Expert Witness Chronicle · 2018-02-13 · 3, Expert Witness Chronicle, May 2012 Samsung Accuses...
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Chronicle Vol. 1 | Issue 2 | may 2012
Expert Witness
Editorial Board
2 EDITOR’S NOTE
Introducing the Editorial Board
3 FEATURE
Samsung Accuses Apple’s Ex-
perts of “Slavish Adoration”
4 COVER STORY
Orthopedic Expert Witness
Stands Vindicated against Retain-
ing Law Firm and AAOS
8 SPOTLIGHT
Debunking Psychological and
Psychiatric Expert Testimony |
By John F. Fielder
11 NEWS FLASH
Playing by the New Rules: Google
Changes its SEO Strategy
New York introduces bill to end
Trial by Ambush
After Florida, California mulls
Expert Witness Certification for
Medical Experts
15 OPINION
Confessions of a Daubert Track-
er | By Myles Levin
18 EXPERT TALK
Meet Alan Westheimer
20 IN FOCUS
Forensic Art: Perspectives of a
Forensic Sketch Artist | By Gil
Zamora
23 SPECIAL REPORT
FEWA organizes yet another
successful Expert Witness Con-
ference
25 EVENT ALERTS
The Annual Bond Solon Expert
Witness Conference
The ARC-CSE Crash Conference
26 DAUBERT ROUND-UP
Case Summaries on Daubert
and its Progeny
Expert Witness
Chronicle
May 2012,
Volume 1, Issue 2
Get In Touch
Send in your feedback/
comments to us at
Email: editori-
Phone: (323) 208 3180
Web: www.expertwitnessguru.com
Editor
Ashish Arun [email protected]
Co-Editor
Shweta Nawani [email protected]
Contributors
John F. Fielder
Myles Levin
Gil Zamora
Advertising [email protected]
An Expert Witness Guru
Publication
© 2012 | All Rights Reserved
Disclaimer
The views expressed in this magazine are those of the au-thors and do not necessarily represent the views of, and
should not be attributed to, the Expert Witness Guru or the Expert Witness Chronicle.
Joseph P. Sanders
A. A. White Professor of Law at University of Houston Law
Center
Edward K. Cheng
Professor of Law at Vanderbilt Law
School
John F. Fielder
CEO, Daubert Institute of Forensic
Psychology
What’s Inside
Editor’s Note
2, Expert Witness Chronicle, May 2012
First things first; Thank You Very Much
for the warm response that you gave to
our first issue. The sheer number of ex-
perts and attorneys who downloaded the
magazine and provided feedback made
sure that our enthusiasm grew manifold
in bringing a better and more informa-
tive next issue of the magazine!
We made some changes to the magazine
this past month, the most important be-
ing our new board of editors. We felt that
we needed some direction in where to
take this magazine vis-a -vis its content
and focus and approached some of the
most distinguished scholars in this field.
Our editorial board now comprises of
Professor Joseph Sanders, the A.A. White
Professor of Law at the University of
Houston Law Center and Professor Ed-
ward K. Cheng, Professor of Law at Van-
derbilt University have both contributed
immensely to the empirical study of evi-
dence law and are co-authors of Modern
Scientific Evidence, the most authorita-
tive treatise on expert testimony. Dr.
John F. Fielder, who owns the Daubert
Institute of Forensic Psychology and has
years of experience working in this area,
both in theory and in practice, has also
joined the board.
You can read his article Debunking Psy-
chological and Psychiatric Expert Testi-
mony in this issue.
Our article on Designation without Re-
tention, in the last issue, struck a deep
chord with many expert witnesses who
have themselves suffered from this mala
fide practice by attorneys. At times, even
when experts come to know about hap-
penstances of them being designated
without their knowledge, they choose to
look the other way since they do not feel
there is any appropriate forum to voice
their concerns.
That being said, not all experts believe in
letting things go and take blows to their
practice and reputation lying down. Dr.
Steven Graboff, an orthopedic expert won
a jury verdict against the American Asso-
ciation of Orthopedic Surgeons and the
law firm that retained him in a medical
malpractice case. The attorney had al-
tered his “draft report” without his
knowledge or permission and the AAOS
had suspended his membership after a
highly controversial disciplinary pro-
ceeding. Read the most complete cover-
age of this story and many other interest-
ing articles in this issue of the Expert
Witness Chronicle.
Introducing The Editorial Board
“
Ashish Arun
Editor
Expert Witness Chronicle
P: (323) 208 3180
Feature
3, Expert Witness Chronicle, May 2012
Samsung Accuses Apple’s Experts of
“slavish adoration”
The patent and trademark infringement litiga-
tion between Apple and Samsung took an inter-
esting turn on May 17, 2012 when Samsung
filed a motion to exclude 8 of Apple’s expert
witnesses. In its motion to exclude expert testi-
mony under Daubert, Samsung accused Apple’s
experts of casting aside established scientific
methods and governing legal principles in favor
of slavish adoration of their client and plati-
tudes about its alleged magical and revolution-
ary products, issues
that, according to
Samsung, are of no
relevance to the
claims and defenses
at issue.
Allegedly, one expert
wrote in his report
that “Apple has built
a considerable and at times a cult-like following
to all things Apple.” Samsung has also accused
another Apple expert of being a loyal devotee
of Apple, its designers, its products. The expert,
before being retained by Apple, had written an
essay on the design of Apple’s retail stores, en-
titled Gardens of Earthly Delights, describing
them as “[q]uasi-religious in almost every re-
spect… chapels for the Information Age” and
referred to Steve Jobs as “St. Eve”. The expert
was accused of offering an opinion on museum-
worthiness of Apple products in comparison to
others, but admitting that he did not even in-
vestigate the extent to which other products
appeared in museum collections.
A third expert was accused of rendering expert
opinions that read like a closing argument Ap-
ple would make to the jury on the issues of
trade dress infringement and dilution. Rather
than apply any particular marketing expertise
or the results of his own surveys or other work
product, Samsung accused the expert of acting
as a summary witness, reciting argumentative
conclusions based upon surveys conducted by
other experts designated by Apple, press sto-
ries, and various Ap-
ple internal docu-
ments.
Apart from the bias
that Samsung claims
against Apple ex-
perts, the motion to
exclude also chal-
lenged the experts on
the basis of their qualification, methodologies,
relevance and their probative factor being out-
weighed by the likelihood of jury confusion,
and severe prejudice to Samsung.
The U.S. District Court for the Northern District
of California will soon hear the parties on Sam-
sung’s motion and it will be interesting to find
out how the Court treats the challenges based
on the alleged love and devotion shown by Ap-
ple’s experts towards its products.
You may download a copy of Samsung’s motion
here.
Cover Story
Expert witnesses join profession-
al associations and organizations
looking to connect with their
peers, who would help them
learn, network, and grow. Most
experts who are members of
such associations will swear by
the value it brings to their profes-
sional stature. But at times, the
very association can turn against
you and can cause you great pain
and suffering! Sadly, Dr. Steven
Graboff’s association with the
American Association of Ortho-
pedic Surgeons (AAOS) turned
into a bitter disciplinary proceed-
ing and a court case that finally
saw Dr. Graboff stand vindicated
after two years of anguish.
Problems related to expert wit-
ness associations primarily arise
in circumstances where one
member is retained to testify
against another in a professional
malpractice case – and this is
more so true with medical doc-
tors. In spite of the large number
of medical experts, it is never
easy to find one who is willing to
testify against another in the
same area, locality, hospital or
association. Dr. Steven Graboff is
one such expert who believes in
providing opinions and factual
testimony in a fair and impartial
manner; and to develop a level of
confidence and trust based on
honesty, integrity, and objectivi-
4, Expert Witness Chronicle, May 2012
ty. However, this mission of his
landed him in deep peril when a
defendant in one of the cases he
testified in, filed a complaint with
the AAOS and Dr. Graboff was
disciplined (suspended) for alleg-
edly violating its standards of
professionalism.
It all began in January 2006 when
Francis T. Colleran of the Colle-
ran Law Firm retained Dr.
Graboff to testify on behalf of the
Plaintiff in a medical malpractice
case against another orthopedic
surgeon, Dr. Menachem Meller,
M.D. Dr. Graboff prepared and
submitted a draft report sum-
marizing his preliminary medical
conclusions to Mr. Colleran. He
opined that Dr. Meller was negli-
gent and his conduct failed to
meet the standard of care.
After submitting his draft report,
Dr. Graboff informed Mr. Colleran
that he would not finalize his re-
port or depose until he had re-
viewed all medical records and
radiological studies. Dr. Graboff,
however, never heard again from
Mr. Colleran about the case.
“
ORTHOPEDIC EXPERT WITNESS
STANDS VINDICATED AGAINST
RETAINING LAW FIRM AND AAOS
Associate with men of good quality if you esteem your own reputation; for it is bet-ter to be alone than in bad company.
- George Washington
The Complaint by Dr. Meller
After more than a year, Dr.
Graboff received a letter from the
AAOS (he was a member then)
informing him that Dr. Men-
achem Meller, a fellow member,
had filed a grievance report
against him. The grievance re-
port alleged that Dr. Graboff vio-
lated certain standards of AAOS’
Standards of Professionalism for
Orthopedic Expert Witness Testi-
mony in preparing and submit-
ting his report in the Jones case
involving the Dr. Meller and the
Colleran Law Firm. The Commit-
tee on Professionalism scheduled
a hearing and while Dr. Graboff
was preparing for the same, he
noticed that though he had given
a document titled “Draft Report”
to Mr. Colleran, the document
submitted by Mr. Meller did not
contain the title “Draft Report”.
Mr. Colleran, in a letter to Dr.
