$117 million talcum powder Mesothelioma verdict overturned by failure of the trial court to follow their gate-keeping role.
In an article today from Husch Blackwell, they highlight a case in which a significant verdict for the plaintiffs was recently overturned by the appellate court for failures to conduct a proper Daubert analysis.
As most of our members are aware, a “Daubert hearing” or “Daubert review” is the standard used by the trial court for admitting expert witness testimony. It is the federal standard for admitting expert witness testimony, but the standard has been adopted by a majority of US states.
For your brief review, I’ve decided to add the elements of the Daubert test below, from Cornell Law School:
whether the theory or technique in question can be and has been tested;
whether it has been subjected to peer review and publication;
its known or potential error rate;
the existence and maintenance of standards controlling its operation;
whether it has attracted widespread acceptance within a relevant scientific community.
There have been a wide variety of mesothelioma lawsuits against manufacturers and distributors of baby powder products. Generally speaking, the issue arises from long-term talcum powder use allegedly exposing plaintiffs to asbestos in the talcum powder which causes mesothelioma.
In my 11 years in the expert witness field, there have only been a couple toxic tort matters where the science has been as fiercely contested as it is in the talcum powder cases. The only other cases in recent memory where the science is hotly debated involves lymphoma resulting from the herbicide Round-Up. The Round-Up lawsuits resulted in an $11B settlement between plaintiffs and defendants.
This talcum powder case out of New Jersey, was very similar to the other talcum powder cases. The plaintiffs, Stephen Lanzo III and his wife sued a variety of defendants including one Johnson & Johnson subsidiary, claiming Mr. Lanzo’s long-term use of baby powder caused him to contract mesothelioma.
The trial judge permitted testimony from two of plaintiffs’ expert witnesses, Dr. James S. Webber, Ph.D. and Jacqueline Moline, M.D. On appeal, the 3-judge panel overturned the verdict because they didn’t think the trial court applied a proper Daubert standard in permitting the testimony from doctors Webber and Moline.
According to the article from Husch Blackwell attorney Brittany Lomax, the appellate court basically found that three prongs of the Daubert test were not met, “Namely, the opinions and theories were not tested, not subject to peer review and publication, and were not generally accepted in the scientific community. The panel further held that the trial court did not perform ‘its required gatekeeping function’ by failing to conduct a proper analysis to determine whether the expert opinions met the Daubert standards and failing to assess the methodology or the underlying data used by the two experts to form their opinions.”
As a result, the appellate court remanded to the trial court and ordered new trials for two of the defendants.
It is worth noting, this is a major win for defendants in these talcum powder cases. It appears the appeals courts, at least in New Jersey, are going to review scientific evidence with exceptional rigor.
News media and tabloids have been focused on the high-profile divorce. We were interested in how divorce impacts a family foundation.
Last week, the tech and media worlds were abuzz with news of the Bill & Melinda Gates divorce. After 27 years of marriage, one of the richest couples in the world decided to call it quits. This was a shock to many outsiders looking in. Their long-term marriage, despite all the trappings of wealth and influence, seemed like it would stand the test of time. The New York Times, in this article, described the two parties as having “reshaped philanthropy and public health,” with the fortune acquired by the couple as a result of Mr. Gates being a co-founder, and past CEO, of Microsoft.
Certainly, when I think of philanthropy, I think of the Bill & Melinda Gates Foundation. A well-funded operation run by the couple, in a fight against global health crises. Last year, when COVID-19 invaded every aspect of our lives, Bill Gates was seen on TV and in articles providing guidance on dealing with the pandemic. Through his work at the foundation he had gained significant insight and had been warning of pandemic threats for many years. Bill played such an instrumental role in the process that many people now associate the foundation with public health.
On the home page of the Bill & Melinda Gates Foundation, the first thing a visitor sees is the following text: “We are a nonprofit fighting poverty, disease, and inequity around the world.” Much of their philanthropic work takes place in the form of grants. In 2019 alone, the Gates Foundation provided more than $2.7 billion in grants according to their own reporting. The foundation has made grants in the following areas: gender equality, global development, global health and more.
Now that the Gates’ are calling it quits, how will that impact the operations of this massive nonprofit?
Nonprofit attorney and consultant insights
Having little or no experience with nonprofits (more specifically a family foundation) myself, except for my annual contributions, I reached out to one of our consultants, Jess Birken, Esq. Ms. Birken is the owner of the Birken Law Office, located in Minneapolis, Minnesota. She is a lawyer who helps nonprofits solve problems so they can focus on what really matters… their mission. Her practice specializes in nonprofit organizations. Before becoming a private practice attorney, Ms. Birken spent four years inside a national nonprofit organization, Pheasants Forever. In that role she managed about $50M in state and federal government grants and worked on hundreds of conservation real estate deals.
In essence, Ms. Birken had the expertise I was seeking. She could answer the questions I had about nonprofit operations in the face of familial separation. For purposes of attribution, I had developed some of my questions from this article by Vox. Ms. Birken used thisNew York Times article for some of the information about the organizations.
Below, you’ll find my questions and Ms. Birken’s answers:
Nick Rishwain: This matter involves a family foundation. How is a family foundation different from other types of nonprofits?
Jess Birken: Generally, a “family foundation” is completely or mostly funded by one family. The term family foundation isn’t a legal term though, it’s just a way to describe a private foundation with that characteristic. Private foundations in general are different from the nonprofits most people think about when they hear the term “nonprofit.” Most people hear nonprofit, and they are picturing a public charity (like your local church or pet rescue).
Both public charities and private foundations get tax-exempt status and are labeled as 501(c)(3) organizations by the IRS. Both types are established for a charitable purpose and have a mission. Both types can use the word “Foundation” in their title. It can all be a little confusing. The major difference between a private foundation, like The Bill and Melinda Gates Foundation, and a public charity, like the Make-A-Wish Foundation, is where they get their financial support. Public charities raise money from the general public, but a private foundation usually has one source of funding, typically an individual, family, or corporation.
Another key distinction is that private foundations also often differ in their activities. They typically don’t run programs directly – like, say, a soup kitchen serving people experiencing homelessness. Instead, private foundations often make grants to other organizations. A private foundation might make grants to many homeless shelters running many soup kitchens. Other differences between the two include the fact that the board of a private foundation is not required to be diverse (often the board is made up of only family members, etc.); that they are required to make charitable distributions throughout the tax year; and that they must pay a nominal excise tax on their net investment income.
