Tag: expert testimony

Expert WitnessInsuranceWildfires

Camp Fire Disaster Causes Insurance Company Liquidation – Expert Witness

Now that the fire is out, I expected to be done writing about this topic for the year. Alas, there has been another casualty of the fire, it is the Merced Property & Casualty Company.

Insurance companies receive premiums from their customers (policyholders) to insure against property loss, damage and other risks. Some victims of the Camp Fire, the worst wildfire in California history, will not have those claims fulfilled by Merced Property & Casualty Company.

According to the LA Times, as of December 3, 2018, a Merced County court, “gave California Insurance Commissioner Dave Jones permission to seize and liquidate the company’s assets. Now, the company is in the process of handing over policy and customer information to the California Insurance Guarantee Assn., or CIGA, which processes and pays claims on behalf of insolvent insurers.”

My understanding of the liquidation process is as follows: Merced Property & Casualty Company realizes they are in deep trouble, decide to skip bankruptcy, and ask the court to hand their operation over to the California Insurance Commissioner to clean up their mess. Per the LA Times, they have assets of roughly $23 million, but are expecting to pay out nearly three times that amount.

After policyholders fulfill their duty of paying premiums, they should expect to be insured against covered losses. As is often the case in mass disasters, insurance companies are ill-prepared and lack capital to fulfill their part of the bargain. Luckily for Californians, the taxpayers protect against such insurance company failures.

I reached out to one of our California insurance expert witnesses to get a better understanding of this insurance company liquidation.

Insurance Expert Witness Richard Masters

Richard Masters, CPCU, CIC, ARM, AAI, has more than 40 years of experience in the insurance industry. He is an expert on all aspects of property and casualty insurance and has testified in more than 200 trials in state and federal courts.

If you have a policy with Merced Property & Casualty Company, we hope this helps put your mind at ease. As I commonly do, I asked Mr. Masters several questions about the liquidation and he provided responses.

Nick: What happens when California regulators take over an insurance company?

Mr. Masters: They can either liquidate it or try to rehabilitate it. Rehabilitation usually involves getting another insurer to assume the book of business with the backing and help of CIGA. In the case of Merced I do not think it will be rehabilitated. First, I urge all customers of Merced to contact their insurance broker and immediately get a new insurance policy with a different carrier going forward.

Nick: Merced Property & Casualty Company didn’t even file bankruptcy. They claimed insolvency and are liquidating the company. What happens to the claimants?

Mr. Masters: The claimants will continue to make their claims with Merced and they should also contact CIGA to make a claim for benefits. CIGA can be contacted at 818-844-4300 or assistance@ciga.org. Make sure you have your homeowners or dwelling policy available. If you need to, contact your insurance broker to get copies of your policies.

Nick: There is some information that the California Insurance Guarantee Association. Is this like an FDIC for insurance companies?

Mr. Masters: Yes, that is a reasonable analogy. CIGA has three separate funds that they operate. The Merced collapse would involve the Homeowners Personal Lines fund. A liquidator will be assigned by CIGA and will administer the funds.

Nick: Will the claimants receive fractions of their claims as a result of this regulatory takeover?

Mr. Masters: Generally, CIGA will pay up to $500,000 for each claim but this depends on the terms of the policy and other factors determined by CIGA.

Nick: Any other information to provide to the public about the claims process through CIGA?

Mr. Masters: The claim process through CIGA is cumbersome and takes a LOT more time to complete. Claimants will need a lot of patience when dealing with CIGA.


In related news:

The ABA Journal reported today, “two law firms known for their class action practices have filed a new lawsuit that blames Pacific Gas and Electric Co. for the November fire that killed at least 88 people in Northern California and destroyed the town of Paradise.” Seven plaintiffs are jointly represented by The Edelson Law Firm and Lieff Cabraser Heimann & Bernstein.