Graboff, mentioned that the
words “Draft Report” had no sig-
nificance to him as an attorney
and he was certain that the so-
called “Draft Report” was legally
sufficient to allow the case to
proceed to a jury. The AAOS
Committee had set a deadline for
October 10, 2008 for submis-
sions before the hearing. Since
Mr. Colleran’s letter was submit-
ted after the deadline, it refused
to consider or even review it
where Mr. Colleran accepted
that he had altered the report
to make it appear as though it
were final. The Committee
found Dr. Graboff guilty of violat-
ing certain standards of profes-
sionalisms and began its
“Discussion and Summary” of Dr.
Graboff’s grievance with a note
that he “advertises his services as
a medical-legal expert witness”.
The Committee found that Dr.
Graboff gave false testimony, was
not fair and impartial, failed to
evaluate the care at issue in light
of generally accepted standards,
and did not exhibit knowledge
about the standard of care for the
condition at issue. Dr. Graboff
appealed to the AAOS Judicial
Committee but it affirmed the
Committee on Professionalism’s
decision. In a meeting of the
Board of Directors, the AAOS
Board voted to suspend Dr.
Graboff for a period of two years
and sent him a letter informing
him of its decision on June 22,
2009. A week later, Dr. Graboff
resigned from AAOS. A summary
of the decision to suspend Dr.
Graboff was published on the
AAOS website in September
2009.
The Ensuing Litigation
On April 16, 2010 Dr. Graboff
filed a case against the Colleran
Law Firm alleging breach of con-
tract, negligence and breach of
the duties of confidentiality and
trust by a lawyer. He also sued
AAOS for breach of contract, tor-
tious interference with contrac-
tual relations, commercial dis-
paragement, defamation and
false light invasion of privacy
against a professional association
that retaliated against a member
and fellow physician for regular-
ly testifying in medical malprac-
tice actions by public censure.
The AAOS, in its motion for sum-
mary judgment, argued that it
considered Dr. Graboff’s argu-
ment that his expert report had
contained the words “draft re-
port,” and was therefore
“preliminary,”. However, it found
Cover Story
5, Expert Witness Chronicle, May 2012
“ Standards of Professionalism set by or-ganizations like the AAOS gives them pretext to assert pressure and influence on their members to not testify against other members of the organization, and promotes the "silencing of doctors" as being critical of other doctors. This in es-sence is a "back door" way of effecting tort reform and healthcare reform, since if there is no plaintiff expert willing to testify, there can be no malpractice case. Dr. Steven R. Graboff, M.D.
that to be outweighed by the
countervailing facts: he had
signed the report; he had stated
his opinions that another ortho-
pedic physician was negligent to
a “high degree of certainty”; and
he had stated absolute conclu-
sions without mentioning any
need to review additional rec-
ords or films. The jury eventually
found for Dr. Graboff and award-
ed him $380,000. The Colleran
Law Firm was found to be guilty
of negligence while the AAOS was
found to be guilty of publication
in a false light.
Clifford Haines, Esq., whose firm,
Haines and Associates, repre-
sented Dr. Graboff in the suit,
told the Expert Witness Chronicle
that “perhaps the most important
“lesson” from the case is the recog-
nition that Courts , lawyers and
parties are in the best position to
evaluate expert testimony and
determine its accuracy and credi-
bility. The criticism that juries do
not understand the subject matter
of expert testimony or recognize
when it is inaccurate is just mis-
guided. When one side presents
an expert, the other side is fully
capable of debunking myth, error
and misstatement. Jurors do not
need to have broad scientific
knowledge to understand the dis-
crete issues in a lawsuit. Those
issues are examined under very
harsh light and bad experts are
like bad products; the market-
place just does not tolerate them.
Scrutiny by outside entities is in-
tended to intimidate experts and
silence their criticisms of other
professionals or organizations.”
Since his suspension, Dr. Graboff
lost existing and prospective con-
tracts for his expert services, in-
cluding but not limited to con-
tracts with Allstate and Travelers
Insurance Companies. His credi-
bility as an expert witness was
subject to challenge and was
used to discredit him on cross-
examination, effectively ending
his ability to serve as an expert
witness. He stopped receiving
new cases requesting his services
as a medical expert. While he is
satisfied with the verdict and
feels that his name, reputation,
and credibility has been restored
as an experienced expert witness,
he believes that Standards of Pro-
fessionalism set by organizations
like the AAOS gives them a pre-
text to assert pressure and influ-
ence on their members to not
testify against other members of
the organization. This promotes
the "silencing of doctors" as being
critical of other doctors, he noted,
and in essence is a "back door"
way of effecting tort reform and
healthcare reform, since if there is
no plaintiff expert willing to testi-
fy, there can be no malpractice
case.
Attorneys have a legal and ethical
obligation towards their retained
expert to not misrepresent their
opinions under any circumstanc-
es. Dr. Graboff feels that while in
reality, there is no way to stop
anyone from altering a document
if that is their intention, hopeful-
ly, the verdict in his case will
bring to light the risk an attorney
is taking if he/she alters an ex-
pert's report.
Our Take
An expert witness is free to form
his opinion after reviewing the
documents presented to him by
the retaining attorney. If an ex-
pert clearly mentions that his
report is a “draft report”, the at-
torney must not modify or sub-
mit it without the consent of the
expert. While Dr. Graboff finally
stands vindicated and has his
Cover Story
6, Expert Witness Chronicle, May 2012
Scrutiny by outside entities is intended to intimidate experts and
silence their criticisms of other professionals or organizations.
- Clifford Haines, Esq. Haines & Associates “
name cleared, this was an ordeal
for him and no expert would ever
want to be in his shoes, even if
one is likely to come out of it as a
winner.
Experts should consider adding a
clause to their retainer agree-
ments clearly prohibiting the at-
torney from making any change,
whatsoever, to their expert re-
port, without the prior written
approval of the expert. Dr.
Graboff’s case is a great lesson
for everybody who offers expert
witness services.
Do you have a clause in your re-
tainer agreement that prohibits
an attorney from altering the
contents of your report? Have
you ever been asked by your at-
torney to modify or alter your
expert witness report? Do you
agree that organizations like
Cover Story
7, Expert Witness Chronicle, May 2012
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Introduction
It is of central importance that
litigators understand and deal
effectively with expert testimony
in cases that contain claims for
emotional distress. Attorneys
have long struggled to cope with
the arcane testimony of psychi-
atric and psychological experts
with varying degrees of success.
The problem has stemmed from
inadequate standards of evi-
dence and the fact that they have
not used the tools of science to
analyze and differentiate be-
tween reliable and unreliable
psychiatric and psychological
testimony as is now required by
Daubert. Using relevant concepts
in statistics, probability theory
and experimental design, attor-
neys can successfully challenge
and exclude unreliable psychiat-
ric and psychological testimony.
One cost-effective way to learn
how to use these tools is through
the use of consultant experts
during the discovery process.
Evolving Legal Standards for
Scientific & Expert Testimony
It has been eighteen years since
the U.S. Supreme Court unani-
mously set a new Federal stand-
ard for scientific expert testimo-
ny in Daubert v. Merrell Dow
Pharmaceuticals, Inc. and since
embodied in the Federal Rules of
Evidence. Subsequently, in Gen-
eral Electric Co.v. Joiner, the
Court, in recognizing that the
methodology and conclusions of
an expert are inextricably inter-
related, allowed lower courts to
exclude an expert’s conclusions
if they are unreliable. And, in
Kumho Tire Co. v. Carmichael,
the Court also specifically held
that the non-inclusive checklist
for assessing whether or not
proffered expert testimony
meets the Daubert criteria of
reliability also “applies not only
to testimony based on ‘scientific’
knowledge, but also to
knowledge based on ‘technical’
and ‘other specialized’
knowledge. The fact is, however,
that research has revealed that
only 5% of state court judges
have the scientific literacy neces-
sary to properly apply Daubert.
It is therefore in the best inter-
ests of litigators to take the lead
in challenging the expert testi-
mony of psychologists and psy-
chiatrists. This does not mean,
however, that they must become
experts in statistics, probability
theory and experimental design.
They need only learn the con-
cepts of these subjects that per-
tain to clinical psychology and
psychiatry and the relevant liter-
Spotlight
8, Expert Witness Chronicle, May 2012
Debunking Psychological and
Psychiatric Expert Testimony
John F. Fielder, Ph.D.
“ ...a critical attitude toward a subject can only be adopted when a com-plete mastery of its content has been attained. As long as the pupil is in the textbook stage he is prepared to accept, and is usually only too ready to accept, statements without any very searching inquiry into their foun-dation.
- Norman Robert Campbell Foundations of Science
Spotlight
ature that supports the exclusion
scientifically unreliable testimo-
ny in additions to changing the
focus of the discovery process.
Discovery of Expert Qualifica-
tions is Vital
An in depth discovery of expert
qualifications is vital for chal-
lenging psychiatric and psycho-
logical testimony in this post-
Daubert era and specifically re-
quires an inquiry into an expert’s
formal education in statistics,
probability theory and experi-
mental design. This is relevant as
it speaks to his or her ability to
critically evaluate the validity
and reliability of theories and
methods in addition to research
upon which they may rely upon
in forming an opinion(s). This is
of particular importance because
most psychiatrists and many clin-
ical psychologists, especially
those with a Psy.D. degrees have
at the most a minimal education
in these subjects and are there-
fore unable to form accurate
judgments regarding the validity
and reliability of the methods,
theories and diagnoses they use
in their clinical assessments.
Lines of questioning in this area
should elicit undergraduate and
graduate courses completed in
statistics, probability theory and
experimental design in addition
to questions about relevant con-
cepts to the subjects themselves.
For example, what are Type I and
Type II errors? Alpha and beta?
What is Construct Validity? Inter
-rater reliability? What is a t-test
or a standard deviation? What is
the difference between experi-
mental designs and quasi-
experimental designs? What is
the difference between random
selection and random assign-
ment? Lines of inquiry should of
course be framed within the con-
text of the work performed in a
particular case, the methods and
theories used and proffered opin-
ions. If there is a diagnosis of
Post Traumatic Stress Disorder,
for example, what is the con-
struct validity of this particular
Diagnostic and Statistical Manual
of Mental Disorders – IV (DSM-
IV) disorder? What is the inter-
rater reliability for diagnosing
this disorder? The testimony of
an expert who cannot answer
these questions should be ex-
cluded.
