Category: Evidence

EvidenceExpert WitnessExpert Witness TestimonyUncategorized

Safeguarding Your Reputation as an Expert Witness

on January 16, 2024

In 20 years in the legal industry and nearly 14 working with expert witnesses, I’ve never seen such a damaging assault on an expert witness practice as I did at the end of 2023. Something so destructive it has the potential to erase an expert’s practice. It must be discussed as a cautionary tale.

DISCLAIMER: We are not taking a position on the performance or practice of Professor Eli Bartov. We have not read his reports, seen his trial testimony, or reviewed trial transcripts in the case of New York v. Trump. This article is about the impact of judicial statements on your expert witness practice and serve as caution when taking high profile cases. We still want you to take high profile cases.

What Happened?

On December 18, 2023, Reuters wrote an article that may absolutely destroy the expert witness practice of Professor Eli Bartov. Professor Bartov is a professor of accounting at NYU Stern School of Business. He served as an expert witness in the New York civil fraud trial against former President Donald Trump.

Other major news publications (CNBC, Newsweek, NBC News), with search engine domain authority, also wrote articles on and around the same date.

In each of these articles, the publishers quoted presiding Justice Arthur Engoron’s analysis of Professor Bartov’s testimony which stated, “All that his testimony proves is that for a million or so dollars, some experts will say whatever you want them to say.”

That statement, my dear friends and colleagues, can be a career killer for nearly any expert witness. The judge’s statement may not only affect Professor Bartov’s practice, but the rippling effect of its repetition by major publications tarnishes his online reputation. It is just the beginning of the trouble.

Worst Negative Statement by a Judge I’ve Ever Seen:

If you are an expert witness, you never, ever want a judge of any court to comment in such a negative way about your work. Judge Engoron’s statement essentially calls Professor Bartov a “hired gun,” and questions his competency by indicating the analysis is trash.

You cannot control what a judge says or does. Judges may find your methodology lacking or your opinions to be unsupported. A comment on those issues would be unfortunate but it would not destroy your credibility or reputation. Should the comment resurface in a future proceeding, a capable attorney would probably be able to rehabilitate your credibility as an expert witness.

We have long discussed the need to protect your reputation and credibility. Nothing is more important. The job of opposing counsel is to chip away at your credibility. A high-profile case like this is going to put your expertise and opinions under broader and more intense scrutiny. Not just by counsel but by the media.

After a while, some might ignore the comments of this judge. They may say it was a high-profile political case and the judge was biased against the defendant and thereby biased against the defendant’s experts. I’m not here to discuss those items. Leave the politics at the door. We take the outcome as a lesson to be used in your expert witness practice.

Impact of a Minor Negative Statement by a Judge:

Opposing counsel, in future cases, may scour records of previous cases to find your reports, deposition, and trial transcripts, and may read rulings by judges to find ways to discredit your work. It is their job to undermine your expertise for the benefit of their client. Do not take it personally. It is an unfortunate side effect of our adversarial judicial system.

If they find a negative statement by a judge, they may use it against you in trial to impeach your credibility or question your reputation.

It is the job of the lawyer or law firm that retains your services to counter impeachment-attempts and to rehabilitate your credibility. You assist your counsel in countering impeachment attempts by doing objectively good work, using defensible scientific methodologies and taking cases where you know you can provide an objective and dispassionate analysis.

With some effort, a normal run-of-the-mill disparaging or negative comment by a judge is easily outweighed by your other solid work.

Why this is so Damaging Beyond the Courtroom:

As I mentioned above, so many major news organizations reported about this statement by Judge Engoron. When reading the Reuters article and the damaging comment about Professor Bartov’s efforts in the case, I had to dig further to see how this proliferated. More than4 weeks later the problem continues. I’m not sure SEO geniuses can rehabilitate the online reputation.

Here are some searches a lawyer is likely to do in the preliminary stages of due diligence before hiring this expert in the future.

I encourage you to conduct the following searches, noting that the results may vary by date and location. Here is one search a lawyer is likely to do:

Professor Bartov, NYU Stern School of Business has excellent domain authority and ranks right at the top of a Google search. It is the 3rd organic search result that lets you know the professor testified in a trial involving a former US President. That’s an article of interest for any attorney considering retaining an expert.

There’s nothing horrifically bad in this article. It talks about the amount of fees, but reporters love to write about the amount of expert witness fees. You do see that out of the first seven results, the last 2 results discuss credibility. That becomes a significant issue for any expert.

Let’s try another search. How about “eli bartov expert witness.”

Ouch. We now have several search results discussing credibility.

Most attorneys concerned about hiring an expert witness to assist with a client matter may be now totally unable or unwilling to take a chance on an expert with this sort of easily identifiable negative coverage.

You see, even if the judge was wrong in his statement, the media could have entirely destroyed any chance for this expert to be hired in a future matter because an attorney cannot take the chance of hiring this person and having their credibility called into question.

Finally, let’s assume another simple search. What if counsel searches “eli bartov trump.” This is the worst result.

