Expert Witness Profiler

Category: Expert Challenges

  • South Carolina Court of Appeals affirms admission of nursing expert witness testimony 

    South Carolina Court of Appeals affirms admission of nursing expert witness testimony 

    A set up where law meets medicine, it often happens in cases where the lawyers need an expert to testify in court to prove his points.

    On October 25, 2014, a five-week-old child, Robert Lee M., Jr. (Minor), was admitted to Regional Medical Center (“Regional”) for a high fever. Jamie Downing worked at Regional as a nurse and treated Minor during his hospital stay. Medical personnel at Regional did not initially know the cause of Minor’s fever but on the day of his admission, they started him on IV antibiotic therapy in case he had an infection.

    On the morning of October 28, 2014, Downing administered an antibiotic, Ampicillin, into Minor’s IV. Shortly thereafter, Minor’s hand became swollen with a dark spot and his mother, Tekayah Hamilton, called the nurses’ station because Minor was “really crying.” The antibiotic Downing gave Minor through the IV caused a third-degree burn to his hand because it infiltrated outside of his vein. On October 30, 2014, Minor was discharged from Regional. 

    On October 7, 2015, Hamilton, individually and as parent and guardian ad litem for Minor, sued Regional on charges of negligence and malpractice. Regional denied any liability and wrongdoing on its part and asserted numerous affirmative defenses. Minor was awarded damages worth $300,000 at trial and Regional appealed. 

    Monica Stobbs, a nursing expert witness for the Plaintiff, testified at trial that before administering medication through an IV, a nurse must flush the IV with saline to ensure the IV is actually going into the vein and not instead into the skin. She explained saline would not harm the area and cause a burn type of injury if it went into the surrounding tissue of the vein, unlike an antibiotic which could if it did not go directly into the vein.

    Stobbs further noted that Regional’s policies and procedures for IV therapy require a saline flush to be given. Stobbs testified that Minor’s medical chart indicated his IV was flushed on several occasions before the medication was administered but that on the occasion when the injury occurred, the chart did not indicate the IV was flushed. Stobbs noted Regional’s policies and procedures state that the flush should be documented on the medication record and opined that the IV was not flushed if it was not documented concluding that Regional’s conduct constituted breach of care by not documenting the saline flush and by not staying with Minor for at least five minutes after starting medication. 

    In her defense, Downing testified that at the time she treated Minor, she had worked as a nurse at Regional for less than three months and had been allowed to work on her own for about two weeks. Downing stated Regional’s policies and procedures “are direct instructions” and there is “not room for interpretation” of them. Downing testified that Regional’s policies require a saline flush before putting medication into an IV.

    She believed the policies required flushing to be documented on the electronic medical record only when not associated with giving a medication. Downing testified she could not specifically remember administering a saline flush prior to ampicillin that morning but testified her practice was to flush prior to giving medication. Downing stated Minor’s medical records indicated a saline flush was given every four hours but Regional’s system provided no way to document giving a saline flush before an antibiotic. 

    Discussion by the court 

    Regional challenged Stobbs’ testimony contending she was lacked expertise since she had not administered IV therapy to a pediatric patient and did not review literature specifically about IV therapy for pediatric patients. Hamilton replied the administration and monitoring of an IV is the same for a pediatric patient as it is for an adult patient and that Regional’s argument went to the credibility of Monica Stobbs rather than her expertise, citing McMillan v. Durant, 312 S.C. 200 . The Court declined the Defendant, Regional Medical Center’s request to exclude the testimony of Monica Stobbs and held that Monica Stobbs was qualified to testify as a nursing care expert at trial. The Appellate Court affirmed the Trial Court’s qualification of her as an expert witness. 

    Regional alleged that the Trial Court erred by not admitting the testimony of Regional’s nursing expert Cindy Hurley but the Trial Court held and the Appellate Court affirmed that considering Hurley was retained to determine whether the conduct of Regional amounted to negligence or gross negligence, her testimony would have only amounted to a legal conclusion and since expert testimony on issues of law is inadmissible, it would most likely confuse the jury, citing Dawkins v. Fields, 354 S.C. 58. 

