Category: Expert Witness

Conflict between Ukraine and Russia, male fists - governments conflict concept
EconomicsExpert WitnessInternational TradeSecurity

Experts Weigh In on Crushing Russian Trade Sanctions

on March 22, 2022

After nearly a decade of deep-seated tension between Russia and Ukraine, Russia commenced its invasion on February 24th, 2022. According to the Wall Street Journal, the attack is “President Vladimir Putin’s most aggressive move yet to redraw the boundaries of the former Soviet Union since the end of the Cold War more than 30 years ago.” During the last two weeks, Russia has strategically strengthened its forces in four major Ukrainian cities: Kharkiv, Mariupol, Kherson, and the capital of Kyiv. Putin has also threatened Volodymyr Zelensky, Ukraine’s President, with annexation. Due to the bombings, air raids, and the Russian army pillaging the country, Ukrainian citizens are fleeing their homes seeking refuge in Poland, Hungary, Slovakia, Romania, and Moldova. NATO members have responded to this unjustified attack by imposing financial and trade sanctions against Russia. This blog post will delve into the purpose, logistics, and violation penalties of trade sanctions. Insight has been provided by Experts.com Members and International Trade Experts, Jo-Anne Daniels and Rosemary Coates.

When warfare is mentioned, people tend to imagine soldiers fighting on the battlefield or the vast array of weaponry used to defeat enemies. As the world continues to develop, the modern concept of warfare seems to become more complex and multifaceted than in previous years. Rather than physically attacking countries, world leaders can choose to affect their enemy’s economy and trade deals through sanctions. Regarding the United States, Ms. Coates notes, “Sanctions are often used when America chooses to protect sensitive technology or punish a country for violating certain laws… When sanctions are applied, licenses for export are denied to the sanctioned country and the goods may not be shipped there.” In this case, Russia’s attack on Ukraine has prompted President Biden and other international officials to order trade sanctions to denounce Putin and cripple his economy to such an extent he can no longer continue his attack.

A couple reasons explain why various NATO members like the United States, Germany, and the United Kingdom have imposed sanctions rather than use military force, even to their own disadvantage. The first reason is Russia’s influence on European trade. A statistic from the European Commission states, “The EU is Russia’s biggest trade partner, accounting for 37.3% of the country’s total trade in goods with the world in 2020.” To add, Russia accounts for 26% of the EU’s oil imports and 40% of the EU’s gas imports. A physically combative response to the invasion would be potentially disastrous considering Russia’s nuclear capacity. Sanctions are the lesser of two evils because Europe relies on Russia’s export of oil and gas. They have chosen to endure financial damage over a possible bloody war. Although the United States is not heavily reliant on Russia for trade, it has followed suit by implementing trade sanctions. Ms. Coates stated, “all trade with Russia (except food and medical supplies) is now stopped.”

Another explanation centers around Ukraine’s relationship with NATO. The North Atlantic Council acknowledged Ukraine as an Enhanced Opportunities Partner on June 12th, 2020 (NATO). Since Ukraine is a partner and not an actual member, NATO’s Collective Defense pledge, specifically Article 5 of the Washington Treaty stating “an attack against one Ally is considered an attack against all Allies,” is an inapplicable solution to the country’s plight (Washington Post). Given the Russian government’s unpredictable nature, the possibility of Article 5 being invoked will not be discounted since multiple NATO allies border both Russia and Ukraine (ABC News).

The repercussions of the Kremlin’s actions have significantly impacted the country’s economy and lifestyle to their detriment, alluding to these sanctions’ effectiveness. These sanctions catalyzed a mass exodus of multi-billion-dollar companies from Russia. These corporations include but are certainly not limited to American Airlines, General Motors, L’Oréal, Shell, John Deere, Goldman Sachs, McDonald’s, Starbucks, PepsiCo, Airbnb, Marriott International, DHL, Netflix, The Walt Disney Co., Mastercard, Pfizer, Deloitte, Amazon, Apple, and even Google (NBC News). Russian athletes are also affected by Putin’s decision to invade Ukraine. Professional tennis player, Daniil Medvedev, currently ranked No. 2 by the Association of Tennis Professionals (ATP), may have to condemn President Putin if he wants to participate in Wimbledon (CNN). Another example is Nikita Mazepin’s firing from the Formula 1 racing lineup due to his father’s connections to the Russian government (Washington Post). Various outlets have reported Russia’s occurring financial losses will take decades to recover. “It’s pretty clear that Russia will become poorer and more technologically backward, the choices for its citizens will be radically diminished and for many, many years to come,” a quote from The Hill. The Russian citizens suffer different consequences because of Putin’s actions. The hope is that they put pressure on Putin, so he decides to halt his malicious efforts to usurp Ukraine. However, that is not an easy feat in a totalitarian society. Al Jazeera confirmed Putin had arrested more than 4,300 people at Russia-wide anti-war protests. For now, sanctions will continue to be issued by the international community.

