Month: August 2019

addiction medicineExpert WitnessPharmaceutical

Landmark Oklahoma Opioid Ruling Due Monday – Expert Witness Recap

The last two years have been a whirlwind for those of us following the litigation response to the opioid crisis. Thousands of lawsuits have been filed throughout the country. Most notably, the National Prescription Opiate Litigation (a multi-district litigation).

So what is happening on next week? Well, one of the first major opioid trials took place in Oklahoma earlier this summer. When I say “opioid trial,” I mean the legal trial, not “clinical trial.” Forgive me, I had to make the joke. The trial took place and the judge is expected to deliver his ruling on Monday. Berkeley Lovelace, Jr., of CNBC, provides an in-depth analysis of the trial here.

The case was brought by the State of Oklahoma against Johnson & Johnson, et al. The Oklahoma attorney general is seeking damages in excess of $17 billion dollars. The state sued Johnson & Johnson claiming their sales and marketing practices fueled the opioid epidemic and created a public nuisance, resulting in approximately 6,000 overdose deaths. Any damages awarded, assuming there is not a settlement before the ruling, would be used for addiction treatment and preventative measures for the next few decades.

We, at Experts.com, have been following pharmaceutical litigation for a long time. In the last two years, we’ve been laser-focused on opioid litigation. We started to pay strict attention to the matter when we realized it was similar in magnitude as the civil lawsuits involving tobacco, in the 1990s. It meant we were going to see significant litigation for years to come.

With a database of expert witnesses, we set out to write multiple articles on the matter, in the form of question-and-answer-style blog posts. In addition, I’ve written a couple of guest blogs on the topic for other legal companies. This blog post is to recap these resources we’ve published over the last two years.

Two Years of Opioid Crisis Publications:

  1. Opioid Crisis – An increase in addiction medicine and pain management expert witnesses – November 6, 2017
  2. Kentucky AG files lawsuit against opioid distributor McKesson – January 22, 2018
  3. Pain and Addiction Expert Witness Comments on 72,000 Opioid Deaths in 2017 – August 22, 2018
  4. Judicial Analytics in California Opioid Litigation – January 23, 2019
  5. Legal and Expert Witness Staffing for Opioid Litigation – June 18, 2019

We Expect More Stories in the Future:

Unfortunately for our country, we expect to be writing about these lawsuits for years to come. What happens next week, may pave the way for more lawsuits and major settlements? We don’t know how it might end, but we’re pretty sure the pharmaceutical companies will end up paying a lot of money. If not in Oklahoma, in other lawsuits still to come.

UPDATE: 08/26/2019

Today, Cleveland County District Court Judge Thad Balkman ruled against Purdue Pharma LLP, Johnson & Johnson and others. He ruled the defendant’s in the first civil opioid trial are responsible for causing a public nuisance, and held them liable for abatement of the nuisance, in the amount of $572+ million.

You can read the verdict here.

Computer ForensicsDemonstrative EvidenceEvidenceSexual AbuseUncategorized

The Jeffrey Epstein Trial: Expert Witness Commentary on eDiscovery and Forensics

Last week, The Daily Beast reported the Jeffrey Epstein criminal trial will have a million pages of evidence, which will include materials seized from several devices.

A million pages of evidence makes for a great headline. It feels overwhelming! However, after reading the article from The Daily Beast, I began to wonder if a million pages of evidence is a lot or a little? How many files are stored on a standard laptop or cell phone? How will the prosecution and defense identify those files admitted into evidence? These questions, obviously, got me thinking about digital forensics and eDiscovery issues present in the Epstein sex abuse trial.

Now, if you read the blog post from last week, you’re probably wondering if I’m going to constantly write about sex abuse issues. The answer is, no. However, when these topics fill our news and I have the ability to reach out to qualified expert witnesses to provide insights on issues of public import, I’m going to do so.

As of this writing, the Florida Governor has ordered a state criminal probe into the handling of the 2008 Jeffrey Epstein investigation. This new probe was reported by The Miami Herald, yesterday afternoon. Some credit for Epstein’s current predicament, is due to the “Perversion of Justice” exposé series, from Miami Herald reporter Julie K. Brown. She detailed the 2008 sex trafficking investigation and settlement. The series is worth a read!

Now, back to the million documents of evidence. I’ve been working with digital and ediscovery experts for nearly 10 years. That said, I’m a novice on their areas of expertise. I’m able to issue spot when an attorney needs a particular type of expert. With that said, I posed some foundational questions to one of our members.

Questions & Answers for expert witness C. Matthew Curtin, CISSP:

C. Matthew Curtin, CISSP, founder and CEO of Interhack Corp., is a Certified Information Systems Security Professional. An expert in computers and information technology, Mr. Curtin and his team at Interhack help attorneys and executives use data and computer technology in high-stakes situations.

