2020 sc bar convention · 2020-01-13 · judge edward t. wahl january 2020 in association with the...

2020 SC BAR CONVENTION

Criminal Law Section (Part 2)

“Mental Health Experts, Reports &

Admissibility Issues”

Friday, January 24

SC Supreme Court Commission on CLE Course No. 200203

Understanding Mental Health Defenses: The Fundamentals of Forensic Psychiatry in Practice

& Presentation

Richard L. Frierson, MD, DFAPA



Friday, January 24

1/8/2020

1

Understanding the Forensics of Mental Health Defenses: The Fundamentals of

Forensic Psychiatry in Practice and Presentation

Richard L. Frierson, MD, DFAPAAlexander G. Donald Professor of Psychiatry

Vice Chair for EducationDirector, Forensic Psychiatry Fellowship

Department of Neuropsychiatry and Behavioral ScienceUniversity of South Carolina School of Medicine

Columbia, S.C.

Objectives

1. Attendees will learn about the evaluation of criminal responsibility in South Carolina

2. Attendees will learn about the difficulty in asserting an insanity defense when the victims are children.

3. Through case presentation, attendees will learn about the complexities of forensic evaluations in such cases.

1/8/2020

2

crime trial

Time line*

* Criminal Responsibility and Capacity to Conform refer to the defendant’s mental state at time of alleged crime

*

* Competency to Stand Trial: refers to the defendant’s mental state at the time of trial

Jail

arrest evaluation

Elements of a Crime

• Actus reus: a voluntary and conscious act prohibited by law (not somnambulism, seizure, etc.); i.e. a criminal act

• Mens rea: a guilty mind or guilty intent (delusions and other impairments in reality could impair the presence of guilt) i.e. a criminal mind

1/8/2020

3

“Our collective conscience does not allow punishment where it

can not impose blame.”

-- Justice David Bazelon

The Insanity Defense

• Raised in less than 1% of all felony crimes and successful in only 25% of cases in which raised

• Most successful insanity defenses are agreed to by the prosecution. (Juries hand down less than 5% of the total insanity acquittals.)

• Unlike competency to stand trial, criminal responsibility standards vary from state to state.

• U.S. Supreme Court does not mandate a constitutional right to an insanity defense.

1/8/2020

4

Daniel M’Naghten

29 year old Scottish carpenter

Delusion: the Prime Minister was the devil and leader of a vast conspiracy to destroy the world in general and M’Naghten in particular

McNaughten Trial (1843)• McNaughten stalked Prime Minister, Sir

Robert Peel, attempted to kill him, shot Sir Edward Drummond (secretary)

• Jury charged: if he did not know violation of God and man, he was insane, if he knew right from wrong, he was responsible

• All psychiatrists said he was insane and jury acquitted after 2 minute deliberation

• 15 Supreme Court justices convened: nature and quality of act or that it was wrong

• The first appellate insanity case

1/8/2020

5

Queen Victoria Splutters:

How could he have been found not guilty?

He did it, didn’t he?

R. v McNaughten (Daniel M'Naghten's Case), 8 E.R.

718 (1843)

• 15 Supreme Court justices convened

• Defendant is not responsible if he does not know the nature and quality of act or that it was wrong

• The first appellate insanity case

1/8/2020

6

Model Penal Code / ALI Test

• Developed in 1955, adopted 1972 in Federal Courts

• Defendant not responsible if:1) He lacks capacity to appreciate the criminality

of his conduct (cognitive prong), or 2) He can not conform his conduct to the

requirements of the law (volitional prong)3) Excludes illnesses manifested by repeated

criminal/antisocial conduct

March 30, 1981

1/8/2020

7

1/8/2020

8

Insanity Post Hinckley

• 1984: Abandonment of ALI Model Penal Code after John Hinckley acquitted

• Also almost half the states (including S.C.) abandoned ALI also, adopting some form of the McNaughten Standard

• The volitional prong of ALI used by some states to create another mental health verdict: Guilty But Mentally Ill

Current US Insanity Statutes

1/8/2020

9

S.C. § 17-24-10

• (A) It is an affirmative defense…at the time of the act constituting the offense, the defendant, as a result of mental disease or defect, lacked the capacity to distinguish legal or moral right from legal or moral wrong or to recognize the particular act charged as legally or morally wrong

S.C. § 17-24-10 (cont’d)

• (B) The defendant has the burden of proving the defense…by a preponderance of the evidence