Two government agencies are responsible for establishing sanctions in the United States. The first is the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC). OFAC deals with the authorization of economic and trade sanctions related to national security and foreign policy. The agency mainly targets any entity with a motive to antagonize the United States. OFAC releases an account of Specially Designated Nationals (SDNs) when a sanction is issued. Ms. Daniels explains SDNs are “companies owned or controlled by, or acting for or on behalf of, targeted countries.” Non-country-specific parties like narcotic traffickers and terrorists are also included in the report. For example, since Biden ordered sanctions against Russian banks and oligarchs on February 23rd, 2022, the assets of said banks and oligarchs are blocked. Any U.S. company that willingly or inadvertently conducts business with sanctioned entities will receive penalties, which will be explained in detail later in the post.

The second agency is the U.S. Department of Commerce & Bureau of Industry and Security (BIS). BIS manages U.S. export control policies for three categories: software, technology, and dual-use commodities (i.e., global positioning satellites, missiles, thermal imaging, etc.). According to Ms. Coates, “the export of technology or military items require more formal individual licenses.” As an agency also allowed to administer sanctions, BIS also releases a Consolidated Screening List (CSL) compiled of parties. The U.S. Government holds restrictions on specific exports, re-exports, and transmission of items. Ms. Daniels mentioned the BIS simultaneously issued sanctions against Russia and Belarus, allied with Russia, under the Export Administration Regulations (EAR) and licensing policies to defend U.S. national security. “Furthermore, the new BIS policy regarding the export, re-export, or transfer (in-country) of items that require a license for Russia or Belarus is under a policy of denial with certain limited exceptions. This means that if the export license is denied, the company must cease exporting its products to those countries,” Ms. Daniels stated. Although there are two agencies responsible for establishing sanctions, a third party wields this same power.

As previously mentioned, the President of the United States can also order sanctions against threatening companies, individuals, and countries. If sanctions are summoned through Executive Orders, they are established immediately. Otherwise, there will be a pause. For example, an Executive Order was made on March 8th, 2020, which banned both imports and investments with Russia. Because it continued to sabotage Ukraine’s sovereignty, the United States prohibited products such as “crude oil, petroleum fuels, oils, and products of their distillation, liquified natural gas, coal, and coal product of Russian Federation origin,” said Ms. Daniels. She adds that any written contract or agreements submitted before March 8th, 2022, will be authorized through 12:01 A.M. Eastern Daylight Time on April 22nd, 2022. According to Ms. Daniels, “The General License is available up to April 22nd, 2022, and then the Executive Order issued March 8th, 2022, takes full effect.” With the continuing invasion, NATO countries will issue sanctions to limit Putin’s efforts in undermining Ukraine’s independence.

Companies that violate OFAC and BIS regulations can be subject to civil and criminal punishment. These penalties range from paying hefty fines to serving jail time. Ms. Daniels provided examples of two different companies that have broken regulation policies for both agencies:

  • OFAC: Pennsylvania-based software company, SAP, paid $2,132,174 as a settlement for potential civil liability for 190 OFAC violations. The company was exporting software to Iran, a U.S.-sanctioned country.
  • BIS: In 2014, the Virginia-based business, Patriot 3 Inc., traded maritime jet-boots to the Russian Government Federal Guard Service without an export license. Last year, BIS charged the company for violating this rule of the Export Administration Regulations (EAR). Patriot 3 Inc. agreed to pay $200,000 as a penalty. If Patriot 3 Inc. is untimely with its settlement, the BIS will invalidate its export privileges for two years.

To avoid unintentionally breaking the law, both agencies implore businesses to be vigilant of export regulations, entities classified as SDNs, and parties on the CSL.

The full extent of economic and trade sanctions against Russia are yet to be seen. However devasting they may be, for Russia and its population, does not compare with the death and destruction that has already occurred in Ukraine. A special thank you to International Trade Experts, Jo-Anne Daniels, and Rosemary Coates for their contribution to Experts.com’s latest blog post.

AdvertisingExpert WitnessMarketing

Super Bowl LVI: How COVID-19 Has Influenced Marketing Strategy

on February 8, 2022

It is indisputable that COVID-19 has inflicted its wrath on the United States. Americans have been impacted in ways never experienced before, pivoting from variant to variant while adjusting to ever-evolving public health guidelines from the CDC and other governing bodies. To boot, joblessness has skyrocketed, and inflation is at an almost forty-year high at seven percent. In fact, COVID has affected nearly every aspect of our lives.

Despite the daunting cons, there seems to be a light at the end of this dark two-year tunnel. The opening of concerts, sporting events, playhouses, and other in-person entertainment sites brings hope for a “new normal.” Fans around the country are getting ready to celebrate the biggest game in sports, the Super Bowl. Not just football anymore, the highly anticipated Super Bowl has become unmatched in football strategy, mid-show entertainment, and must-see sponsorships. With the help of Experts.com Member, Dr. Larry Chiagouris, Professor of Marketing, Lubin School of Business, Pace University, this blog will discuss COVID’s impact on the marketing industry and the changes, if any, fans can expect during Sunday’s game.