Nick Rishwain: We know divorce can have impacts on businesses and real property, in respect to division of assets. Are nonprofits incorporated in a similar way which would cause a division?
Jess Birken: Generally, no single person owns a nonprofit. Nonprofits do not have shareholders or issue stock and private individuals can’t benefit from them. So, they aren’t an asset that can be split up in a divorce.
Nick Rishwain: In the Vox article, the foundation said, “that the philanthropy did not anticipate changes to its work.” What changes might a divorce cause to a nonprofit?
Jess Birken: Theoretically none. Even a family foundation has a board of directors. These directors have fiduciary duties to carry out the mission and take actions in the best interest of the nonprofit – regardless of any individual board members’ personal life situation.
In the case of a family foundation, however, where the primary funder is the family, then it could be the case that the donations to the foundation that are directly from the family will decrease temporarily (or long term) as the assets of the donor family are apportioned through a divorce proceeding. Whether this happens may be revealed through the upcoming IRS Form 990 filings that show revenue and contributions by donor as part of Schedule B in the years ahead. So, a temporary reduction in activity or some kind of holding pattern (versus expansion) could happen. In the case of the Bill and Melinda Gates Foundation, the foundation has net assets forming an endowment of about $50 billion. So, any flux in family contributions is likely to be a minor hiccup for this foundation.
Nick Rishwain: Are nonprofit organizations, such as the Bill & Melinda Gates foundation usually funded year-to-year?
Jess Birken: For accounting purposes the nonprofit accounts for contributions it receives during its accounting year. How frequently donations are made by a family will depend on the family and their philanthropic vision and tax planning needs. I’m not an estate planning expert but it’s probably fair to say that in general donations to family foundations are likely to be calculated annually based on each year’s tax planning situation.
Nick Rishwain: In the above article, Vox indicates the Bill & Melinda Gates divorce might impact their nonprofit foundation. Could a private divorce impact the work or funding of such a large nonprofit organization?
Jess Birken: From the perspective that both parties to the divorce are on the board of directors, that’s certainly possible. As I mentioned before, the assets of the family will be getting a shakeup through the divorce. It’s possible that either Bill or Melinda – once they have completely separate households – will make their own contributions based on their own philanthropic interests.
In this instance, however, it seems their public commitment to the core foundation work is aligned and, in my opinion, probably true. The foundation itself has an endowment of $50 billion to work with – the divorce won’t affect that core fund. So, the interpersonal aspects are more important in this case. Warren Buffet was recently added to the board of directors as a Trustee and is also a contributor. This will likely have a stabilizing effect and may have even been planned for that reason – I’m speculating but it makes sense.
As far as interpersonal problems between the couple causing issues around pushing for one charitable interest over another, this has already been addressed. Each member of the couple already has a fully formed enterprise where they can pursue their individual agendas and those have been in place for some time. Bill Gates has Gates Ventures a company first formed after he stepped down from full time work at Microsoft in 2008. His enterprise focuses on clean energy, climate change, education, and health. Melinda French Gates formed her Pivotal Ventures company in 2015 which works on gender equality and social progress. So, each has an outlet for pursuing their individual goals which likely insulates the foundation’s work even more.
Well there you have it! My questions were answered. If you have more questions about nonprofits and charitable organizations, reach out to Jess Birken at here website: birkenlaw.com. For more information, you may also want to check out her podcast: charitytherapy.show.
Mental health professionals are being targeted by a failure to appear scam. The first scam we’ve seen targeting expert witnesses.
This is the first blog post I’ve written that falls directly into the “public service announcement” category. Yesterday morning, I saw an article by the Washington Post where the author describes a telephone-based scam, where perpetrators pretend to be police officers.
The story grabbed my attention because the suspects have a little deeper knowledge about prospective victims. They know enough to know you are likely to act as an expert witness.
The caller, impersonating a police officer, claims the victim failed to appear at a court hearing in which they were subpoenaed to testify as an expert witness. The criminal claims to be an officer and provides the real name of an an officer employed at the local law enforcement agency, which can be confirmed online. The victim is told they have a civil option to pay a fine and avoid jail time.
As recounted in the Washington Post article, “The problem, the alleged detective stressed, was that because of the coronavirus, people couldn’t come into police headquarters to settle such matters. He said she needed to purchase “MoneyPak” electronic cash transfer cards — at one point transferring the call to his purported supervisor, who also had assumed the name of a real Montgomery officer.”
You need to start asking questions at this time! Have them send you some documentation in the mail. Have them personally serve you the paperwork. Do not get frightened by someone claiming to be an authority figure over the phone. That’s their goal! Get you nervous and acting irrationally.
The option to pay a fine should immediately get your attention. Not to mention this silliness of paying with “electronic cash transfer cards.” There is no reason you shouldn’t be able to pay a fine with a check or credit card.
If you are accused of missing are accused of missing a court hearing. You should know that police officers, detectives, investigators, are not usually those responsible for collecting fines. Generally that’s a different department.
Scam Has Been Taking Place for a While:
Although this fake police officer scam targeting mental health professionals, took place in Maryland. However, in preparing to write this post, I did a little research and found that the Los Angeles Police Department (LAPD) had also warned about this type of a scam back in 2019. Here is their press release on the subject. The LAPD specifically mentioned therapists and psychologists as more likely to be targeted:
“It should be noted that many of the victims are current/former employees in the mental health industry. In each of these incidents, the caller claimed that the victim missed an appearance as an expert witness in a court case. Therapists and psychologists should particularly beware of the scam. You can get help determining the authenticity of a call by contacting your local police station.”
Before Nikola and the Trevor Milton scandal, there was a prominent blood-testing startup called Theranos. Its founder, Elizabeth Holmes, currently faces a criminal fraud trial.
If you’ve been tuning into business news recently, the latest scandal with Nikola, a electric-powered truck manufacturer, and its founder, Trevor Milton, is no surprise to you.
For those who have not been following along, a quick summary is as follows: Nikola (NKLA) recently became a publicly traded company alleging they had hydrogen fuel cell (battery) technology that would revolutionize the trucking business. The stock did well after IPO. Nikola then did a multi-billion dollar deal with General Motors. The stock went higher. A few days after the GM deal, a short-seller released a report that accused them of a being an intricately constructed fraud. The founder, Trevor Milton, contested the accusations on social media and asked for time so he could rebut all of the allegations. Within a couple of days he went silent, was removed as executive chairman, and deactivated his social media accounts. It has been widely reported that both the SEC and DOJ are conducting investigations related to his actions and claims as founder and executive chairman.