• (C) Evidence of a mental disease or defect that is manifested only by repeated criminal or other antisocial conduct is not sufficient to establish the defense of insanity

1/8/2020

10

NGRI Outcome

• Court orders hospitalization for a period not to exceed 120 days, during which time defendant will undergo evaluation

• At 120 day hearing, Court orders continued hospitalization or release

• Chief administrative judge retains jurisdiction

• On average, defendants hospitalized longer than those who plead guilty (incarcerated)

GBMI Outcome

• If sentence includes incarceration, defendant must first be taken to a facility designated by the Department of Corrections for treatment…until safe to be returned to the general population

• If sentence includes probation, judge may impose conditions (i.e. MHC tx)

1/8/2020

11

1/8/2020

12

Criminal Responsibility Evaluations

• Review of incident reports, statements, relevant police evidence, autopsy, etc.

• Review defendant’s criminal record• Medical records from previous mental health

treatment, psychological testing• Collateral information (family, police, or

individuals who saw defendant around time of the alleged crime)

• Sometimes necessary to interview victims• Finally, clinical interview of the defendant

Diagnoses commonly associated with legal insanity

• Schizophrenia, Schizoaffective Disorder, Delusional Disorder, Schizophreniform Disorder, Brief Psychotic Disorder

• A major mood disorder: Bipolar I Disorder or Major Depression with psychotic features.

• Dementia (but usually found incompetent to stand trial)

• All other Axis I disorders, as a basis for insanity, should be viewed with great suspicion, especially in M’Naghten jurisdictions

1/8/2020

13

Evidence of knowledge of wrongfulness

• Defendant expressed remorse around time of incident, notified police

• Disposal or concealing of evidence (wearing gloves, mask, etc.)

• Efforts to avoid apprehension (aliases, etc.)• Initial denial of involvement, alibi• Evidence of non-psychotic motive, no

delusion, no command hallucination• Planning does not equal sanity

Legal Insanity

• Usually requires a specific delusion that impaired knowledge of wrongfulness.

• Lack of motive, evidence of bizarre behavior, no attempt to escape or avoid detection.

• Usually but not always have a prior mental health history.

• Psychotic motive does not always equal insanity.

1/8/2020

14

Filicide and the Insanity Defense in South Carolina:

Two Contrasting Cases

Behind the Scenes in a Criminal Forensic Evaluation

Admissibility Rulings on Expert Testimony

The Honorable Edward T. Wahl



Friday, January 24

M a k i n g t h e w o r l d a m o r e j u s t p l a c e b y e d u c a t i n g a n d i n s p i r i n g i t s j u d i c i a r y

Custom: ADMISSIBILITY OF EXPERT TESTIMONY WB/PW JANUARY 24, 2020 COLUMBIA, SC

EXPERT WITNESSES: WHO ARE THEY AND WHAT CAN THEY DO?

Honorable Edward T. Wahl

OBJECTIVES:

After this session, you will be able to:

1. Analyze and apply rules and procedures for the admission of expert testimony; and

2. Develop a strategy for managing the admission or exclusion of expert testimony.

REQUIRED READING: PAGE

1. Edward T. Wahl, Expert Witnesses: Who Are They and What Can TheyDo? (Jan. 2020) [NJC Document] ......................................................................................1

2. Edward T. Wahl, Expert Witness Fact Patterns and Questions (Jan. 2020)[NJC Document] ..................................................................................................................7

IN ASSOCIATION WITH THE SOUTH CAROLINA BAR ASSOCIATION

This page was intentionally left blank.

Expert Witnesses: Who Are They and What Can They Do?

Judge Edward T. Wahl

January 2020

In Association with the South Carolina Bar Association

Learning Objectives for Session

1. Analyze and apply rules andprocedures for the admission of experttestimony.

2. Develop strategy for managing theadmission or exclusion of experttestimony.

The Limitations of Expertise: Studies in Skepticism (Part I)

“Expert knowledge is limited knowledge, and the unlimited ignorance of the plain man who knows where it hurts is a safer guide than any rigorous direction of a specialized character.“

~ Winston S. Churchill

1

The Limitations of Expertise: Studies in Skepticism (Part II)

“An expert is somebody who is more than 50 miles from home, has no responsibility for implementing the advice he gives, and shows slides.”