As a Professor of Marketing, Dr. Chiagouris is aware of the ever-changing shifts in messaging and methods businesses implement. During the pandemic, he noticed the most significant change in business-to-business (B2B) marketing. “For B2B, video sales presentations have become the norm to limit the travel expenses and exposure to COVID-19. What we are learning is that these presentations can be effective, but many marketers are still learning how to more effectively use remote sales tools. Business sales professionals have not yet perfected their game at using virtual presentations effectively.” Visual content is crucial for compelling pitches, negotiations, and overall communication when conducting business remotely. Dr. Chiagouris suggests marketing strategists direct more attention to developing high-quality content and graphics.

For business-to-consumer (B2C) marketing, branding professionals are responsible for capturing consumers’ attention and persuading them to purchase a company’s goods and services in digital and physical spaces. Dr. Chiagouris explains, “Marketers need to better understand the opportunity to reach consumers at home during the day. Because so many white-collar workers are now working from home, daytime television has become a much more popular and effective tool to reach consumers. Particularly moms and dads who are home with children and can be more easily reached during the day than prior to the pandemic.” He suspects two factors will influence marketing this year, more people than ever are working from home, and they care about their safety and security. Since national crime rates continue to climb, Dr. Chiagouris suggests that companies selling security-related products like home-alarm systems and front-door camera apps take advantage of the demand and the number of consumers constantly looking at their screens. Online delivery services will also be in high demand this year. Amazon, Walmart, and Instacart are a click away from all household needs, and Uber Eats, DoorDash, and Grubhub are not far behind with whatever suits one’s palette. Social distancing and integrating the work-from-home lifestyle has required marketers to reach a new level of innovative thinking for campaigns, more like those aired during the Super Bowl.

When the first Super Bowl occurred in 1967, it revolved around the game, the calls, and which team reigned supreme (the Green Bay Packers beat the Kansas City Chiefs 35-10). It was not until 1984 that the most significant event of the year became known for more than just an old-fashioned game of American football. Apple’s “1984” themed commercial announcing their Macintosh Computer was the Super Bowl advertisement that started the trend of “high-end” commercials fans know and love today. According to Business Insider, “Steve Jobs wanted an ad to announce the advent of Macintosh that would stop the world in its tracks.” Apple’s commercial was so successful that it made the Super Bowl the Super Bowl of Advertising from that year forward. Since then, there have been record-breaking ad costs from sponsors to out-perform their competitors year after year. Memorable commercials from Super Bowl LV include State Farm’s “Drake from State Farm,” M&M’s “Come Together,” and Uber Eats “Wayne’s World & Cardi B’s Shameless Manipulation.” An article from Variety stated last year’s Super Bowl produced approximately $545 million in in-game advertising. It is yet to be determined whether last year’s record-breaking cost will be surpassed on Sunday, but the prediction that it can is plausible for two reasons.

(Photo Credit: People Magazine)

According to Statista, during the Super Bowl, there has been a significant increase in 30-second TV advertisements from 2002 to 2021. Because it is one of the most viewed broadcasts annually, sponsors will not hesitate to pay top dollar for airtime. From the statistics, it is inferred that the total cost of in-game advertising would also increase. If this trend continues, Super Bowl LVI is set to surpass last year’s in-game advertising record.

Another component to consider regarding the Super Bowl commercials is the element of surprise. Dr. Chiagouris states that audiences, “Want to see something that they have not seen before. Commercials aired during the Super Bowl which look and feel like all other pre-game spots will not attract the attention needed, given the high cost of commercial time during the Super Bowl. More out-of-the-box thinking and creativity is needed.” These commercials are the most anticipated ads of the year. Instead of turning the channel, people anxiously wait for each new ad. Sponsors realize the more creative the ad, the more revenue for the company. The commercial content Super Bowl sponsors will adopt this year remains to be seen, but it is safe to assume they will not be COVID-19 related. “I think that consumers are fatigued regarding the COVID-19 pandemic and are ready and willing to turn the page,” said Dr. Chiagouris. As vaccines are administered, and businesses are opening again, including the Super Bowl itself, normalcy is reinstated into daily life. Super Bowl Sunday has always been a day to escape, indulge, and engage in friendly competition. COVID-related commercials would perpetuate the doom and gloom Americans are all too familiar with after two years. As Dr. Chiagouris said, sponsors would be wise to keep it lighthearted. The Super Bowl LVI: Cincinnati Bengals vs. Los Angeles Rams airs on Sunday, February 13th, 2022, at Sofi Stadium in Inglewood, California.

Emergency ResponseExpert WitnessSecurity

Astroworld Festival: Major Event Security & Law Enforcement Expert Provides Insights

on November 16, 2021

How did the Astroworld Festival go from lively and jubilant to mass casualty event? We reached out to a security expert witness to help us understand security issues for concerts and other major events.

Last week, I began preparing to write this post involving nine individuals who attended the Astroworld Festival and lost their lives in the crush of a surging wave of festival-goers. It is not an easy topic to write about, as I want to be cognizant of the loss of life and resulting trauma experienced by family and friends. Sadly, this morning, we learned of a tenth death related to the disaster. CNN reports that a 9 year old boy, who suffered injuries at the festival, passed away in the hospital yesterday.

In writing about a tragedy of this magnitude, I have to clarify that I only do so with publicly available information that has been reported in the news. The facts may change as more information becomes available. To that end, those to whom I conduct a question and answer style blog post are also limited to publicly reported information.