    Held 

    The Appellate Court held that it did not constitute abuse of discretion when the Trial Court admitted the testimony of Monica Stobbs regarding the standard of care, prohibited the testimony of Cindy Hurley as to whether Regional’s conduct constituted gross negligence or negligence, or admitted the photographs of the Minor’s hand. The Appellate Court affirmed the determinations of the Trial Court. 

    Key Takeaway 

    1. General vs. Specialized Expertise – The court found that Stobbs had extensive overall expertise in nursing care, even though she lacked specialized experience in pediatric IV therapy specifically. The rules for expert testimony do not require a witness to be a specialist in the exact area at issue. General expertise can be sufficient if it is relevant to the facts of the case 
    1. Credibility vs. Admissibility – The court determined that Stobbs’ lack of pediatric specialization went to the credibility and weight of her testimony, not its admissibility. She could not be completely excluded on this basis, though the defense was permitted to highlight the issue. 
    1. Relevance of Testimony – Stobbs’ testimony about proper nursing care for IV line flushes and documentation was relevant to the alleged negligence in this case, despite involving a pediatric patient. The standards did not necessarily differ between adult and pediatric IV administration. 
    1. Discretion of Trial Court – The decision to qualify an expert witness is within the trial court’s discretion. Appellate courts give this significant deference if the trial court has applied the proper legal standards.

    Experts generally cannot offer legal opinions or conclusions, as this usurps the role of the judge and jury. The terms “negligence” and “gross negligence” have specific legal definitions that witnesses should not testify to. As a nurse, Hurley was not qualified to offer legal opinions. Her expertise was in nursing care, not application of legal standards. Asking her legal questions went beyond her area of expertise. Whether negligence occurred was an ultimate issue of fact for the jury to decide, not an expert witness. Hurley could not tell the jury what outcome to reach on this key issue. 

  • South Dakota Supreme Court affirms exclusion of polygraph evidence in the absence of agreement between the parties 

    South Dakota Supreme Court affirms exclusion of polygraph evidence in the absence of agreement between the parties 

    A polygraph examination is conducted by an expert polygraph examiner to make a polygraph evidence

    Background 

    The case examines the admission of polygraph evidence in criminal and civil cases. Banks pled guilty to first-degree manslaughter and prior to his sentencing hearing sought to introduce polygraph analysis as evidence to prove that he was not the shooter. The Circuit Court decided to preclude the polygraph examination from the evidence, which subsequently led to Bank’s appeal, where he pursued the issue of whether the Circuit Court erred in excluding the polygraph evidence in its sentencing consideration. This case basically examines the Court’s stance in examining the use of and admission of polygraph evidence. 

    Facts 

    On 26th February 2020, Casey Bonhorst succumbed to his death from a gunshot wound, when he was out delivering a pizza to a home in Sioux Falls. Raymond Banks and Jahennessy Bryant were charged as co-defendants on August 12, 2020, in a five-count superseding indictment that included two counts of first-degree murder, one count of second-degree murder, one count of first-degree manslaughter, and one count of attempted first-degree robbery based on the subsequent investigation by the law enforcement. 

    Both Raymond Banks and Jahennessy Bryant stuck to varied accounts of the events leading to Bonhorst’s death throughout the proceedings. Byrant claimed that he was on the lookout and Banks was the shooter, whereas Banks made opposite claims in his version of events. During the change of plea hearing of Banks, the State demonstrated its support for Bryant’s version of events while describing the factual basis for the plea and held Banks to be the shooter. The factual basis for the plea provided by the Court was initially contested by Banks, but he eventually agreed to aiding and abetting the situation after the Court interrogated him.

    Banks’s guilty plea was accepted by the Circuit Court before sentencing Banks to eighty years in prison, with twenty years suspended. When Banks urged the Circuit Court to admit the results of the polygraph examination, the Circuit Court refused, and the Appellate Court upheld the Circuit Court’s refusal. 

    Discussion by the court 

    Banks appealed against the ruling of the Circuit Court regarding the admission of polygraph evidence. The Appellate Court held that Banks failed to demonstrate error on the Circuit Court’s part when it precluded the results from the polygraph examination as evidence. Before going through with the sentencing hearing, Banks established the results of a polygraph examination as evidence from an examiner named Mike Webb (W. Michael Webb). Webb was a trained and licensed polygraph examiner with over 25 years of investigation and interview experience.  