Okay, well let’s try Bing and see if the results are any different. We try “eli bartov” again.

You get the drift. Second result discusses credibility. It’s very damaging.

In Conclusion:

Any lawyer considering retaining your services is going to be nearly impossible if they find this kind of coverage because opposing counsel is going to have a field day with these stories.

Might you be able to rehabilitate this reputation? Maybe. Will counsel be willing to take on that fight when they’re trying to win a matter on behalf of their client? Unlikely. Remember, you’re in business and you must sell your reputation.

I do not want to dissuade you from taking high-profile matters. They can be great for your practice. They can also be awful for your practice.

If you’re on a high-profile case, it is that much more important to do objectively good work, using defensible scientific methodologies and taking cases within your expertise where you know you can provide an objective and dispassionate analysis. Remember that your analysis will be under more microscopes than normal.

EvidenceExpert Witness

Proposed Changes to FRE 702 Daubert Standard – Expert Witness Testimony

on March 31, 2022

It appears we’re poised to see some changes to Federal Rule of Evidence section 702 for the first time since the 2000 amendments.

In an excellent article published by Butler Weihmuller Katz Craig LLP, attorney Scott Hefner provided an excellent history of FRE 702 and a summary of the proposed amendments which if adopted by the Supreme Court, will go into effect in 2023.

Mr. Hefner provided an outstanding summary of the Daubert Standard and its codification and I encourage you to read his article for further depth. I just wanted to provide the existing rule and the proposed changes for your review, so that you and your expert witness practice can be prepared for the possible changes to FRE 702.

Existing Rule 702:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

a. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

b. the testimony is based on sufficient facts or data;

c. the testimony is the product of reliable principles and methods; and

d. the expert has reliably applied the principles and methods to the facts of the case.

Proposed Rule 702:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent has demonstrated by a preponderance of the evidence that:

a. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

b. the testimony is based on sufficient facts or data;

c. the testimony is the product of reliable principles and methods; and

d. expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

For your convenience, I’ve bolded the changes in the proposed rule. In my reading, the only real substantive change is “the proponent has demonstrated by a preponderance of the evidence…” This is the standard that has always applied, but the advisory committee decided they needed to clarify the standard. Mr. Hefner’s article notes that the committee included the standard to “dispel the notion that expert testimony is presumed to be admissible.” In the years I’ve been working in the expert witness field, I’ve never known this to be presumed. In fact, since law school (i.e. as long as I can remember), the rule has always been that the court serves as the gatekeeper for allowing expert testimony.

Now, I would love feedback from readers on the other “substantive” change to section 702(d). When I look at the existing subsection and the proposed changes, it is difficult to identify how this will actually change anything in practice.

In fact, it seems Mr. Hefner and I are in full agreement on this subsection change. He even mentions, “The practical implications of the amendments remain up for debate.” To take it a step further, he quotes the Federal Magistrate Judges Association as viewing the proposal as not making changes at all but rather “largely clarifying existing practice.”

What do you think?

Do you think this proposal will have any substantive or practical effects? Let us know what you think in the comments or drop us an email at support@experts.com.

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Cancer Verdict Overturned: Trial Court did not follow Daubert Expert Witness Standard

on July 26, 2021

$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:

  1. whether the theory or technique in question can be and has been tested;
  2. whether it has been subjected to peer review and publication;
  3. its known or potential error rate;
  4. the existence and maintenance of standards controlling its operation;
  5. 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.

Criminal JusticeEvidenceForensic DNA

New DNA Restoration Technology Helps South Korea Police Solve 33-Year-Long Murder Case

on December 17, 2020

Due to advancements in DNA technology, a 33-year-long murder mystery has finally been solved. The most infamous serial killing case in South Korea, otherwise known as the Hwaseong murders (1986-1991), resulted in the death of 10 women and girls. The true killer, Lee Chun-jae (pictured below), admitted to 30 rapes and 14 murders, 9 of which were part of the Hwaseong murder cases.  

The Korean Zodiac Killer: Lee Choon-Jae and the Hwaseong Serial Murder – Serial Killer Shop

What instigated the confession was a recent discovery in DNA restoration technology. This new forensic advancement has allowed police and other government agencies to identify DNA that either could not be identified at the time it was processed or even after long periods of time, as in this case. The South Korean Police conducted a comparison between samples of DNA from a victim’s underwear with the DNA database of prisoners at the penitentiary. The outcome identified Lee as the culprit, who was already facing a life sentence for the last 2 decades for his sister-in-law’s rape and murder. He told the court that he “was surprised he wasn’t caught earlier,” (CNN). Lee also told reporters that he did not try to hide his crimes. Though detectives asked him questions, they were always about other people. The DNA results also confirmed the innocence of the man arrested for Lee’s crimes.  

In 2008, a person named Yoon, whose full name cannot be released for legal reasons, was freed after spending 20 years in prison for the rape and murder of a 13-year-old girl, a murder victim from the Hwaseong cases. Last year, the DNA evidence was released, thus confirming Yoon’s innocence. Yoon was granted a retrial, and his lawyers are currently in the process of overturning his conviction. He told CNN, “I want to clear my false accusation, and I want my honor back.”  

