However, some disciplines have no sub-disciplines, in which case the discipline and sub-discipline are the same (for example- accounting).

Interestingly, from year to year, the discipline and sub-discipline list has remained remarkably constant.  When viewed generally, the disciplines most challenged (in order) are: (1) medicine, (2) engineering, (3) psychology and (4) finance.  However, when broken down into individual sub-disciplines, the results are different and may appear surprising:

Most Challenged Disciplines (by sub-discipline) of 648 total*

1 Police/ Law Enforcement         6,009
2 Internal Medicine**          4,133
3 Accident Reconstruction/Investigation         3,890
4 Forensic Science         3,772
5 Clinical Psychology         3,373
6 Psychiatry         3,203
7 Mechanical Engineering         2,972
8 Economics (unspecified)         2,896
9 Accounting         2,815
10 Orthopedic Surgery         2,312

*1993-present.

**Board Certification in Internal Medicine a prerequisite for certification in other medical sub-specialities.

Stay tuned for interesting “Daubert Metrics.”  Coming next: most challenged medical sub-disciplines and areas of law with most challenge activity.

Scientific Peer Review of Expert Witness Testimony: Is the World Ready?

 

Even before the Frye decision was handed down in 1923, questions have been raised about a judge’s capacity to adroitly evaluate the scientific legitimacy of testimony offered by expert witnesses.

In this well-crafted and articulate article published 3/10/2015 in Bloomberg BNA’s Expert Evidence Reporter, Professor David Faigman, Distinguished Professor of Law at University of California Hastings College of the Law, addresses this question in depth.  Not only does he point out the many reasons why asking judges to make meaningful decisions regarding complicated scientific questions is unrealistic, he also poses an interesting solution to the problem:  scientific peer review of expert witness testimony.

As Prof. Faigman explains, “Frye and Daubert both contemplate that the law should employ scientific knowledge that has achieved some foundation in the field from which it comes. Neither, however, details how this should be accomplished as a practical matter.  Frye calls upon courts to assess the level of acceptance of the basis for proffered scientific testimony, but courts have no ready mechanism to survey applicable fields.  Daubert calls upon judges to adjudge the validity of the basis for proffered scientific testimony by considering the scientific merits themselves or proxies such as peer review and general acceptance, though courts have little demonstrated ability to carry out this function. The question then is, given evidence rules’ demand that courts bring scientific sensibilities to the issue of admissibility, how can courts best obtain and utilize those sensibilities. [The idea of] peer review appears to be the most promising alternative.”

Promising….yes.  How such an alternative can be implemented and applied in the courtroom is the big question.

To read the entire article, visit http://bit.ly/ewpfaigman.

Expert testimony at odds with evidence held inadmissible

The testimony of a software expert witness may be excluded if it is based on facts that are at variance with the evidence adduced. The United States Court of Appeals for the Sixth Circuit affirmed the decision of the U.S. District Court for the Southern District of Ohio when it excluded the testimony of the Plaintiff’s expert witness on this very ground in USA ex rel. American Systems Consulting, Inc., et al v. Mantech Advanced Systems International, et al (2015 U.S. App. LEXIS 1781).

In June, 2005, Defense Information Technology Contracting Organization (DITCO) invited proposals from technological support service providers for a software and systems engineering contract with the Defense Commissary Agency (DeCA) that would render support to the DeCA for inventory tracking. The request for proposals (RPF) necessitated each contractor to assign a qualified individual as its potential Program Manager, whose subsequent replacement would be subject to the government’s approval. However, the government neither expected nor required that the individual designated should ultimately don the hat of Program Manager, as company’s employees were free to terminate their employment at any time. American Systems Consulting Inc. (ASCI) and ManTech were amongst the six contenders who tendered their proposals. ManTech emerged victorious and ASCI instituted an action against its triumphant competitor. ASCI’s primary bone of contention was with regard to ManTech’s offer dated July 18, 2005 that named David Kendall-Sperry, a former employee as the potential Program Manager in its offer which was in violation of the False Claims Act U.S.C. § 3729 et seq. (FCA).