~ Edwin Meese

Follow the Rules: Rule 702 -Testimony by Experts• If scientific, technical, or other specialized

knowledge

• will assist the trier of fact

• to understand the evidence or to determine afact in issue,

• a witness qualified as an expert by knowledge,skill, experience, training, or education, maytestify thereto in the form of an opinion or otherwise.

Follow the Rules: Rule 703 - Bases of Opinion Testimony by Experts• The facts or data in the particular case upon which

an expert bases an opinion or inference• may be those perceived by or made known to

the expert at or before the hearing.• If of a type reasonably relied upon by experts in

the particular field in forming opinions orinferences upon the subject,

• the facts or data need not be admissible inevidence.

2

Criteria for Admitting Expert Testimony1. “First, the court must determine whether ‘the subject

matter is beyond the ordinary knowledge of the jury, thusrequiring an expert to explain the matter to the jury.’”

2. “Second, the expert must have ‘acquired the requisiteknowledge and skill to qualify as an expert in theparticular subject matter,’ although he ‘need not be aspecialist in the particular branch of the field.’”

3. “Finally, the substance of the testimony must bereliable.”

Graves v. CAS Medical Systems, Inc., 735 S.E.2d 650 (S.C. 2012), citing Watson v. Ford Motor Co., 699 S.E.2d 169, 175 (S.C. 2010).

Who is Expert? Experience and Training.

The expert must have “acquired by study or practical experience such knowledge of the subject matter of his testimony as would enable him to give guidance and assistance to the jury in resolving a factual issue which is beyond the scope of the jury’s good judgment and common knowledge.”

State v. White, 642 S.E.2d 607, 612 (S.C. Ct. App. 2007)

Scientific Experts and Testimony: Special Tests

Admissibility is dependent on “the degree to which the trier of fact must accept, on faith, scientific hypotheses not capable of proof or disproof in court and not even generally accepted outside the courtroom.” State v. Jones, 259 S.E.2d 120, 124 (1979).

3

Scientific Experts and Testimony: Special Tests – Factors to Consider1. The publications and peer review of the

technique;2. prior application of the method to the type of

evidence involved in the case;3. the quality control procedures used to ensure

reliability; and4. the consistency of the method with recognized

scientific laws and procedures.White, 642 S.E.2d 607 (S.C. Ct. App. 2007), citing State v. Council, 515 S.E. 2d 508, 517 (S.C. 1999).

Non-scientific Experts and Testimony: Special Considerations1. Expert testimony about human behavior, but not

scientifically based: no enhanced foundation.

2. The Judge remains a gatekeeper: prevents the“aura of infallibility.”

3. Effect of the challenge: “weight, not admissibility.”

White, 642 S.E.2d 607 (S.C. App. 2007), citing Statev. Whaley, 406 S.E.2d 369 (1991).

Follow the Rules: Lay Witness Opinions – Rule 7011. Testimony must be rationally based on the

perception of the witness, and

2. Testimony must be helpful to a clear understandingof:a) the witness's testimony orb) the determination of a fact in issue.

3. Testimony is not based on scientific, technical, orother specialized knowledge.

4

Examples of Lay Testimony: Perception-based and Non-Technical Opinions1. Lost profits: Business owner may testify about

projected profits of business.

See, e.g., Lightning Lube, Inc. v. Witco Corp., 4F.3d 1153 (3d Cir. 1993) (no abuse of discretion inpermitting the plaintiff's owner to give lay opiniontestimony as to damages, as it was based on hisknowledge and participation in the day-to-dayaffairs of the business).

Examples of Lay Testimony: Perception-based and Non-Technical Opinions (Cont.)2. Narcotics: Courts permit lay witnesses to testify

that a substance appeared to be a narcotic,subject to a foundation of familiarity with thesubstance.

See, e.g., United States v. Westbrook, 896 F.2d330 (8th Cir. 1990) (two lay witnesses who wereheavy amphetamine users were permitted totestify that a substance was amphetamine; errorto permit another witness to testify where shehad no experience with amphetamines).

Use the Rules in Context: Don’t Forget the Forest!1. Rule 102: Goals: “fairness in

administration, elimination ofunjustifiable expense and delay,and promotion of . . . the law ofevidence . . . [so] truth may beascertained and proceedingsjustly determined.”

2. Rule 104(a): admissibility determinations are notbound by the rules of evidence.

5

Use the Rules in Context: Don’t Forget the Forest!3. Rule 403: balancing test: “substantially

outweighed by the danger of unfairprejudice, confusion of the issues, ormisleading the jury, or by considerationsof undue delay, waste of time, or need-less presentation of cumulative evidence.”