South Korean investigators examine a crime scene in Hwaseong, South Korea in 1993, following a spate of murders.

Suffice it to say, at the time of the murders, there were some discrepancies in the investigation. The Gyeonggi Nambu Provincial Police Agency Chief, Bae Yong-ju, admitted to ABC News that Yoon was mistreated by the police to the point where he made a false confession under coercion. The police involved in the case have issued a public apology to Lee Chun-jae’s victims, their families, and Yoon, a victim of the failed police investigation. Yoon, outraged from being subjected to years of injustice, aspires to continue his life as a free and innocent man. 

So, what happens next? Lee Chun-jae will not be facing prosecution for the Hwaseong murders. The statute of limitations on the case has expired. However, he will continue to live out the rest of his life in prison for the rape and murder of his sister-in-law. Thanks to advances in DNA technology, grave mistakes, like those found in this case, will hopefully be reduced.  

Computer ForensicsDemonstrative EvidenceEvidenceSexual AbuseUncategorized

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

on August 7, 2019

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/.

EvidenceExpert WitnessExpert Witness Testimony

Expert Witness Liability, According to the U.S. 4th Circuit Court of Appeals

on November 2, 2018

Recently, we have received some questions from expert witnesses regarding potential liability for expert witness testimony. The U.S. 4th Circuit Court of Appeals decided this issue last Friday.

Last week, on October 26th, 2018, the United States, Fourth Circuit Court of Appeals ruled that the federal common law “witness litigation privilege” protects an expert witness for civil claims stemming from their testimony.

The best summary of the decision that I found comes from Pillsbury Winthrop Shaw Pittman LLP’s, Gravel2Gavel Blog. You can find the blog post here.

The matter involved a coal miner who was claiming benefits under the Black Lung Benefits Act. According to the expert witness the evidence did not support the plaintiff’s claim and the claim was denied. Thereafter, a report from the Center for Public Integrity alleged the “Johns Hopkins radiology unit and its expert witnesses were much less likely to find evidence of black lung disease than other doctors.”

The report from the Center for Public Integrity led to a lawsuit against Johns Hopkins and their doctors claiming liability for fraud, tortious interference, misrepresentation and more. The trial court dismissed the claim citing the federal common law “witness litigation privilege.” According to Gravel2Gavel, the appeals court was divided on the issue, but agreed with the trial court decision.

The Fourth Circuit stated “absolute immunity” applies to the expert witness testimony. They went further to state, “‘when a witness takes the oath, submitting his own testimony to cross-examination, the common law does not allow his participation to be deterred or undermined by subsequent collateral actions for damages.’” This is a really wordy way for the court to say an expert witness cannot later be sued for their testimony.

We also went ahead and summarized the ruling in this video:

Accident Investigation & ReconstructionEngineeringEvidence

Clemson University Floor Collapse and the Eventual Expert Witnesses

on October 24, 2018

What kinds of expert witnesses can we expect to participate in future litigation related to the floor collapse at The Woodlands of Clemson apartment complex?

Early Sunday morning, at a fraternity party in Clemson, SC, a dance floor at an apartment clubhouse became the scene of a serious accident combined with multiple personal injuries. Luckily for all involved, the injuries were not life-threatening.

There were several videos of the accident. One came from Twitter user @PJG116 and another video post in a response by Twitter user @StevieW21 (still shot above also from the video), which provides us some interesting evidence to analyze in order to anticipate the potential legal issues which may necessitate expert witness opinions in future litigation. Here is the video from @PJG116: 

The video, according to Twitter, has been viewed more than 8 million times at the time of this writing. As an aside, the video seems to have been recorded using Snapchat and then uploaded to Twitter. It is an excellent piece of recorded evidence for our purposes.

The video provides us with a significant number of issues to consider, so I have limited my analysis. To my lawyer-friends, I’m certain you will identify issues I have missed. Please feel free to discuss those in the comments.

Premises Liability:

As this took place at an apartment complex, we are instantly interested in topics of premises liability (i.e. liability to the landowner/manager when an injury occurs on their property). In this case, we would need to determine if there was any negligence on behalf of the apartment complex.

It would be important to look at the use of this clubhouse in the past. Was it often used for college parties? Was it foreseeable a fraternity would have a dance party? Was it foreseeable a dance party would include jumping up and down? Certainly, I think the answer to all of these is yes, all were foreseeable.

There are defenses to premises liability. Common defenses include assumption of the risk, contributory negligence, and comparative negligence. Was the apartment complex informed about the number of party-goers? Did the event planner (who was likely a tenant) provide the appropriate information about the size of the party? Did the party exceed the occupancy capacity of the clubhouse? There may be negligence on behalf of the event planner (i.e. fraternity) which may have contributed to the accident. Certainly, the apartment complex will be arguing they were not at fault.