In February, 2006, ManTech bagged the contract since it quoted the lowest price and surpassed the others in Technical and Management Capability. ASCI’s subsequent bid protest was again turned down by the government and the contract was yet again awarded to ManTech in December, 2006. ASCI objected to this decision before the General Accountability Office (GAO), and contended that ManTech had made misrepresentations regarding Kendall-Sperry. ASCI’s ill-timed submissions were dismissed by the GAO, but DITCO subsequently reviewed ASCI’s arguments and maintained its contract with ManTech. ASCI filed a suit against ManTech.

In their motion for summary judgment, the Plaintiffs adduced a report of its expert witness. ManTech filed its response on May 28, 2013 and argued that the report was inadmissible, but the Plaintiffs failed to respond to that argument in the reply brief dated June 14, 2013. In August 2013, ManTech filed both a reply brief again arguing inadmissibility of the report, and a separate motion to exclude expert’s report. Plaintiffs did not respond. On December 11, 2013, the district court set a trial date of May 12, 2014. On February 27, 2014 it granted ManTech’s motion for summary judgment.

In arriving at its decision, the trial court observed that the alleged misrepresentations regarding Kendall-Sperry supposedly in violation of the FCA were immaterial as a matter of law. It also excluded the report of the ASCI’s expert witness on the ground that it read like a “memorandum of law” and rested on facts that contradicted the testimony of the fact witnesses. This did not go down well with the Plaintiffs since they believed that the district court had erred in granting ManTech summary judgment without first giving them an opportunity to argue that the expert witness’s report was admissible under Rule 702 of the Federal Rules of Evidence. An appeal was preferred to the United States Court of Appeals for the Sixth Circuit.

The Appellate court noted that the Plaintiffs had the opportunity but they missed it on two counts. There was nothing to preclude ManTech from arguing the irrelevance and unreliability of the expert opinion in the summary judgment stage. Near about nine months had elapsed between ManTech’s contention against the inclusion of the expert’s report and the district court’s grant of summary judgment in its favour. Since the Plaintiffs had failed to respond to ManTech’s motion, the Appellate Court rejected their contention that the district court should have afforded them the opportunity to respond to ManTech’s arguments. Holding thus, the Sixth Circuit refused to acknowledge the Plaintiffs citation to the Tenth Circuit’s decision in United States v. Nacchio, 519 F.3d 1140, 1154 (10th Cir. 2008) for the proposition that the proponent of expert testimony “must be given an opportunity to [carry its burden] before the testimony may be ruled inadmissible”.

The Plaintiffs’ rationale for not responding to ManTech’s arguments targeting the expert report was their assumption that the district court would take up the expert witness issues in motions in limine closer to trial. The raison d’être of the Plaintiffs was that they expected a hearing based on the district court’s pre-trial scheduling orders, that required the parties to file motions objecting the admissibility of expert testimony within sixty days before the trial commenced.

The Sixth Circuit concluded that the Plaintiffs had forfeited their argument and “as a reviewing court it could not consider issues that had not been litigated upon in the trial court except in exceptional circumstances” as they had failed to explain the exceptionality of their circumstances. [Cleveland Firefighters for Fair Hiring Practices v. City of Cleveland, 669 F.3d 737, 753 (6th Cir. 2012)]

In effect the Appellate Court did not find the district court guilty of imprudence in eliminating the Plaintiffs’ proposed expert testimony or in determining the same at the summary judgment stage. It upheld the reason cited by the district court for doing so since inadmissibility of expert testimony that are at odds with evidence is a recognized ground for excluding proposed testimony under Rule 702 and squarely applied to the testimony at issue. [United States v. Gordon, 493 F. App’x 617, 626-27 (6th Cir. 2012); Greenwell v. Boatwright, 184 F.3d 492, 497 (6th Cir. 1999)]

The decision of the district court was thereby affirmed.