Discovery of the Validity and
Reliability of Expert Methods &
Theories
In the practice of psychiatry and
clinical psychology there are only
two methods available to clini-
cians for obtaining data from pa-
tients and they are the structured
and/or unstructured diagnostic
clinical interview and psychologi-
cal testing. There are currently
no medical tests that can be relia-
bly used in the diagnosis of men-
tal disorders. Discovery in this
area should go to the clinician’s
knowledge of the validity issue in
the diagnostic process. It is a
well-known fact that the diagnos-
tic process as represented by the
DSM-IV that validity has been
sacrificed for inter-rater reliabil-
ity and that diagnostic categories
are viewed as hypotheses by the
creators. Validity in this context
means how well the instrument
(clinician) measures what it is
supposed to be measuring. Stud-
ies designed to establish the con-
struct validity of diagnostic cate-
gories are totally absent with re-
gard to the DSM- IV. With regard
to the diagnostic interview, lines
of questioning should also ad-
dress the issue of clinician bias
and the effect of different theo-
retical orientations on the collec-
tion of data from patients. One
clinician may see depression be-
ing caused by a real or perceived
loss while another may view the
cause the result of a putative
“chemical imbalance”. There are
in fact so many different theories
of mental functioning and causes
of mental disorders that have no
scientific support as to make the
entire discipline incomprehensi-
ble to an outsider.
The second method, psychologi-
cal testing, has been greatly mis-
used in an attempt to answer fo-
rensic questions. Results of tests
designed for clinical purposes
have been relied upon to form
opinions regarding the existence
9, Expert Witness Chronicle, May 2012
and cause of emotional distress
and psychological damage causes
of action. Lines of questioning
should go to an expert’s formal
education and training in the
construction, administration,
scoring and interpretation of
tests. For a particular test, in-
quiry into the purpose for which
the test was designed and how it
was developed as well as its
norms and predictive and exter-
nal validity. There is only one
psychological test, excluding cer-
tain concurrently validated neu-
ropsychological tests, that should
ever be admitted into evidence
and that is the Minnesota Multi-
phasic Personality Inventory
(MMPI-2) and this is with strict
limitations. The MMPI-2 has sev-
en well-studied validity scales
and if someone is faking or exag-
gerating it is likely to catch that
since it is very difficult to fake
consistently. The test provides a
means to cross check for incon-
sistent or contradictory state-
ments within the test itself and
against other evidence in a case.
The Majority of Psychological
& Psychiatric Expert Testimo-
ny is Unreliable
An expert’s opinions are based
on data obtained by the methods
and guided by the theories par-
ticular to the discipline. Theories
determine what you can see. If
those methods and theories are
flawed and do not produce scien-
tifically valid data then reliability
is moot. Using the tools of sci-
ence described here it will be dis-
covered that the vast amount of
psychiatric and psychological
testimony is unreliable for foren-
sic purposes and therefore
should be inadmissible as evi-
dence. Attorneys have the means
to exclude unreliable evidence
through in limine and Daubert
motions or if that approach is
unsuccessful through the use of a
rebuttal expert if a case goes to
trial. There is a voluminous sci-
entific research literature to sup-
port a motion or rebuttal.
Recommendations
1. Hire a consultant expert early
to evaluate a plaintiff’s claim of
emotional distress and analyze
the opposing expert’s methods
and report before deposing ei-
ther. The consultant can suggest
lines of questioning for the depo-
sitions of the plaintiff and expert
that could provide useful evi-
dence.
2. Schedule a two-part deposi-
tion of the opposing expert. This
provides an opportunity to ana-
lyze any research the expert is
relying upon and generate addi-
tional lines of questioning re-
garding his or her previous testi-
mony.
3. Avoid competing experts at
trial. This model introduces far
too many extraneous and poten-
tially prejudicial factors such as
persuasiveness and likeability of
an expert. The overwhelming
population of jury members will
not understand scientific issues
and will believe the expert who
appears more credible.
4. Above all, stay focused on
what is scientific, i.e., valid and
reliable. Do not get caught up in
the superficial, speculative and
unsubstantiated theories that
make up almost all psychological
and psychiatric testimony.
References
1. Daubert v. Merrell Dow Phar-
maceuticals, Inc. 113 S. Ct. 2786
(1993).
2. Diagnostic and Statistical Man-
ual of Mental Disorders (1994).
American Psychiatric Associa-
tion. 4th Ed.
3. Gatowski, S.I., et. al., (2001).
Asking the gatekeepers: A nation-
al survey of judges on judging
expert evidence in a post-
Daubert world. Law and Human
Behavior, 25(5), 433-458.
4. General Electric Company v.
Joiner. 522. U.S. 136 (1997).
5. Kumho Tire Company v. Car-
michael, 526 U.S. 137 (1999).
Dr. John Fielder is a clinical and
forensic psychologist. He can be
reached at (916) 878 0355 or at
for questions about this article.
Spotlight
10, Expert Witness Chronicle, May 2012
News Flash
11, Expert Witness Chronicle, May 2012
Playing By THE NEW RULES
When I go online and Google something, I expect
Google to tell me the most relevant page for my
query. If I google “Massachusetts Institute of Tech-
nology”, I would want to land up on the home page
of the MIT. However, the way Google had been in-
dexing websites until now; there were many ways
in which these rankings could be tweaked by re-
sorting to both ethical and
unethical composition of
websites (white hat and
black hat SEO). Many a
times, certain websites
would pop up which were
remotely related to my
search query but still managed to be on top of the
search results due to keywords, high number of
links and several other similar factors.
Similarly, buying paid links has been a rampant
(but often frowned upon) strategy implemented by
many SEO companies who are willing to pay any-
thing from $10 to $100 for you to provide a link to
their website from yours. The number of incoming
links tells Google that many people believe your
website is relevant for that particular keyword and
your website ranks higher.
All this is now coming to an end… and FOR GOOD!
Recently Google announced 52 changes to the way
it indexes and produces results for search queries.
The idea is to make the search results more human
and provide more relevant and diverse results.
Let’s take a look at some of the most important
changes announced by
Google and how they affect
expert witnesses and their
websites.
One of the more notewor-
thy changes brought in is
“the improvements made
to the keyword stuffing qualifiers”. A lot of web-
sites (including expert witness websites) stuff their
pages with keywords in order to increase their
ranking on Google Search Engine Result Pages.
Google is getting better by the hour at identifying
these tactics employed by website developers and
believes that ‘Filling pages with keywords re-
sults in a negative user experience, and can
harm your site's ranking’. This also affects paid
links! In case you have hired an SEO service provid-
er to improve your page rank, make sure that per-
Google has a market share of more than 60% in the organic search industry. This makes Google’s search result page a prime property for everyone looking to be found online, include expert witness-es and consultants. Recently, Google announced changes to its algorithm and the way it would index and rank pages for relevant search terms. Expert Witness Chronicle explains what this means for ex-pert witnesses and consultants.
Google Changes its SEO Strategy
son is not buying backlinks (paying other website
owners to put a link to your website on their page).
While this has helped many websites to move up
the page ranks in the past, Google is now imple-
menting a regime where too many links that appear
to be paid links will be considered as spam.
Another important change relates to fresh content
found by Google on websites. Google, on its
blog, announced that they want users to find
the freshest results particularly for searches
with important new web content, such as
breaking news topics. This is a primary rea-
son why many websites, including expert
directories, have blogs which are updated
regularly with fresh content. Not only does
this add more content and more infor-
mation to the website, it also helps in
achieving higher ranking. However, Google
has decided to exclude fresh content
identified as particularly low quality.
If an expert witness blog is publishing new
content on a regular basis solely for the pur-
pose of SEO (examples include reproducing
content of other blogs or paraphrasing and
posting a few lines and then providing a link
to the primary article), such posts are more
likely to be excluded from the Google index.
Lastly, we need to keep in mind the change
related to authoritative results. Google has
tweaked a signal they used to surface results that
are more authoritative. Since experts are usually
authorities on their subjects, any authoritative con-
tent you post on your website will be more likely to
surface higher than others who just want to throw
in a few keywords here and there and do not know
much about your area of expertise.
Overall, it is good news for people who want to fo-
cus on increasing their website audience by deliver-
ing quality content. Matt Cutts, head of the web-
spam team at Google, has always maintained that
Google wants people to focus on creating quality
content and leave it on Google to make sure that the
content is delivered to the right audience. However,
these improvements/ changes in Google’s technolo-
gy and methodology does not mean the end of
Search Engine Optimization.
The bottom line is – do not resort to any unethical
optimization for your website – you are more likely
to be banned from Google’s index; and be sure to be
rewarded if you are creating quality content and
using the right means to publicize and promote
your website and services.
Keep watching this space to learn more about opti-
mizing your professional website for the search en-
gines.
News Flash
12, Expert Witness Chronicle, May 2012
DOs
1. Write your website content for the audience, not for SEO.
2. Submit your website to the Google Webmaster Central for better indexing and analysis.
3. Set up a blog (we understand many experts be-lieve it is too easy to get questioned about your blog at deposition) and write original authoritative content.
DON’Ts
1. Don’t re-publish anybody else’s article – it will any-way not be indexed and will be removed as dupli-cate content.
2. Don’t stuff your website with keywords, they never played a role in SEO and will now be detrimental to your ranking. See Google’s Official Blog Post.
