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.
If you’re a Californian, the last two weeks of storms has felt like a storm season that will never end!
If you’re a Californian, the last two weeks of storms has felt like a storm season that will never end! In the past, I’ve written about major weather related events such as hurricanes and the resulting property damage, insurance issues, and lawsuits. Most weather-related events and their litigation aftermath always seem to happen somewhere else. On the East Coast. Or, in the Midwest. Rarely do they seem to impact California.
California, my home state. A state known for beautiful views. From sandy beaches to exquisite mountain vistas. The San Francisco Bay Area to Yosemite. It’s a wonderful place.
The people… We’re a spoiled, complaining bunch. Until approximately 12/31/2022, you’d have heard regular complaints about the severe drought plaguing our state. We’re filled with fear and non-stop commentary about how we really “need the water.” This drought has been a part of California-life for my entire lifetime. Same sayings. Same complaints. Mostly the same conservation efforts.
As of 1/11/2023, our daily complaints have changed dramatically. Now, we’re bemoaning 13 days of snow, rain, hail and wind. I have to be clear here. These storms have now happened for 13 consecutive days. There have been breaks. The severity of the storms, however, have been unlike anything I’ve ever experienced as a lifelong Californian. Our Governor declared a State of Emergency for the entire State. For weather? Yes! For weather.
Please realize I’m making light of our current situation, albeit briefly, because of my perspective as a Californian. In reality, tens of thousands of people have been negatively impacted by flooding, snow, and wind. Dangerous and long-lasting power outages, property damage, and lives lost as a result of never before experienced weather events.
It’s weird to us because in most parts of the state it’s sunny 300 days a year. Is it cold in January and February? Yes, a little, but it’s sunny. Some years, we hardly get rain worth remembering. In fact, I can’t recall a storm since the winter of 2017, when there was a crisis at the Oroville Dam after rain damaged the spillways. Almost 6 full years with no notable weather events (at least in Northern, CA, where I’m located).
The Santa Barbara mountains face flood issues a little more regularly. They had substantial flooding and mudslides in 2018. Five years later, they are dealing with significant floods once again.
If I haven’t been clear, major weather events in California are rare compared to our fellow US States. Phrases like “bomb cyclones” and “atmospheric rivers” are uncommon here. Let alone multiple continuing atmospheric rivers over a 2-2.5 week time frame.
As I do when I have questions about events in which I have no expertise, I reached out to one of our expert witnesses to provide some insight.
Meteorology and Atmospheric Science Expert Witness Timothy Minnich
Timothy R. Minnich MS, QEP, President of Minnich & Scotto, Inc., is a Meteorologist and Atmospheric Scientist with over 40 years experience in the design and management of a wide range of ambient air and meteorological investigations under CERCLA and the Clean Air Act. He is a recognized technical expert on high-profile legal cases, with assignments involving forensic meteorology and reconstruction of inhalation scenarios in relation to community exposure to hazardous air pollutants (HAP).
Mr. Minnich is accomplished in presenting conclusions and opinions derived from analysis of complex technical data in a well-reasoned and easily understood manner. He is a skilled technical writer and proven manager in a highly specialized arena. He is a nationally recognized expert in the application ofoptical remote sensing (ORS) for hazardous waste site remediation. He has designed and managed more than 25 ORS field investigations and air dispersion model validation studies since the promulgation of U.S.EPA (EPA) Method TO-16 for open-path FTIR (Fourier-transform infrared) spectroscopy in 1988.
After about 11 or 12 days of continuous storms, I reached out to Tim with some questions because I was hearing weather-related terms I’d never before heard. Below, you’ll find my questions and Tim’s answers!
Questions & Answers
Nick Rishwain: California is dealing with a series of storms to which we’re not accustomed. As a meteorologist, can you explain for the layperson, the concept of a “bomb cyclone?”
Tim Minnich: A “bomb cyclone” is a term recently coined to identify a storm (non-tropical) which is rapidly deepening. It comes from the term “bombogenesis,” which means a non-tropical storm in which the atmospheric pressure drops at least 24 millibars in 24 hours or less.
Nick Rishwain: According to news reports, we’re also experiencing a number of “atmospheric rivers.” Or, maybe it is one ongoing atmospheric river? Can you explain the concept of “atmospheric river?”
Tim Minnich: An “atmospheric river” is a term that simply refers to a rapidly moving plume of moisture at high altitudes. It is generally associated with a storm which provides heavy rain or snow.