4. Rule 611: discretion “over the mode and order ofinterrogating witnesses and presenting evidence” topromote truth, efficiency and fairness to witnesses.

Putting the Rules to Work

Case Summaries and Rulings

6

South Carolina Bar Association Expert Witness Fact Patterns and Questions

January 2020

Problem 1: The Shaken Baby Criminal Case: Expert Evidence Issues.

Summary and Cast of Characters: Neglectful parents and babysitter cause death of child; competing

expert testimony is key to the case.

Paul and Pam Potts: parents.

Winnie (age 4) and Vickie (nine months): the kids.

Diane Diddit: the babysitter and defendant.

Nancy Nelson: the nurse neighbor.

Dr. Sam Edwards: the State’s pediatric expert.

Dr. Dana Elwood: Defense biomechanics expert.

Irma Ingram, child abuse investigator.

Dr. Norval Methudd, M.D., defense bruise‐match specialist.

Facts:

Paul and Pam Potts are parents of two children: four‐year old Winnie and nine‐month old Vickie. One

night they asked their neighbor Dianne Diddit to babysit Winnie and Vickie so they could go to a party.

At 8:15 PM, Diane went next door to talk to neighbor Nancy Nelson, a nurse. Nancy noticed that Diane

was unsteady on her feet and that the child was listless and woozy. Nancy later heard Diane arguing on

the phone and hollering at the children, swearing in a loud voice, using slurred words.

Paul and Pam returned home, drunk and quarreling at 1 AM, and found Diane passed out. Vickie

appeared to be deeply asleep in her playpen; Winnie was asleep on the floor near the TV. Diane arose

from a doze and staggered out the door and Vickie spent the night in her playpen.

Arising at 11 AM the next day, Paul and Pam found Vickie lifeless in her playpen. They called the police,

who investigated and concluded that Vickie died from brain injuries after being shaken by Diane in a fit

of rage. As part of the police investigation, four‐year old Winnie told a child abuse interviewer, Irma

Ingram, during a child‐abuse investigative interview, that she saw Diane “wiggle‐waggle [her infant

sister Vickie] back and forth like a dolly.”

Diane is charged with murder.

At trial on the criminal charges, the State calls pediatrician Dr. Sam Edwards and investigator Irma

Ingram.

The Defense calls Dr. Dana Elwood, physician and physicist; and Dr. Norval Methudd, a bruise‐match

specialist.

7

(Note: Thanks to my colleague, Judge Jamie Anderson, and counsel in State v. Baldwin, (Hennepin

County, MN 2019), whose opinion and briefs inspired me and informed my thinking on this problem.

Facts and legal insights are theirs; any fiction, errors, and oversights are entirely mine. The story is pure

fiction: I intend no resemblance to any actual persons.)

Evidentiary issues raised by the parties:

1. Is the State’s theory of Shaken Baby Syndrome admissible? The Defense objects to the State’s theory

and moves to exclude evidence of Shaken Baby Syndrome as the cause of death. The Defense argues

that there is serious disagreement in the scientific community over biomechanical and medical theories

as the cause of death. Although the traditional approach accepts that an adult could shake a child hard

enough to cause fatal subdural hemorrhage and retinal hemorrhage, new scholarship suggests that this

is not scientifically valid. The Defense argues that “shaken baby syndrome” (or “abusive head trauma”)

is not “generally accepted within the relevant scientific community.”

The State argues that abusive head trauma is not a novel scientific theory, is broadly accepted by the

courts in many jurisdictions, and is supported by conventional medical scholarship and testimony,

including expert witness Dr. Sam Edwards, a board‐certified pediatrician, and Dr. Stella Edison, medical

examiner.

What is your ruling on the Defense objection?

2. The State’s expert is a pediatrician, not a pediatric neurologist. Dr. Sam Edwards is an experienced

board‐certified pediatrician with a long professional interest in neurological issues, but he is not a

pediatric neurologist (board‐certified or otherwise), nor is he a specialist in any other regard.

The Defense moves to exclude Dr. Sam Edwards and argues that his generalist credentials do not qualify

him to offer testimony in support of the State’s theory on the shaken baby syndrome, and do not qualify

him to critique the Defense theory of biomechanics.