I share that story because some news agencies have suggested Trevor Milton’s story is similar to that of Theranos founder and CEO, Elizabeth Holmes. Ms. Holmes is now facing a criminal fraud trial and she is the focus of our our post today. Stay tuned next week for some further discussion on the issues surrounding Nikola.
Elizabeth Holmes founded a privately held biotechnology company called Theranos. The company intended to revolutionize blood tests, with just a drop of blood. No more needles and vials, just a small drop of blood, and the tests results would be available rapidly. Ultimately, they failed to deliver tangible results and led consumers to believe false promises. After receiving more than $700 million in private investment, the company began falling apart.
In Spring 2018, Holmes was charged with fraud by the SEC, as reported by Bloomberg. This being a civil action, Holmes settled it without admitting any of the allegations. The settlement required her to relinquish her shares to the company and abstain from being an officer or director of a public company for a period of 10 years. There was also a fine, according to Barron’s. To the best of my recollection, Ms. Holme’s settled with the SEC on the same day she was charged.
In the Summer of 2018, the US Attorney’s office filed charges against Holmes’ for conspiracy and wire fraud, as reported by CNN. This criminal indictment is the inspiration for this blog post.
For more than 2 years, we’ve followed the developments in the criminal prosecution of Elizabeth Holmes, wondering if it would lead us to an interesting analysis from an expert witness perspective. In September of 2020, I found this article from the New York Daily News. It seems Ms. Holmes is preparing for the use of a “mental disease or defect” defense.
More specifically, the article from the New York Daily News, indicated the judge had assigned a neuropsychologist and psychiatrist to conduct a two-day, 14 hour evaluation of Ms. Holmes. Additionally, this evaluation is to be recorded. Now, I had never heard of psychological evaluation being this long and I worked in the mental health field for years before joining Experts.com.
To the best of my knowledge, I had not heard about the “mental disease or defect” defense since law school. I remembered it as a mitigating factor to a crime. Something we learned about when we learned about defenses and factors related to defenses.
So, I did what I usually do with these blog posts, and reached out to the experts. This time, I thought it would be good to get insights from a federal public defender and a psychiatrist.
First, let’s see get a view of the legal opinion…
Analysis from Federal Defense Attorney, Diego Alcalá-Laboy:
Diego Alcalá-Laboy is a criminal defense attorney with his own practice Defensoria Legal, LLC, in Puerto Rico, where he represents federal criminal defendants and advises startups. He is also an adjunct professor at the Inter-American University, School of Law and teaches the Federal Evidence and Federal Criminal Procedure courses at the University of Puerto Rico Law School’s Federal Bar Review.
Nick Rishwain: Why would one use a defense of “mental disease” and what impact might it have on the case?
Diego Alcala: A prosecutor must prove that a defendant intended to commit an act (mens rea), and that he committed the act (actus rea). And most crimes require that the defendant acted intelligently, knowingly, or willfully, and on some occasions recklessly or negligently. The type of “mens rea” a crime requires is defined by Congress and the interpretations given by the courts. On some occasions, an offense may not even require a mens rea, such as with strict liability offenses.
Crimes may have different elements, and a prosecutor may have to prove that the defendant had the required mens rea to commit each element of the offense. If the prosecutor cannot prove this, the defendant may be found not guilty.
Congress also recognized that a defendant may show that because of a medical defect he was unable to appreciate the nature and quality of his or her acts because of a severe mental disease or defect. After the John Hinkley trial, Congress amended its statutes and eliminated the affirmative defense of diminished capacity but allowed a defendant the possibility to attack an element of an offense because of a mental condition.
This is a lot harder than it sounds. The Courts are the gatekeepers of the any scientific testimony intended to be presented at trial. Therefore, whenever a defense of mental defect is offered by a defendant, the Court must ensure that the evidence offered is grounded in sufficient scientific support. This scientific evidence then must be scientifically sound and must also show that the medical condition negates mens rea of an element of the offense. So, a defense of mental defect, if grounded on scientific basis, and shows that it negates an element of the charged crime, will clear the defendant from a particular case.
NR: Have you ever seen a “mental disease” defense used in a criminal fraud matter?
DA: I have never seen a mental disease defense presented before. But I did find some cases where the defense tried to introduce this type of evidence but was ruled inadmissible because it did not satisfy the Court that the proffered evidence: a) was based on sound scientific principles, or b) even if it was based on sound principles, it failed to negate mens rea for the element(s) of the offense. In fraud cases, a defendant is accused of committing some type of false representation. It follows that the evidence of mental disease must show that if his/her medical condition can be logically connected to a subjective belief that his/her assertions were not false, baseless, or reckless vis-a-vis the truth. I have not found a fraud case in which the defense has been able to overcome this burden.
NR: If it is established that Elizabeth Holmes is suffering from “mental disease,” can she still be held criminally liable for her actions?
DA: If a defendant presents a successful mental disease defense, the federal law states that she will be found not guilty. But a finding of not guilty does not necessarily mean that she is free to leave. A determination of not guilty by reason of mental defect will then place a defendant in a “suitable facility” and may be release only after showing that she is no longer a threat.
NR: Does a “mental disease” defense have much success in federal criminal trials?
DA: As mentioned, I have not found a successful case, and primarily the difficulty lies in the very narrow type of cases that may meet the discussed admissibility standard. Even if she can get this evidence into trial, it is still up to the jury to accept this defense.
Now that we have some idea of the application of the law for fraud in federal criminal cases, we need to review the science as outlined by Mr. Alcalá.
Analysis from Forensic Psychiatrist and Expert Witness Dr. Sanjay Adhia:
Dr. Sanjay Adhia is triple-Board-Certified in Forensic Psychiatry, Brain Injury Medicine, and Psychiatry. Dr. Adhia serves as a Psychiatrist and Brain Injury Medicine specialist at TIRR Hermann Memorial, a Rehabilitation and Research hospital treating those with brain and spinal cord injuries and psychiatric elements of their injury and recovery. In private forensic practice he conducts Independent Medical Examinations (IMEs), and renders his opinions by report and testimony. Dr. Adhia serves on the faculty of McGovern Medical School at UTHealth. You can visit his website at: forensicpsychiatrynow.com.