    The polygraph result showed that there was “no significant reaction that indicates deception” when he answered “no” to questions regarding whether he had shot Bonhorst on the date in question. However, the State was opposed to admitting any testimony regarding the polygraph examination as evidence, stating that polygraph examination results cannot be admitted in the absence of an agreement between both parties, citing State of South Dakota V. Janice Stevenson. 

    The Circuit Court upheld the State’s argument because of reliability concerns which were exacerbated in the absence of an agreement between both parties and because the polygraph here was commissioned by Banks alone and the State did not find out about it until after it had been administered. The Circuit Court cited significant state and federal Appellate Court decisions which refused to weigh in polygraph evidence because of reliability concerns associated with the accuracy of polygraph examinations. Moreover, Banks has failed to show how the Circuit Court’s ruling would be “clearly against reason and evidence,” or “outside the range of permissible choices.” Based on these grounds that the Appellate Court affirmed the decision of the Circuit Court. 

    Held 

    The Appellate Court affirmed the Circuit Court’s ruling. It was held that the Circuit Court did not abuse its discretion by excluding the polygraph examination.  

    Key Takeaways 

    This case debated the grounds for the Court to preclude the admission of the results of a polygraph examination.  

    Banks was tried for and subsequently pleaded guilty to first-degree manslaughter. Prior to his sentencing hearing, Banks insisted on admitting the results of a polygraph examination as evidence from an examiner named W. Michael Webb regarding his role in the crime. Despite the Court admitting to having relied on police reports, prior testimony, forensic evidence reports, and the additional information contained in the presentence investigation reports due to the lack factual clarity regarding the events of the case, the Court noted the absence of an agreement or stipulation between the parties as to the use of polygraph evidence to be a part of its admissibility criteria.

    Moreover, considering the polygraph here was commissioned by Banks alone and the State did not find out about it until after it had been administered, the Court cited precedent setting cases to state that polygraph evidence have not been admitted by the Courts especially if the reliability is called into question before precluding the results of the polygraph examination.

    The Court sentenced Banks to eighty years in the penitentiary with twenty years suspended and the Appellate court held that the Circuit Court did not commit an error by precluding the admission of the results of the polygraph examination before affirming the Circuit Court’s sentence.

    Despite W. Michael Webb’s investigation and interview experience of over 25 years, had there been an agreement or stipulation between the parties as to the use of polygraph evidence, the Court would have been likelier to consider the results of the polygraph examination and if it confirmed anything substantial about Banks’ version of events, he might have been awarded a reduced sentence. 

    Case State v. Banks
    Court Supreme Court of South Dakota
    Judgment Date July 26, 2023
  • South Carolina Court Grants Motion to Exclude Materials Engineering Expert in Product Liability Case

    South Carolina Court Grants Motion to Exclude Materials Engineering Expert in Product Liability Case

    Olan Dubois was employed in the maintenance department of E.D.F. Renewable Energy, Inc. On June 28, 2017, he was instructed to investigate a reported fluid leak from a loader. While attempting to fix the problem, a sensor from the loader was expelled from its fitting towards his face and right eye due to the force of hydraulic pressure. As a result of the accident, Dubois sustained fractures to his right eye orbit, and his right eye ultimately had to be removed, among other injuries. Olan Dubois filed a claim against Flint Equipment Company, Deere Credit Services, Inc., John Deere Financial, Deere & Company, d/b/a John Deere Construction & Forestry (Defendants) for damages due to the accident.

    Plaintiffs’ sole liability expert witness, Bryan Durig, a materials and metallurgical engineer, offered two liability opinions in this case to support his conclusion that the subject product was defective and unreasonably dangerous. First, Durig opined that the subject Loader suffered from a “manufacturing defect” based on the fact it developed a hydraulic fluid leak so early in its service life. Second, Durig asserted that the Loader lacked adequate warnings on the product itself, and offered an opinion that the Loader needed an additional warning sticker on the side of the Loader warning that the accumulator may be under pressure even when the machine is turned off. However, Durig could not offer an opinion as to what such a warning should say in order to be effective. He also could  not opine that either of these defects were the proximate cause of Mr. Dubois’s injuries. Further, Durig agreed Mr. Dubois’s attempted repair efforts were unsafe, dangerous and contributed to his injuries. 