The State argues that specialist credentials are unnecessary; Dr. Sam Edwards is a graduate of Harvard

Medical School (1983), he is board‐certified, he has practiced for over 30 years, and he has been

accepted as an expert witness in 15 previous criminal cases, testifying on behalf of the State.


3. The Defense’s scientific theory: biomechanics replaces traditional views of shaken baby syndrome.

The Defense argues that the defendant could not have shaken Vickie hard enough to cause the kind of

injuries that the State attributes to shaking. Dr. Dana Elwood is a biomechanical expert who will apply

the principles of physics – mass, motion, force, velocity, acceleration, and deceleration ‐‐ to examine the

baby’s injury. Vickie’s injury can only be explained by a biomechanical study that examines how human

tissue reacts to forces, and biomechanics establishes that her injury could not have been caused by

Diane’s shaking. The Defense argues: “The relevant scientific community [for evidentiary purposes] must

include those trained in biomechanics because the question of whether shaking can cause the observed

injuries is one of biomechanics — the relevant science is physics, not only medicine, and maybe not

medicine at all.” See Cavados v. Smith, 565 U.S. 1, 13 (2011) (dissent by Ginsburg, Breyer and

Sotomayor) (“An SBS diagnosis in an infant . . . without cervical spine or brain stem injury is questionable

and other causes of the intracerebral injury must be considered.”). The Defense also cites appellate

8

authorities from Wisconsin, Massachusetts, Illinois and New York questioning the medical science

underlying head trauma from shaken baby syndrome.

The State argues that biomechanics is a novel and untested methodology based on unreliable methods.

What is your ruling?

4. Defense offers expert testimony of physician and physicist; the State moves to disqualify: The

Defense expert is Dr. Dana Elwood, M.D., Ph.D. (trained in physics and biomechanics). Dr. Elwood

earned her M.D. in 2016 at the University of New Mexico, while simultaneously completing her Ph.D. in

biomechanics on inertia and its effects on human physiology. For two years she was a resident in

internal medicine; since 2018, she has taught physics and biomechanics at the University of South

Carolina. She has published three refereed articles in journals on the effects of space travel on human

physiology.

The State moved to disqualify Dr. Dana Elwood as lacking sufficient education and experience to be

accepted as an expert. The Defense argues that her training in medicine and physics qualify her.

What is your ruling on the State’s objection?

5. Scholarly articles as evidence. The Defense refers to scholarly articles questioning shaken baby

syndrome and offers them into evidence. The articles include Guthkelch, Problems of Infant Retino‐Dural

Hemorrhage with Minimal External Injury, 12 Hous. J. Health L. & Pol’y 201 (2012) and Bandak, Shaken

Baby Syndrome, 151 Forensic Sci Int’l 71 (2005).

The state objects.

What is your ruling?

6. Investigator as expert. Child Abuse Investigator Irma Ingram interviewed four‐year old Winnie for

three hours the day after the incident. She recorded the interview. Winnie told Irma Ingram that she

saw Diane “wiggle‐waggle [her infant sister Vickie] back and forth like a dolly.”

At trial, the State offers Irma Ingram to testify about: (1) the nature and circumstances of her interview

of Winnie, (2) foundation for the video recording of the interview, (3) explanation and interpretation of

what Winnie said, and (4) general expert testimony at trial on forensic interviewing and “child abuse

assessment.”

In its motion in limine, the Defense objects that (1) the witness should not have been admitted as an

expert; and (2) the witness should not have been allowed to testify about both (a) the foundation and

content of the recording and (b) the interview techniques to assure trustworthiness.


7. Defense expert on bruise‐matching to fingers of Diane. The Defense offers testimony from Dr. Norval

Methudd, M.D., an expert in bruise‐pattern matching. He will testify that the bilateral patterns of

bruising on Vickie’s abdomen match the size and breadth of Paul Potts’s fingers and hands—”a 100%

certain correlation.” This opinion is based on a relatively new forensic science of bruise‐matching that

9

arose in criminal cases that require the identification of assailants in battery cases correlating knuckles,

rings, and weapons with marks on victims. Dr. Norval Methudd teaches a seminar in forensic pathology

that covers this topic, and has published five articles on Internet websites.

The State objects and argues that this is classic “junk science” and that Dr. Methudd and his method

should be excluded from the trial.

What is your ruling on the State’s objection?

