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-

al@expertwitnesschronicle.com

Phone: (323) 208 3180

Web: www.expertwitnessguru.com

Editor

Ashish Arun ashish@expertwitnessguru.com

Co-Editor

Shweta Nawani shweta@expertwitnessguru.com

Contributors

John F. Fielder

Myles Levin

Gil Zamora

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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

E: ashish@expertwitnessguru.com

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

drfielder@daubertinstitute.com

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 mlevin@dauberttracker.com.

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)

alan@westheimercpa.com (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 gil@sketch-artist.com.

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

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