Nick Rishwain: As a Northern, Californian, we’re not used to the weather impacting us since the New Year. What type of litigation / lawsuits are likely to stem from the wind, rain, snow, and flooding we’re experiencing?
Tim Minnich: I would expect the most common form of litigation would likely involve property damage claims caused by flooding, wind damage, and roof collapses associated with extreme snow loading.
Nick Rishwain: What types of meteorological investigations might a forensic meteorologist like yourself be asked to conduct in the aftermath of a storm ravaged California?
Tim Minnich: Working with engineers, such investigations would provide direct evidence – such as official meteorological observations – to support whether or not the actual damage was caused by the extreme weather conditions at the time.
Nick Rishwain: I’m assuming it would be a good idea for counsel, businesses, or insurance companies to contact you in the early aftermath of these storms. How might a meteorologist assist in the immediate aftermath of these storms?
Tim Minnich: By providing an early technical analysis as to the likelihood of success in either filing a claim (plaintiff) or denying a claim (defendant).
Nick Rishwain: I’m also assuming there are going to standard property damage and insurance claims stemming from wind, rain, snow, and flooding. What are some of the hidden dangers/damages resulting from storm damage?
Tim Minnich: Structural damage to buildings represents the most serious situations arising from extreme storms. The immediate danger of building collapse from strong winds or downed trees is obvious, but compromised foundations represents a risk that should be swiftly investigated by a qualified engineer if serious flooding or long periods of saturated soil has occurred.
Nick Rishwain: You have expertise in “exposure to hazardous pollutants.” Are those a danger to Californians as a result of flooding? Or, as a result of some other storm damage?
Tim Minnich: I would say that exposure to hazardous pollutants arising from direct contact with contaminated water would generally not be a problem, unless flood waters have breached industrial areas — specifically containment facilities which house hazardous materials.
More to Come
We’re grateful for Tim’s willingness to participate in this timely blog post. I wish I could tell you this topic is complete, but the existing storm watch says California may not have any reprieve until 1/18/2023. To the best of my understanding, that only means a reprieve from the currently identified storm front. Not sure what to expect for the remainder of the winter and spring. As such, I may be back with another weather-related update before you know it!
News media and tabloids have been focused on the high-profile divorce. We were interested in how divorce impacts a family foundation.
Last week, the tech and media worlds were abuzz with news of the Bill & Melinda Gates divorce. After 27 years of marriage, one of the richest couples in the world decided to call it quits. This was a shock to many outsiders looking in. Their long-term marriage, despite all the trappings of wealth and influence, seemed like it would stand the test of time. The New York Times, in this article, described the two parties as having “reshaped philanthropy and public health,” with the fortune acquired by the couple as a result of Mr. Gates being a co-founder, and past CEO, of Microsoft.
Certainly, when I think of philanthropy, I think of the Bill & Melinda Gates Foundation. A well-funded operation run by the couple, in a fight against global health crises. Last year, when COVID-19 invaded every aspect of our lives, Bill Gates was seen on TV and in articles providing guidance on dealing with the pandemic. Through his work at the foundation he had gained significant insight and had been warning of pandemic threats for many years. Bill played such an instrumental role in the process that many people now associate the foundation with public health.
On the home page of the Bill & Melinda Gates Foundation, the first thing a visitor sees is the following text: “We are a nonprofit fighting poverty, disease, and inequity around the world.” Much of their philanthropic work takes place in the form of grants. In 2019 alone, the Gates Foundation provided more than $2.7 billion in grants according to their own reporting. The foundation has made grants in the following areas: gender equality, global development, global health and more.
Now that the Gates’ are calling it quits, how will that impact the operations of this massive nonprofit?
Nonprofit attorney and consultant insights
Having little or no experience with nonprofits (more specifically a family foundation) myself, except for my annual contributions, I reached out to one of our consultants, Jess Birken, Esq. Ms. Birken is the owner of the Birken Law Office, located in Minneapolis, Minnesota. She is a lawyer who helps nonprofits solve problems so they can focus on what really matters… their mission. Her practice specializes in nonprofit organizations. Before becoming a private practice attorney, Ms. Birken spent four years inside a national nonprofit organization, Pheasants Forever. In that role she managed about $50M in state and federal government grants and worked on hundreds of conservation real estate deals.
In essence, Ms. Birken had the expertise I was seeking. She could answer the questions I had about nonprofit operations in the face of familial separation. For purposes of attribution, I had developed some of my questions from this article by Vox. Ms. Birken used thisNew York Times article for some of the information about the organizations.
Below, you’ll find my questions and Ms. Birken’s answers:
Nick Rishwain: This matter involves a family foundation. How is a family foundation different from other types of nonprofits?