3. Don’t pay for links to your website.
News Flash
13, Expert Witness Chronicle, May 2012
The Federal Rules of Civil Procedure [Rule 26(a)
(2)] govern disclosure of expert witnesses in feder-
al proceedings. Rule 26(a)(2)(d) specifically pro-
vides,
However, there are states like New York where the
law does not provide any concrete period for the
disclosure of expert witnesses, in spite of requiring
parties to disclose experts. A press release issued
on May 10th, 2012 by Senator Golden notes that
this loophole in the law “has given rise to the prac-
tice of “trial by ambush,” where plaintiffs’ attorneys
wait until the eve of trial to disclose their expert
witnesses, preventing defendants from preparing
an adequate defense. This tactic is unfair and ham-
pers the fair and efficient resolution of claims.”
The new legislation proposes to amend the civil
practice law and rules to require the party with
the burden of proof to disclose their experts
prior to the filing of the note of issue. All oppos-
ing parties then have 60 days to disclose their
expert witnesses. The Bill also proposes that any
motion by a party to preclude, or limit expert
testimony pursuant to this section, must be
made as soon as practicable but no later than
forty-five days after the party's receipt of the
expert disclosure or the motion will be waived.
This legislation will also reduce the administrative
and budgetary burden on New York's courts by
reducing non-meritorious lawsuits.
A party must make these disclosures at the
times and in the sequence that the court orders.
Absent a stipulation or a court order, the disclo-
sures must be made:
1. at least 90 days before the date set for
trial or for the case to be ready for trial;
or
2. if the evidence is intended solely to con-
tradict or rebut evidence on the same
subject matter identified by another
party under Rule 26(a)(2)(B) or (C),
within 30 days after the other party's
disclosure.
Senator Martin J. Golden introduces bill to mandate advance disclosure of expert witnesses
New York Introduces Bill to End Trial by Ambush
Earlier this year, the state of Florida passed an Act
requiring medical doctors registered outside the
state to apply for an expert witness certification
from the Florida State Medical Board. Any medical
practitioner registered outside the state of Florida,
who wishes to testify, as an expert witness in Flori-
da, has to apply to the Florida State Medical Board
for an expert witness certificate, which is valid for
two years.
On similar lines, the state of California has been dis-
cussing Bill AB 1848 to amend its Medical Practice
Act, which currently provides for the licensing and
regulation of physicians and surgeons in the state
by the Medical Board of California under the De-
partment of Consumer Affairs. This bill would re-
quire a physician and surgeon who is licensed in
another state to file an application and fee with the
board and receive approval, as specified, prior to
offering expert witness testimony related to the
practice of medicine in any legal proceeding in the
state. A physician and surgeon so approved would
be subject to discipline by the board.
If the board fails to approve or deny the application
within 10 business days after receipt of the applica-
tion and payment of the application fee, the applica-
tion shall be deemed approved. The board shall is-
sue an expert witness certificate to all approved
applicants, which would be valid for two years.
Since the implementation of the certification re-
quirement in Florida, more than 500 medical doc-
tors from other states have received the expert wit-
ness certification. It is expected that more states
would soon follow the trend and require medical
practitioners from other states to obtain certifica-
tion before they can testify as an expert witness.
Do you agree with this requirement for an expert
witness certificate? This certification, in no way,
guarantees, that the expert would be deemed auto-
matically qualified to testify or the testimony would
be admissible. The power of the State Medical
Board to discipline medical doctors from other
states could be a deterrent and can make it more
difficult for Plaintiffs to find medical experts willing
to testify in medical malpractice cases. Do you think
that other professionals such as Accountants, Real
Estate Appraisers, Vocational Experts and the like
could be brought under the ambit of similar stat-
utes as well? When the trial court is the gatekeep-
er of expert evidence, do we really need a certifi-
cate?
News Flash
14, Expert Witness Chronicle, May 2012
After Florida, California mulls Expert Witness Certification for Medical Experts
Opinion
15, Expert Witness Chronicle, May 2012
Life after Kumho
It was March 23, 1999, the day the Kumho Tire v.
Carmichael decision was released by the U.S. Su-
preme Court. It was a day that would “live in infa-
my” for professionals who derived a large portion
of their income testifying as expert witnesses. The
federal judge’s gatekeeping role defined
in Daubert now was expanded to all expert testi-
mony proffered under Rule 702- not just scientific
testimony.
For the six years since the Daubert decision was
handed down in 1993, many of those expert wit-
nesses whose area of practice fell into the non-
scientific realm had clung nervously to the hope,
and sometimes even the prayer, that the founda-
tions for their testimony and the methods they
used to form their opinions would escape careful
scrutiny by judge “gatekeepers.”
But Kumho was now officially the law of the land
and the expert community was abuzz with ques-
tions. “What would the implications be if I actually
had my own opinions and methods challenged? If I
only testify in state jurisdictions, do I need to wor-
ry? Are my methods truly sound? How do I
know? Are others in my professional community
being challenged? If so, for what reasons and what
have the outcomes of those challenges been? If
their methods were deemed insufficient, would I
also become vulnerable to challenge and exclusion
if I use the same methods?”
But the real subtext of all these questions and the
ultimate issue was: if my testimony were to be ex-
cluded, would my career as a testifier be effectively
over?”
Birth of THE DAUBERT TRACKER
As a former testifying vocational expert myself, I
had always been perplexed and even aghast at how
little care expert witnesses seemed to give to justi-
fying and supporting the legitimacy and “science”
behind their methodologies. And I was equally
perplexed by how little care attorneys gave to ex-
pert witness due diligence and to truly critically
examining the professional backgrounds of both
the experts they retained and the experts they op-
posed. Without really understanding or knowing
for certain, it seemed to me the Courts were finally
saying: “Enough is enough. We are no longer going
to allow “trumped up” or illegitimate testimony to
be heard by jurors. And you litigators better start
being mindful and careful about which experts you
select and you’d better make certain that their tes-
timony meets Daubert criteria.”
With the Kumho decision, the stars seemed to be
Challenges to the Admissibility of Expert
Testimony: How Concerned Should Experts Be?
CONFESSIONS OF A
DAUBERT TRACKER
By Myles Levin
coming into alignment for me from a philosophical
and even an emotional standpoint and the timing
was perfect. Since I had just a few months earlier
started an internet-based medical-legal consulting
company and was in the frame of mind to explore
new ideas, I now had this Daubert/ Kumho idea
kicking around in my head: what if there were a
central online repository of all known “Daubert”
cases. With such a product, expert witnesses would
no longer have to speculate about what was “really”
happening in the post-Kumho world and no longer
have to rely on rumors and notoriously inaccurate
scuttlebutt. Little did I realize at the time that this
idea would have even more relevance, interest and
utility for litigators who would look at such a re-
source as a critical underpinning of expert witness
due diligence.
The challenge of tracking Daubert challenges
This last point I found to be very surprising. Didn’t
lawyers have unlimited access to database products
like those of LexisNexis and WestLaw? Wouldn’t
information about Daubert challenges be front and
center and relatively easy to locate through these
sophisticated products? I soon learned that the an-
swer was a resounding “no” and for several very
important reasons. Here is why:
The issue of the unreported case
In 1999, the only significant databases of decisions
and opinions concerning Daubert or any other issue
of law- which were also widely available and acces-
sible to litigators- were so-called “case law data-
bases.”1 Keeping in mind that I was trained as a
clinical vocational rehabilitation counselor and not
as an attorney, I had little understanding of what
case law really meant and that case law databases
were largely comprised of published (or reported)
cases- a distinction which at the time was nearly
lost on me but which was soon to become perhaps
the most important concept of my career as a Daub-
ert Tracker. I quickly learned that the vast majority
of decisions which trial judges render and the cor-
responding opinions they write (if they write an
opinion at all) go unreported/ unpublished- includ-
ing “Daubert” decisions. But while an unreported
decision may have no “precedential” value, in the
context of the expert witness due diligence, it has
equal value in comparison to a reported decision.
It was inarguable that knowing whether an expert’s
testimony had been previously challenged and/ or
excluded would be vital information for a litigator.
But unreported decisions at the time were exceed-
ingly difficult to locate in spite of the fact that they
represented the vast majority of decisions which
judges made. The tedium and “pick and shovel”
work required to gather unreported Daubert deci-
sion data gave the concept of a Daubert tracking
product true commercial legitimacy.
Missing and inaccurate information in reported
cases
I also soon learned that even in reported cases, the
names of the challenged experts were missing com-
pletely or partially (first name and/ or middle name
missing). For example, the deciding judge may
write “The plaintiff’s accounting expert has present-
ed an opinion without legitimate basis and is here-
by excluded under Daubert.” The name of the ex-
cluded expert was not mentioned and needed to be
located in order for the case to have any value to
attorneys doing due diligence. Furthermore, judges
often misrepresented the expert’s actual discipline,
often referring, for example, to psychiatrists as psy-
Opinion
16, Expert Witness Chronicle, May 2012
1Case law is the set of judicial rulings that interpret law and can be cited in later cases as precedents. An opinion is a
written explanation for the order or ruling in a case that lays out the rationale and legal principles for the ruling. Opin-
ions are published under the Court’s discretion and included in the official reporters, if so decided by the Court.
Opinion
17, Expert Witness Chronicle, May 2012
chologists or to economists as accountants. I found
that in 30 per cent of all cases involving “Daubert”
activity there was enough missing information
about the expert in question that the cases would
have no value from an expert witness due diligence
standpoint. Locating that information would then
give the case value to the expert witness research-
er.
Boolean search issues
Crafting a Boolean search string which would accu-
rately search through hundreds of thousands of
cases in case law databases and identify truly rele-
vant, on-point cases was not trivial. This is because
the text of opinions often didn’t reference Daubert
or Kumho at all. However, words like “unreliable”
and “speculative” or concepts like “motion to ex-
clude” or “lacking in foundation” were often indica-
tors that there may have been Daubert activity ear-
lier in a proceeding- just not clearly “spelled out” in
the text of the opinion. A researcher needed to lo-
cate and examine underlying supporting docu-
ments to learn what actually transpired in the case.
And at that time, virtually no supporting docu-
ments were online. So, in each such instance, a
clerk of court had to be called and documents or-
dered. Or, one of the trial lawyers needed to be
contacted.