Expert opinion neglecting alternative hypotheses of causation may be excluded: Ninth Circuit

The Ninth Circuit recently upheld the decision of a district court in California which excluded the testimony of two expert witnesses in a toxic tort case. The testimonies had been excluded on the ground that the opinions were not “sufficiently reliable” on the issue of specific causation. The Ninth Circuit, in Michael D. Nelson v. Matrixx Initiatives, Inc. and Zicam, LLC , agreed with the finding of the U.S. District Court for the Northern District of California that the expert testimony and report failed to provide a reliable method for establishing a necessary causal relationship between the pharmaceutical product, Zicam, and the plaintiff’s loss of smell.

Continue reading “Expert opinion neglecting alternative hypotheses of causation may be excluded: Ninth Circuit”

Expert testimony admitted after probative value outweighs the danger of prejudice

Expert witness testimony needs to be formed on the basis of a scientific, technical or other specialized knowledge and not on mere speculation or belief of an expert. If the opinion satisfies this first criterion, it is usually put to test on another aspect – whether its probative value could be outweighed by a potential unfair prejudice. If there is a substantial chance of deluding the jury, the testimony could still be rejected in spite of being scientifically sound and reliable. In a recent case, the Fourth Circuit discussed the issue.

Continue reading “Expert testimony admitted after probative value outweighs the danger of prejudice”

Special Anniversary Pricing on Expert Witness Profiles

 

 

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Challenges to the Admissibility of Expert Testimony:  How Concerned Should Experts Be?

Life after Kumho

It was March 23, 1999, the day the Kumho Tire v. Carmichael decision was released by the U.S. Supreme Court. It was a day that would “live in infamy” for professionals who derived a large portion of their income testifying as expert witnesses.  The federal judge’s gatekeeping role defined in Daubert now was expanded to all expert testimony proffered under Rule 702- not just scientific testimony.

For the six years since the Daubert decision was handed down in 1993, many of those expert witnesses whose area of practice fell into the non-scientific realm had clung nervously to the hope, and sometimes even the prayer, that the foundations for their testimony and the methods they used to form their opinions would escape careful scrutiny by judge “gatekeepers.”

Continue reading “Challenges to the Admissibility of Expert Testimony:  How Concerned Should Experts Be?”

1049 experts added to the Daubert Tracker (October 2014 Update)

The Daubert Tracker is America’s largest database of challenges to expert testimony. In the month of October 2014, we added challenge information involving 1049 different expert witnesses. Here’s the list of names and disciplines of these expert witnesses.

An inclusion in the Daubert Tracker does not mean that the expert has been excluded under Daubert/Rule 702. We track opinions and orders where the Court discusses a challenge against an expert and then rules on the challenge, either neutrally, in favor of or against the expert.

Many experts are also included because they played a crucial role in supporting or opposing motions for summary judgments, to dismiss, to certify a class etc.

If a Court admits opposing experts but gives more weight to the testimony of one expert over the other, both experts are included in the database.

If you wish to receive the complete background of expert witness (cases where he was challenged, other cases where he was an expert, his personal litigation history, educational degree verification, licenses and certification verification, disciplinary action checks, publications, political contributions, social media, blogs, websites, memberships to associations etc.), you can now order a custom Expert Witness Profile and receive a detailed report on any expert witness of your choice.

Click here to see a sample Expert Witness Profile.

If you would like to learn more about how we can help you with researching an expert witness, please send an email to info@expertwitnessprofiler.com or leave a comment below and we will get in touch with you within 24 hours. Continue reading “1049 experts added to the Daubert Tracker (October 2014 Update)”

Ipse Dixit and analytical gap haunt yet another expert witness

Ipse dixit is the Latin term for “He, himself, said it.”  In ipse dixit, there is a presumption that the speaker is making an arbitrary assertion and expects the listener to accept it without question.  An expert witness’ use of and reliance upon an ipse dixit assertion, in the absence of other substantive bases for an opinion, often leads to an exclusion under Daubert.