Nick Rishwain: According to the psychiatric community, what constitutes “mental disease” and “mental defect?”
Sanjay Adhia, MD: These are more legal terms rather than actual formal psychiatric definitions.
According to Merriam-Webster, the legal definition of “mental disease” is “an abnormal mental condition that interferes with mental or emotional processes and internal behavioral control and that is not manifest only in repeated criminal or antisocial conduct”.
Examples would include Schizophrenia, Schizoaffective Disorder and Bipolar Disorder which are considered Severe Mental Illness (SMI). These conditions may lead to psychiatric hospitalization. The conditions maybe associated with and loss of touch with reality and a lack of volitional control.
“Mental defect,” on the other hand, is defined by Merriam-Webster as a “an abnormal mental condition (as mental retardation) that may be of a more fixed nature than a mental disease”. “Fixed” disorders would include Intellectual Developmental Disorder (IDD; formerly known as mental retardation), Autism and Brain Injury. According to this definition, Antisocial Personality Disorder (ASPD) would be excluded. ASPD is marked by a tendency to lie, break laws, and act impulsively. It shares some features with psychopathy or sociopathy. A number of states do not permit the use of ASPD in the insanity defense. Allowing ASPD would have unintended repercussions. For example, it could potentially permit a defendant like Ted Bundy or Jeffrey Dahmer to avoid prison.
NR: In the court order, it limits the evaluation of Ms. Holmes to a 14 hour, 2-day, psychiatric examination. Is this out of the ordinary in a criminal matter?
SA: There is a wide range of exam times in criminal cases. It would depend on a variety of factors including the type of case, the jurisdiction, the funding available and the severity of the charge. Assessment time in a misdemeanor will not be identical to a capital case. Ms. Holmes’ case is not a capital case, but it helps to understand differences in how long the examination might take. The exam time in a Competency to Stand Trial for a misdemeanor trespassing case would likely be under two hours. I have seen some examiners spend 30 minutes for the interview in such cases. The other extreme would be Capital cases which could go over 8 hours or several days; this is especially true if neurocognitive testing is required, which can take an entire day.
Again, in a capital case the threshold and the stakes are very high—especially in death penalty cases that often go to the appeals court.
In misdemeanor cases, you may have a single mental health expert and the findings may be accepted without the need for an opposing expert. In Capital cases, the defense itself may retain several mental health and other medical experts (i.e. Fetal Alcohol Syndrome experts). In the Holmes case, the 14 hours is to be shared between a forensic neuropsychologist and a forensic psychiatrist.
As it is a high-profile case, it is possible that the court may allow additional funds or there maybe a willingness of the expert to work within a budget.
It is my experience that the examination in insanity cases take more time than other types of cases as you have to elicit a detailed account of the crime from the defendant and then determine the mental state at a time in the past and consider malingering (lying for secondary gain—like a lesser sentence). I suspect in the Holmes case, it is likely the charges are not limited to one circumscribed incident so it could take additional time. It is worth noting that time spent reviewing records and preparing a report could exceed twenty hours or more.
NR: What information might you need to establish or rebut an insanity defense?
SA: In addition to interviewing the defendant, it would be helpful to review medical records, legal records along with police records and videos. I often will interview collateral informants as well. In Ms. Holmes’s case there maybe, media accounts, if admissible, as well as financial records and corporate documents. Of course, an expert would review the other expert witness reports. Records in a violent crime could include an autopsy, or blood splatter expert reports, for example. In the Holmes case, there may be a forensic accounting or fraud expert report. Other sources of data could include polygraph testing, school records and employment records.
NR: In the Holmes case, the defense has retained a trauma expert. Is it common to successfully assert an insanity defense in cases of PTSD?
SA: Insanity defenses are more commonly associated with other diagnoses that are considered to be more severe forms of mental illness such as schizophrenia, bipolar disorder and IDD because they have a different impact on decision-making and regulating behavior. Although many individuals with PTSD do suffer with severe symptoms, they are generally able to maintain awareness of the nature of their acts and appreciate the wrongfulness of such acts. In jurisdictions that allow for the volitional prong, individuals with PTSD are generally considered to be able to behave lawfully. Of course, there are cases where PTSD is successfully asserted as an insanity defense. In cases where the defense attorney realizes the PTSD does not lend itself for an insanity defense, they may successfully utilize it for sentence mitigation.
United States v. Bennett,29 F. Supp. 2d 236 (E.D.Pa. 1997), aff’d 161 F.3d 171, 183 (3d Cir.1998), cert. denied, 528 U.S. 819, 120 S. Ct. 61, 145 L. Ed. 2d 53 (1999)
Remote depositions appear to be growing. As an expert witness, what should you do to improve your presentation and performance to maintain credibility and authority?
As more professionals work from home, remote depositions will continue to rise in popularity and usage. But, the extent of the rise is hard to tell since there is a lack of any hard data on the subject. One of our contributors, Isaiah Leslie, has provided some anecdotal information on the subject. We know court hearings and administrative meetings are taking place remotely. In an article from the Fort Worth Star Telegram, we learn about what may be the first remote jury trial in the U.S., which occurred in Texas. With an increase in remote hearings, depositions, and even jury trials, we wanted to give you some information about presentation and performance as an expert witness in remote deposition.
There have been an abundance of articles discussing remote depositions, but none of them appear to cover best practices for the deponent and, relevant to Experts.com members, the expert witness. Instead, the articles discuss the law permitting remote depositions; the local rules to be followed; agreements between lawyers about sharing of discoverable information; procedures for exhibits; whether the deposition is going to be taken by video conference or the deposition is being video recorded; and operation of several of the remote video platforms. The information is important for all parties to a litigation, but none of it helpful to the deponent.
To this end, I had to do some digging and contact a bunch of folks for their insights. We received some great feedback from court reporters, court videographers, and live video marketing professionals. Below is a summary of suggested best practices for expert witnesses before and during a remote deposition, focusing on presentation, apparel, lighting, audio, video, and overall performance.
Increase in Remote Depositions:
One of our contributors, Isaiah Leslie, a co-founder and partner at Regal Court Reporting, provided us with the best data on the increase in remote depositions from his company’s personal experience. In March of 2020, only 2.6% of their depositions were remote. By April, all of their depositions were remote, increasing by 550%. Although remote depositions have not outnumbered their previous in-person deposition numbers, as Isaiah noted, the adoption is still significant.