This is just one of several suits blaming PG&E for negligently maintaining equipment which resulted in wildfires. It appears the plaintiffs have hit PG&E with a variety of claims including inverse condemnation, trespass, negligence, nuisance and more. One of the plaintiffs claims to be suffering from PTSD as a result of being stuck in traffic, while trying to flee the fire, and embers from fire-engulfed trees were hitting his car. He feared he “would be burned alive.” I might be suffering serious emotional distress as well.

Let us not forget, PG&E has already publicly stated that they may have to declare bankruptcy if it is determined they were responsible for the Camp Fire.


This is the last I will be writing about the Camp Fire for this year. However, given the continuing legal implications of this catastrophe, I expect issues of import will develop in the New Year.

EvidenceExpert WitnessExpert Witness Testimony

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

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

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

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

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

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

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

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

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

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

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

Criminal JusticeCriminal LawForensic DNA

Golden State Killer, Part 1: Experts Explain Forensic DNA Evidence

This marks the first blog post I’ve written on a local event of national concern, the arrest of the Golden State Killer. The subject matter is sensitive for many involved, as such I aim to treat the topic with respect. There are significant issues related to the use of expert witnesses in a matter of this magnitude (DNA, ballistics, crime scene investigation and reconstruction, forensic psychology, forensic psychiatry, and more), so I have opted to address those issues with the input of appropriate experts.

In the week and a half since the arrest of suspected Golden State Killer, Joseph James DeAngelo, Jr., those of us in Northern California have been inundated with news reports about the crimes attributed to this prolific serial rapist and murderer who lived less than an hours drive from the Experts.com corporate office.

Prior to the arrest, I only knew bits and pieces about the history of the Golden State Killer (AKA: East Area Rapist, Original Night Stalker, Visalia Ransacker). Little did I know that several of the attacks (rapes) happened in my hometown of Stockton, California, putting the city and San Joaquin County on edge in late 1977 to early 1978. The Stockton attacks took place before and after many similar attacks in neighboring Sacramento and Stanislaus Counties, so the entire Central Valley was nervous. Attacks in Stockton apparently resulted in my parents installing their first alarm system.

How did the police locate the suspect?

The Sacramento Bee, has published many articles on the subject since the story first broke at the end of April. They have done some incredibly thorough reporting and I have used their reporting as a guide to writing this article.

It seems investigators had DNA samples from rape victims for decades. The only problem was the DNA samples did not match any of the DNA in criminal databases maintained by law enforcement. This means the suspect had never been caught for any crime and thus his DNA had never been submitted to one of the criminal DNA databases.

Following up on the Golden State Killer cold case, investigators decided to use an open-source genealogy database called GEDmatch. This is similar to the paid services of Ancestry.com and 23andMe, only it is mostly free to the public. Once the DNA profile was uploaded, investigators discovered a pool of potential candidates or relatives with similar genes. From there, they were able to eliminate suspects due to age, sex, location, etc. Eventually, they filtered down to the only suspect who made sense: Joseph James DeAngelo, Jr. After surveilling the suspect, DNA samples were obtained from items he discarded. Investigators then compared those samples to the Golden State Killer DNA. After a several attempts, detectives discovered a solid match and arrested DeAngelo.

DNA evidence is complicated, so I reached out to several of our members to discuss the DNA evidence involved in this case. Two Experts.com members responded to my questions for the first portion of this series on forensics.

DNA

Suzanna Ryan – Forensic Serology & DNA Expert Witness:

Blog readers may remember a really fun and informative live interview I did with forensic serology and DNA expert, Suzanna Ryan. She provided live and recorded viewers with some fascinating information on forensic DNA analysis. Naturally,  I reached out to her for input on the Golden State Killer case.

It is important for readers to remember we are only commenting on publicly available information from news reports. As in previous articles, I have outlined my questions and Ms. Ryan’s answers below. To learn more about her practice, please visit her website: ryanforensicdna.com.

Questions:

Nick: What are the types/forms of DNA evidence law enforcement is likely to have retrieved from Golden State Killer crime scenes?