Jess Birken: Generally, a “family foundation” is completely or mostly funded by one family. The term family foundation isn’t a legal term though, it’s just a way to describe a private foundation with that characteristic. Private foundations in general are different from the nonprofits most people think about when they hear the term “nonprofit.” Most people hear nonprofit, and they are picturing a public charity (like your local church or pet rescue).
Both public charities and private foundations get tax-exempt status and are labeled as 501(c)(3) organizations by the IRS. Both types are established for a charitable purpose and have a mission. Both types can use the word “Foundation” in their title. It can all be a little confusing. The major difference between a private foundation, like The Bill and Melinda Gates Foundation, and a public charity, like the Make-A-Wish Foundation, is where they get their financial support. Public charities raise money from the general public, but a private foundation usually has one source of funding, typically an individual, family, or corporation.
Another key distinction is that private foundations also often differ in their activities. They typically don’t run programs directly – like, say, a soup kitchen serving people experiencing homelessness. Instead, private foundations often make grants to other organizations. A private foundation might make grants to many homeless shelters running many soup kitchens. Other differences between the two include the fact that the board of a private foundation is not required to be diverse (often the board is made up of only family members, etc.); that they are required to make charitable distributions throughout the tax year; and that they must pay a nominal excise tax on their net investment income.
Nick Rishwain: We know divorce can have impacts on businesses and real property, in respect to division of assets. Are nonprofits incorporated in a similar way which would cause a division?
Jess Birken: Generally, no single person owns a nonprofit. Nonprofits do not have shareholders or issue stock and private individuals can’t benefit from them. So, they aren’t an asset that can be split up in a divorce.
Nick Rishwain: In the Vox article, the foundation said, “that the philanthropy did not anticipate changes to its work.” What changes might a divorce cause to a nonprofit?
Jess Birken: Theoretically none. Even a family foundation has a board of directors. These directors have fiduciary duties to carry out the mission and take actions in the best interest of the nonprofit – regardless of any individual board members’ personal life situation.
In the case of a family foundation, however, where the primary funder is the family, then it could be the case that the donations to the foundation that are directly from the family will decrease temporarily (or long term) as the assets of the donor family are apportioned through a divorce proceeding. Whether this happens may be revealed through the upcoming IRS Form 990 filings that show revenue and contributions by donor as part of Schedule B in the years ahead. So, a temporary reduction in activity or some kind of holding pattern (versus expansion) could happen. In the case of the Bill and Melinda Gates Foundation, the foundation has net assets forming an endowment of about $50 billion. So, any flux in family contributions is likely to be a minor hiccup for this foundation.
Nick Rishwain: Are nonprofit organizations, such as the Bill & Melinda Gates foundation usually funded year-to-year?
Jess Birken: For accounting purposes the nonprofit accounts for contributions it receives during its accounting year. How frequently donations are made by a family will depend on the family and their philanthropic vision and tax planning needs. I’m not an estate planning expert but it’s probably fair to say that in general donations to family foundations are likely to be calculated annually based on each year’s tax planning situation.
Nick Rishwain: In the above article, Vox indicates the Bill & Melinda Gates divorce might impact their nonprofit foundation. Could a private divorce impact the work or funding of such a large nonprofit organization?
Jess Birken: From the perspective that both parties to the divorce are on the board of directors, that’s certainly possible. As I mentioned before, the assets of the family will be getting a shakeup through the divorce. It’s possible that either Bill or Melinda – once they have completely separate households – will make their own contributions based on their own philanthropic interests.
In this instance, however, it seems their public commitment to the core foundation work is aligned and, in my opinion, probably true. The foundation itself has an endowment of $50 billion to work with – the divorce won’t affect that core fund. So, the interpersonal aspects are more important in this case. Warren Buffet was recently added to the board of directors as a Trustee and is also a contributor. This will likely have a stabilizing effect and may have even been planned for that reason – I’m speculating but it makes sense.
As far as interpersonal problems between the couple causing issues around pushing for one charitable interest over another, this has already been addressed. Each member of the couple already has a fully formed enterprise where they can pursue their individual agendas and those have been in place for some time. Bill Gates has Gates Ventures a company first formed after he stepped down from full time work at Microsoft in 2008. His enterprise focuses on clean energy, climate change, education, and health. Melinda French Gates formed her Pivotal Ventures company in 2015 which works on gender equality and social progress. So, each has an outlet for pursuing their individual goals which likely insulates the foundation’s work even more.