The increase in remote depositions makes sense, given the shelter-in-place orders throughout the country. Many of those who adopted remote deposition by necessity have discovered its advantages. By no means am I suggesting remote depositions would replace in-person depositions entirely. However, as legal professionals become more comfortable with videoconferencing technology, it’s reasonable to anticipate continued growth in remote depositions even after COVID-19.
Legal system participants are likely to realize, if they have not already, the value of videoconferencing. It is convenient for all involved, as there is no need to travel to the deposition location. Reduced travel should lower litigation costs as parties will no longer have to pay for travel time and costs (for lawyers and expert witnesses). Most importantly at the present time, it provides the added benefit of being socially distanced.
With this expectation remote depositions will become more prevalent, even post-COVID-19, here are the suggestions from our contributors, to help you as a deponent, give your best presentation and performance.
Court Reporter Suggestions:
Isaiah Leslie and I have become friendly on Twitter, which for those who know me, is where I’ve made a significant number of professional relationships. Isaiah brought his partner and wife, Stephanie Leslie, into the conversation so we can get some outstanding suggestions direct from a court reporter who regularly participates in depositions.
As with other past blogs, I provided a variety of questions and Mrs. Leslie provided some outstanding responses (some edited for brevity and clarity).
Nick Rishwain: Have you experienced an increase in remote/virtual depositions during COVID-19?
Stephanie Leslie: We have certainly seen more remote depositions than usual, but unfortunately most law firms are still not jumping on board fully quite yet for a variety of reasons. One being their lack of comfort with the technology aspect of things. Once they try it, they typically schedule more after that. It’s just making the plunge.
NR: Based on your experience doing in-person video depositions and remote depositions, have you identified any best practices for deponent performance?
SL: The most crucial thing with remote depositions is abiding by the admonition to not talk over others. As a working reporter myself, I can attest to the fact that speakers talking over each other is always a nuisance and makes my job exponentially harder, but in remote depositions it is absolutely critical because remote platforms, such as Zoom, act similarly to a speakerphone, and it can only choose one voice to allow through the system, so if there is simultaneous speaking, I can usually hear no one. And then, to add insult to injury, if other speakers are talking, I cannot successfully interrupt and remind everyone to speak one at a time because no one can hear me either. I have found that even though it feels very tedious to go slowly and methodically, it actually makes the deposition go more quickly and smoothly.
NR: My customers are concerned with coming across as credible, knowledgeable, professional and authoritative in their field. What do you recommend for best remote deposition performance?
SL: I have taken several expert depositions recently, all remotely, and I don’t think the virtual aspect of the deposition makes much of a difference. I felt like it was any other expert deposition. It was very clear to me which experts were knowledgeable and confident about the subjects upon which they were opining, and others were obviously not as much. I think a great CV and clear opinions backed by evidence still come through clearly to all observers.
NR: Any suggestions on apparel, lighting, audio/video setup?
SL: I have seen some sharp solid-colored virtual backgrounds created with an expert firm’s logo placed in the top corner just to the side of the witness, and it is very professional looking and memorable while not detracting from the substance of the proceeding. Apparel — I suggest still making sure you’re completely professional on top. What’s on bottom is up to you! I use an inexpensive cube light to help illuminate my face, but if the room is well lit (not too much back light), I don’t think it’s particularly necessary. Audio is the most important thing. Please test your connection and audio quality beforehand!
NR: Any further suggestions I may not have asked?
SL: As usual (but even more important with remote), if you are able to provide any spellings or technical words to the stenographer before the deposition, that is always appreciated. We usually come into the case with little to no context on the facts and your background and role, so anything you can assist with along the way is invaluable!
Legal Videographer Suggestions:
Isaiah, continued to provide me with excellent access to his team and we got some outstanding feedback from Sean Malone, of Malone Video, who works primarily with Regal Court Reporting.
The same questions provided to Stephanie Leslie were also sent to Mr. Malone. His different experiences from a videographer perspective are equally beneficial to the expert witness.
Sean answered the questions in a slightly different format, which have been edited for brevity and clarity.
Nick Rishwain: Have you experienced an increase in remote/virtual depositions during COVID-19?
Sean Malone: Definitely. Though overall some attorneys are still hesitant to go remote, others have been willing to test, and even embrace remote depositions right now, due to the quarantine. As a legal videographer, before the quarantine I had done exactly zero remote depositions. Since the quarantine, I have done at least 2 to 3 per week, on various platforms, and all for clients that were mainly accustomed to in-person depositions before COVID-19.
For the following, questions 2-4, Sean answered the questions in aggregate. So, you don’t have to scroll up to find those questions again, I’ve added them below:
NR: Based on your experience doing in-person video depositions and remote depositions, have you identified any best practices for deponent performance?
NR: My customers are concerned with coming across as credible, knowledgeable and an authority in their field. What do you recommend for best remote deposition performance?
NR: Any suggestions on apparel, lighting, audio/video setup?
SM: As a legal videographer, the things that matter in an in-person deposition are the same things that matter for a remote deposition. For example, is the deponent well lit? Are they centered in frame? Can they be clearly seen and heard? I’d recommend a similar approach for everyone involved in a remote deposition: identify your best in-person deposition practices and translate those to the medium of video conference.
Just like in real life, the witnesses I’ve observed that come off well are the witnesses who:
Are professionally dressed.
Are well mannered/aware that they are the focus of the deposition and the video record.
Listen to and directly answer attorney questions.
One note on that last one: Just like in real life, we all know that deponents should let the taking attorney finish their question before starting to answer, and also pause a little so that the opposing attorney can get in their objections… But this is especially important during a remote deposition, because of that notorious split-second delay present in all video conferencing platforms.
To present yourself well and make the videographer love you, you can:
Make sure you are well lit, and not heavily backlit.
Make sure whatever is in the background behind you is relatively neutral and not distracting (in other words, maybe take that Backstreet Boys poster down before logging on).
Make sure the area around you is tidy and free from clutter.
Make sure the camera built into your computer is as close to your eye-level as possible. If the camera is too low, like on your lap for instance, everyone will view you (and the video record will capture you) from an unflattering, upward angle. Eye-level or at least face-level is the best idea for a flattering shot of you.