When premises liability causes of action are involved, it is not uncommon to involve a premises liability expert witness to opine on whether one or more parties met their standard of care. In this case, I anticipate it’ll be an expert with apartment property management experience.

Does the school or fraternity have any liability?

Early news reports indicated this was an off-campus event promoted by a fraternity. However, since those early reports, we have discovered the school was reviewing security camera footage. So there are some questions about whether the school is responsible for the apartment complex. Otherwise, I’m not certain how they got access to review the security footage.

Additionally, the fraternity may have rented the clubhouse for the event? Or, a fraternity member who lived at the apartment complex may have had access as a result of being a tenant. Fraternities generally have to hold liability insurance. It may turn into a dispute between the school and the fraternity as to who is responsible for the accident. Did the fraternity sign a release of liability to use the space? Did they misrepresent the intended use? Any misrepresentation may help relieve the apartment complex or school from their potential negligence.

Structural Integrity, Failure Analysis & Construction Materials:

One of the evidentiary matters likely to arise in a premises liability action is the durability, construction and intended use of the damaged part of the clubhouse.

In this Associated Press brief we are told “Clemson planning and code director Todd Steadman said there was an occupancy limit of 135 people for the upstairs portion of the clubhouse that collapsed. He says the school is reviewing security video to determine how many people were on the floor when it failed.”

There are a couple of interesting aspects to the above quote. We immediately know people are looking into the building codes and occupancy issues. If the upper portion of the clubhouse met the codes, that is helpful to the apartment complex that they met their standard of care for a safely constructed building.

In a future litigation over personal injuries stemming from this accident, I see structural engineers being brought in to analyze the construction, applicable building code sections, and cause of the failure. Knowing what caused the floor collapse and how it may have prevented will play a role in assigning liability.

Now, I’m not a structural engineer, but one thing I do know, is that vibrations can impact the stability of a platform. If you have 40 or 50 people jumping in unison, the combined impact and vibration are going to have a more significant impact than 135 people walking around.

Also, there will need to be some inspections of the collapsed material. Was there rot in the wood? Was there a termite infestation? Were there any other issues with the building materials? Did the apartment complex know, or should they have known, about any substandard materials used to construct the floor?

If the complex finds there is something off about the construction of the floor or if the materials used didn’t meet code standards, they may be able to bring the builder in as a co-defendant.

So there you have it. I see the following as potential experts in future litigation:

  • Premises liability / property management expert
  • Structural engineering or failure analysis expert
  • Construction, building codes, and construction materials expert

I know, this sounds like a lot of experts. There may be one expert capable of analyzing several of the issues outlined above.

As usual, this is a brief analysis. Premises liability being the glaring cause of action in this case. For those lawyers who will inevitably read and decide I missed an important issue… I agree. This was not intended to be a full and complete analysis of causes of action. Please comment below!

 

 

EvidenceExpert WitnessExpert Witness Testimony

Florida Supreme Court Says ‘No’ to Daubert Expert Witness Standard

on October 17, 2018

Since 2013, Florida has been the center of a battle over admissibility standards for expert witness testimony.

Prior to a move by the legislature in 2013, Florida followed the Frye Standard (i.e. general acceptance test). This test is considered a more lenient in allowing for expert witness testimony.

Normally, this standard is preferred by plaintiff’s counsel and disliked by defense counsel. Much like the “general acceptance test,” my last statement is a generalization.

In 2013, the Florida Legislature passed a law changing the admissibility standard from Frye, to the federal standard commonly referred to as Daubert Standard. Rather than the general acceptance test, the judge as the gatekeeper, would apply a multi-pronged test to analyze the admissibility of expert evidence. Here are the prongs per Cornell Law:

  1. whether the theory or technique in question can be and has been tested;
  2. whether it has been subjected to peer review and publication;
  3. its known or potential error rate;
  4. the existence and maintenance of standards controlling its operation;
  5. whether it has attracted widespread acceptance within a relevant scientific community.

Most of our members are familiar with the Daubert Standard because it is the standard used by federal courts and more than three-quarters of US states. Naturally, my home state of California still uses Frye because we always want to do things a little differently. Well, according to the Florida Supreme Court ruling this week, Florida likes to do things differently as well.

To summarize, the Florida Supreme Court found the law implementing the Daubert Standard to be an unconstitutional infringement on the court’s authority by the legislature.

The decision was covered by CBS Miami, and the most pertinent part is as follows:

“We recognize that Frye and Daubert are competing methods for a trial judge to determine the reliability of expert testimony before allowing it to be admitted into evidence,” Justice Peggy Quince wrote in the majority decision, joined by justices Barbara Pariente, R. Fred Lewis and Jorge Labarga. “Both purport to provide a trial judge with the tools necessary to ensure that only reliable evidence is presented to the jury. Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used. With our decision today, we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.”

It was a 4-3 decision by the Florida Supreme Court and the Chief Justice offered an impassioned dissent. For our members practicing in Florida, the law is clear, the Supreme Court has decided Frye is the appropriate standard for Florida.