These three issues alone made the aggregation of
Daubert data a concept which was commercially
viable, as without it important information would
simply not be readily accessible to the legal re-
search community.
But, additionally, I came to realize that there was
an unintended consequence, if not benefit, of col-
lecting and cleansing this enormous set of Daubert
data: the value it would have in understanding
trends, most vulnerable disciplines and methods
and even the career implications for experts who
have been excluded.
In the next edition of this magazine, I will begin to
examine how Daubert has played out in practical
terms from a career standpoint for testifying ex-
perts - including case studies of real life experts,
from a variety of disciplines, who have been chal-
lenged and excluded.
Myles Levin is the CEO at Daubert Tracker, LLC and
Principal at Expert Witness Profiler, LLC. He can be
reached at [email protected].
Alan Westheimer, CPA/CFF, CFE, a veteran
of more than 20 years of experience as an
expert witness, provides litigation support
services focusing mainly on economic
damages, either calculating them for plain-
tiffs or assessing the calculations of other
experts for defendants.
Mr. Westheimer had his first experience
testifying in the 1970s when clients of his
CPA firm divorced. However, the first as-
signment as an expert witness came along
in the 1980s when the general counsel of
the international accounting firm where
he was a partner asked for his assistance
in defending malpractice lawsuits the firm
had drawn from former clients who had
invested in tax shelters.
Today, his primary areas of expertise are
lost profits; accounting and legal malprac-
tice, especially matters involving federal
taxation and GAAP issues; estate and pro-
bate; family law; alter ego; accounting rec-
ords and financial statement reconstruc-
tions; claims of fraud in business transac-
tions; insurance agent and agency errors
and omissions; construction claims; health
care industry matters; real estate industry
matters; bankruptcy matters; CPA, CFE,
and CFP/ChFC professional standards of
care, and other types of disputes requiring
long-time business and financial expertise.
Routinely retained as an expert witness,
Mr. Westheimer estimated more than 50
engagements in the last five years but not-
ed that he does not testify for Plaintiffs or
Defendants. Instead, he renders objective
opinions regardless of which side engages
him.
Though he has been engaged by Defend-
ants slightly more than by Plaintiffs, he
accepts cases from both Plaintiffs and De-
fendants where he has the requisite expe-
rience and the circumstances meet his
other criteria for engagement acceptance.
Mr. Westheimer has found judges and ju-
ries to be more knowledgeable about busi-
ness and financial matters than generally
believed. However, some dry concepts
(read boring) need to be explained care-
fully in non-technical terms and this is
where his experience as an adjunct profes-
sor at two local universities has proven to
be of immense help. Mr. Westheimer aptly
notes, “An expert needs to be teacher, not
an advocate for his client.”
He recalls his most interesting case as the
one where he represented Anna Nicole
Smith, the now-deceased former model
and actor, in her tortuous interference
with a marital gift lawsuit against the fam-
ily and estate of her elderly husband, J.
Howard Marshall, II. He discovered a com-
Meet Alan Westheimer
“ An expert needs to be a teacher, not
an advocate for his client.
Expert Talk
18, Expert Witness Chronicle, May 2012
Expert Talk
19, Expert Witness Chronicle, May 2012
plex estate planning scheme had been used to prac-
tically eliminate Mr. Marshall’s control over his as-
sets, thus preventing him from making a meaning-
ful bequest to her. Mr. Westheimer explained this
in graphic detail to the jury, but, he notes, Anna
Nicole behaved so badly in court the jury was ill
disposed to do anything for her. However, there
was a verdict in her favor in bankruptcy court in
California with a large monetary award. The ques-
tion of whether the Texas decision in probate court
against her or the California decision in bankruptcy
court for her prevailed went to the U.S. Supreme
Court twice before finally being decided in favor of
the Texas decision. She was gone to her final rest-
ing place when this last decision was rendered and,
in the end, her estate got nothing.
Living in Houston, Texas, Mr. Westheimer is li-
censed as a CPA in Texas, New Jersey, North Caroli-
na, Georgia, Florida, Mississippi, and the District of
Columbia. He is also a Certified Fraud Examiner
(CFE) and has been awarded the Certified in Finan-
cial Forensics (CFF) and Chartered Global Manage-
ment Accountant (CGMA) credentials by the AICPA.
He obtained his out-of-state CPA licenses before
mobility legislation was passed by most states
making it much easier for a financial expert such as
himself to accept an engagement in a state where
he has no CPA license without conflicting with the
local public accountancy laws and rules.
As to the one change he would like to see in litiga-
tion related to his area of expertise, Mr. Wes-
theimer told the Expert Witness Chronicle about
the problem of last minute retention by attorneys.
He has often heard, “Well, we are mediating this
case next month and I will engage you if we don’t
settle there” and believes that an empirical study
by an expert can assist the attorney in knowing a
reasonable settlement amount. He believes that the
clients are so fee sensitive these days they rarely
are willing to pay for such services, but might be
more inclined if urged to do so by their attorneys.
Mr. Westheimer always charges hourly or a flat fee,
which vary depending on the nature and complexi-
ty of the matter. Mr. Westheimer is listed with sev-
eral expert directories and as a business analytic
tool, he always asks attorneys whom he doesn’t
know about where they heard about him. They of-
ten find his listings in different expert directories.
Mr. Westheimer is willing to work wherever the
good engagements take him. He can be contacted at
the following address:
Alan D. Westheimer, CPA/CFF, CFE
5120 Woodway Drive, Suite 9020
Houston, TX 77056-1724
713-623-8911 (voice)
713-623-8914 (fax)
[email protected] (email)
www.westheimercpa.com (website)
In Focus
20, Expert Witness Chronicle, May 2012
You often hear, “a picture is worth a thousand
words”. In this case, “a sketch is worth a thousand
words.” The sketch is a composite sketch created
by a forensic artist (sketch artist, composite artist,
or police artist; they are all synonymous). You may
think think that all composite sketches are created
in the same manner by credentialed forensic art-
ists. You would be wrong with that assumption.
This article is intended to update you on some as-
pects about the field of forensic art and introduce
you to the variety of sketching techniques used by
sketch artists working with police departments.
You will need this information if you have a client
involved in a criminal case. You would benefit from
this article if you plan to utilize a forensic artist to
assist you in your investigation. Finally, if you are
planning on developing arguments to cross exam-
ine your expert, you can use this information to
build your strategy.
I’m Gil Zamora, I retired from the San Jose Police
Department in 2011 after 26 years of service.
From 1995 to 2011, I was the full-time police artist
for a department that had a reputation for keeping
San Jose the safest city in California. The use of the
forensic artist on almost every “who-dunnit” case
resulted in numerous leads that many times led to
apprehensions and eventual convictions. San Jose
and the Bay Area were well accustomed to the
highly experienced forensic artist (police artist).
My predecessor, Tom Macris (Macrisketch), was
the first sworn police artist at SJPD, and for that
matter in the bay area. He was appointed the police
artist in 1976, by police chief Joseph McNamara
who had seen the merits of having a police artist
during his time as the police chief at Kansas City. I
had the pleasure of being Tom’s unofficial appren-
tice from 1993 - 1995, and I studied his sketching
technique. At one point, we tracked the cases he
had worked on through his career and the numbers
were well over ten thousand.
For me, the road to becoming the police artist was
not clear cut. There wasn’t a road map with classes
to take at a local college, there was Tom Macris and
the FBI Composite Art Course in Quantico, VA. I
began my journey by building on my artistic skills
and drawing human faces on a daily basis; I attend-
ed a one-on-one advanced portrait drawing class
with a pastel artist in San Francisco; I completed
my graphic design courses at the local community
college; I sat in on over 1,500 sketch interviews
with Tom, and I completed the Composite Art
Course offered by the FBI. In the end, I had to com-
pete for the job at SJPD with over 10 other candi-
dates applying from around the bay area. Today
the aspiring forensic artist can find workshops to
attend, classes online, and some college courses
that offer forensic art classes. Each law enforce-
ment agency has their own criteria for what they
will accept as their forensic artist. Many contract
with civilian sketch artists with little or no training
Forensic Art Perspectives of a Forensic
Sketch Artist By Gil Zamora
In Focus
21, Expert Witness Chronicle, May 2012
in: interviewing techniques, court room testimony,
advanced portrait drawing, and evidence collection.
Take a moment to compare and contrast your expe-
riences with the agencies that you work with and
see how they value the role of the forensic artist.
I’ve given you this brief history of my road to the
police artist position so that I can share with you
my perspective. Follow me as I introduce you to
what I believe are the pillars of forensic art: The
application of Art; the Psychology of the inter-
view; and the exercise of Collaboration with law
enforcement. Let’s start with the methodology
that forensic artists use to create the sketches.
There are three distinct methodolo-
gies in use today: Standard and
Advanced Methodology and the
Compositure Methodology. The
standard methodology was de-
signed by the FBI to help agencies
develop composite sketches when
they had no access to a highly expe-
rienced forensic artist. The ad-
vanced methodology was developed
by Tom Macris after attending the
FBI Composite Course in 1986. The
Compositure™ methodology was
developed by me in 1996 after studying and apply-
ing the Advanced Methodology for three years.
When I attended the FBI Composite Art Course in
1993 I was surprised when the lead instructor, Hor-
ace Heafner (the creator of the FBI method), asked
me to share with the class the technique Tom and I
were using at San Jose. He told the class to spend
the rest of the week picking my brain about our
“new” technique and challenged them to move past
the instruction we were getting. As I went through
the course I couldn’t help but think that the stand-
ard methodology (SM) relied heavily on collaborat-
ing with the eyewitness (EW) to generate a sketch
from a set of images in the FBI Facial Identification
Catalog. The significant difference between the
Standard Methodology(SM) and the Advanced
Methodology(AM) was how the reference images
were used in the sketch interview session. For in-
stance, in the SM the EW is asked to look through
the catalog of faces at the beginning of the interview
process. The EW spends several minutes going
through the catalog and writing down the feature ID
numbers on the FBI Facial Identification Fact Sheet.
