2020 SC BAR CONVENTION - Criminal Law Section (Part 2) "Mental Health Experts, Reports & - South Carolina Bar
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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
2020 SC BAR CONVENTION
Criminal Law Section (Part 2)
Friday, January 24
Understanding Mental Health Defenses: The
Fundamentals of Forensic Psychiatry in Practice
& Presentation
Richard L. Frierson, MD, DFAPA1/8/2020
Understanding the Forensics of Mental
Health Defenses: The Fundamentals of
Forensic Psychiatry in Practice and
Presentation
Richard L. Frierson, MD, DFAPA
Alexander G. Donald Professor of Psychiatry
Vice Chair for Education
Director, Forensic Psychiatry Fellowship
Department of Neuropsychiatry and Behavioral Science
University 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.
11/8/2020
arrest evaluation
crime trial
Jail
* Time line *
* Competency to Stand Trial: refers to the
defendant’s mental state at the time of trial
* Criminal Responsibility and Capacity to
Conform refer to the defendant’s mental state
at time of alleged crime
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
21/8/2020
“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.
31/8/2020
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
41/8/2020
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
51/8/2020
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
61/8/2020
71/8/2020
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
81/8/2020
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
91/8/2020
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)
101/8/2020
111/8/2020
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
121/8/2020
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.
131/8/2020
Filicide and the Insanity Defense
in South Carolina:
Two Contrasting Cases
Behind the Scenes in a Criminal Forensic
Evaluation
142020 SC BAR CONVENTION
Criminal Law Section (Part 2)
Friday, January 24
Admissibility Rulings on Expert Testimony
The Honorable Edward T. WahlMaking the world a more just place by educating and inspiring its judiciary
IN ASSOCIATION WITH THE SOUTH CAROLINA BAR ASSOCIATION
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 They
Do? (Jan. 2020) [NJC Document] ......................................................................................1
2. Edward T. Wahl, Expert Witness Fact Patterns and Questions (Jan. 2020)
[NJC Document] ..................................................................................................................7
Custom: ADMISSIBILITY OF EXPERT TESTIMONY WB/PW
JANUARY 24, 2020
COLUMBIA, SCThis 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 and
procedures for the admission of expert
testimony.
2. Develop strategy for managing the
admission or exclusion of expert
testimony.
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
1The 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 a
fact in issue,
• a witness qualified as an expert by knowledge,
skill, experience, training, or education, may
testify 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 or
inferences upon the subject,
• the facts or data need not be admissible in
evidence.
2Criteria for Admitting Expert Testimony
1. “First, the court must determine whether ‘the subject
matter is beyond the ordinary knowledge of the jury, thus
requiring an expert to explain the matter to the jury.’”
2. “Second, the expert must have ‘acquired the requisite
knowledge and skill to qualify as an expert in the
particular subject matter,’ although he ‘need not be a
specialist in the particular branch of the field.’”
3. “Finally, the substance of the testimony must be
reliable.”
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).
3Scientific Experts and Testimony:
Special Tests – Factors to Consider
1. 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; and
4. 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 Considerations
1. 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 State
v. Whaley, 406 S.E.2d 369 (1991).
Follow the Rules:
Lay Witness Opinions – Rule 701
1. Testimony must be rationally based on the
perception of the witness, and
2. Testimony must be helpful to a clear understanding
of:
a) the witness's testimony or
b) the determination of a fact in issue.
3. Testimony is not based on scientific, technical, or
other specialized knowledge.
4Examples of Lay Testimony: Perception-
based and Non-Technical Opinions
1. Lost profits: Business owner may testify about
projected profits of business.
See, e.g., Lightning Lube, Inc. v. Witco Corp., 4
F.3d 1153 (3d Cir. 1993) (no abuse of discretion in
permitting the plaintiff's owner to give lay opinion
testimony as to damages, as it was based on his
knowledge and participation in the day-to-day
affairs 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 the
substance.
See, e.g., United States v. Westbrook, 896 F.2d
330 (8th Cir. 1990) (two lay witnesses who were
heavy amphetamine users were permitted to
testify that a substance was amphetamine; error
to permit another witness to testify where she
had no experience with amphetamines).
Use the Rules in Context:
Don’t Forget the Forest!
1. Rule 102: Goals: “fairness in
administration, elimination of
unjustifiable expense and delay,
and promotion of . . . the law of
evidence . . . [so] truth may be
ascertained and proceedings
justly determined.”
2. Rule 104(a): admissibility determinations are not
bound by the rules of evidence.
5Use the Rules in Context:
Don’t Forget the Forest!
3. Rule 403: balancing test: “substantially
outweighed by the danger of unfair
prejudice, confusion of the issues, or
misleading the jury, or by considerations
of undue delay, waste of time, or need-
less presentation of cumulative evidence.”
4. Rule 611: discretion “over the mode and order of
interrogating witnesses and presenting evidence” to
promote truth, efficiency and fairness to witnesses.
Putting the Rules to Work
Case Summaries
and Rulings
6South 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.
What is your ruling on the Defense objection?
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
8authorities 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.
What is your ruling on the Defense objection?
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
9arose 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?
10Problem 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.
What is your ruling on the objection?
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.
11Further, 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.
What is your ruling on the objection?
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.
12Defendant 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.
What is your ruling on the objection?
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.
What is your ruling on the objection?
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.
What is your ruling on the objection?
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]
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