8. Nurse opinion about the intoxication of Diane. The State offers nurse Nancy Nelson to testify as an

expert that Diane was intoxicated. Nancy Nelson bases this testimony on her professional training as a

nurse; she spoke with Diane, saw and smelled her, and observed her walking to and from her

apartment.

The Defense objects to Nancy Nelson as an expert: she is no better qualified than the jury to form her

opinion.

What is your ruling on the objection?

9. Court conducts a review of evidence outside the record in deciding whether to include

biomechanical expert testimony. In the court’s written opinion on the biomechanical expert testimony,

the court notes that the scientific record was not particularly well developed by either side, and much of

the argument was presented at too‐sophisticated a technical level for the judge (an English major) to

comprehend. Drawing on their own internet research, the judge and his clerk found useful information

outside the record. The court’s written opinion cites Wikipedia, websites for two startup neurology

corporations, a pharmaceutical corporation website, and two SEC filings from neurological medical

device companies.

The State moves for reconsideration of its unsuccessful motion to exclude Dr. Dana Elwood’s

biomechanical testimony. The State notes that the court’s citation to matters outside the record is a

violation of Canon 3 of the South Carolina Code of Judicial Conduct, which provides, in part: “A judge

shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by

partisan interests, public clamor or fear of criticism.” A Comment to the Canon provides: “A judge must

not independently investigate facts in a case and must consider only the evidence presented.”

What is your ruling on the motion to reconsider?

10

Problem 2: The Death of the Innocent: Expert Evidence on Civil Liability for the Loss of a Child.

Same basic fact scenario as above, with the same characters and actions, but with some changed

assumptions:

Assume no criminal liability—avoid Fifth Amendment complications.

Assume the following additional facts in the civil lawsuit:

In South Carolina state court, Paul and Pam Potts, parents, sue Diane Diddit, their babysitter, for (1)

negligence in the wrongful death of their infant, Vickie, (2) battery, and (3) breach of fiduciary duty.

Winnie and Vickie are the promising and profoundly gifted children of Nobel Prize‐winning parents, Paul

and Pam. Diane has special training as a child‐care provider for gifted and talented children, and she has

regularly worked with the Potts family to provide enriched after‐school training and care for the

nurturing and development of the children. Diane has significant liquid assets: she is the estranged

spouse of a real‐estate‐developer and has significant income from her own family trusts.

In the civil case, the Plaintiff will call Prof. Felix Friendly, a chaired professor at the University of South

Carolina Law School, to testify about fiduciary duty, and Prof. Philip Economou, an economics professor

to testify about damages.

The Defense will call David Ackworth, M.B.A., C.P.A., C.F.F., A.B.V., C.F.A., A.S.A., C.B.A., a local

accountant, for their damages case.

1. Defense expert accountant qualification. Accountant David Ackworth has testified in state court in

South Carolina 15 times. Three times he has been disqualified from testifying as an expert because he

testified about real estate development issues that are outside his expertise. In addition, Ackworth was

suspended from his license to practice as an accountant for six months last year for failure to pay his

annual state licensing fee and for alleged irregularities in billing and collections.

The Plaintiff objects and moves to disqualify Ackworth from testifying.

The Defense argues that none of his previous real estate or licensing issues relate to his qualifications,

and that these issues should be handled in cross‐examination.


2. Professor offers opinion on breach of fiduciary duty. Prof. Friendly is the former dean of the law

school and is the best‐known and best‐regarded legal scholar in the region. After studying as a Rhodes

Scholar, he clerked for the Chief Justice of the U.S. Supreme Court, and has served on innumerable

panels and legislative committees on the reform of corporate statutes, model acts, and ethics in law and

business.

According to the interrogatory answer disclosing his testimony, he will testify about the historical

background and meaning of fiduciary duties, and he will testify that fiduciary relationships imply the

duty of greatest care in a relationship of trust that is possible under the law.

11

Further, he will testify that, in his opinion, Diane Diddit owed the Potts children a fiduciary duty: she is a

professional who is specially trained and retained to provide personalized care for gifted and talented

children. Finally, he will testify that Diane Diddit violated her fiduciary duty to Vickie and Winnie Potts.

In its motion in limine, under S.C. Rule 704, the defense objects to Prof. Friendly’s legal conclusion on

the breach of fiduciary duty.

Plaintiff argues that Prof. Friendly can testify about the reasonable standards of care that similarly

situated professionals in the community observe in performing their duties.

What is your ruling on the motion?