Astroworld Festival Background:

According to Wikipedia, the Astroworld Festival “is an annual music festival run by American rapper Travis Scott, held in Houston, Texas, at NRG Park, near the former site of Six Flags AstroWorld. The festival was first held in November 2018.”

The festival this year was held on Friday, November 5th, 2021, at NRG Park in Houston, Texas. It has been alleged that approximately 50,000 people attended the event on November 5th, though there may have been more as the venue, NRG Park, is said to be able to house up to 200,000 attendees according to Vulture, who has done a really good job of explaining how the event unfolded.

There were indications the crowd was going to be problematic from early in the day. One ABC reporter, Mycah Hatfield, said that there was a stampede of people who burst through the gates and trampled the VIP entrance at 2:00pm.

Once Travis Scott took the stage, as Vulture describes, “all hell broke loose.” One attendee was quoted saying, “All of what is to be 50,000 people ran to the front, compressing everyone together with the little air available.” This is what I understand to be a crowd surge.

The crowd surge, compression of individuals, and trampling, all appear to have led to the result of dozens injured and now ten people deceased. As this is going to result in significant litigation, with some lawsuits already filed, I decided to get some insights on how a concert could go awry by reach out to one of our law enforcement and security experts with experience and knowledge in major event security.

Law Enforcement, Security & Premises Liability Expert Witness:

Joseph “Paul” Manley, WVTS, CCIS, Principal at Risk Mitigation Technologies, LLC, is Board Certified Workplace Violence & Threat Specialist (WVTS), a Certified Crisis Intervention Specialist (CCIS), and a Board Certified Homeland Protection Professional (CHPP).

Prior to forming Risk Mitigation Technologies, LLC, Mr. Manley served a distinguished career in law enforcement and public safety. He has over 30 years of experience in Security Management and Law Enforcement and Security consulting, including physical security, security operations, regulatory compliance, and security training. He is currently a retired Lieutenant and Executive Officer for a Massachusetts Police Department. You can learn more about his practice at: riskmitigationtechnologiesllc.com.

I asked some questions and Paul Manley provided some excellent and thorough answers to these questions. Please see our conversation below.

Nick Rishwain: We understand, from reporting, that the Astroworld investigation is highly active. How does law enforcement investigate a mass casualty event? Can you tell us a little about the processes involved in such an investigation?

Paul Manley: In an initial response to a mass casualty incident (MCI) where no criminal involvement is present, the Fire Department will have the initial Incident Command responsibility. The local fire departments are very proficient in the handling of Mass Casualty Incidents. Most fire departments hold continuous MCI drills and have extensive equipment and supplies to manage mass casualties.

There are four specific things that Law Enforcement can do to assist the fire department in their management of an MCI. These jobs in the MCI Protocol for Law Enforcement are:

  1. Crowd control
  2. Traffic control
  3. Contact coroner
  4. Criminal investigation

The initial critical decisions for the first responding law enforcement personnel at an MCI will be is this a criminal event? And are suspects still on scene?

Regardless of your first impressions of how the MCI was caused, officers should immediately begin a basic preliminary investigation during the first few minutes of the law-enforcement response.

Also, a law enforcement officer will immediately go to the Fire Command Post and accept law enforcement command duties in the Unified Command structure until relieved. This will ensure that the law enforcement Incident Commander is completely up to speed on the event if we later find out a criminal act has occurred.

The reality is mass casualty events pose unique challenges to law enforcement agencies such as securing the scene, investigating the crime, working with the media on a local and or national level, helping the victims and their families, responding to elected officials, securing critical infrastructure, and providing support to both their officers and to community members as they address the aftermath of a tragic event.

Nick Rishwain: On the security side, there appears to be an issue of the crowd surging towards the stage and trampling attendees. Is this a common concern for security at an event where there are tens of thousands of people?

Paul Manley: Crowd surges are common at large events, such as concerts or festivals. However, deadly crowd surges are not common.

Nick Rishwain: How does major event security prepare for and prevent crowd surges?

Paul Manley: Event security starts with a comprehensive threat assessment, analyzing the overall threat environments associated with the event, such as its host(s), the venue/environment, known or expected attendees, sponsors, historical events and political agendas.

Crowd surges are preventable, even at large events. It is about planning, managing, and separating the crowd, so it does not become too packed. That is what should have happened at Astroworld.

Crowd separation is crucial in preventing surges and crowd crush. Use barriers to create a channel that funnels fans smoothly into your check-in point. Place visible staff members at the start of your lines to yell directions to the crowd and ask them to have their tickets and identification ready. Venues must be organized in such a way as to prevent too many people from converging in one place. The bigger the crowd, the more likely it is that something can go wrong. Your staff needs to be comfortable with managing large groups and exerting authority when needed.

There must be enough security officers to manage the event. If it could be as simple as applying a city ordinance, state law or a defined security standard out of the ASIS Protection of Assets Manual, or even a retail crowd safety guideline from OSHA, this question would hardly be as popular of an issue. Presently there are no security standards defining the ratio of patrons to security staff. In most cases, while always blending security and safety, we should not exceed the crowd manager responsibility as per The National Fire Protection Association (NFPA 101), but should we assign 1-to-10 or 1-to-100? As with most security functions, an appropriate risk assessment is the most valid solution. The big-ticket items to consider are Crowd Control & Critical Coverage.