    Defendants challenged Durig’s warning opinions contending: (1) he was not qualified to render expert testimony regarding the adequacy of the Loader’s warnings; and (2) his expert warning opinion was not based on scientifically valid methodology or reasoning under the Daubert standard. Defendants contended Durig was not qualified to opine “regarding the inadequacy of the Loader’s warnings, and his opinion that the inadequate warnings were a proximate cause of Mr. Dubois'[s] injuries. To that end, Defendants argued Durig lacked the requisite knowledge, skill, expertise, training or education in the field of warnings and human factors. The Court agreed.

    The Court held that Durig’s training and experience as a mechanical engineer and his general experience as an expert witness were insufficient to establish he was qualified to offer opinion testimony regarding the adequacy or the need for additional warning on the Loader given his own admissions denoting his lacking qualifications in this field.

    Nevertheless, Plaintiffs asserted that Durig was not expected to testify as to the ‘adequacy’ of the warnings that accompanied the Loader, but rather the need for an additional warning on the Loader. However, the Court held, in order to offer an opinion that the Loader needed an additional warning placard, Plaintiffs must present evidence that the existing warnings which accompanied the Loader were inadequate. Plaintiffs did not present any such evidence. Thus, the Court held that the Plaintiffs failed to carry their burden to establish by a preponderance of the evidence that Mr. Durig was qualified to testify as an expert on a proposed warning opinion.

    Case Caption Dubois v. Flint Equip. Co.
    Docket Number 8:21-cv-01668-JVS
    Lexis Citation 2022 U.S. Dist. LEXIS 231307
    Judgment/ Order Date Nov 9, 2022
    Court United States District Court for the District of South Carolina, Charleston Division
  • California Court Denies Motion to Exclude Expert Witness Testimony in Cryptocurrency Case

    California Court Denies Motion to Exclude Expert Witness Testimony in Cryptocurrency Case

    In a recent (ongoing) case in California, a senior couple, Robin Denker and Jerry Klein  sued Michael Ricchio, the ex-husband of Denker’s daughter, claiming elder financial abuse, unjust enrichment, negligence and breach of contract. 

    Denker and Klein (Plaintiffs) invested $13,000 into an initial coin offering for ICN (Iconomi) at Ricchio’s suggestion. Ricchio purchased the cryptocurrency and held it in accounts under his name. Plaintiffs were unable to access these accounts or their cryptocurrency without Ricchio’s assistance. Eventually, when Plaintiffs asked Ricchio to return access to their cryptocurrency holdings, Richhio not only refused to do so, but also informed them that he had sold the cryptocurrencies long ago and offered to return $40,000. The Plaintiffs did not believe him and sued, bringing nine causes of action and sought up to $2 million in damages, along with double and treble damages and punitive damages. 

    The Plaintiffs retained Dorothy Haraminac, a forensic accountant and the founder of Greenvets LLC, as their expert witness while the Defendant retained Harry G. Lee Jr., a blockchain expert who did a blockchain analysis on the investments made by the Plaintiffs through the Defendant. Both parties moved to exclude the other’s expert. 

    Harry G. Lee Jr. (Defendant’s blockchain expert witness)

    Issue 1: Untimely disclosure

    Denker sought an order to exclude the testimony of expert Lee on procedural grounds of untimely disclosure. Lee’s report was disclosed two weeks after the date for initial expert disclosures. The court held that Lee was deposed, and Denker had full opportunity to examine the witness. Assuming that the report should have been disclosed as an initial report, the two-week delay was harmless. 

    Issue 2: Failure to disclose basis for opinion

    Denker alleged that Lee failed to disclose the basis for his opinions. A schedule of assets upon which Lee relied was never produced. The Court noted that Denker’s expert Dorothy Haraminac used the same schedule in her work, so the shortcoming of not receiving the schedule was neutralized. Also, Lee used a proprietary tool to conduct his block chain analysis to which Denker never had access. However, Denker had an opportunity to examine Lee about his core analysis at deposition. The court held this to be sufficient and denied the motion.