The forensic artist (FA) reviews the information
and then draws the sketch based on these ID num-
bers. Many times the FA will guide the the EW
through the feature types and offer suggestions
about which ones to choose. This is considered a
rapport building technique as well
as a method to gather information.
It is always expected that the EW
will be able to complete the thirteen
sections of the form. Each section
has a space for the ID number and
then a multiple choice section that
narrows the description even fur-
ther. The process is very rudimen-
tary and the complete recall of the
suspects’ face is expected by the
EW.
In contrast, the Advanced Method-
ology (AM) has the FA ask the EW basic questions
about the suspect’s face as the sketch is being
drawn (without reference images). After a com-
plete rough sketch is completed of the suspect’s
face the EW is introduced to the reference images
(old booking photos) and is advised to locate the
faces that remind them of the suspect (for example
the hair, eyes, face type, etc). In the AM technique
you ask for at least three but no more than 4 refer-
ence images to review. You take these images and
then refine the rough sketch before you - out of the
view of the EW. You then show the EW the sketch
after you apply some of the refinements from the
reference images -- thus allowing them to make
changes to the sketch. Tom’s reasons for not using
In Focus
22, Expert Witness Chronicle, May 2012
the catalog at the beginning of the sketch interview
was because he felt there would be contamination
of the EW’s memory. He also felt that the FBI Faci-
al Identification Catalog wasn’t diversified enough
and lacked contemporary hair styles and facial hair
treatments. Tom showed me the FBI catalog that he
received from his attendance in 1986 -- it was the
same printed version I had from 1993. I remember
telling my colleagues at the FBI Composite Art
Course of the three binders Tom had amassed with
booking photos of wide age ranges and countless
racial types. Some of these photos were in bright
color while others were clearly of an older and fad-
ed color scheme. What you saw in these photos was
the distinctive emotions that could be translated to
the affect of the sketched suspect. In both method-
ologies it was encouraged to build rapport and be
mindful of the state of mind of the victim/witness.
Part of my apprenticeship was to learn about the
latest findings in memory recall and mastering the
cognitive interview. Tom was well aware of the
work by Dr. Elizabeth F. Loftus (Eyewitness Testi-
mony, 1979), regarding memory recall. The dan-
gers of contaminating the memory of the EW reso-
nated throughout my training. I studied and applied
the basic principles of the Cognitive Interview
(Fisher & Geiselman, 1992) technique in my moni-
tored sketch sessions.
Tom retired in 1995 and I started my career as the
police artist. During a sketch interview, the EW ran
across a reference image that, she wondered, might
be the suspect. She eventually decided it was not,
but we used the image anyway because she said it
could have been his twin. I remember completing
the sketch and having some doubt about the pro-
cess. I began to debate the merits of using any ref-
erence images at all. That’s when I ran into more
research by Dr. Gary L. Wells. He wrote an article in
the Journal of Personality and Social Psychology,
1978, Vol. 36, No. 12, 1546 - 1557 about the re-
search in eyewitness testimony. The article spoke
about the experiments conducted by researchers
before him and how they were being applied to the
justice system. This article gave me an opportunity
to look at my interaction with the eyewitness and I
decided to make some changes to my process. And
so, in the summer of 1996 I decided to eliminate
the use of reference images altogether. I called
my technique: Compositure™. This methodology
relies on, the advanced drawing skills of the artist;
cognitive interview principles; and the psychology
of memory recall. The Compositure™ technique is
successful at developing a composite sketch while
being mindful of the fragility of memory recall.
To be a Compositure™ forensic artist, you must:
1. be a highly skilled artist that can draw a hu-
man face without the aid of reference images
2. be mindful of rapport and conduct an inter-
view without asking any leading questions
3. be mindful of the fragility of memory
There are obviously many other aspects to the Com-
positure™ technique that make it successful. For
instance, the questions that I ask the EW are the
same in every interview and thus eliminates the
appearance of bias. Multiple EW’s, children, elderly,
non English speaking EW, all bring various adjust-
ments to the process. The strength of this tech-
nique is that it is simple in philosophy and fully re-
lies on the memory of the EW. There is no need to
“coach” the EW to locate images that resemble
the suspect. Either the EW remembers the suspect
or they don’t. I’ve conducted over three thousand
interviews in this methodology and about 99% of
them led to a sketch. The ones that didn’t were
deemed to be “unreliable”. I’ll talk more about my
technique when we look at the Psychology of the
Interview in my next article.
Gil Zamora is a forensic sketch artist and can be
reached at [email protected].
Las Vegas turned into a hub of expert witnesses
from April 26 to 28 2012 with a number of expert
witnesses getting together for the Annual Confer-
ence organized by the Forensic Expert Witness As-
sociation. The Conference kicked off with a pre-
conference session by Rosalie Hamilton and Jim
Robinson who covered topics such as “How Attor-
neys Dig Up Dirt on Expert Witnesses” (including
Expert Witness Profiler), “Expanding Your Prac-
tice”, “Expert Websites”, “Expert Billing and Collect-
ing” and a Q&A session.
Conference Coordinator Lynn Hanger told the Ex-
pert Witness Chronicle that the attendees found the
information to be very useful and one attendee re-
ported that he was going to have his company de-
vote the rest of the week to implementing specific
things he learned from the session.
The main event of the Conference was a two-day
workshop for experts. Hon. Paul Chernoff, Associate
Justice of the Massachusetts Superior Court and
James Mangraviti, Esq., Principal at SEAK Inc. pro-
vided experts with insights on how to build a repu-
tation of an effective expert witness. Chernoff and
Mangraviti covered deposition, direct examination
and persuasion skills, plus cross-examination skills.
“They really know their stuff,” one attendee said.
“Very professionally presented, strong content,”
commented another. “Both were very interesting
individuals I enjoyed getting to know,” one Confer-
ence-goer reported. “I felt comfortable asking them
questions during breaks and at meals and cocktail
hour.”
FEWA organizes yet another successful Expert Witness Conference
Special Report
23, Expert Witness Chronicle, May 2012
Toby Edwards, Director, Expert Services at the Westlaw
Round Table Group, attended the Conference as the Plati-
num Sponsor of the event and told the Expert Witness
Chronicle about the special interest of his firm in FEWA as
it develops into a national organization. He commented,
“Don and Lynn put together an impressive conference, and
clearly the attendees appreciated the content provided by
Rosalie Hamilton and Jim Robinson, and by SEAK. Meeting so
many of our industry colleagues was a real pleasure, and the
warm reception we received from the FEWA membership was
appreciated. We look forward to working with FEWA in the
months ahead. If you are an expert witness, you should defi-
nitely attend the next one of these!”
Did you attend this year’s FEWA Annual Conference? If yes,
please send us your feedback on how you found the Confer-
ence to be and whether you would attend next year and
recommend it to your colleagues and friends.
Special Report
24, Expert Witness Chronicle, May 2012
Write for Us!
Do you have an interest in reaching out to our subscribers with your
articles, comments and pictures?
You can send your articles/ posts / letters/ comments to
Shweta Nawani
We look forward to your contribution to
Expert Witness Chronicle
The Annual Bond Salon Expert Witness Conference 2012
will be held on Friday 9 November 2012 at The Church
House Conference Centre in Dean’s Yard, Westminster,
London. In its 18th year, the Conference is the largest annu-
al gathering of expert witnesses in the UK.
The Senior Presiding Judge of England and Wales, The
Right Honorable Lord Justice Goldring will deliver the key-
note address. Judge Waksman, who has been involved in
hot-tubbing and costs management pilots, will give his
views on the impact of putting judges in the driving seat
and of what experts will need to do before the Jackson re-
forms are implemented in 2013.
More details can be found at http://www.bondsolon.com/
brochures/2012/expert-witness-conference.pdf
THE ANNUAL BOND SOLON EXPERT WITNESS CONFERENCE
Event Alerts
25, Expert Witness Chronicle, May 2012
If you are an accident reconstruction expert, you must
check out this Conference. The Conference and the Crash
Boot Camp promise to provide first hand experience
with crash testing and increased knowledge through
technical presentations from leading subject matter ex-
perts. The ARC-CSI Crash Conference prides itself on
bringing a variety of exceptional speakers and presenta-
tion topics to expand your knowledge of collision recon-
struction and investigation. On the final day of the con-
ference the ARC-CSI Crash Team presents each crash
scenario conducted on day one with examples of how to
use the data for future review and comparison. The Con-
ference will be held from 2nd to 7th June in Las Vegas, Ne-
vada.
More information about the Conference can be found at http://www.arccsi.com and http://www.crashteambootcamp.com
The ARC-CSE Crash Conference
FACTS
This case stemmed from a contract between V&M
and Centimark to replace part of the corrugated
steel roof at V&M's plant in Youngstown, Ohio. On
July 27, 2006, employees of both Centimark and
Ohio Valley Sheeting and Painting were working on
V&M's roof in different areas. Ohio Valley had per-
formed roofing work for V&M for years, but it lost
the bid for the roof replacement project to Centi-
mark. Around 12:20 p.m., Centimark employees
quit work due to rain. Around 7:00 p.m., a number
of roof sheeting panels fell from A-Bay into one of
V&M's electrical substations located directly below.
V&M lost all power to its plant for more than 30
hours. V&M's damage for electrical repairs and lost
profits was around $3 million.