3. Motion to disqualify: the Prof. Friendly is purely an academic, not a practitioner, and has no

practical experience in the field. Prof. Friendly’s impressive credentials are largely academic and do not

include significant practice experience. After his impressive academic training, he was an associate at a

New York law firm for one year before teaching. His resume confirms that he has never advised a client,

tried a lawsuit, closed a deal, or served on a corporate board of directors. He has no training and no

practical experience in working with gifted children.

In its motion in limine, the defense objects that Prof. Friendly is unqualified by virtue of his total lack of

practical experience.

The Plaintiff argues that he is fully qualified as an expert under S.C. Rule of Ev. 702, and should be

allowed to testify as an expert at trial.

What is your ruling on the motion?

2. Motion to Exclude: Prof. Friendly offers an undisclosed opinion. In the interrogatory answer

disclosing the expert opinion, the plaintiffs described his testimony as noted above. At trial, Prof.

Friendly supplements his opinion and offers to testify that the defendant also breached her fiduciary

duty to the Pottses during her regular after‐school tutoring sessions with the girls. When Diane was

supposed to be offering the girls enhanced and rigorous tutoring, she was looking at her cell phone and

reading magazines while the girls watched TV. This dereliction threatened their development.

The defense objects that this opinion was not disclosed in the interrogatory answer and should be

stricken.

The plaintiff argues that this is a logical extension of Prof. Friendly’s testimony that he developed since

his deposition was taken, and it provides the context and circumstance for his overall opinion.


3. Economics expert uses hearsay in undesignated deposition.

At trial, Prof. Economou refers to deposition testimony and an academic article of Prof. Sam Schooler, a

leading scholar in the area of enriched preschool tutoring of the gifted and talented. In his deposition,

Prof. Sam Schooler acknowledged the special importance of enriched tutoring to such gifted children,

but specifically attacked Diane’s methods and practices. The deposition and article were not designated

in any pretrial submissions as material Prof. Friendly relied upon, nor were they designated as exhibits

to be used at trial.

12

Defendant objects to the use of the deposition and exhibits: they are hearsay, they were not identified

in the expert’s disclosures, and they were not identified in any pretrial submissions.

Plaintiff argues that the deposition and article are not a surprise to the defense, because counsel

attended the deposition and saw the article. The deposition testimony and article are the kind of

materials experts in the field rely upon in forming opinions, and under Rule 703, are not hearsay. Finally,

plaintiff suggests that the article should be admitted as an illustrative exhibit if it is not admitted directly

as an exhibit.


4. Admission of expert report into evidence.

The Defense offers the expert report of David Ackworth as an exhibit at trial. Ackworth’s expert report

includes charts and tables that he constructed depicting the present value of Vickie’s lifetime lost wages

and benefits as rebuttal to Prof. Economou’s report. Ackworth’s report also includes statements of two

financial planners and an appraiser about the value and likely appreciation of stocks, bonds, rare coins

and art held in Vickie’s trust.

Plaintiff objects that the expert report is hearsay.


5. Late identification of expert witness.

Three weeks before trial and three months after the deadline for expert disclosure and identification,

the defendant offers an expert report from Prof. David Leighton, in rebuttal to Prof. Friendly’s opinions

on fiduciary duty. Defense offers Prof. Leighton for deposition, and offers to cover the cost of the

deposition, but not plaintiff’s attorney’s fees for taking the deposition.

Plaintiff objects that the expert designation as untimely and poses an unreasonable burden and expense

at this late date.

Defense argues that Prof. Leighton is an opposition witness who is responding to Prof. Friendly’s

opinions, and does not create an unreasonable surprise. They also offer to bear reasonable costs of

discovery, and are willing to allow Prof. Friendly to offer a rebuttal report on the eve of trial.


6. Expert testimony and attorney work‐product. Plaintiff’s attorney investigated Diane’s pending

divorce, her marital and non‐marital assets and her complicated family trust. As part of this

investigation, Plaintiff’s attorney interviewed several of Diane’s family members and business

acquaintances. The attorney prepared memoranda of his interview, and then shared this work product

with Prof. Economou, his testifying damages expert to help in formulating his expert report.

By motion to compel before trial, the Defense seeks the production of these work‐product memoranda

to use in cross examining the testifying expert.

What is your ruling on the motion to compel? [Sustained = granted; Overruled = denied]

13

2020 sc bar convention · 2020-01-13 · judge edward t. wahl january 2020 in association with the...

Documents