From news reports, we understand there were 1,283 security officers for a crowd of 50,000 people at the 2021 Astroworld Festival. They were overwhelmed at entrances earlier in the day according to the Vulture article you shared, and they were overwhelmed again when Travis Scott took the stage at around 9 p.m. The combination of overcrowding, lack of crowd separation, and not enough security officers (allegedly) had deadly consequences.

Also, crowd observers should be positioned around the perimeter of the crowd, high enough that they can spot surges or crush points. When a problem is identified, the observer alerts the performer. The performer should then pause the show until the situation is under control. The power and influence of a performer at a large venue cannot be ignored. They can help security and emergency personnel do their jobs by bringing awareness to the problem.

From a mitigation point of view, to lower the consequences of a crowd surge/rush, venue design measures could be implemented, such as the removal of obstacle and bottlenecks in crowd’s movements, which could give rise to slips, trips, and falls and, in the worst case, trampling or crowd collapses in an event space. Signage should be well visible, specifying emergency exits and general wayfinding within the event location. Also, event staff and law enforcement personnel should be highly visible to ensure they can be easily seen when giving instructions in crowed areas. Enhanced security and crowd management training should ensure staff is aware of directing spectators safely during an evacuation. (“Patron Management – Event Safety and Security Risk Update …”)

Nick Rishwain: According to this article from Vulture, it is claimed that a “mass-casualty incident” was initiated but it took 40 minutes to cancel the concert. How do security and law enforcement decide to cancel an event? Then what is the process?

Paul Manley: If a crowd is in distress, then there should be a procedure in place to immediately stop that event, at least temporarily. You should have a knowledgeable team of experts who know exactly what they are doing and can identify a crowd in distress. These stop teams are well trained, are in direct communication with the performer’s representative, lighting designer and the sound engineer who understand their role and responsibility in the event of an incident.

Nick Rishwain: We know there is an ongoing criminal investigation and lawsuits have been filed. On the civil side, is this a premises liability matter at its core?

Paul Manley: Sadly, yes, tragedies like this one do not just happen; They are preventable; they are often caused by negligence and poor planning.

Again, it has been alleged that rapper Travis Scott & Astroworld organizers ignored red flags. We also understand this is not the first time tragedy has struck an Astroworld event, nor is it the first time that Travis Scott has been involved in a performance or event that ended in violence.

From what we’ve read, this concert continued as people screamed for help. It appears some patrons even begged camera operators and security guards to stop the music to no avail. As reported, the police proclaimed a mass casualty event at 9:38 p.m. local time, just over 30 minutes after Scott started his set, but the performance did not stop until 10:15 p.m., nearly 40 minutes later. The situation appears to have gotten worse by the lack of preparation by the concert organizers. For example, allegedly there were a limited number of water stations, staggering overcrowding issues in the general admission areas, as well as the understaffed and under-resourced medical team.

If the reporting is accurate, these red flags and others that materialized earlier in the day as people stormed the security gates at the beginning of the festival, should have been enough of a warning sign that the venue either needed to improve their security coverage and response or have been canceled. However, these concerns, just like the pleas to stop the show as people were dying, appear to have been ignored.

With all of this said, I reserve the right to change my answers and analysis as more information about the tragedy is released. Also, I should say that I have not analyzed the police reports or any factual analysis on the ground which could also alter my analysis.

We thank Paul Manley for his analysis based on the publicly available information related to the Astroworld Festival. We may venture back into this matter at a later date as more of the facts are solidified and because there are such a large number of parties involved, we may require analysis from additional areas of expertise.

EvidenceExpert WitnessExpert Witness Testimony

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.

Emergency MedicineExpert Witness

Emergency Medicine: Medical Malpractice Lawsuits During COVID-19

on June 16, 2021

According to the U.S. National Library of Medicine, “Medical malpractice is defined as any act or omission by a physician during treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient.” Medical malpractice is a component of tort law, which addresses professional negligence and offers reparations for civil offense. Some common examples of medical malpractice include misdiagnosis / delayed diagnosis, prescription drug errors, surgical / procedural errors, and failure to treat. However, until the recent COVID-19 outbreak, medical malpractice suits related to a pandemic have rarely been discussed. In this blog post, Experts.com aims to shed light on the topic with insight from Emergency Medicine Members, Sajid R. Khan, MD, and Vipul Kella, MD, MBA FACEP.

The COVID-19 pandemic brought about a plethora of problems for citizens, businesses, and industries all over the globe. According to Dr. Kella, “The pandemic placed enormous strain on our health systems: hospitals were operating at maximum capacity, supply shortages were well-publicized, and healthcare providers were scarce and overworked.” To add, during the pandemic, medical professionals had to simultaneously learn about the nature of the virus, its symptoms, and how it affected people of all ages. Despite the circumstances, essential workers in the medical field have abided by their ethical duty to commit no harm and to save their patients to the best of their ability. With the mystery of an unprecedented illness, and the learning curve associated with it, should the medical community be held to the same medical malpractice standard for COVID-19 as for other illnesses?