Well there you have it! My questions were answered. If you have more questions about nonprofits and charitable organizations, reach out to Jess Birken at here website: birkenlaw.com. For more information, you may also want to check out her podcast: charitytherapy.show.
Mental health professionals are being targeted by a failure to appear scam. The first scam we’ve seen targeting expert witnesses.
This is the first blog post I’ve written that falls directly into the “public service announcement” category. Yesterday morning, I saw an article by the Washington Post where the author describes a telephone-based scam, where perpetrators pretend to be police officers.
The story grabbed my attention because the suspects have a little deeper knowledge about prospective victims. They know enough to know you are likely to act as an expert witness.
The caller, impersonating a police officer, claims the victim failed to appear at a court hearing in which they were subpoenaed to testify as an expert witness. The criminal claims to be an officer and provides the real name of an an officer employed at the local law enforcement agency, which can be confirmed online. The victim is told they have a civil option to pay a fine and avoid jail time.
As recounted in the Washington Post article, “The problem, the alleged detective stressed, was that because of the coronavirus, people couldn’t come into police headquarters to settle such matters. He said she needed to purchase “MoneyPak” electronic cash transfer cards — at one point transferring the call to his purported supervisor, who also had assumed the name of a real Montgomery officer.”
You need to start asking questions at this time! Have them send you some documentation in the mail. Have them personally serve you the paperwork. Do not get frightened by someone claiming to be an authority figure over the phone. That’s their goal! Get you nervous and acting irrationally.
The option to pay a fine should immediately get your attention. Not to mention this silliness of paying with “electronic cash transfer cards.” There is no reason you shouldn’t be able to pay a fine with a check or credit card.
If you are accused of missing are accused of missing a court hearing. You should know that police officers, detectives, investigators, are not usually those responsible for collecting fines. Generally that’s a different department.
Scam Has Been Taking Place for a While:
Although this fake police officer scam targeting mental health professionals, took place in Maryland. However, in preparing to write this post, I did a little research and found that the Los Angeles Police Department (LAPD) had also warned about this type of a scam back in 2019. Here is their press release on the subject. The LAPD specifically mentioned therapists and psychologists as more likely to be targeted:
“It should be noted that many of the victims are current/former employees in the mental health industry. In each of these incidents, the caller claimed that the victim missed an appearance as an expert witness in a court case. Therapists and psychologists should particularly beware of the scam. You can get help determining the authenticity of a call by contacting your local police station.”
Before Nikola and the Trevor Milton scandal, there was a prominent blood-testing startup called Theranos. Its founder, Elizabeth Holmes, currently faces a criminal fraud trial.
If you’ve been tuning into business news recently, the latest scandal with Nikola, a electric-powered truck manufacturer, and its founder, Trevor Milton, is no surprise to you.
For those who have not been following along, a quick summary is as follows: Nikola (NKLA) recently became a publicly traded company alleging they had hydrogen fuel cell (battery) technology that would revolutionize the trucking business. The stock did well after IPO. Nikola then did a multi-billion dollar deal with General Motors. The stock went higher. A few days after the GM deal, a short-seller released a report that accused them of a being an intricately constructed fraud. The founder, Trevor Milton, contested the accusations on social media and asked for time so he could rebut all of the allegations. Within a couple of days he went silent, was removed as executive chairman, and deactivated his social media accounts. It has been widely reported that both the SEC and DOJ are conducting investigations related to his actions and claims as founder and executive chairman.
I share that story because some news agencies have suggested Trevor Milton’s story is similar to that of Theranos founder and CEO, Elizabeth Holmes. Ms. Holmes is now facing a criminal fraud trial and she is the focus of our our post today. Stay tuned next week for some further discussion on the issues surrounding Nikola.
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)
Last week the news exploded with the story of Alexander Urtula’s suicide. The story garnered attention because of the allegedly outrageous actions of Mr. Urtula’s ex-girlfriend, Inyoung You, who is accused of psychologically manipulating Urtula and pushing him to kill himself.
Reports from the Boston Globe outlined the accusations against Inyoung You, a 21-year old former Boston College student and South Korean national, who badgered her ex-boyfriend into committing suicide.
In an editorial article calling for a coerced-suicide law in Massachusetts, the BostonGlobe stated “According to prosecutors, You psychologically and physically abused her boyfriend, Alexander Urtula, over an 18-month relationship, and repeatedly urged him to kill himself. The two exchanged 75,000 text messages, which Suffolk County District Attorney Rachael Rollins said showed You’s ‘complete and total control over Mr. Urtula both mentally and emotionally.’”