DISCUSSION
At trial, V&M produced an expert report and affida-
vit from Daniel C. Mester, a lifelong member of the
Iron Workers Local 17. Mester opined that Centi-
mark should have used kickers or some type of re-
straining device to secure the bundles because the
use of kickers is a "normal and common procedure"
any time material is placed on a sloped surface. In
Mester's opinion, Centimark did not set up the job
properly because kickers should have been used on
all roof levels. The U.S. District Court for the North-
ern District of Ohio ruled that Centimark could not
be held strictly liable for the damages V&M suffered
and that the expert opinion of Daniel Mester for
V&M was inadmissible. The Court of Appeals noted
that Mester had averred to a reasonable degree of
certainty based on his forty years of experience in-
stalling metal roofs that kickers are always used to
secure roofing materials when they are placed on a
sloped surface, regardless of roof pitch. The Court
noted that Mester explained that kickers are used
when placing materials on a sloped surface because
"[a]s soon as the bands are cut" the panels in the
bundles "are going to want to slide down." Mester
did not state or imply that the metal bands on the
bundle at issue had been cut; rather, he simply de-
scribed what ordinarily occurs if metal bands are
cut while the bundle sits unsecured on a sloped sur-
face. V&M was not required to present proof that
the bands had been cut on the bundle in question as
a condition for the admission of Mester's expert tes-
timony. Mester's explanation, based on his exten-
sive knowledge and experience in the industry,
would have assisted the jury in understanding the
force of gravity on the roofing panels. The Court
Daubert Round-up
26, Expert Witness Chronicle, May 2012
Daubert Round-up Case Summaries on Daubert and its Progeny
The Daubert Round-up is our monthly feature with updates from various federal courts on decisions that involve Daubert.
US Court of Appeals, 6th Circuit V&M Star Steel v. Centimark Corp.
Experts are permitted wide latitude in their opinions, including those not based on firsthand
knowledge.
also noted that the district court faulted Mester's
opinion because he did not take any frequency
measurements from the roof during mill operations
to determine the amount of vibration on the roof of
A-Bay, nor did he make any calculations based on
weather reports.
HELD
Mester was qualified by knowledge, skill, experi-
ence, and training to give reliable opinion testimony
about the frequency and necessity of kicker use in
the metal roofing industry. Mester's opinion was
relevant because it would assist the jury in deciding
the parties' dispute regarding the existence and ap-
plication of industry standards. By excluding Mes-
ter's testimony in its entirety, the district court pre-
cluded V&M from supporting its claims and meeting
Centimark's expert testimony. The Court held that
under the Federal Rules of Evidence, the stand-
ard for relevance is "extremely liberal." Evi-
dence is relevant if it has "any tendency to make
the existence of any fact that is of consequence
to the determination of the action more proba-
ble or less probable than it would be without
the evidence." Mester's opinion helps V&M estab-
lish that, had Centimark installed kickers on A-Bay,
it is more probable that the panels would not have
fallen into the substation when gravity pulled them
downward. This opinion was relevant and admissi-
ble. It was an abuse of discretion to exclude this tes-
timony. The judgment granting summary judgment
to Centimark was reversed.
Download Opinion
Daubert Round-up
27, Expert Witness Chronicle, May 2012
FACTS
In this patent litigation, the Plaintiff sued the De-
fendants for infringement of their patent titled
“Modified Release Coated Drug Preparation" that
covered a modified release preparation of doxycy-
cline hyclate that helps to maintain a drug's intend-
ed rate of release over time. The Plaintiff retained
an expert in the field of pharmacy and biomedical
surface chemistry, relied on a “humidity test” to
show that there is a layer of povidone and cro-
spovidone in the Defendant’s product. According to
the expert, he developed a humidity treatment test
to highlight the povidone and crospovidone layer,
based on his understanding that povidone and cro-
spovidone are hygroscopic, they attract water and
would absorb moisture more quickly than other
components. The Defendants moved to preclude the
testimony of the expert before trial but the Court
reserved its ruling.
DISCUSSION
The Court conducted a detailed analysis of the relia-
bility of the “humidity test” under the guidelines
provided by the third circuit in In re Paoli R.R.
Yard PCB Litig. 35 F.3d 717, 742 (3d. Cir. 1994).
Under the first factor of ‘testability’, the Court
found that while it was theoretically possible to test
the expert’s hypothesis, no such testing has been
done. The Court also found that the humidity treat-
ment test had never been published or peer re-
viewed. The expert could not point to a single peer-
reviewed, academic paper in which short exposure
to humidity was used to determine whether a phar-
maceutical product had a layer or coat. The Court
also noted that the expert made no effort to quanti-
U.S. District Court, New Jersey Warner Chilcott Labs. Ir. v. Impax Labs.
Pharmaceutical expert’s “humidity test” and “acetone wash test” fail the Daubert test in New Jersey
FACTS
Plaintiff Jo Belle Baldonado sued Wyeth Pharma-
ceuticals alleging that its hormone replacement
therapy products, including Prempro, caused her
breast cancer. She designated an expert economist
to testify, among other issues, regarding punitive
damages. Wyeth moved to preclude this testimony.
DISCUSSION
The Defendant did not challenge the expert’s quali-
fications, but instead argued that his proposed testi-
mony was misleading and failed to satisfy the
standards of Rule 702 and Daubert. Specifically, De-
fendant challenged the expert’s testimony regard-
ing the measurement for punitive damages and
Wyeth's net worth. The expert opined that the jury
should look at the way punitive damages: are han-
Daubert Round-up
28, Expert Witness Chronicle, May 2012
U.S. District Court, Illinois (Northern District)
Baldonado v. Wyeth
Court precludes economic expert from testifying on the issue of “Punitive damages” based on SEC
Fines, Antitrust Violations and Speeding Fines!
fy the rate of error associated with his humidity
treatment test. While the expert exposed Mylan's
beads to an arbitrary amount of humidity, 90% RH,
for an arbitrary amount of time, approximately 5
seconds, he could not describe why 90% RH was
superior to 20% RH or 95% RH and why the appro-
priate exposure time was five seconds. When asked,
he merely stated, "I felt that just 5 seconds would be
appropriate." The Court further noted that there
was no scientific community that generally accepts
the use of humidity treatments for the purpose of
identifying specific chemical components and their
spatial arrangement in pharmaceutical composi-
tions. In fact, the expert was not aware of any other
scientist having used a humidity test to determine
whether a pharmaceutical product had a layer or a
coat. Coming to the premise underlying the expert’s
humidity treatment, the Court noted that he based
it on the premise that components in a pharmaceu-
tical composition can be identified based on their
differing reactions to humidity. The Court went on
to note that well established chemical composition
tests such as Raman, ToF-SIMS, and ATR-FTIR are
premised on entirely different scientific principles,
and thus lend no support to the expert’s method.
The next factor that the Court considered was the
expert’s qualification, where it found him to be a
qualified expert as there was no dispute there. The
Court finally noted that the test had not been put to
any non-judicial uses and in fact, had never been
used outside the context of this case.
HELD
The Court held that the expert’s humidity test did
not "fit" with the factual issues in this case. While
humidity tests may be scientifically valid for some
purposes, such as exploring "the effect of excipients
on the kinetics of dehydration and hydration, that
does not make the tests valid for other, unrelated
purposes, such as identifying specific chemical com-
ponents in a compound. The Defendant’s Daubert
motion was granted.
The Court applied the same test to the expert’s ace-
tone wash test and it met the same fate as his
"humidity test”.
dled in three other areas of social policy: “U.S. Secu-
rities and Exchange Commission ("SEC") fines,
antitrust violations, and speeding fines. The
standard in SEC violations is disgorgement of the
gains from illegal stock transactions plus a fine of
approximately the same magnitude. Antitrust viola-
tions are punished by treble damages based on stat-
ute. Speeding ticket costs can be assessed relative to
average earnings.”
The Court noted that the expert did not explain why
or how he extrapolated the areas of SEC fines, anti-
trust violations, and speeding fines to this case.
HELD
The expert failed to provide any connection be-
tween the three areas and the facts of this case. It
was improper for the expert to opine on the amount
of punitive damages the jury should award. The
amount, if any, is for the jury to decide based on the
facts of the case and the applicable punitive damag-
es law. Such expert testimony would evade the
province of the jury. A Daubert hearing has been
scheduled for May 30, 2012 for the expert’s opinion
on Wyeth’s net worth .
Daubert Round-up
29, Expert Witness Chronicle, May 2012
FACTS
In this civil rights case, the Defendant moved to dis-
qualify Plaintiff’s police jail practices and proce-
dures expert on the ground that he had no Califor-
nia-based experience, had never previously provid-
ed expert testimony regarding in-custody jail, and
had insufficient experience in correctional
healthcare issues to testify as an expert.
DISCUSSION
The gatekeeping role of the trial judge does not sup-
plant the role of the adversarial process in attacking
questionable, but admissible, evidence through
both vigorous cross-examination and the presenta-
tion of contrary evidence. Judges’ preliminary role
under Daubert/Kumho, as per the Advisory Com-
mittee Notes to Federal Rule of Evidence 702, in
vetting expert testimony should not be interpreted
as providing a wholesale excuse for an automatic
challenge to the testimony of every expert.
HELD
Defendants' challenge was found to wholly lacking
as the expert had 31 years of experience working
for the Federal Bureau of Prisons between 1976
and 2007, had been published 15 times and had
been involved in numerous training and conference
presentations throughout the country. While the
expert had not worked in a correctional healthcare
capacity per se, given his broad-based correctional
experience, the Court found him to be sufficiently
qualified. The Defendants were free to attack his
credentials on cross-examination.
U.S. District Court, California (Eastern District)
Brooks v. County of San Joaquin
Court denies Daubert motion challenging qualification; lack of work experience in California immate-
rial.
FACTS
Oscar Johnny was injured in an accident and sued
the defendant for negligence, negligence per se, and
aggravating circumstances warranting punitive
damages. He sought to admit the testimony of a psy-
chologist and rehabilitation expert on the issue of
need for psychological treatment, future medical
treatment, work restrictions, diminished work life,
and probability he would return to work. The De-
fendant filed a motion to strike which the Court
granted. The Plaintiff filed a motion to reconsider.