To his knowledge, Dr. Khan is unaware of any COVID-related malpractice lawsuits. However, to make a medical malpractice claim in most states, deviation from the standard of care must be demonstrated. Dr. Khan confirmed that the standard of care has frequently changed throughout COVID-19 due to the oddity of the situation. “Therapeutic recommendations change from month to month, making establishment of medical malpractice that more challenging,” he added. During the pandemic’s inception, healthcare professionals had to care for patients and prioritize their own physical well-being. Especially in populated areas like New York City, the medical community faced a scarcity of supplies. Dr. Khan, and many other Emergency Medicine professionals, have participated in a multitude of discussions about how to best select the patients who had the strongest chance of surviving. This of course is not the preferred method of treatment, but desperate times call for desperate measures. He stated, “It would be irresponsible to hold providers responsible for failing to provide optimal care to patients with such an illness.” Through the news and social media, the whole world has seen the medical community in action to help minimize the spread of COVID-19. Has the United States government taken any action to minimize the legal ramifications towards the healthcare industry? What measures can healthcare providers take to reduce the risk of medical malpractice involvement?

According to Dr. Kella, there have been a few acts passed by the federal government to alleviate the stress of the medical community. He mentions the Public Read and Emergency Preparedness (PREP) Act and the Coronavirus Aid Relief and Economic Security (CARES) Act. The PREP Act, amended by the US Department of Health and Human Services, provides legal protections to medical providers, whereas the CARES Act protects healthcare providers offering volunteer services during the pandemic against liability. “These regulations were good news for physicians as they allowed more leeway for trying to deliver care during difficult circumstances that were often out of their direct control,” Dr. Kella mentioned. Although there is protective legislation, this does not mean the medical community should not maximize efforts to minimize medical malpractice lawsuits. COVID-19 is known to advance a patients’ pre-existing or chronic disease. For instance, the standard of care has altered throughout the pandemic and, as such, Dr. Kella has suggested healthcare providers to meticulously check the documentation and routines of their patients to avoid negligence.

As the United States produces and administers vaccinations, the medical community’s knowledge of COVID-19 expands. Medical malpractice may not have played a large role throughout the beginning of the pandemic. As the days pass and perhaps more litigation arises, holding COVID-19 medical professionals to a strict standard of care, unless it is an egregious departure, could have a chilling effect on the medical community. As was apparent in the middle of the outbreak, the last outcome our country needs is fewer doctors and nurses.

ElectronicsExpert WitnessLitigation

Apple v. Epic Games Trial: What You Need To Know

on May 19, 2021

Introduction

Technology giants like Amazon, Facebook, and Google face legal battles yearly. Recently, another behemoth has followed suit (pun intended). On August 13th, 2020, Apple found itself involved in an antitrust lawsuit against Fortnite video game creator, Epic Games. The trial began on May 3rd, 2021 and is ongoing, so this blog post will not have all the answers. As it unfolds, this post will delve into the perspectives of both businesses, describe the nature of the trial, introduce opening statements from the first day of the trial, and explain possible outcomes for both Epic Games and Apple.

Epic Games

Epic Games has filed an antitrust lawsuit against Apple Inc. in response to the removal of its most popular game, Fortnite, from the iPhone App Store. This prohibited 116 million of its 350 million users from updating the game and new consumers from downloading the app (this does not affect the remaining players using other smartphones or gaming consoles). Fortnite’s eradication from iOS App Stores has caused players from around the world to unite in a social media campaign called #FreeFortnite. Epic Games accused the tech giant of monopolizing purchasing options for apps by restricting other methods of conducting transactions. Due to Apple’s renowned international success, Epic Games has filed lawsuits against Apple in Australian, United Kingdom, and European courts. Epic Games not only wants Fortnite back on the iOS App Store, but it also wants to launch a rival App Store on all Apple devices so users can purchase Epic Games products through non-Apple means.

Apple

The catalyst for Fortnite’s removal from Apple’s App Store was the release of a new update by Epic Games which included the implementation of an in-game purchasing currency called “V-Bucks.” This currency allows players to buy items through non-App Store channels. Users who purchase Fortnite items such as outfits, pickaxes, and the latest season’s Battle Pass get to enjoy a 20% discount, which incentivizes players to continue using V-Bucks. Since these purchases are not made through the App Store, V-Bucks circumvents Apple’s chances of receiving its 30% share of any transaction, hence its removal from the App Store and the foundation of #FreeFortnite. In response to Epic Games’ claim of Apple becoming a monopoly, Apple explains the fairness in its decision to remove the game from its App Store. According to Apple, Epic Games violated its agreement by installing V-Bucks without Apple’s permission. If Apple wins the trial, this contract violation could keep Fortnite and all other apps made by Epic Games, or apps run by its game engine, Unreal Engine, from the App Store (The Verge).