Readers may recall a similar incident, out of Massachusetts, which made headlines back in 2017 when Michelle Carter was tried for involuntary manslaughter for the death of her boyfriend, Conrad Roy. You can read more about that case in this Washington Post piece.
These two cases from the same state, with strikingly similar fact patterns, ending in the suicide death of two young men has made the state consider a law about coerced-suicide. An issue, I might add, my lay mind never would have considered necessary.
The reason Massachusetts is considered a coerced-suicide law is pretty straight-forward. Michelle Carter was prosecuted and convicted of involuntary manslaughter. Inyoung You, is now being charged with the same crime. However, the punishment for involuntary manslaughter in Massachusetts, carries a punishment of up to 20 years. Whereas a proposed law, Conrad’s Law (named after Michelle Carter’s victim), would make punishment for coerced-suicide a 5 year maximum sentence.
To me this makes sense. If you do not actually cause the death (i.e. pull the trigger or pilot the automobile) then you should not face the same criminal liability as someone who did cause loss of life. With that said, you need to be punished for being a truly terrible person and manipulating someone to take their own life.
Now, I do have difficulty with words being used to convict someone of a crime. The ACLU had difficulty with this too when they criticized the Michelle Carter case. They felt it would chill free speech. I understand that concern, so I needed to dig into the psychological manipulation and coercion aspect a bit deeper.
Lucky for me, I have access to an incredible database filled with expert witnesses and consultants. Turns out I didn’t have to look far, because one of my members, Dr. Sanjay Adhia was already sharing about the subject matter on social media. So we coordinated a little question and answer on the topic.
Forensic Psychiatry Expert Witness Dr. Sanjay Adhia:
Dr. Sanjay Adhia is triple-Board-Certified in Psychiatry Forensic Psychiatry and Brain Injury Medicine. In addition to forensic/expert witness practice, Dr. Adhia serves as the Assistant Professor of Psychiatry at University of Texas Health and Science Center and a Psychiatry Consultant at The Institute for Rehabilitation and Research (TIRR) Memorial Hermann in Houston. He treats those with brain and spinal cord injury who have complicating psychiatric disorders along with general psychiatry and addiction psychiatry patients.
His forensic practice focuses on the psychiatric impact of personal injury, abuse, competency, violence, intoxication and complicating mental illness. He is experienced at assisting attorneys in medical malpractice and wrongful death claims. He also performs occupational and other Independent Medical Exams. In addition, Dr. Adhia works with Physicians for Human Rights and DAYA Houston to assess victims of kidnapping and false imprisonment, human trafficking, undue influence, physical and sexual abuse and rape. Learn more about Dr. Adhia’s practice by visiting his webiste: www.forensicpsychiatrynow.com.
Let’s get to the nitty-gritty. I provided questions and Dr. Adhia provided some outstanding answers regarding coercion.
NR: According to the article from the Boston Globe, coerced-suicide has not been defined by law. Does forensic psychiatry have a definition? If not, can you describe how you would define “coerced suicide?”
Dr. Adhia: As far as I know, there is no formalized definition of “coerced suicide” for forensic psychiatrists. With coerced suicide, there could be an element of undue influence which is defined as “influence by which a person is induced to act otherwise than by their own free will or without adequate attention to the consequences”[1]. I believe “coerced suicide” should be distinguished from “assisted suicide”.
NR: Can you describe what one may be going through when considering suicide?
Dr. Adhia: Suicidal ideations are generally accompanied by severe distress. Suicide is seen as a solution to the distress and may be perceived as the best if not only solution. It may start with fleeting thoughts without intent to more frequent thoughts with intent. One may then consider various methods of suicide and develop a plan. There could be several suicide attempts before a completed suicide. Of course, there are instances when a catastrophic stressor or coercion may lead to an impulsive suicide without a preceding history.
From the media account, Mr. Urtula was described as having depression. One of the potential symptoms of Major Depressive Disorder (MDD) are suicidal ideations. Additionally, victims of abuse can have suicidal ideations without necessarily having depression.
With additional information, we may be able to determine if Mr. Urtula had suicidality brewing for months or if he was suddenly coerced to jump without any preceding suicidal intent.
NR: This is now the second high-profile case involving young women encouraging a boyfriend to end his own life. Would this qualify as a form of domestic abuse according to psychiatrists?