Ideal framing is you in the center of the frame, with your torso and head visible in frame, with a little bit of headroom on top (headroom is the small space between the top of your head and the top of the frame). See picture:
Make sure you are joining the video conference from a reliable device that has a decent camera and microphone built in.
Make sure that device is charged!
Some additional tips on your Internet connection. So that your testimony can be captured optimally by both the court reporter, and the videographer, make sure your Internet connection is as strong as possible. Office internet is more robust than home internet, but if you are at home, you can try:
Connecting your device via Ethernet cable rather than WiFi.
If you cannot connect via Ethernet cable, choose the spot in your home with the strongest WiFi signal.
Ask other members of your household to refrain from moderate or heavy Internet use that day (e.g. have them avoid streaming TV, playing online games, etc.)
NR: Any further suggestions I may not have asked?
SM: I always like to say that everyone in a deposition has a job to do. Therefore, I try to help others do their jobs well, by doing my job well. I think that approach can be helpful no matter what your job is!
As we feel this is going to be a growing experience for witnesses and expert witnesses, we wanted to create a blog post that is truly helpful to your presentation and performance. So, we brought in one more voice to help you nail that remote deposition!
Live Video Marketing Professional Suggestions:
As some of my readers know, I’ve been doing live video since about 2015. However, I do it as a hobby. Our next contributor does it professionally and has written a book on the subject. I’m just lucky enough to know her and call her a friend. Jennifer Quinn, is a leading consultant on Internet live-streaming. I reached out to her and asked her for her input regarding presentation and performance.
Here are the suggestions provided direct from Jenny. In this instance, I asked questions more generally and Jenny gave me us some outstanding suggestions, all of which should be considered for remote depositions.
NR: I’m looking for suggested best practices. How would you want an expert witness to be prepared for remote deposition? What best practices do you suggest?
Jennifer Quinn: The fastest way to build trust with someone is to show up the way they expect you to show up. Traditionally, as an expert witness, you would arrive, dressed professionally, sit upright, and be fully prepared for the deposition.
The question most expert witnesses have today is how to transfer that same level of authority, and trust one would have face to face or in-person to a video format.
There are a few quick and easy ways to convey instant authority and credibility when preparing for a video deposition.
Pay attention to your background – be sure it conveys professionalism.
Dress the same way you would dress if you were attending court in person.
Make virtual eye contact with the video viewers by looking directly into the lens of the camera. Yes, this will feel awkward; however, it is possibly the most crucial skill you can master if you want to instantly build trust in this new era of video. Looking directly into the lens of the camera simulates eye contact and conveys authenticity more powerfully than anything else you can do when recording video.
In my book, I reference the need to pay attention to L.A.V.S.: Lighting, Audio, Video, Stability.
Daylight – sit in front of the window with the light shining in on your face.
Ring light – clips on to your phone.
Box lighting – home office studio setup.
Turn off the overhead lighting in the room.
Earbuds with built-in mic.
Cell phone camera.
Keep the lens camera at eye level.
Look into the lens.
Prop phone up – at eye level (think books, boxes, etc.).
Tripod or mount.
Desktop/laptop – don’t bump desk or table.
There you have it. Four different individuals telling you how to up your remote deposition game as remote depositions have drastically increased in the last 90 days.
Throughout shelter-in-place, many lawyers and parties have experienced the benefits of remote depositions. It has proven both convenient and cost effective. We do not expect the trend in growth to wane any time soon. If anything, we could be witnessing a completely new shift in how the legal system communicates.
A hastily-developed app and combined with a lack of user testing caused a ruckus in Iowa Caucus voting this week. What’s in store for New Hampshire, Super Tuesday, and beyond?
It has been an exciting week in US politics. We had a State of the Union address and an impeachment vote. A whirlwind week by any standard! Before we could even get to those two events, we started the week with an outrageous technology failure in the Iowa Democratic Caucus. For purposes of this blog post, I’m not going into the differences between a caucus and a primary. Let’s just assume they accomplish the same result: selecting a candidate for political office.
For the Iowa Democratic Party, Monday night was a disaster and then it continued into Tuesday, Wednesday… you get the idea. As I write this blog post on Friday morning, I’m not even sure if they have an official determination of who won. The news stories seem to be conflicting.
So here is what we know about the app (IowaRecorder) failure based on available reports. The Iowa Democratic Party hired a marketing technology company to build an app which would be used, statewide, to report results of local caucus votes (I’m simplifying for purposes of brevity). The app was going to be used to submit voting results. Nobody was actually voting through the app.
This first really good article I read that outlined the technology implementation failure, came from Slate. Here was a good summary from a couple of days ago:
“It’s still unclear what exactly went wrong with the app, but all of these issues appear to have something in common: The Iowa Democratic Party clearly wasn’t prepared for any possible issues with the app and a more involved method of vote reporting introduced this year—and sure enough, it reportedly turns out that the app was never tested on a statewide scale. Shadow, which is run by alumni of the Barack Obama and Hillary Clinton campaigns as well as Google, was paid $60,000 to develop the app, but it had just two months after party officials decided to abandon plans to report results over the phone.”
There’s some updated information on the failure from Motherboard, which was released yesterday (along with the app code). Below, you’ll see that they released an app that was still in beta format:
“And Instead of going through proper app store review processes conducted by Apple and Google, Shadow used beta testing platforms like Apple’s TestFlight to distribute the software so it could meet the Monday deadline. So when it came time for the app to do its most critical role — letting Democratic precinct leaders report results from Iowa on Monday — it failed in every way imaginable.”
As I do when these major stories break, I turn to Experts.com members to get insights. You may recall Dr. Stephen Castell. Dr. Castell, Chartered Information Systems Practitioner and Member of the Expert Witness Institute, is Chairman of CASTELL Consulting. He is an internationally acknowledged Independent Computer Expert who has been involved in a wide range of computer litigation over many years.
Below, please find my questions and Dr. Castell’s answers (Disclaimer: these questions and answers provided on February 5th, 2020):
Nick: From available reporting, it appears the Iowa Democratic Party failed to do a statewide testing of this vote reporting application. What type of tests would have been necessary to identify errors in the system before statewide roll-out?