The Trial

The trial began on Monday, May 3rd, 2021 in federal court in Oakland, California. This proceeding is a bench trial; thus, the judge will be making the final ruling with no jury. The trial will be held in person and the press and public are prohibited from entering the courtroom. The presiding judge for the United States trial is Judge Yvonne Gonzalez Rogers. Pending trial, she declined Epic Games’ request for Apple to host Fortnite on iOS devices. Trial dates for the international lawsuits against Apple are unknown. However, Epic Games has recently filed lawsuits in November 2020 (Australia), January 2021 (United Kingdom), and February 2021 (Europe).

Opening Statements and Trial Arguments (photo credits from The Verge)

In its opening statement, Epic Games compares Apple’s restrictive policies to a “Walled Garden.” Its argument is based on the unfairness of Apple’s control over purchasing options. Two expert witnesses testified on behalf of Epic Games. University of Chicago economist, Dr. David Evans, told the court, “Apple’s rules unfairly prevent developers from letting consumers know if their prices for in-app purchases take into account the iPhone maker’s 30% commission or that consumers may be able to get better deals elsewhere,” (Wall Street Journal). To add, Susan Athey, an Economics of Technology professor at the Stanford Graduate School of Business, explained Apple’s stronghold over consumers is due to their prohibitive iOS mobile operating system. In the case of this trial, if a consumer wanted to access Fortnite an iPhone, the user would need to switch to a different smartphone brand and repurchase all the apps originally purchased from iOS devices. Since the internet is needed to play Fortnite, Evans highlights how gaming consoles could never replace smartphones, as it lacks cellular data for users who want to play the game from anywhere.

Apple’s opening statement was a defensive response to Epic Games’ claims. According to The Wall Street Journal, Apple hired University of Pennsylvania Wharton School professor, Lorin Hitt, to discuss in-app purchases. Hitt claims, “anticompetitive measures tend to result in reduced quality, yet that hasn’t happened with iPhone and iPads apps, as developers have seen their revenue increase over time.” Essentially, consumers notice the value in the offers proposed by Apple. As noted by the graph below, Mr. Hitt also denounced Epic Games’ claim about Apple’s monopoly-like practices. Users switch devices frequently because people like the products acquired for different reasons. If this were not the case, Play Station and XBOX would not generate over 50% of Fortnite’s revenue for the last two years. This also infers that most Fortnite users are not on iOS devices, which is surprising considering there are 1.5 billion active Apple devices. In addition, Apple insists the iPhone offers multiple avenues for financial transactions. Although difficult to decipher, the second picture provided by Apple indicates that the iPhone, compared to its competitors and subsidiaries, offers three types of digital game transactions options: The App Store, Web Applications, and Purchasing on Other Platforms to play on iOS. Ultimately, Apple is arguing that its practices are not prohibitive nor remotely resemble a “Walled Garden.”

Possible Outcomes

The outcome of the trial between Epic Games and Apple Inc. can end in multiple ways. One hypothetical is the verdict will resume the current situation: users could not access Fortnite on iOS devices, but other games produced by Unreal Engine will remain on Apple’s App Store. If the judge rules in favor of Epic Games, it may be able to create and launch its own App Store on iOS devices.

Legislation

In addition to the trial, a new state bill that recently passed the House 31-29 may negatively impact Apple’s case. According to The Verge, Arizona’s House Bill 2005, “prevents app store operators from forcing a developer based in the state to use a preferred payment system…,” which would ultimately force Apple to provide various payment methods on iOS. This development could be beneficial for Epic Games.

Audio ForensicsComputer ForensicsExpert WitnessSocial Media

Deepfake: An Introduction (Part 1)

on March 17, 2021

Computer technology is one of the most pivotal inventions in modern history. Artificial Intelligence, smartphones, social media, and all related apparatus have significantly enhanced living conditions in an unprecedented manner and connected the world with a click of a button. It is used in various occupations: from business related fields to more creative professions. To say modern technology has been advantageous in recent decades is an understatement. However, every creation has its flaws. This multi-part blog series is intended to reveal one of those flaws, and a dangerous one at that, deepfake videos. This first post includes an introduction to deepfake videos, and the steps taken by federal and state governments to identify such duplicitous content. Special insight on the subject is provided by our Experts.com Member and Audio, Video, and Photo Clarification and Tampering Expert, Bryan Neumeister.

Editing footage and photos is normal practice in our selfie-addicted new normal, but creating distorted content is a whole new ballgame. According to CNBC, deepfakes are “falsified videos made by means of deep learning.” These videos, images, audios, or other digital forms of content are manipulated such that counterfeits pass as the real thing. What makes matters worse is the internet allows anyone and everyone to create, edit, and post deceptive content. It is one of many threats to cybersecurity strategists, police departments, politicians, and industries alike because the purpose of making them is to spread misinformation, tarnish reputation’s, exploit evidence, and to ultimately deceive an audience. The unfortunate reality is deepfake videos which display pornographic scenarios and manipulated political moment are the most common. For instance, a notable deepfake video was posted by Buzzfeed in 2018 depicting former United States president, Barack Obama, slandering another former United States president, Donald Trump. However, the voice behind Obama is none other than Jordan Peele. The video was intended as a moral lesson to explain how important it is to verify online sources, and to highlight the dangerous problem of trusting every post uploaded to the internet.