Demonstrative EvidenceEvidenceExpert Witnesslegaltech

3D Printed Demonstrative Evidence: Expert Witness & Lawyer Insights

on June 19, 2018

Additive manufacturing, also 3D printing, is revolutionizing the creation and development of products. According to Oxford Dictionaries online, 3D printing is defined as, “The action or process of making a physical object from a three-dimensional digital model, typically by laying down many thin layers of a material in succession.” Essentially, you’re making a computer generated three-dimensional solid object.

Are you wondering what type of solids objects one could make? Here are just a few items I’ve found from searching the Internet: bottle openers, sun glass holders, wheelchair ramps, fighter jet parts, concept cars, guns, prosthetic limbs,  jewelry, medical devices, and more.

For our purposes, some of the most interesting uses of 3D printing come in the forms of demonstrative evidence, such as crime-scene reconstruction, accident reconstruction, anatomical recreations for medical malpractice, and product recreations for in product liability cases.  I am certain we will see more uses as the technology progresses, but these seem to be the stand out items in the legal community at present.

3D Printing and the Law:

For a little background, I’ve pulled together some examples of 3D printing uses and their interaction with the law.

An article from 3Dprint.com, discusses a Canadian firm who creates 3D demonstrative models for criminal, medical malpractice, and personal injury cases. The article explains the 3D printed evidence provides a different visual and persuasion experience for jurors. It improves juror memories where verbal or written presentations may fail. A representative for the company featured in the article claims, “the credibility and memory bias problems inherent in courtroom proceedings can be overcome with visual aids.” The company further cited some of their own experiences, “such as 3D printing a broken spine from x-ray data in order to graphically reveal the severity of the injury or using a 3D, PDF image to show the degeneration of a hip in a medical malpractice case as ideal uses for their technology.”

There are other legal issues related to additive manufacturing. For example, if you have access to a 3D printer and you want a Mickey Mouse toy for your kids, what keeps you from creating your own? What if you want to create a bunch of Mickey Mouse toys and sell them to local retail establishments? According to this article from Intellectual Property Watch, you can do just that.  “3D printing technology makes it easy to copy and reproduce products – even if they are protected by a patent, trademark or copyright. It is as simple as downloading a computer-aided design (CAD) file, which can instruct the printer to reproduce a 3D object. CAD files are digital, meaning they can be shared across the internet, just like movies and music.” This article elaborates on the risks to intellectual property:

“The commercialisation of 3D printing – with an increase in small scale manufacturers – makes policing IP complex. Each printed copy of an invention represents the loss of a potential sale to its patent holder. As the manufacturer is ultimately the end user, it is harder to prove infringement. To sue, the patent owner would need to be aware that a manufacturer is using a 3D printer to reproduce their patented invention – a tall order given that 3D printers are increasingly common in households and small businesses.”

Certainly, this is a concern for those who are regularly creating patented and trademarked products.

Law enforcement is another area where 3D printing seems to receive significant news coverage. It seems police are using the technology to recreate crime scenes and even construct printed skeletal reconstructions for unidentified victims. In an article on PoliceOne, I discovered an effort by Maryland State Police to identify a homicide victim whose body was discovered after significant decomposition. Here is the process described on PoliceOne:

“By using 3D printing technology, scientists could create a replica of the skull, enabling police experts to render a facial likeness of the victim, which could lead to an identification… From a 3D printed model, experts can examine the bone structure to predict how facial muscles and skin would lay on the skull… With a rendering of the victim’s facial likeness, investigators hope for someone to come forward and identify the body.”

In an article from the National Post, I found that the Royal Canadian Mounted Police (RCMP) are using 3D printing technology to reconstruct automobile accidents. The article which came out early this year just after the RCMP purchased their first 3D printer explained, “The printer would be used by the B.C. RCMP’s integrated collision analysis and reconstruction service (ICARS), which specializes in forensic reconstruction of collisions that cause serious injury or death. It would be used in conjunction with the unit’s existing 3D scanning technology, which it uses to create digital images of accidents.”

The above descriptions of 3D printing in the legal community are just a few examples. I wanted to give you a taste of the different areas of law being impacted by 3D printing.

Now, how about we get some input from an expert witness using the technology? Someone with experience related to 3D printed demonstrative evidence.

Marc Glickstein, MD, FACR – Medical Demonstrative Evidence Expert Witness

Dr. Marc Glickstein, is a partner in a large private practice radiology group, on the senior medical staff of 8 area hospitals, and an assistant clinical professor of Radiology at University of Connecticut School of Medicine. With his medical background and experience in photography, Dr. Glickstein specializes in providing medical demonstrative evidence to attorneys in personal injury and medical malpractice cases. You can learn more about Dr. Glickstein by visiting his website: medivence.com.

I posed several questions to Dr. Glickstein. Even with all of his experience, he has only used 3D printed evidence in two trials. This is not surprising given how few cases make it to trial these days. Nevertheless, the technology is impressive and is likely to be used more frequently in the future. Here are the questions and answers:

Nick: How long have you been working with 3D printed evidence?