    Issue 3: Daubert challenge

    Lee had given a valuation opinion and had also opined that Ricchio was a mere hobbyist when it came to cryptocurrency trading. Denker challenged both these opinions under Daubert. 

    Regarding the valuation opinion, the Court held that:

    1. the use of an incorrect conversion for Iconomi coins, which Lee subsequently corrected, could be addressed on cross examination and only went to the weight of his opinion
    2. he used a “consulting” standard rather than an audit standard again went to weight 
    3. there was nothing improper about experts assuming one version of disputed facts 
    4. the challenge to various inputs to Lee’s analysis went to weight rather than admissibility.

    The court held that these factors called for a forceful cross examination that would not be cause for exclusion.

    With respect to the “hobbyist” opinion, the Court noted that Lee tied his analysis to a dictionary definition of hobbyist in which area he conceded he had no expertise. The court allowed Lee to present his frequency analysis, and let the jury draw its own conclusions. The judge also stated that frequency analysis is a legitimate, repeatable methodology.

    The motion to strike Lee’s testimony was denied.

    Dorothy Haraminac (Plaintiff’s Witness)

    Issue 1: Calculation of damages

    In calculating damages, Haraminac used a “Demand Date,” the date on which Denker requested the return of funds, and “Date of Refusal,” the date on which Ricchio refused to return the funds. She used these benchmarks in making her calculations. An expert is not required to vouch for each assumption that goes into a calculation. Others can be cross-examined as to the accuracy of  these benchmarks.

    The motion was denied.

    Issue 2: Additional considerations

    In her opinion concerning Denker’s losses, she included a section entitled “Additional Considerations.” These included surmises about Ricchio’s possible use of Denker’s funds for his own transactions and details Ricchio’s other unrelated trading activities in the period.

    The Court excluded this paragraph as irrelevant.

    Issue 3: “Hobbyist” opinion

    Haraminac relied on an IRS standard to form her opinion that Ricchio was not a “hobbyist” trade. Haraminac made three points:

    1. she does not know whether the IRS uses the factors for cryptocurrency;
    2. she never previously applied these factors to cryptocurrency; and
    3. she offers no opinion with regard to the applicability of these factors to cryptocurrency.

    The court held Haraminac to be simply incorrect as to the third point. The other issues were decided to go to weight, and to be tested on cross-examination. The court declined to exclude this opinion.

  • Motion to Exclude Granted

    How to Avoid It and What to Do When it Happens?

    A Daubert motion is like Zeus’ thunderbolt – one of the most effective and devastating weapons in the armory of an attorney which can be used against an expert witness. When the Court pronounces, “Motion to exclude expert testimony is granted”, the pain is no less than being struck by lightning. “Did the Court just put an end to my career as an expert witness”, it’s natural to have this question clog your mind! Can I appeal my exclusion? Can I get a chance to rectify my position? It wasn’t even my fault – can I sue the attorney for failing to protect my testimony properly? These are the questions that can trouble any expert witness following exclusion. You can hope for an appellate court to overrule the exclusion, but if that doesn’t happen or till the time it happens, you need to prepare an answer as to why your testimony was excluded in a previous case and why you should not be disqualified /excluded in the next case for the same reason. If you can prepare a convincing answer to this question, you have nothing to worry about for all practical purposes!

    I have attempted to provide a starting point for finding the answer to this question and while I
    sincerely hope that none of readers have to put this to use, it could be of certain help if the unfortunate exclusion happens.

    Understanding Why It Happened!

    1. Your Rule 26 Filing (includes your CV, Preliminary or Final Expert Report, Fee
      Schedule and List of Cases for the Last Four Years).
    2. A court filed copy of your expert report.
    3. The Motion to exclude.
    4. The Memorandum in Support of the Motion to exclude and Any Exhibits that may have been filed with it.
    5. Your attorney’s response to the Motion to exclude.
    6. Your deposition transcript.
    7. The Court’s order granting the motion.
    8. Any other document that may have been referred to in the documents listed above.

    You must understand the chain of events that led to the exclusion of your testimony. Ask your attorney for the following documents:

    The first thing to check is whether your expert report, CV, Fee Schedule and list of cases were filed in exactly the same format in which you submitted it to your attorney. In the past, experts have found that their report was modified and have landed in trouble because of that.