Yes. However, I would expect there be other forms of abuse present preceding the coerced suicide. The literature often refers to domestic abuse as Intimate Partner Violence (IPV). According to the Centers for Disease Control and Prevention[2], there are four types of IPV:
Physical violence
Sexual violence
Stalking
Psychological aggression
Coerced Suicide would be consistent with psychological aggression which is defined by the CDC as “use of verbal and non-verbal communication with the intent to harm another person mentally or emotionally and/or to exert control over another person”. According to prosecutors, Mr. Urtula endured both physical and psychological abuse. The fact that he was located at the parking garage may represent stalking.
Of note, Intimate Partner Violence in of itself, absent suicide coercion, can lead to unintended suicide.[3]
NR: Would coercion in a suicide case (involuntary manslaughter) be similar to the coercion involved in an “undue influence” matter? Are the power dynamics similar?
Dr. Adhia: Coercion is one of the tactics involved in undue influence. Undue influence constitutes controlling others by utilizing the dominance or authority in a relationship, taking advantage of a vulnerability and by employing certain tactics.[4] These tactics include controlling necessaries in life, using or withholding affection, intimidation and coercion. Coercion is the act of threatening to compel an act.
It is worth referring to the proposed “Conrad’s Law” which indicates coerced suicide involves “substantial control or undue influence over the victim, or to have manipulated their behavior through fraud or deceit”.[5]
NR: Some stories I’ve read, indicate Inyoung You had “complete and total control” over Mr. Urtula. How would a person find themselves under complete and total control of a significant other?
Dr. Adhia: To understand how Ms. You would achieve such control; one can look at the cycle of IPV[6] which consists of:
Tension Building Phase
Acute Battering Episode
The Honeymoon Phase
In the first phase, the victim attempts to appease the perpetrator in hopes of avoiding abuse. It may feel as if the victim is walking on eggshells. Eventually the tension will build and phase two will occur with the abuse. Afterwards, there will be a honeymoon phase where the abuser will convince the victim to stay in the relationship. The abuser could promise an end to the abuse. Many of the victims have been are conditioned to be highly dependent on the abuser. They may be convinced they will be unable to obtain love and happiness without the abuser. This may help explain why Mr. Urtula did not leave Ms. You and how she was able to gain control of him.
According to the CNN article, Ms. You threatened self-harm to manipulate Mr. Urtula in order to control and isolate him. She sent him over 47,000 texts and commanded him to end his life. The abuse escalated just prior to the suicide. She tracked the location of Mr. You and was at the scene of the parking garage where he jumped to his death.
In Mr. Urtula’s case, it is likely he was rendered particularly vulnerable due to depression. Some of the symptoms of depression include fatigue, indecisiveness, decreased concentration along with feelings of worthlessness, helplessness and hopelessness.
With the interplay of Depression accompanied by the tactics and dynamics of IPV, one can get a sense of how Ms. You could achieve “complete and total control” over Mr. Urtula.
NR: Anything additional you feel like you need to add to this story… Please do so.
Dr. Adhia: The hope is someone with suicidal ideations in a relationship would have a supportive partner who will encourage their loved one to seek help. In extreme cases, a partner can call 911 and involuntary treatment in a psychiatric hospital can be sought. There are unfortunate instances when the partner does not recognize the signs of suicide or does not know help is available. In Mr. Urtula’s case, it appears his partner literally pushed him off the parking garage.
The mass suicide in Jonestown by devotees of Jim Jones could be considered a mass coercion. Jim Jones had his followers practice drinking the Kool Aid. Having the children drink the Kool Aid first served to coerce the parents to follow course.
The Urtula and the Conrad case reminds us both males and females can be victims of Intimate Partner Violence. It is worth noting that the dynamics could be more complicated if there are children involved and the victim is financially dependent on the perpetrator.
If a victim is danger of imminent violence or suicide, call 911 to obtain immediate assistance. Other phone numbers can be found https://ncadv.org/resources.
Special thanks to Dr. Sanjay Adhia for taking the time to help educate us about this unfortunate matter of coerced-suicide. Please share this article with those who need to read it. Please take care of those around you. Let’s all try to be a little nicer to each other.
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/.
As I mentioned in our blog post on November 6, 2017, we would be covering the US “opioid crisis” as the lawsuits against manufacturers and distributors heated up. Today, we found out Kentucky Attorney General, Andy Beshear, filed a complaint against McKesson Corp. According to this story by Reuters, Mr. Beshear “accused drug distributor McKesson Corp of helping fuel the opioid epidemic by failing to halt shipments of suspiciously large or frequent orders by pharmacies of prescription painkillers.”