Dr. Castell: As other ICT professionals comment in the reports, there should be thorough systems testing and QA procedures, including User Acceptance Testing and Pilot Trials, plus scaled-up ‘soak testing’, before contemplating any real-world launch, such as this statewide roll-out. You expect to get errors in systems testing – its main purpose is to identify faults and fix them. Sadly, software systems and Apps these days do seem often to be launched publicly without adequate systems testing, let alone with adequate prior User Testing and Pilot Trials. If such standard professional QA processes were omitted, or truncated, for something as high-profile and important as an App to collect and relay voter data in the Iowa Caucus, that does appear rather astonishing.
Nick: It doesn’t appear that all of the fault lies with the app developer. It seems the Iowa Democratic Party only gave the app developer 2 months to develop and deploy this application. What sort of time-frame would you anticipate to develop, test, and implement a software of this scale?
Dr. Castell: That is difficult to estimate without more knowledge of the actual detailed Customer Requirements Specification that the developer’s App was contracted to meet. On the face of it, an App simply to in-gather voting data, aggregate and transfer it, sounds in principle like fairly straightforward functionality to code, test (at scale) and implement, and 2 months may not have been an unrealistic timescale for development, testing and deployment.
Nick: Would you expect there to be a certain level of user sophistication for those using the app on this scale? Should there have been company representatives available at caucus sites?
Dr. Castell: Reports suggest that there was little prior familiarity, let alone ‘training’, or ‘user sophistication’, with the App on the part of those expected to employ it for real, in the high-pressure, real-time Iowa Caucus conditions. Whatever the state of compliance of the App with its contractual specification – perhaps reasonably well delivered to time, budget, specification, and of suitable quality, ‘fit for purpose’ – if there was no program for adequate user familiarity and training, plus some sort of support and trouble-shooting team from the developer company at caucus sites, that alone could account for the problems encountered in statewide roll-out operation.
Nick: From what I’ve read, it looks like the company was paid $60,000 to build this application. Is there any way to gauge whether this is too little or too much for this type of application development?
Dr. Castell: Again, that is difficult to gauge without more knowledge of the actual detailed Customer Requirements Specification, and thus the likely complexity of the functionality needed, and its associated software design and coding; also, there may have been a tight budget to which the developer company was obliged to work. It is not unusual for software developers to invest in a ‘plum’ assignment such as this high-profile Iowa Caucus project, for the promotional and marketing impact that gives them in securing hopefully more lucrative and profitable development jobs later. In this case, the $60,000 could have been much less than the true cost to the developer company of the analyst, designer, coder, tester, deployer and trainer man-days expended in building and launching the App with a statewide roll-out, against a tough deadline.
Nick: What sort of testing, trials, and quality assurance requirements would you have employed prior to such an implementation?
Dr. Castell: There should ideally have been thorough systems testing and QA procedures, including User Acceptance Testing and Pilot Trials, plus scaled-up ‘soak testing’, well understood by ICT professionals, before the real-world launch of this statewide roll-out. Relevantly, I teach a Course Avoiding IT Disasters – the Expert Way, the principles of which are also covered in my seminal paper “Forensic Systems Analysis: A Methodology for Assessment and Avoidance of IT Disasters and Disputes”, issued as a Cutter Consortium Executive Report, Enterprise Risk Management & Governance Advisory Service series (Vol. 3, No. 2, March 8, 2006).
We cannot say that New Hampshire is next. All available information tells us that New Hampshire is not using the same company/app used in the Iowa Caucuses. Furthermore, there was talk of Nevada using the app, but they have claimed they will not move forward with the application.
That’s the end of this particular blog post. Though, we’re already in talks about another post related to voting systems.
Last week the news exploded with the story of Alexander Urtula’s suicide. The story garnered attention because of the allegedly outrageous actions of Mr. Urtula’s ex-girlfriend, Inyoung You, who is accused of psychologically manipulating Urtula and pushing him to kill himself.
Reports from the Boston Globe outlined the accusations against Inyoung You, a 21-year old former Boston College student and South Korean national, who badgered her ex-boyfriend into committing suicide.
In an editorial article calling for a coerced-suicide law in Massachusetts, the BostonGlobe stated “According to prosecutors, You psychologically and physically abused her boyfriend, Alexander Urtula, over an 18-month relationship, and repeatedly urged him to kill himself. The two exchanged 75,000 text messages, which Suffolk County District Attorney Rachael Rollins said showed You’s ‘complete and total control over Mr. Urtula both mentally and emotionally.’”
Readers may recall a similar incident, out of Massachusetts, which made headlines back in 2017 when Michelle Carter was tried for involuntary manslaughter for the death of her boyfriend, Conrad Roy. You can read more about that case in this Washington Post piece.
These two cases from the same state, with strikingly similar fact patterns, ending in the suicide death of two young men has made the state consider a law about coerced-suicide. An issue, I might add, my lay mind never would have considered necessary.
The reason Massachusetts is considered a coerced-suicide law is pretty straight-forward. Michelle Carter was prosecuted and convicted of involuntary manslaughter. Inyoung You, is now being charged with the same crime. However, the punishment for involuntary manslaughter in Massachusetts, carries a punishment of up to 20 years. Whereas a proposed law, Conrad’s Law (named after Michelle Carter’s victim), would make punishment for coerced-suicide a 5 year maximum sentence.
To me this makes sense. If you do not actually cause the death (i.e. pull the trigger or pilot the automobile) then you should not face the same criminal liability as someone who did cause loss of life. With that said, you need to be punished for being a truly terrible person and manipulating someone to take their own life.
Now, I do have difficulty with words being used to convict someone of a crime. The ACLU had difficulty with this too when they criticized the Michelle Carter case. They felt it would chill free speech. I understand that concern, so I needed to dig into the psychological manipulation and coercion aspect a bit deeper.
Lucky for me, I have access to an incredible database filled with expert witnesses and consultants. Turns out I didn’t have to look far, because one of my members, Dr. Sanjay Adhia was already sharing about the subject matter on social media. So we coordinated a little question and answer on the topic.
Forensic Psychiatry Expert Witness Dr. Sanjay Adhia:
Dr. Sanjay Adhia is triple-Board-Certified in Psychiatry Forensic Psychiatry and Brain Injury Medicine. In addition to forensic/expert witness practice, Dr. Adhia serves as the Assistant Professor of Psychiatry at University of Texas Health and Science Center and a Psychiatry Consultant at The Institute for Rehabilitation and Research (TIRR) Memorial Hermann in Houston. He treats those with brain and spinal cord injury who have complicating psychiatric disorders along with general psychiatry and addiction psychiatry patients.