The Roman politician Marcus Tullius Cicero coined the phrase Ipse dixit, which translates from the Latin as "He, himself, said it."
The Roman politician Marcus Tullius Cicero coined the phrase Ipse dixit, which translates from the Latin as “He, himself, said it.”

 The Step Stool, the fall and the lawsuit in New Mexico

Suzanne R. Heer bought Rubbermaid step stool that she purchased at Costco and that Tricam Industries designed and manufactured. While using it, she fell and broke her arm and eventually brought a suit for product liability among other claims.

To establish the cause of fall, she retained Bradley J. Stolz, a mechanical engineer with a masters degree. The Court noted that before this case, Mr. Stolz had deposed in three other cases, all involving motor vehicle accidents. For the purpose of this case, Mr. Stolz conducted a laboratory examination on the step stool which, the court noted, consisted solely of Mr. Stolz’s observations and measurements of the step stool. 

Based on his examination and his review of Ms. Heer’s deposition testimony, Mr. Stolz concluded with “a reasonable degree of engineering certainty” that Ms. Heer’s fall was not the result of misuse or failure to follow warnings, but instead was due to a defect in the design of the step stool’s leg.

The Defendants moved to exclude his testimony and challenged both his qualifications as well as the methodology. The District Court found him to be qualified to testify but found problems with his methodology.  Specifically, the district court noted:

  1. his testimony was not scientific and did not “draw on any specialized knowledge or utilize any discernable methodology
  2. he did not test his hypothesis of the cause of the fall or his alternative design for the stool
  3. he relied only on a visual inspection of the step stool, some measurements, and a review of Ms. Heer’s deposition testimony
  4. his report did not refer to the ANSI safety standards for ladders; and
  5. he failed to eliminate as a plausible cause for the step stool’s collapse that Ms. Heer lost her balance while reaching for the vent, causing her to fall and to collide with the step stool as she landed.

Based on these observations, the District Court granted the motion to exclude Stolz’s testimony. Since there was no other way for the Plaintiff to establish a design effect, the Defendant’s motion for summary judgment was also granted.

On appeal, the 10th Circuit noted that the record in this case was replete with the district court’s analysis and careful application of the Rule 702 and Daubert factors. In a ten-page memorandum decision, the district court thoroughly evaluated Mr. Stolz’s report, applied the Daubert factors to his methodology, and provided abundant support for its decision to exclude his testimony.

While noting that the exclusion of expert testimony is the exception rather than the rule, the 10th Circuit observed that a district court may properly exclude such testimony when the opinion evidence “is connected to existing data only by the ipse dixit of the expert” such that “there is simply too great an analytical gap between the data and the opinion offered. [Quoting Joiner v. General Electric 522 U.S. 136, 146]

The 10th Circuit held that the expert report provided no scientific basis for its conclusion that a defect in the step stool’s design caused Ms. Heer’s fall. Mr. Stolz made no attempt to test his theory, nor did he make any calculations, apply any engineering principles to his causation theory, discuss any industry standards, or mention any scientific authority that supported his theory. Without scientific or technical support for Mr. Stolz’s theory, the district court was left with only Mr. Stolz’s conclusory opinion that the step stool was defective. Such an unsubstantiated basis is insufficient under Rule 702, and the district court was therefore within its discretion in determining Mr. Stolz’s opinion was not reliable.

The decision of the district court was affirmed.

You can read the full opinion of the 10th circuit here. Do you agree that experts should always make sure that their reports and methodologies are unquestionable or else it would be a great disservice to their client as well as a great threat to their future as an expert witness? What are the best practices you follow as an expert witness when writing your report? Share your experiences and tips with fellow experts in the comments section below. You can now comment using your Facebook, Twitter or LinkedIn accounts as well.

Read how the 9th circuit had recently reversed the decision of the district court to exclude expert testimony and grant summary judgment in another products liability case. 