Dr. Glickstein: 3 years.

Nick: What are the most common types of 3D printed evidence that you see in litigation?

Dr. Glickstein: 3D is best for depicting fractures although it can also be used to show tumors, birth defects, post operative complications (generally orthopedic).

Nick: Do you find 3D models to be more compelling evidence than other demonstrations?

Dr. Glickstein: Yes, because they can be viewed in real-time and the jurors can actually hold the model in their hand and have tactile as well as visual input which makes the experience more real and memorable.  It can also be more visually compelling to see the abnormality in 3 dimensions.

Nick: What types of 3D printed evidence have you used to assist in your expert analysis?

Dr. Glickstein: It has been limited to cases of bone fracture at this point but there is no reason why other types of modeling such as tumor modeling could not be used.

Nick: Can you share any examples of 3D printed demonstrations that were critical to the outcome of a case?

Dr. Glickstein: The photos I gave you (see below) were used to illustrate the severe nature of the spinal vertebral fracture and clearly showed the jury that there was significant spinal compression.  They clearly understood this but the verdict went to the opposing side for other reasons, too detailed and arcane to present here.

spinal-fracture-1.JPG

spinal-fracture-2.JPG

Nick: In my mind, I’m thinking 3D printed models are going to be incredibly expensive. Can you give us an idea of costs for 3D printed evidence?

Dr. Glickstein: 3D is expensive and that is the main hurdle. Many attorneys do not appreciate the compelling nature of such modeling and the costs can be dissuasive. The materials alone can run $1-2000 and that does not take into account the time needed to work out the display. This also does not factor in the costs of the 3D printers which are usually rented on a per click basis by a company that does the modeling, and high quality 3D printers can cost over $100k. A model can cost between $2500-4000 for the final product.

Nick: As an example, how long would it take to create a 3D printed model of a human heart?

Dr. Glickstein: It really does not matter whether one is making a model of a fracture or the heart…the time is similar and in general it should take a couple of weeks for me to create a model from time of receipt of the images to delivery of the finished product.

Nick: Anything else you think the legal community should know about 3D printed evidence that I have not asked…

Dr. Glickstein: 3D modeling quality is dependent on the parameters used in the original imaging, which must be of high enough resolution to enable high quality reconstructions in 3D, just as is the case in 2D or digital 3D reconstructions.  If a study is not of high enough resolution, it is not going to enable one to generate an acceptable rendition.  A radiologist can make that determination upon viewing the study itself.

There you have it. Direct from the expert who has used 3D models in litigation. The costs dissuade consistent use of this demonstrative evidence. However, this will not always be the case. As the technology progresses, costs will decrease, making 3D models will be less cost prohibitive. With the potential to show a jury the extent of an injury and allow them to hold a perfectly scaled replica, I predict the demonstrative models will be commonplace.

For greater insight on the future of this evidence, I reached out to one of the most tech savvy lawyers I know.

Morris Lilienthal, Esq. – Huntsville Alabama Wrongful Death and Personal Injury Attorney

Morris Lilienthal is a civil trial lawyer with more than 14 years of experience in wrongful death, personal injury, and product liability matters. He practices in Huntsville, Alabama with Martinson & Beason, PC. Morris is also the host of the TheMoShow, where he interviews local and statewide leaders, sharing stories of their business, public, and charitable endeavors. Prior to law school, he attended Maryville College in Tennessee where he played offensive tackle on the football team. The same competitive nature that helped Morris excel on the field helps him in his representation of injury victims today.

I know a lot of lawyers and I reached out to a bunch of them. It may be no surprise that none of them have yet used 3D printed demonstrative evidence in trial. Although, most of them knew of lawyers who had. This area of demonstrative evidence is growing and we’re sure to see it in the future. I asked Morris some questions about the potential use of 3D printed models at trial. Here they are:

Nick: Have you used 3D printed demonstrative evidence in litigation?

Morris: I have not used 3D printed models yet.

Nick: Would you find it helpful to present a 3D model to jurors to show the extent of an injury?

Morris: Yes, I think a 3D model would be very helpful in trial.  Anytime you put the jury in a position where they can visualize what’s occurred the case goes from just something that’s abstract to real life.  The jury gets a real understanding of what injury the plaintiff suffered and can then understand how the injury may impact them. As the saying goes a picture speaks a thousand words.

Nick: Do you think it would be good for jurors to be able to hold and analyze an exact replica of an injury (skeletal damage, damaged organ, traumatic brain injury)?

Morris: Yes.  Again it allows the jury to understand how the accident at issue caused the injury and how the injury impacts the plaintiff.

Nick: Besides current costs, is there a reason you might avoid using 3D printed demonstrative evidence?

Morris: Authentication by the doctor.  Before the model is able to be introduced into evidence you will have to get the doctor to validate its a true representation of the plaintiff’s injury.  This, can be done by sending the doctor the model prior to his/her testimony for authentication. However if the model is not accurate it will have to be made.