NR: According to The Daily Beast article, the Epstein trial will have more than 1 million pages of evidence, found on multiple devices. How will the prosecution and defense retrieve all of these documents and collate them into usable evidence?

CMC: One million pages of computer evidence is no big deal. Consider that in a typical computer system you’re looking at anywhere from 100,000-500,000 files, including all of the software, operating system, and user data. By the time you get through to the things being used by the prosecution and defense as evidence, the vast majority has been thrown out, but if you’ve got a phone or two, a couple of computers, and a few online services, it’s pretty easy to get into those numbers. Ultimately it depends on how they’re counting, of course: Are these bates numbered pages for presentation, or are they the raw input? If these are the results that are turned into exhibits and so on, that’s pretty big but not huge.

NR: What is the process for identifying the usable documents from those that are unrelated to a litigation?

CMC: Finding relevant documents and conducting a forensic examination are two fundamentally different processes. Finding relevant documents is typically a matter of “indexing” (reading the files for their contents) and then making “queries” of the “index” to return the documents and pages that are responsive to the search. Typically an attorney will then look at the responses and make a decision as to whether something is material. It’s basic data processing: data in, data out for a lawyer to use.

In the case of a forensic examination, the raw data will be subjected to various tests and analysis, ultimately resulting in reports that will be submitted as evidence. For a phone, a complete “extraction report” can easily produce a 5,000 page PDF document, and many get much, much larger. In any case, all of these things will wind up going into some kind of expert report that will outline opinions and findings that might be challenged and should be subjected to scrutiny. This is expert data analysis, where the data processing is performed to be consumed by an expert to form a technical opinion or finding.

NR: How much time would it take a forensics expert to comb through multiple devices to determine which documents are appropriate for discovery and evidentiary purposes?

CMC: Methodology and the size of the source matter for how long it takes. Generally speaking, I tell people to figure that to run through a forensic image of a raw computer hard drive and prepare it for human review, you’re looking at three days if you want to recover deleted files, compute the mathematical “hash” values that allow us to distinguish among files, and so on. A human will then need to go through the results and that can take anywhere from another day to another week or more, depending on what’s found, and how much work needs to be done without automated tools to manage the process. In some cases, no one cares about deleted files. In other cases, they’re critical. The only rule of thumb that applies generally is that the time it takes to do the job is between two and eight times what a lawyer thinks it should take.

NR: Is a million documents a lot of digital documents for a trial? Or is that common when dealing with digital files?

CMC: I addressed this a bit in my first answer, but one million computer files isn’t a big deal.

NR: I’m sure many of my questions are rudimentary, please feel free to provide any additional information you think the public should know about digital forensics and e-discovery in this type of matter…

CMC: Something to add: when conducting forensic examination, we often see a law-enforcement view put forth: Suspect that X happened, so go search for evidence of X. Fail to find X, and you add “tampering” to the list of charges. The reality is, though, that it isn’t sound scientific process to go in search of confirmation of what you think is already happening. Various cognitive biases interplay to create serious problems with the results extracted this way. Far better to construct tests to look for the “null hypotheses,” the things that would disprove what you think is happening. At the very least, alternate theories of the case deserve exploration and there are plenty of cases that would not take the time and money put into them if they were given greater scrutiny.

For example, if someone is suspected of having illegal pornography on a computer—that is, possessing the material, knowing the character of its content—law enforcement will typically reconstruct deleted files, look at thumbnail image databases, and loose files found in caches and elsewhere on the disk managed by the computer operating system rather than the user directly. If they find material that looks like what they thought was there, in many places a prosecutor will go forward with charges. On the other hand, what if someone did get the files and not mean to have them? What other course would there be but to delete the material? If the material has been deleted, why would it be brought up in a prosecution? There are cases where it can be relevant to a legitimate legal question but we’re only in the last few years starting to see some sophistication in consuming these results and moving forward sensibly with discretion informed by understanding.


A huge thanks to C. Matthew Curtin for taking time to provide us with these excellent answers. Please check out his company at http://web.interhack.com/.

Sexual AbuseSports Safety

Olympian Ashley Wagner’s Sexual Assault: Sports Sex Abuse Expert Witness Analysis

Yesterday, Olympian Ashley Wagner came forward with a story of her sexual assault by another figure skater, when she was only 17 years old. We reached out to a sport sexual abuse expert to gain insights.

For many, the Larry Nassar matter was an introduction to the abuse suffered by many of our greatest competitive athletes. In fact, there was a recently released congressional report about the institutional failures relating to Larry Nassar, as reported by CNN.  I, for one, was completely unaware of the potential for abuse in Olympic athletics.