Improper exclusion of expert testimony leads to reversal on appeal

Seat-Belt-Expert-Witness

Expert witness testimony plays a pivotal role in trial litigation. While the exclusion of an expert can be a fatal blow to the retaining party, an improper exclusion may lead to reversal of the decision on appeal. The 9th Circuit recently reversed the district court’s grant of summary judgment on the ground that the district court erred in excluding the testimony of the Plaintiff’s expert. The expert in question was Dr. Arthur Hoffman, the plaintiff’s car seat expert and the case was Lindner v. Ford Motor Co. Continue reading “Improper exclusion of expert testimony leads to reversal on appeal”

Interview with Mark Torchiana, CEO of Courtroom Insight

As with any field of human endeavor, the field of law firm knowledge management continues to evolve and become increasingly specialized. With enormous advances in the areas of e-discovery, document search technology and even in the Internet itself, each advance seems to spawn a new approach never before considered or even technically possible.

A perfect example: law firm knowledge management has given rise to the field of litigation knowledge management. And, inevitably and as should be expected, there are now trends pointing to greater concentration, focus and specialization within the field of litigation knowledge management.

An interesting new company has emerged onto the scene that represents yet another example of increasing specialization. Courtroom Insight, a San Francisco-based company founded in 2009, has created a software platform that supplements a law firm’s existing litigation knowledge management system. The platform’s mission is to allow litigators fingertip access to information about judges, neutrals and expert witnesses.

Having inked a contract with Amlaw 100 firm Littler Mendelson, Courtroom Insight is getting significant play as being on the cutting edge of this new and emerging field.

The Interview

Mark, please explain how you came up with the idea?

I started my career as a litigation consultant and forensic accountant. Several years ago, my business partner, Everett Harry, and I were brainstorming ways to market our expert witness services to hiring attorneys. We discussed typical marketing ideas such as authoring journal articles and presenting relevant accounting issues to groups of attorneys. We also considered paid advertising. We observed that a multitude of print and online expert witness directories existed, but none of them contained relevant performance information. Based upon this discussion, we identified what we believed to be an opportunity to bring the type of rating and review systems already available to contractors, professors, lawyers and others to the world of expert witnesses and litigation professionals.

What was your initial vision of what the company’s primary mission and product would be?

Our initial goal was to build an online directory and review system where attorneys and clients could share valuable performance evaluations about persons with whom they have worked. To encourage a fair and honest exchange of information, attorney and judge users are verified before they are allowed to write reviews and all users are allowed to post anonymously. We hoped this would bring transparency to the litigation space.

We launched public directories of expert witnesses, arbitrators and mediators in 2010. Subsequently, we created and published a judges directory which includes federal, state and administrative law judges.

Could you explain how that vision has changed over time and why?

Our goal to bring transparency to the industry has been slowed by attorneys’ hesitancy to publicly share performance reviews on Courtroom Insight. Whether by nature or by training, attorneys are risk averse and therefore less likely to offer opinions about experts and judges publicly. However, attorneys do rely upon their colleagues to share valuable information informally. After speaking with a few different law firms, we recognized an opportunity to develop a private version of our platform specifically for use within a particular firm.

Recently, law firms have invested significant resources into building internal systems for sharing legal knowledge within the firm. However, firms have failed to invest in similar systems for capturing, organizing and sharing knowledge about the many experts, neutrals and judges with whom they interact. Even the largest law firms in the country still typically rely upon email communications to share information about litigation professionals. “Does anybody know…?” emails are an extremely ineffective system for sharing information due to low response rate, lack of timeliness and failure to create a historical record of experiences.

This lack of institutional knowledge sharing leads to mistakes. I’ve heard several stories about attorneys being surprised in the courtroom when an opposing expert discloses during cross-examination that he or she has previously been retained by the firm. I’ve also heard from attorneys who wish they knew more about a judge’s courtroom preferences prior to appearing in court. Courtroom Insight’s private solution for law firms is a superior system for tracking and organizing this critical information.