Ms. Ryan: I am not sure I know enough about the cases to say for sure, but it sounds like at least some of the cases involved rape, so it is likely that in the mid-70s and mid-80s the perpetrator was not being very careful about not leaving his DNA – in the form of semen – behind.  There is a lot of DNA in semen and it is likely that a clean, single source profile was able to be obtained from those type of samples.  That is probably how the cases were linked to each other as well.

Nick: Is there a type/form of DNA that is more compelling or stronger evidence than other types?

Ms. Ryan: Body fluid DNA is typically,  in my view, more compelling evidence because it is more difficult to argue that the DNA arrived there inadvertently through some sort of secondary transfer. This is especially true if the perpetrator and victim did not know each other and there would be no reason for the perpetrator’s blood to be in the victim’s home, for example, or his semen in her body.

Nick: According to news reports, the last known Golden State Killer crime took place in 1986. Does DNA evidence degrade over time?

Ms. Ryan: DNA evidence can degrade over time, but if it is properly stored (i.e. in paper, not plastic and in a temperature controlled environment like an indoor property room – NOT in an attic, garage, or non-temperature controlled shed of some sort) then DNA profiles can be obtained many years later.  Heat, humidity, and moisture are all very detrimental to DNA evidence.

Nick: How does law enforcement maintain DNA evidence over decades?

Ms. Ryan: Once a profile is obtained from an item of evidence, that profile is stored electronically.  However, evidence that has not been tested or is part of an unsolved case will be stored in police evidence rooms, categorized by case number.  It should remain sealed and in paper bags, manila envelopes, or boxes.

Nick: From public reports, we know law enforcement has found a DNA match. What type of evidence will the prosecution have to present at trial to prove the DNA belongs to the suspect?

Ms. Ryan: I don’t know the answer to this.  Likely semen DNA evidence.  Possibly blood or even touch DNA at some of the crime scenes if re-testing or additional testing of evidence is conducted.

Nick: Are there arguments the defense can use to claim the DNA is not from the suspect?

Ms. Ryan: I’m sure there are.  No way to answer this unless the case files are reviewed. However, when you have multiple cases linked together combined with a database-type match like this (in other words, he wasn’t a suspect before but was found through searching one type of database or another) it becomes more difficult to argue that there is some sort of laboratory error or cross-contamination in the lab.

Nick: Are there items you think the public should know about DNA evidence that I have not covered in the above questions?

Ms. Ryan: You didn’t really ask about the whole forensic genealogy aspect to this.  That the investigators used a private lab (not sure who, but I suspect Parabon) to do the same type of DNA typing (SNPs) that ancestry DNA labs do on an evidence sample from the case.  That profile was then uploaded to one (and frankly, probably more than one) DNA sharing site to search for a possible relative.  There is also some news about some other guy in a nursing home being a suspect, etc.  There was apparently similarities in his DNA profile to the GSK, so they got a warrant for his DNA, did a comparison, and found he was excluded.  That doesn’t mean they “got the wrong guy”, etc. that is being played up in the media.  It means that he was a possible suspect because of his DNA, but he was also cleared, because of his DNA.  The police probably followed around and surreptitiously collected DNA from a LOT of guys before they found DeAngelo.  That’s kind of how this type of search goes.  It is similar to, but not the same as familial DNA searching.  That is something the public and media don’t understand.  Familial searching uses the CODIS database to look for near matches.  It works because 46% of offenders have a brother or father who is also incarcerated.

George Schiro – DNA Technical Leader & Forensic Science Expert Witness:

George Schiro is the Lab Director of Scales Biological Laboratory in Brandon, Mississippi. His duties include incorporating DNA Advisory Board (DAB) standards, accountability for the technical operations of the lab, conducting DNA analysis in casework, DNA research, forensic science training, and crime scene investigation. I posed the same questions to Mr. Schiro that were presented to Ms. Ryan. You can learn more about him by visiting his website: forensicscienceresources.com.

Questions:

Nick: What are the types/forms of DNA evidence law enforcement is likely to have retrieved from Golden State Killer crime scenes?