Unlike the Nassar matter, where an Olympic physician was convicted of abusing athletes, Ashley Wagner reported abuse by fellow figure skater, John Coughlin. She was 17 years of age, and Mr. Coughlin (now deceased), was 22 years old at the time of the offense. Ms. Wagner provided a video recording and transcribed statement to USA Today. You can view and read her statement here.

To get a better understanding of the power dynamics and power imbalances described in Ms. Wagner’s statement, I reached out our member Katherine Starr, who is an expert witness in the areas of school and sports-related sexual abuse and harassment. Ms. Starr is also a former Olympian. Please visit her website to learn more about her services and organization Safe4Athletes. Below are my questions and her answers.

NR: Yesterday, Ashley Wagner bravely told a story about a time in which she was sexually assaulted while away at a skating camp. How common are these types of attacks in athletic environments?

KS: Unfortunately, sexual abuse is a very common occurrence in athletics, especially at the elite levels. Training camps and international competition often lack any type of formal education and prevention modalities. The risk of sexual abuse to a minor athlete increases exponentially, as they are now susceptible to sexual abuse from an adult-athlete, program staff members and coaches. There are generally no safeguards in place with minimal resources and structures for an athlete to seek the help and protection they need.

Safe4Athletes did a survey on abuse in sport with a focus on elite athletes, the questions asked were in regard to frequency and duration of abuse, all forms of abuse. We found that abuse was more likely to occur over multi-years and multi-occurrence then a single occurrence of sexual abuse. We also found that over 25 % of the participants in the survey were sexual abused, 80% that responded to having been sexually abused had competed at the international level.

We also found that sexual abuse is common across sport, the level of accomplishment is what makes the athlete vulnerable to being targeted for sexual abuse.

For additional review, a survey can be found on the Safe4Athletes website at www.safe4athletes.org/resources/survey-results.

NR: Ms. Wagner posted a video of her experience and went into great detail. In one part of the video, she discusses the “dynamics of my sport, where uncomfortable power imbalances thrive to this day.” Do sports-related sexual assaults usually involve power imbalances? And, can you expand on these imbalances for our readers?

KS: The power imbalance that Ms. Wagner has shared transpires across all sport and is a direct result of the talent of the athlete. The inherent structure of sport in itself is an imbalance of power. The imbalance of power first becomes exposed when the athlete reaches its “peak age of involvement” in the sport and the imbalance of power continues to widen as the talent reaches the top of its sport.

The power imbalance does not discriminate or change in regard to type of sport, what changes is the peak age of involvement in the sport. For example, gymnastics peak at around 13 and can compete in the Olympics as young as 13 and a typical elite career will last until 20’s. That sport is vulnerable to an abuse of power structure very young were in a sport like cycling the youngest age of Olympic competitor is 18, and last well in to their 30’s. In both instances, athletes are exposed to same abuse of power dynamic.

The imbalance of power and the dynamic develop at all talent levels and environment, often the star of the team is a target abuse. One of the other vulnerable structures is the group of athletes that are good but haven’t reached the great level, they show promise. It is the promise that is always in reach but never obtained.

NR: How can the athletic organizations improve athlete safety?

KS: First and foremost, implement effective policies, which have an external reporting structure.

Athletic departments should not do their own investigations, oversight and training modules. It appears as a conflict of interest. Seek outside help to set up structures that can actually address the power imbalance that is inherent in the system.

Most importantly, the oversight teams of these issues, needs to be educated and trained themselves to be able to understand how the voice of an athlete works.

NR: Often, it seems competitive athletic organizations fail to recognize the dangers. Or, they choose to “sweep it under the rug” when it comes to misbehavior. How should organizations respond to issues of abuse?

KS: As a result of this very issue, all our programs require an “Athlete Welfare Advocate” that is there for the athlete to seek the help they need, when they are ready. If the athlete doesn’t feel comfortable with that option, they always have the choice of speaking with Safe4Athletes directly to obtain the help and resources that they need to respond to the issue.

We customize policies for the sports environment (schools and sports programs), making sure the key ingredients are in place, to allow for an effective program to respond to the inherent abuse of power in the system.

NR: What steps can athletic organizations take to better protect athletes (many of whom are children, as Ashley Wagner was at the time of the incident)?

KS: Invest in athlete safety and protection equally as one would invest in the success of the athlete and the program. Provide the same vigor and fortitude that one puts into the athlete and the program a structure to combat these issues. One cannot have, a truly successful athlete and program without a system to address the inherent dangers that an athlete is susceptible to.

Effective programs understand the needs of “the athlete” coupled with the “level of participation” and are able to adopt and implement those nuances to respond effectively to issues and concerns.


There will be more to come on these matters. For parents with children involved in competitive athletics, please stay informed. Katherine Starr is a great resource!