Mr. Beshear’s office filed suit in Kentucky state court. The complaint further alleges McKesson filled suspicious orders and shipped tremendous quantities of prescription opioid pharmaceuticals to Kentucky pharmacies, without reporting them to authorities or preventing the shipments. According to the AG’s own press release, “Federal and state law requires pharmaceutical distributors to monitor and report to law enforcement when it ships large or suspicious supplies of opioids to a state or region.”
There’s a wide array of state and local governments pursuing lawsuits against pharmaceutical companies, including McKesson, for deceptive marketing and failures to report suspicious activity which are resulting in opioid addiction and deaths within their cities and towns.
Let’s take a look at causes of action and potential experts:
Based on the complaint, we see that the Kentucky AG is attacking McKesson on some interesting causes of action, including: Consumer Protection Act Violation; Public Nuisance; Negligence per se; Negligence; Unjust Enrichment; Fraud by Omission; and Medicaid Fraud. Mr. Beshear is seeking punitive damages for the State of Kentucky. The complaint further provides the Kentucky Consumer Protection Act protects citizens from “predatory or inappropriate acts by sellers of goods.” The Act states “unfair, false, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.”
With this information it appears deceptive marketing practices will be an issue in this lawsuit. Both Kentucky and McKesson are likely to employ marketing expert witnesses to address which practices may or may not be false and misleading.
Within this cause of action, Mr. Beshear further alleges violations of the Kentucky Controlled Substances Act. This Act creates a “broad duty on the part of wholesalers to monitor, detect, investigate, refuse to fill, and report suspicious orders of prescription opioids.”
One can only imagine there will be an argument over what constitutes a “suspicious order of prescription opioids.” As such, we expect both parties will be retaining pharmaceutical and pharmacy industry experts. The parties are likely to argue about the existence of indicators used to alert a distributor when a suspect order is placed. I anticipate the parties will be looking to pharmaceutical supply chain or logistics expert witnesses to provide background about notification and indicator systems for identifying suspicious orders.
What relief is the Kentucky AG seeking?
By reviewing the complaint and articles mentioned above, Kentucky is arguing McKesson’s activity has resulted in overdoses which put a drain on emergency services and hospitals. I’m certain Mr. Beshear will argue the costs of medical services have increased significantly as the state has had to deal with opioid overdose.
I further envision an argument will be made about the increase in law enforcement and first responder costs associated with fighting the illegal sales of heroin and other opiates stemming from addiction.
The complaint makes it pretty clear Mr. Beshear is seeking punitive damages on behalf of Kentucky. That being said, both parties are going to employ damages experts. This may involve the use of economists and forensic accountants to determine the amount of financial damage inflicted on Kentucky by McKesson’s actions.
Final Thoughts:
As I’m sitting here in California, I do not understand the true ramifications of the opioid crisis on the State of Kentucky. I am interested to see what individual civil litigation options may be available to the citizens of Kentucky. As such, I invite my friend Daryl Dixon of Daryl T. Dixon Law, in Paducah, Kentucky, to provide us with his thoughts on this subject on his own blog! Ball is in your court, Daryl. Let’s see what the Wildcats have for me…
A casino shuttle boat caught fire Sunday in Florida, forcing the evacuation of dozens of passengers into the cold Gulf Coast waters. Officials initially stated that none of the evacuation injuries were life threatening. One passenger went home after the evacuation into frigid waters, where she later became ill. She arrived at the emergency room Sunday night about 10pm and died shortly thereafter. Cause of death has not been determined at the time of this writing.
The ferry was only about 100 yards from shore when the captain noticed smoke coming from the engine room. He turned the boat around and told the passengers and crew to abandon ship. About 15 passengers suffered injuries from smoke inhalation and the cold water.
According to this article, The Tropical Breeze Casino said they had never had an issue with the shuttle and have not yet determined the cause of the blaze. The boat is used to ferry passengers to and from the Tropical Breeze offshore casino. The casino is approximately 45 minutes offshore, in international waters.
This maritime accident could require investigation and inspection from a variety of experts in the lead up to probable litigation. Here are the types of experts I expect to be involved in the weeks and months ahead.
The captain noticed smoke very early after leaving port and was able to turn the boat around and have the passengers evacuate while they were still in shallow waters. In this article from Yahoo News, “Coast Guard Petty Officer 1st Class Michael De Nyse said investigators will determine the cause of the fire and examine the history of the boat and Tropical Breeze Casino.” This is what will probably be the initial fire investigation.
From the article it also sounds as though the Pasco County Sheriff will be conducting their own accident/fire investigation. Further cause and origin investigations can be expected from the insurance company for the Tropical Breeze Casino.