Mr. Schiro: I know that seminal fluid was collected from at least some the crime scenes, and the GSK may have injured himself at some point during one of the many attacks and left blood behind at one or more of the scenes. These are the two most likely sources of DNA found at the scenes. From this biological evidence, they would have done autosomal short tandem repeat (STR) DNA testing on the stains. This generated DNA profiles that the crime labs were able to upload to the Combined DNA Index System (CODIS) DNA database. This was how they originally connected the East Area Rapist (EAR) with the Original Night Stalker (ONS) and knew they were committed by a single individual. The profile in CODIS did not hit on any identifiable individual in the database. A familial search was also conducted at the state level (SDIS) to look for any potential relatives in the CODIS database. No potential relatives were found in the database. They may have also conducted Y chromosome STR (Y STR) DNA analysis on the samples in an effort to find any potential relatives. It is my understanding that they found a rare genetic marker in one of the samples and used a publicly available genealogy database to trace the marker from family members in the database back to Joseph James DeAngelo. They then used a discarded item from Mr. DeAngelo to compare his autosomal STR profile to that of the GSK and they matched the profiles.

Nick: Is there a type/form of DNA that is more compelling or stronger evidence than other types?

Mr. Schiro: Autosomal STR DNA analysis is currently the strongest type of DNA evidence because it remains consistent throughout a person’s life; with a few, rare exceptions, the DNA is the same throughout the individual’s body; the results are highly reproducible; the methods are standardized; and this type of DNA is highly individualizing. Theoretically, enough autosomal STRs are used to distinguish everyone on the planet with the exception of identical twins. Eventually, next generation sequencing (NGS) will probably supplement, and, perhaps, eventually replace autosomal STR DNA analysis as the crime lab tool of choice.

Nick: According to news reports, the last known Golden State Killer crime took place in 1986. Does DNA evidence degrade over time?

Mr. Schiro: DNA will degrade over time if it is exposed to heat, humidity, or ultraviolet (UV) light; however, if it is air-dried when collected and stored at room temperature under climate controlled conditions to reduce humidity, then it can last for decades, perhaps centuries. DNA has been obtained from mummies, so it is a very stable molecule under the right conditions.

Nick: How does law enforcement maintain DNA evidence over decades?

Mr. Schiro: Law enforcement maintains DNA evidence by air drying it upon collection, then keeping it stored in an air-conditioned, secure location where the temperature and humidity can be regulated.

Nick: From public reports, we know law enforcement has found a DNA match. What type of evidence will the prosecution have to present at trial to prove the DNA belongs to the suspect?

Mr. Schiro: They will have to show that the evidence originated from the crime scenes. They can do this by introducing crime scene photographs, videos, investigator notes, and testimony of the people who collected the evidence. They will then have to show that the evidence was stored and preserved properly; and the evidence chain of custody was maintained. They will have to show that the items were tested using validated techniques and that a report was produced. The report can be introduced at trial and the DNA analyst can testify to the tests and results. They will then have to show that a sample was collected from Joseph James DeAngelo and all of the same steps were taken with his sample. Finally, they will have to show how the DNA samples from the crime scenes match the DNA sample from Mr. DeAngelo.

Nick: Are there arguments the defense can use to claim the DNA is not from the suspect?

Mr. Schiro: In a cold case DNA hit, such as this one, and because the DNA is from seminal fluid and, possibly, blood, it will be very difficult to argue that Mr. DeAngelo is not the source of the DNA. Arguments of potential sample switches, contamination, and secondary transfer of DNA will not apply to this kind of case. About the only avenues left to the defense are to challenge the legality of the evidence collection and the legality of obtaining Mr. DeAngelo’s reference sample. They can also argue that Mr. DeAngelo has an identical twin who is the actual killer/rapist, but this might not be a realistic defense.

Nick: Are there items you think the public should know about DNA evidence that I have not covered in the above questions?

Mr. Schiro: No, I think you covered it pretty well. Thanks.