Nick: Are there any other items you think lawyers should take into consideration before using 3D printed evidence?

Morris: Just make sure the jury understands this is the exact injury the plaintiff suffered and that it’s not a model.

As this evidence is more commonly used, we will bring you more insights and suggestions from the experts and lawyers using the evidence at trial. Keep an eye out for the 3D printed demonstrative models. If they have not yet, they will be coming to a courtroom near you!

 

 

 

Criminal JusticeEvidenceExpert Witness

Golden State Killer, Part 3: Defense Concerns about Tainted Memories

on June 6, 2018

“Few rights are more important than a right to a fair trial.” According to this article, in The Mercury News, these words were spoken in court last week by attorney David Lynch, defense counsel for James Joseph DeAngelo, the alleged Golden State Killer. Mr Lynch is right. His words are of the utmost importance. So important, in fact, we spend significant time in law school learning criminal justice and rights of the accused. As I recall, there were at least two courses dedicated to the subject entirely: Criminal Law and Criminal Procedure. Other courses are substantially related to the topic, i.e., Evidence and Constitutional Law.

Even for the worst criminals accused of the most heinous crimes, we have to offer a fair trial. It should remain a priority for a civil society. I, for one, would rather a guilty person go free than an innocent person be imprisoned. I feel the readers pulling away from me at this point. You may be asking, “How can you say that about the Golden State Killer? Have you read about his crimes?” Yes, I have, and I understand the emotions tied to convicting him. In fact, if Mr. DeAngelo has committed the crimes he’s accused of, I want him convicted. However, I want him to have a fair trial and I expect the prosecution to prove their case. That’s the law and it should be followed. If proper procedures are followed, it also avoids the case being overturned on appeal.

For our purposes, David Lynch provided an even more interesting statement in court last week. Mr. Lynch said, “When you have an old memory, it can be tainted if you get new information.” The Mercury News elaborated on his concern:

“Lynch estimated 16,000 articles were written about the Golden State Killer online, including more than 100 by the local Sacramento newspaper within two weeks of DeAngelo’s arrest. He said releasing information could affect witnesses’ memories and hurt the jury selection process.”

Based on my experience working with expert witnesses, I know there are immense concerns about matters such as eyewitness identification and witness memory. I mention the two together because memory can impact identification.

In the Golden State Killer matter, we have no publicly available information of an eyewitness identification (no reporting about photo identification or line-ups). Nevertheless, we do have many eyewitnesses to the crimes (including over 40 rape victims). As such, Mr. Lynch is probably concerned about other memories associated with the crimes. Such as physical attributes, physical description, verbal interactions, time of day, weather, residential layout, and more. Defense counsel doesn’t want new information released to the potential jury pool, victims, and other witnesses that might create false memories about which they may later testify.

Allyson Kacmarski – Criminal Defense Lawyer – Wilkes Barre, PA

To help our readers understand the concerns of David Lynch, I thought it was important to get some further input on memory concerns from a practicing defense attorney, so I reached out to a friend who practices criminal defense in Pennsylvania.

Allyson L. Kacmarski is a former public defender and former Assistant District Attorney who is now in private practice in Wilkes Barre, PA. Her firm is a full-service criminal defense and family law office serving clients in Wilkes-Barre, Luzerne County, and throughout northeastern Pennsylvania. Allyson does some spectacular work connecting and educating clients via her Instagram account. You can learn more about her practice by visiting attorneyallyson.com.

I posed some questions to Allyson and she provided some very detailed answers regarding her concerns about witness memories.

Nick: From a criminal defense perspective, what concerns would you have about information impacting witness memories?

Ms. Kacmarski: I like to believe that a witness’ memory is best right after the crime occurs. Think about this in your own life. When you tell a friend a story, the story has more details when you share this story within hours or days of the incident occurring, rather than months or years. Allowing an alleged victim or witness to read newspaper articles or portions of police reports can definitely impact the way a person recalls the incident. It’s always a cause for concern when a witness testifies at trial to details that were not contained in the original statement to the police. The question becomes, where did the witness get this “new” information from? Was it the newspaper? Maybe it was during witness prep with the police who are now providing information to the witness by asking questions that this witness did not know the answer to originally. Most people want to help the police and “catch the killer,” so there is definitely an innate pressure to agree with the police when they asked leading questions such as, “isn’t this the gun that the suspect had?” A person may say, “Oh, yes” even if he/she doesn’t remember because he/she doesn’t want to make the police mad or blow the case and let the killer go free. When you hear something enough, anyone can start to believe it is real and true, even if it’s not.

Nick: Does the defense attorney for the Golden State Killer have a valid concern about “tainted” memories?