What are the key features and benefits of your product and the ones that most excite your new customer base?

Law firms typically face a build or buy debate when it comes to our system. Firms may utilize in-house developers and existing software to build a database which can be used internally to share experiences. However, these systems start out with little to no information and must painstakingly be built from the ground up both in terms of coding and content.

Courtroom Insight leverages its public directories of 100,000+ litigation professionals as a starting point. Our customizable templates offer firms an opportunity to begin capturing valuable firm-wide information immediately. We also add significant value by providing additional fully integrated content not available elsewhere. Publicly posted performance reviews, expert witness challenge data and inexpensive custom expert witness research are all available directly from Courtroom Insight. Our value proposition stems from this combination of a ready-made software platform with unique, integrated content.

When you’ve encountered resistance to selling your product, what have been the primary objections?

The primary pushback we hear is that attorneys are unwilling to write reviews – even if those reviews are only shared within the organization. However, this objection is flawed. First, our initial installation at Littler demonstrates that attorneys are willing and able to write reviews when it becomes a firm priority. Second, we developed alternative methods to gather and contribute content. For instance, paralegals, assistants, librarians and others have the ability to start or even complete evaluations on behalf of attorneys. Attorneys are sent email notifications and retain the ability to edit those reviews. In addition, Courtroom Insight will work with firms to develop strategies to extract useful information regarding prior appearances and retentions from existing documents. This is an effective method to capture useful information regarding which professionals have previously been retained by the attorneys at the firm.

Where do you go from here?

It’s exciting to be on the cutting edge of litigation knowledge management because firms are coming to us with new ideas regarding content, services and integration with existing firm software. For instance, our new document sharing feature and directories of EEOC investigators and administrative law judges are a direct result of client input. We love working with such forward-thinking firms because our joint efforts result in a growing and constantly improving solution that benefits all of our users.

In addition to product enhancements, Courtroom Insight is focused on expanding into the insurance industry. There is a real opportunity for corporate counsel and claims groups to utilize our solution to leverage the knowledge and experience of internal staff and outside counsel. Similar to our start with large law firms, we are working with one forward-thinking insurance company to pilot our software. This will lead the way to improve litigation knowledge management within the insurance industry.

Preliminary Screening Report lets attorneys know the number and types of documents which may be available on an expert witness

It is inarguable that in today’s “battle of the experts” litigation milieu, expert witness due diligence is critical and becoming more so every day.  That said, some attorneys approach the task with great casualness and, in some instances, even neglect.  Others go to great lengths to conduct intensive research on an expert’s background- and may even choose to outsource the entire expert witness due diligence process to a company that specializes in the process- like Expert Witness Profiler.

The fact is, there are instances where an expert witness does not have much, if any, experience testifying/ consulting as an expert or works in jurisdictions where records are not well digitized and therefore the expert’s testimonial history “flies under the radar” of search engines.  In such cases, it may not be worthwhile devoting significant resources into researching that expert.

Keeping this in mind, Expert Witness Profiler now offers an inexpensive Preliminary Screening Report ($45). The Preliminary Screening Report identifies the number of documents, across the legal databases that we search- where the expert’s name may have been mentioned.

When an order for a preliminary screening report is received, our team crafts a conservative search string and reports the number of hits found in the private and public databases we access. If the expert’s name is common, these strings are often refined further to mandate that apart from the name of the expert, one of the variations of his/her discipline must also be found in the document, and that too, within a certain number of words.

The screening report gives the client an informed basis on which to gauge how much effort it will take to get all the information deemed necessary to properly assess the type and level of additional research that should be conducted regarding the expert in question.

If screening results warrant the purchase of a complete Profile, the cost of the Preliminary Screening Report ($45) is deducted from the cost of the full profile ($495).

To order a Preliminary Screening Report on any expert witness of your choice, please visit http://www.expertwitnessprofiler.com/order_profile.php