According to Mr. Neumeister, who specializes in this area of expertise, there are two types of artificial intelligence programs used to create deepfake videos: GANs and FUDs. He states, “GANs (Generative Adversarial Networks) are used by professionals, and FUDs (Fear, Uncertainty, and Doubt) are the homemade ones.” Although FUD videos garner more attention among internet users, the real menace to society are the videos made from GANs.

Videos made from Generative Adversarial Networks have an algorithmic framework designed to acquire input data and mimic the desired output data. One can visualize how GANs work through the viral Tom Cruise TikTok deepfake. According to NPR, the creator of the deepfake, Chris Ume, used a machine-learning algorithm to insert an accumulation of Tom Cruise footage. This allowed him to give a digital face transplant to the Tom Cruise lookalike actor he hired for the video. Ume input a plethora of videos to create a desired output of a realistic face swap. Neumeister also adds that the most realistic deepfakes correlate to the amount of footage a person can acquire. Specifically, “the more bits of video clip you have to put together, the more accurate you can make facial movements, ticks, etc.” From this logic, it can be inferred that Ume’s Tom Cruise deepfake looks more realistic than those that lack algorithmic programs.

Because viewers typically see deepfakes in politics and pornography, federal and state governments have recently implemented laws to counteract deepfake content creation and distribution. President Trump signed the first deepfake federal law near the end of 2019. This legislation is included in the National Defense Authorization Act for Fiscal Year 2020 (NDAA), which is a $738 billion defense policy bill passed by both Senate (86-8) and the House (377-48). The two provisions in the NDAA requires:
“(1) a comprehensive report on the foreign weaponization of deepfakes; (2) requires the government to notify Congress of foreign deepfake-disinformation activities targeting US elections,” (JD Supra). The NDAA also implemented a “Deepfakes Prize” competition to promote the investigation of deepfake-detection technologies. On a state level, there have been laws passed by multiple states that criminalize specific deepfake videos (JD Supra):

  • Virginia: first state to establish criminal penalties on the spread of nonconsensual deepfake pornography.
  • Texas: first state to ban creation and dissemination of deepfake videos aimed to alter elections or harm candidates for public office.
  • California: victims of nonconsensual deepfake pornography can sue for damages; candidates for public office can sue organizations and individuals that maliciously spread election-related deepfakes without warning labels near Election Day.

Although the Trump administration and various states established policies against deepfakes, it remains ubiquitous on almost all online platforms. How can users at home distinguish authentic content from deepfakes?

Mr. Neumeister provides a few tips and tricks for detecting a deepfake. One giveaway mentioned is mouth movement, otherwise known as phonemes and visemes. Mouths move a certain way when people speak. For instance, words like mama, baba, and papa start with a closed mouth. Words like father, and violin start with the front teeth pushing against the bottom lip. To add, consonants and vowels also sound a certain way when pronounced correctly. “Words with t, f, n, o, and wh, are pretty good for tells,” adds Mr. Neumeister. When analyzing video, the frames in which a person is speaking are broken down into approximately six to ten frames to determine if the way someone talks in other videos is the same as the video being analyzed. Another tip Mr. Neumeister suggests is to watch videos with context in mind. Viewers should pay attention to background noise, crowd ambiance, and the cadence in a speaker’s sentences. Authentic and original content would have, by nature, realistic frames. Users can detect a deepfake by sensing dissonance in, for instance, a speaker’s proximity to the microphone or a size of a room. For users at home or on-the-go, these tips are crucial for distinguishing verified sources from manipulated misinformation.

The emergence of deepfake content, its continuously improving technology, and the spread of disinformation is a multifaceted and complex problem. This blog post has only scratched the surface, so stay tuned for part 2 for a more in-depth read.

Expert WitnessUncategorized

Fake Police Officer Scam Targeting Expert Witnesses

on October 30, 2020

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.”

Criminal LawExpert WitnessForensic PsychiatryFraudUncategorized

Elizabeth Holmes Fraud Trial: Mental Disease & Defect Defense

on September 29, 2020

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.

Background:

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.[1] 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.[2] 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.[3] 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.

[1] 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)

[2]Does A Psychopath Who Kills Get to Use the Insanity Defense? NPR, 8/3/16, by NATALIE JACEWICZ

[3]PTSD as a Criminal Defense: A Review of Case Law by Omri Berger, Dale E. McNiel and Renée L. Binder; Journal of the American Academy of Psychiatry and the Law Online December 2012, 40 (4) 509-521;

DepositionExpert Witness

Increasing Use of Remote Depositions – Expert Witness Best Practices

on June 9, 2020

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:

sean-malone-legal-videographer-frame-example

  • 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.

  1. Pay attention to your background – be sure it conveys professionalism.
  2. Dress the same way you would dress if you were attending court in person.
  3. 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.

Lighting:

  • 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.

Audio:

  • Earbuds with built-in mic.
  • External microphone.
  • USB/Studio mic.

Video:

  • Cell phone camera.
  • Built-in webcam.
  • USB webcam.
  • Keep the lens camera at eye level.
  • Look into the lens.

Stability:

  • 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.

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