Ms. Kacmarski: Yes, but this concern applies to any criminal case, not just the Golden State Killer. The pressure is always on in any case for a witness to testify successfully to facts that will show the Defendant is guilty of the crime as charged. For example, in criminal cases involving the testimony of a child, the court may have a taint hearing to determine if the child’s memory has been compromised by outside influences, such as a parent flat-out telling the child what to say or maybe it’s bad questioning or suggestive questioning by an interviewer that affects the child’s memory. The point is, whether it’s reading details in a newspaper article, talking to the police about the case during an interview, or even a witness discussing the incident with family or friends, taint could always occur. Providing a witness with information and details that he/she did not initially disclose to the police, can always lead to a defense attorney questioning how accurate the witness’ memory truly is.

Nick: In your experience, are witness memories reliable?

Ms. Kacmarski: Maybe yes… Maybe no. For me, reliability can be influenced by outside factors. For example, a witness may distinctly remember all the details of an event because it was unique or odd or something stood out that he/she would never forget. Maybe it’s something about the way a person spoke, or looked, or acted or dressed that made the incident not only memorable, but ingrained in the witness’ brain. I also think the length of time a witness interacts with a person can affect the memory. If the interaction is short, say seconds or minutes, how many details will a witness be able to recall when he/she has very little time to observe the other person. Speaking of interaction, things like a gun being present and used during an incident can greatly impact the reliability of a witness’ memory. Often times, the witness is so focused on the gun, he/she may not remember anything else about the incident.

Nick: With no current reports of eyewitness identification, what types of memories might defense counsel be concerned about tainting? (i.e. times, dates, physical attributes of the suspect, weather, physical layouts of a residence).

Ms. Kacmarski: My biggest concern as to taint would be the physical appearance of the suspect. Without someone describing the height/weight, skin color and complexion, even hair color, the identity of the suspect is unknown. In the Golden State Killer, the news has reported it was the DNA that led to the arrest. Once he was arrested, the Golden State Killer has been all over the news. It is very easy for a witness to see this guy in the news and say, “yes, that is him, I remember that face.” If the original statement fails to detail the suspect’s face or some outstanding facial characteristic, the concern is now the news has tainted the identification of this witness.

Nick: With a case of this magnitude (crimes across the state) would you be worried about the heavy press coverage impacting witness memories?

Ms. Kacmarski: Heavy press coverage can always impact a case. First, let me just say this, and no offense to the news community. But what you read in the newspaper is not always what really took place. I can say from my own personal experience because I have read articles “quoting” statements I made during a trial and guess what … I didn’t say it or it was taken completely out of context. The point is, when people read something in the newspaper he/she thinks it is 100% true. Since we can’t stop a witness from reading the newspaper, or should I say searching the internet, we can’t control how reading a statement from the police, containing information from various witnesses all combined, as well as details about evidence collected can cause the memory of a witness to “change.” And let’s just say, seeing the picture of a person in handcuffs, in prison garb, being escorted by the police, can do a lot to a person’s memory as to who he/she believes the “killer” is. Seeing a person’s face and image enough times, when he/she is in police custody, can taint the person’s memory as to physical appearance and details, especially if this takes place prior to the police showing the witness a photo line-up.

Nick: Can you provide any examples from your own practice about faulty witness memories?

Ms. Kacmarski: Examples of faulty witness memories:

  • In an attempted homicide case, a victim, who was shot in the back of the head, testified that he/she remembered what the gun looked like and then he/she described the gun to the jury. I asked the victim, “How do you know what the gun looked like, if you were lying face down on the ground?” The victim said, “Because the police told me about the gun.” I immediately asked “what?” The victim said “he/she couldn’t remember details of the incident, specifically the gun, so he/she asked the police and the police told him/her.”
  • Right after a crime happened, the police arrive and within approximately 2 hours of the crime occurring, the police interview a witness who says, “I saw a man walking down the street with a tan coat and a gun.” Approximately 11 months later, after TV and newspaper articles, the witness tells the police when he/she is served with a subpoena for trial, “Oh yeah, that guy I saw, he is my neighbor and we have talked before this.” Fast-forward to trial, the witness says, his/her next door neighbor told him/her that “the guy lives across the street” and by the way, there was no talking, just a “Hi.”

Nick: Is there any other information you would like to provide about witness memories in regards to criminal defense matters?

Ms. Kacmarski: When looking at a witness’s memory of an incident, I like to look at all the surrounding factors that can impact the memory.  In my opinion, things like the lighting, the time of day, was there a weapon involved, was the person under the influence of drugs and/or alcohol at the time of the incident, all count and can impact how a witness remembers an event.  How about this: Does a person wear contacts or glasses and did he/she have them on during the incident? Looking at these factors, just to name a few, are key and can ultimately allow the defense to pick apart a witness’ statement show whether there has been taint.

Now that we know a little more about the concerns of defense counsel when dealing with witness memories, let’s hear from an expert about the reliability of such memories!

 

What do the experts have to say?

Now that you know the concerns of defense counsel in the Golden State Killer case, you may be wondering about the science behind tainted memories. If so, you’ll have to wait for another post on the subject in the near future. One of our members, a forensic psychology expert witness, is busy answering a litany of questions on the topic. As a primer, you may wish to read these articles on the related topic of faulty eyewitness identification.