    Next, read the Motion to exclude and the Memorandum in Support to determine the grounds on which your testimony was challenged. If you cannot understand any of the legalese, ask your attorney! The next step would be to go through your attorney’s response to the Motion to exclude. See if the attorney’s responses resonate with your own responses to the motion to exclude. Take a note of any arguments that you believe may have helped defeat the motion and weren’t used. Once you have thoroughly read the motion and your attorney’s response, read the Court’s order. If it is a reasoned decision, you will be able to see exactly why the Court thought that your testimony did not meet the standards set under Daubert. If it’s a one line order saying Motion to exclude expert testimony is hereby granted, you will need to figure out the reason for exclusion from the motion to exclude. More often than not, a motion to exclude will challenge your testimony on qualification, methodology as well as relevance.

    Let’s explore what are the options for some of the common grounds for challenging an expert witness:

    Lack of Qualifications:

    If your testimony has been excluded on the grounds of inadequate qualification, consider if the case really fell within the four corners of your area of expertise? For example, Medical experts who tend to opine on the future employability of the Plaintiff in a personal injury case are more likely to get excluded because they are not vocational experts ! Such exclusion only means that the expert should be wary of testifying on employability issues in the future. As a medical expert, she is still qualified to testify on issues such as extent of injury or the standard of care. So while you may think that the opinion you are giving is within your area of expertise or based on your opinion, a certain inference makes perfect sense; tread the boundaries of your expertise very carefully!

    Many a times, attorneys fail to present your qualifications sufficiently enough for it to survive a motion to exclude. There have been instances when experts have been qualified after a reconsideration motion was filed and more facts about the expert’s qualifications were presented. Remember, the burden of proof to establish that an expert is qualified lies with the party who is offering the expert’s testimony. Experts should ensure that their attorneys know exactly how the expert is qualified to testify in a particular case and on all the issues he/she is testifying about.

    Unreliable Methodology:

    Most expert challenges (both successful and otherwise) are based on this criterion – more than qualification, relevance or any other ground. And if this is where you have been hit, you need to look at your methodology through a microscope!

    There have been several instances where experts have only relied upon the data/information provided by the retaining party and have found themselves excluded because they did not conduct an independent analysis of the issues involved in the case. Again, if this has happened, one can always overcome this by ensuring that only the expert witness is for hire and not the opinions onerenders.

    It always helps to check if a particular scientific principle or methodology being used has been accepted by Courts in the past. Though Courts always have the guidance from Daubert, Kumho and Rule 702, whether a proposed expert should be permitted to testify is case, and fact, specific.

    There have been instances where renowned and excellently credentialed experts have been excluded for using an unreliable methodology but it certainly doesn’t mean the end of the world for them!

    Stating Legal Conclusions:

    Federal Rule of Evidence 704 states, “An opinion is not objectionable just because it embraces an ultimate issue.” However, Rule 704 was not intended to allow experts to offer opinions embodying legal conclusions. [See United States v. Scop, 846 F.2d 135, 2nd Circuit]. Appellate Courts have held that [Expert witness] statements embodying legal conclusions exceed the permissible scope of opinion testimony under the Federal Rules of Evidence. [DiBella v. Hopkins, 403 F.3d 142].

    An expert should always remember that the ultimate trier of fact is the jury and the expert’s role is to assist the jury in reaching a logical conclusion. By reaching legal conclusions, an expert usurps the role of the Court in instructing the jury, and usurps the role of the jury in interpreting the case. In Hygh v. Jacobs, the 6nd Circuit noted, “Whereas an expert may be uniquely qualified by experience to assist the trier of fact, he is not qualified to compete with the judge in the function of instructing the jury.”
    Hence, no matter how obvious it appears that the defendant infringed the patent, the accused was guilty of murder, the insurer breached the insurance agreement, the store owner was negligent in causing an injury or any other outcome which comes close to something that the jury or the judge should decide, an expert must always ensure that such opinions do not find their way into the expert report or the testimony.

    Expert Witnesses are considered to be one of the best in their business and juries give a lot of weight to admissible expert testimony. By taking small precautions, an expert can ensure that no matter
    how many challenges the opposing counsel raises against her testimony, the Court’s ruling is always: MOTION TO EXCLUDE DENIED.