How about some further input:

My friend and colleague, Tamara McCormic of LegalForms.Today, is a legal advocate based in Orange County, California. Tamara works for the Orange County Public Defender in their exoneration unit. She is very knowledgeable about the use of DNA evidence in violent crimes. As several of the alleged murders took place in Orange County, this matter hits close to home for her as well.

I’ve asked Tamara to share her thoughts on the Golden State Killer matter based on her experience in homicide exoneration. A link to her blog post will be made available shortly.

 

Accident Investigation & ReconstructionAccident SafetyExpert Witness

Tesla and Uber Self-Driving Systems Result in Fatal Crashes

In the last few weeks we have read several news reports about self-driving car accidents. Tesla and Uber, two companies leading innovation in driverless automobiles, have recently experienced fatal collisions which have hampered their autonomous testing. These are not the first instances of fatal crashes using the self-piloting systems. However, the collisions happened in such a close time frame, the public had to take notice.

On March 18, an Uber autonomous vehicle (AV) was involved in a fatal crash with a pedestrian. A Phoenix Business Journal article describes video of incident as follows:

“The video shows the victim Elaine Herzberg walking her bike in the middle of the road. It does not show the actual collision “due to the graphic nature of the impact,” said Det. Liliana Duran in an email. The video also shows an interior view of the driver looking down at something off and on, possibly a phone or computer screen, before looking up in surprise right before the car hits the woman.”

Due to the graphic nature of the video, we have decided not to share it here. There appears to be some elements of distracted driving involved in this crash. Human error seems to have combined with a failure by the autonomous (self-piloting) system, to identify the pedestrian and brake or take evasive action to avoid the collision.

About 5 days after the Uber crash, Tesla experienced a similar incident while their autopilot system was engaged. Engadget reported on this accident explaining:

“The driver of a Model X has died after his electric SUV collided with a median barrier on Highway 101 in Mountain View and was subsequently struck by two other vehicles. The incident destroyed the front half of the vehicle and sparked a fire that involved the battery, leading to Tesla sending an employee to investigate. Witnesses reported seeing a fireball during the crash.”

In a follow-up article today, Engadget has gone on to state that the NTSB is unhappy that Tesla shared information about the accident. Tesla CEO, Elon Musk, went ahead and blogged that autopilot was engaged but that the driver had removed his hands from the steering wheel for the six seconds prior to impact. The NTSB says Tesla has been cooperative in all previous accident investigations, but evidently they did not want this information made public. Also, it seems the deceased driver, had some concerns about the autopilot system according to his family.

The family claims “he had brought concerns to a Tesla dealership that his Model X had previously swerved toward the same median where the accident happened.”

What gets investigated when autopilot fails?

Readers may think that some elaborate investigation needs to take place since we are dealing with driverless automobiles. The truth is, this boils down to an automotive / vehicular accident reconstruction issue.

Certainly there is advanced programming involved and the crash data retrieval (CDR) may require new methods or new technologies to access information, but the data must be recovered nonetheless.

The NTSB even states, “At this time the NTSB needs the assistance of Tesla to decode the data the vehicle recorded.” They probably require help in accessing the data from Tesla’s proprietary system, but it is still a matter of CDR. If Elon Musk knows that the driver removed his hands from the wheel for six seconds prior to impact, he must have learned of this through the data retrieval process used by Tesla.

The same is true in the Uber crash. They already have dash-cam footage that shows the vehicle did not slow before striking the pedestrian. In that instance, an accident recontstructionist, automotive engineer, or automotive software engineer will have to analyze the self-driving sensors, data, and response of the software, to determine why the car failed to respond while on autopilot.

Both of these accidents require failure analysis. What seems new to us as a society, is that these crashes involved a failure of software, rather than brakes, tires, steering columns, or seat belt failures (failures that have become common and often result in a recall to fix a feature).

The technology and collection methods may change. However, the theories of liability and the investigation remain pretty constant. We have two automobile crashes resulting in death. They require a thorough accident reconstruction investigation to determine the cause of the accidents. Once determined, matters of negligence, product liability, and fault still apply.