His forensic practice focuses on the psychiatric impact of personal injury, abuse, competency, violence, intoxication and complicating mental illness. He is experienced at assisting attorneys in medical malpractice and wrongful death claims. He also performs occupational and other Independent Medical Exams. In addition, Dr. Adhia works with Physicians for Human Rights and DAYA Houston to assess victims of kidnapping and false imprisonment, human trafficking, undue influence, physical and sexual abuse and rape. Learn more about Dr. Adhia’s practice by visiting his webiste: www.forensicpsychiatrynow.com.
Let’s get to the nitty-gritty. I provided questions and Dr. Adhia provided some outstanding answers regarding coercion.
NR: According to the article from the Boston Globe, coerced-suicide has not been defined by law. Does forensic psychiatry have a definition? If not, can you describe how you would define “coerced suicide?”
Dr. Adhia: As far as I know, there is no formalized definition of “coerced suicide” for forensic psychiatrists. With coerced suicide, there could be an element of undue influence which is defined as “influence by which a person is induced to act otherwise than by their own free will or without adequate attention to the consequences”. I believe “coerced suicide” should be distinguished from “assisted suicide”.
NR: Can you describe what one may be going through when considering suicide?
Dr. Adhia: Suicidal ideations are generally accompanied by severe distress. Suicide is seen as a solution to the distress and may be perceived as the best if not only solution. It may start with fleeting thoughts without intent to more frequent thoughts with intent. One may then consider various methods of suicide and develop a plan. There could be several suicide attempts before a completed suicide. Of course, there are instances when a catastrophic stressor or coercion may lead to an impulsive suicide without a preceding history.
From the media account, Mr. Urtula was described as having depression. One of the potential symptoms of Major Depressive Disorder (MDD) are suicidal ideations. Additionally, victims of abuse can have suicidal ideations without necessarily having depression.
With additional information, we may be able to determine if Mr. Urtula had suicidality brewing for months or if he was suddenly coerced to jump without any preceding suicidal intent.
NR: This is now the second high-profile case involving young women encouraging a boyfriend to end his own life. Would this qualify as a form of domestic abuse according to psychiatrists?
Yes. However, I would expect there be other forms of abuse present preceding the coerced suicide. The literature often refers to domestic abuse as Intimate Partner Violence (IPV). According to the Centers for Disease Control and Prevention, there are four types of IPV:
Coerced Suicide would be consistent with psychological aggression which is defined by the CDC as “use of verbal and non-verbal communication with the intent to harm another person mentally or emotionally and/or to exert control over another person”. According to prosecutors, Mr. Urtula endured both physical and psychological abuse. The fact that he was located at the parking garage may represent stalking.
Of note, Intimate Partner Violence in of itself, absent suicide coercion, can lead to unintended suicide.
NR: Would coercion in a suicide case (involuntary manslaughter) be similar to the coercion involved in an “undue influence” matter? Are the power dynamics similar?
Dr. Adhia: Coercion is one of the tactics involved in undue influence. Undue influence constitutes controlling others by utilizing the dominance or authority in a relationship, taking advantage of a vulnerability and by employing certain tactics. These tactics include controlling necessaries in life, using or withholding affection, intimidation and coercion. Coercion is the act of threatening to compel an act.
It is worth referring to the proposed “Conrad’s Law” which indicates coerced suicide involves “substantial control or undue influence over the victim, or to have manipulated their behavior through fraud or deceit”.
NR: Some stories I’ve read, indicate Inyoung You had “complete and total control” over Mr. Urtula. How would a person find themselves under complete and total control of a significant other?
Dr. Adhia: To understand how Ms. You would achieve such control; one can look at the cycle of IPV which consists of:
Tension Building Phase
Acute Battering Episode
The Honeymoon Phase
In the first phase, the victim attempts to appease the perpetrator in hopes of avoiding abuse. It may feel as if the victim is walking on eggshells. Eventually the tension will build and phase two will occur with the abuse. Afterwards, there will be a honeymoon phase where the abuser will convince the victim to stay in the relationship. The abuser could promise an end to the abuse. Many of the victims have been are conditioned to be highly dependent on the abuser. They may be convinced they will be unable to obtain love and happiness without the abuser. This may help explain why Mr. Urtula did not leave Ms. You and how she was able to gain control of him.
According to the CNN article, Ms. You threatened self-harm to manipulate Mr. Urtula in order to control and isolate him. She sent him over 47,000 texts and commanded him to end his life. The abuse escalated just prior to the suicide. She tracked the location of Mr. You and was at the scene of the parking garage where he jumped to his death.
In Mr. Urtula’s case, it is likely he was rendered particularly vulnerable due to depression. Some of the symptoms of depression include fatigue, indecisiveness, decreased concentration along with feelings of worthlessness, helplessness and hopelessness.
With the interplay of Depression accompanied by the tactics and dynamics of IPV, one can get a sense of how Ms. You could achieve “complete and total control” over Mr. Urtula.
NR: Anything additional you feel like you need to add to this story… Please do so.
Dr. Adhia: The hope is someone with suicidal ideations in a relationship would have a supportive partner who will encourage their loved one to seek help. In extreme cases, a partner can call 911 and involuntary treatment in a psychiatric hospital can be sought. There are unfortunate instances when the partner does not recognize the signs of suicide or does not know help is available. In Mr. Urtula’s case, it appears his partner literally pushed him off the parking garage.
The mass suicide in Jonestown by devotees of Jim Jones could be considered a mass coercion. Jim Jones had his followers practice drinking the Kool Aid. Having the children drink the Kool Aid first served to coerce the parents to follow course.
The Urtula and the Conrad case reminds us both males and females can be victims of Intimate Partner Violence. It is worth noting that the dynamics could be more complicated if there are children involved and the victim is financially dependent on the perpetrator.
If a victim is danger of imminent violence or suicide, call 911 to obtain immediate assistance. Other phone numbers can be found https://ncadv.org/resources.
Special thanks to Dr. Sanjay Adhia for taking the time to help educate us about this unfortunate matter of coerced-suicide. Please share this article with those who need to read it. Please take care of those around you. Let’s all try to be a little nicer to each other.
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.
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.
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.
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/.
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.
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!