DISCUSSION
The Court, in its order granting the motion to strike,
had relied on the decision in Hartness v. Union Pa-
cific (E.D. Ark. Aug. 4, 2008) where the Court held
that the testimony of a rehabilitation expert is not
admissible if it projects how a person's injuries may
shorten his or her work life without sufficient un-
derlying medical support. The Court in Hartness had
also held that while the expert may rely on medical
reports in forming his opinions of Plaintiff's em-
ployability, he might not testify as a medical expert.
The Plaintiff argued that the Court erred in relying
on Hartness since the facts of this action support
that there is underlying medical evidence establish-
ing that Plaintiff was permanently physically disa-
bled, that Plaintiff had been given a permanent
physical disability rating, and that Plaintiff had per-
manent physical limitations. However, the Court
was not persuaded by the Plaintiff’s arguments and
found the case to be analogous to Hartness in that
the case provided guidance in circumstances where
a rehabilitation expert was called to provide an ex-
pert opinion to which the expert claimed he or she
relied on underlying medical evidence in formulat-
ing that opinion. Since the expert in this case was
also a psychologist, the Court noted that it had al-
lowed the testimony related to psychological treat-
ment as admissible.
HELD
The Court granted the Motion to Reconsider provi-
sionally in part. The expert’s recommendation for
Plaintiff's participation in a chronic pain manage-
ment program and his diminished work life or
probability Plaintiff will return to work were provi-
sionally accepted into evidence. However, the coun-
sel was directed to provide the Court with segments
of the expert’s deposition testimony, literature re-
lied upon, and any additional items that Plaintiff
intended to use during trial, subject to prior ap-
proval of the Court.
Daubert Round-up
30, Expert Witness Chronicle, May 2012
U.S. District Court, Missouri (Western District) Johnny v. Bornowski
The testimony of a rehabilitation expert is not admissible if it projects how a person's injuries may
shorten his or her work life without sufficient underlying medical support. While the expert may rely
on medical reports in forming his opinions of Plaintiff's employability, he may not testify as a medical
expert.
FACTS
The Plaintiff and the Defendants were competitors
in the market for selling pre-engineered steel build-
ings. The Plaintiff sued alleging the Defendants had
unlawfully engaged in false and misleading adver-
tising and deceptive sales practices. Specifically,
Plaintiff alleges that Defendants have used Plain-
tiff's name and appropriated Plaintiff's marketing
efforts and goodwill to obtain business for the De-
fendants. Defendants counterclaim that Plaintiff has
unlawfully engaged in commercial disparagement,
deceptive trade practices, and unfair competition.
The Defendant moved for summary judgment and
the Plaintiff filed the affidavits of two individuals
who were not disclosed as designated experts pur-
suant to Rule 26. The Defendant argued that the
Plaintiff had already designated two experts, the
maximum number allowed by the Court’s schedul-
ing order, and thus was precluded from designating
two additional experts.
DISCUSSION
The primary issue for the Court in this case was to
determine whether the two additional witnesses
were lay or expert witnesses. The Tenth Circuit has
held that testimony provided by a witness is expert
testimony if the testimony is "based on technical or
specialized knowledge," regardless of whether the
witness is designated as an expert or fact witness.
(See 10th Circuit overrules backdoor admission of
excluded expert witness testimony) The Court, in this
case too, found that the testimonies of the witnesses
to be of the nature of expert testimony; derived
from extensive experience and analysis that would
not be understood by an ordinary person. Coming
to the issue of proper disclosure, the Plaintiff ar-
gued that Rule 26 only required it to disclose those
experts that it planned to use at trial to present evi-
dence whereas the Plaintiff only wished to call the-
se witnesses for rebuttal.
HELD
The Court noted that Rule 26 refers to "any
[expert] witness [a party] may use at trial and
does not differentiate between expert witnesses
called in a party's case-in-chief and expert witness-
es called in rebuttal. The affidavits of the two wit-
nesses were stricken.
Daubert Round-up
31, Expert Witness Chronicle, May 2012
U.S. District Court, Colorado
General Steel Domestic Sales, LLC v. Chumley
Fed. R. Civ. P. 26(a)(2)(A) does not differentiate between expert witnesses called in a party's case-in-
chief and expert witnesses called in rebuttal.
FACTS
This insurance dispute involved a claim for damage
caused to a boat owned by the Plaintiff and insured
by the Defendant. The Plaintiff retained two ex-
perts, a licensed corrosion engineer and material
failure analyst and a material specialist to support
his claim. The experts performed visual examina-
tion and dimension testing and testified that the
sort of testing was all that was required to identify,
with reasonable certainty, the cause of the motor
damage. They further opined the damage sustained
by the motors was not gradual but rather the result
of dynamic and aggressive "stray current" (defined
as man-made electrical current not present con-
stantly but present sporadically). The Defendants
moved to strike their testimonies on the ground
that they were unhelpful and unreliable.
DISCUSSION
The experts opined that stray current was the cause
of erosion. However, they were unable to identify
the source of the stray current or the circuit con-
necting the source to the Plaintiff's boat. The Court
noted that the failure to identify the source of the
current was not fatal to the admissibility of the ex-
perts' testimony as to the cause of the corrosion.
The Seventh Circuit, in Chapman v. Maytag Corp.,
297 F.3d 682, 688 (7th Cir. 2002), has recognized that
a failure to test may render an opinion unreliable
and inadmissible. However, the Court, in this case,
interpreted the ruling to not require that every ex-
pert opinion to be specifically supported by empiri-
cal testing. If, as the evidence here suggested, the
opinion is based on principles that are set forth in
authoritative works that have been subjected to
empirical testing, the expert may apply those prin-
ciples without repeating the empirical testing on
which they are based. Daubert does not impose
affirmative testing requirements on a litigant; it
requires only that the opinions of an expert be
capable of being tested. In other words, testing is
a factor to be considered under a Daubert analy-
sis, but its absence alone is not fatal to an ex-
pert's testimony. Testimony that has weaknesses
or flaws is not automatically excluded under
Daubert but instead is exactly the sort of topic to
be analyzed during cross-examination.
HELD
The motion to exclude was denied.
Daubert Round-up
32, Expert Witness Chronicle, May 2012
U.S. District Court, Wisconsin (Eastern District) Lang v. Progressive Express Ins. Co.
Daubert’s ‘testability’ factor does not require every expert opinion to be specifically supported by em-
pirical testing.
FACTS
On over 2.8 million occasions between 2004 and
2009, New York City police officers stopped resi-
dents and visitors, restraining their freedom, even if
only briefly. Over fifty percent of those stops were
of Black people and thirty percent were of Hispan-
ics, while only ten percent were of Whites. The
question presented by this lawsuit was whether the
New York City Police Department ("NYPD") had
complied with the laws and Constitutions of the
United States and the State of New York. Specifical-
ly, the four named plaintiffs alleged, on behalf of
themselves and a putative class, that defendants
had engaged in a policy and/or practice of unlaw-
fully stopping and frisking people in violation of
their Fourth Amendment right to be free from un-
lawful searches and seizures and their Fourteenth
Amendment right to freedom from discrimination
on the basis of race. To support their claims, plain-
tiffs enlisted an expert report prepared by a profes-
sor of Criminology at Columbia Law School. The De-
fendants objected, arguing that the expert lacked
the qualifications to make the assessments that he
made, that his methodologies were fatally flawed,
and that many of his opinions constituted inadmis-
sible conclusions of law. The primary issue was
whether an expert could testify on conclusions
of law.
DISCUSSION
In deciding the issue, the Court noted, “the trial
court has "the same kind of latitude in deciding how
to test an expert's reliability . . . as it enjoys when it
decides whether or not that expert's relevant testi-
mony is reliable." "Expert evidence can be both
powerful and quite misleading because of the diffi-
culty in evaluating it. Because of this risk, the judge
in weighing possible prejudice against probative
force under Rule 403 . . . exercises more control
over experts than over lay witnesses." Generally,
"the rejection of expert testimony is the exception
rather than the rule."
The Court further noted, “As a general matter, ex-
perts may not testify as to conclusions of law. Doing
so would usurp the role of the court in determining
the applicable legal standards.” However, the court
took note of the 2nd Circuit’s opinion in United
States v. Scop, 846 F.2d 135, 139 (2nd Cir. 1988)
where it held that "experts may testify on ques-
tions of fact as well as mixed questions of fact and
law.”
The Defendants argued that the expert’s
"groundless, highly speculative exposition insinu-
ates that NYPD officers routinely do not adhere to
the requisite legal standard of [reasonable suspi-
cion]," supplants the role of the jury by reaching
ultimate legal conclusions, and is "tantamount to an
impermissible credibility assessment." The Court
noted that where the permissible legal conclusions
were accompanied by detailed factual background
and explanation that gave the jury "helpful infor-
mation beyond a simple statement on how its ver-
dict should read”, the 2nd Circuit had admitted that
expert testimony in Fiataruolo v. United States, 8
F.3d 930, 941 (2d Cir. 1993). This was true even
though the expert shared his legal conclusions re-
garding the ultimate issue that was presented to the
jury. The trial court admonished the jury that the
expert's opinions were "not binding" and that warn-
ing, in combination with the factual support that the
Daubert Round-up
33, Expert Witness Chronicle, May 2012
U.S. District Court, New York (Southern District)
Floyd v. City of New York
Experts may testify on questions of fact as well as mixed questions of fact and law.
expert provided, made his testimony admissible.
HELD
It was held that the Court, and not the expert, will
instruct the jury on the law of reasonable suspicion.
The expert will be permitted to describe his analy-
sis of the 2.8 million UF-250s and any statements he
makes regarding reasonable suspicion will have to
be phrased in terms of adequately explored legal
criteria. The Court held that the expert had misin-
terpreted the relevant caselaw in one important
respect and his findings would need to be revised.
In addition, his use of the phrase "Indeterminate"
with respect to an entire category of stops would
not be permitted. His statistical analysis, as revised,
was nonetheless admissible.
Daubert Round-up
34, Expert Witness Chronicle, May 2012