With 15 passengers injured and one deceased, I am assuming at least some of the injured parties will be filing a lawsuit. The lawyers for the injured parties will probably request their own inspection of the ferry, which was evidently burned down to the hull. In fact, plaintiff’s counsel will likely want additional experts, beyond fire investigators, to inspect the remainder of the vessel.
This post on Polymersolutions.com defines forensic engineering as follows, “…using reverse engineering to figure out why a structure, material or component failed to perform as intended. Then, those findings can be used as evidence in court if that failure caused injury, property damage, or was related to some other criminal case.”
From the information currently available, the fire originated in the engine room. If the engine itself caught fire, an engineer specializing in engine mechanics or naval engineering could be used to determine what caused the engine to fail and erupt in flames.
Such an engineer would inspect the components of the engine to determine which item may have failed. It is important to note, once the failed item is discovered, it may expand liability to the manufacturer of the failed component.
The news tells us the captain of the ferry noticed smoke coming from the engine room, so he turned the boat around and ordered the passengers to evacuate.
I expect a great deal of the investigation and approach to establishing liability will hinge on whether the captain followed the appropriate safety protocols for marine passenger safety.
Industries are governed by safety regulations and maritime is no different. A maritime expert will be asked to evaluate the actions of the captain, and other crew, to determine if they acted appropriately under the circumstances.
Did the captain or crew properly inspect the boat before leaving port? Did he order an evacuation too late? Could the captain have done something, before leaving port, that would have prevented the catastrophe? Was the evacuation properly executed? Did the captain follow maritime safety standards in abandoning ship and making sure passengers made it to shore?
A passenger presented to the emergency room and died a short while later. With this information, I expect both plaintiff and defense counsel to retain medical experts. Since the passenger was only treated at the ER before expiring, both sides will retain emergency medicine experts to review her ER records and possibly opine about whether or not she could have been saved had she presented to the ER sooner.
There is one type of expert both sides may not immediately consider: a maritime medicine expert witness. Although the boat was only 100 yards offshore and the passengers were in waist deep water, this was a maritime accident resulting in death.
It is quite possible that boating accidents taking take place in cold ocean waters require a specific medical response. Was the appropriate medical response utilized? Was there something that could have been done to prevent the death after rescue? Should the passenger have been released home or monitored for 24 hours? What appropriate actions should have been taken after an ocean-based rescue? These are questions for an expert with a long history of maritime lifesaving experience.
Other experts may be involved in litigation stemming from this accident, but these are the most likely types of experts I see being retained in this matter.
According to this article on Yahoo, the NFL and the NFL Players Association have opened an investigation into whether the Carolina Panthers violated the concussion protocol for quarterback Cam Newton on Sunday.
This armchair pundit can tell you in watching the replay, Mr. Newton took a pretty solid hit to the head. Thereafter, in walking towards the sideline he fell to his knees. According to Yahoo, Cam Newton only missed one play. You may have wondered, as I did, what is the NFL’s concussion protocol. For that I turned to SBNation.com where they lay out the protocol as follows:
When a potential concussion is identified the player shall be removed immediately from the field.
The NFL team physician and the unaffiliated neurotrauma consultant (UNC) will:
Review the video of the play
Perform a focused neurological examination
Madden Rule: If there is suspicion of a concussion, the player will be escorted to the locker room for a full assessment
If the player is diagnosed with a concussion, there is NO same-day return to play
If the player passes the exam, he will be monitored for systems throughout the game.
As we witnessed on Sunday, Cam Newton was only ushered to the blue medical tent and then back to the bench. We have to assume the team physician and the unaffiliated neurotrauma consultant did their due diligence to protect him from further harm. Mr. Newton claimed after the game there was a problem with his eye rather than a head injury. I’m of the mind that the human eye is a part of the head and further examination may be necessary. Then again, I am only playing a doctor in this piece.
Why am I concerned about this protocol and the possible failure to adhere to it? In the last 8 years I have seen the reports and talked to the expert witnesses who testify about traumatic brain injury and chronic traumatic encephalopathy (CTE). The real doctors take it very seriously. The damage from CTE is immense and life altering.
I can tell you from my personal experience, the number of doctors specializing in TBI and CTE has at least doubled (probably tripled) in my time at Experts.com. They come in a wide range of medical specialties:
My concern is the medical professionals do what is right for Cam Newton, even if he is only interested in getting back to the game.
With all this said, I want to invite a couple of my friends, both lawyers and former college football players, to respond on this topic in their own time and on their own blogs.
