Updated: Sep 1, 2020
In 1993, the Supreme Court set the standard for expert testimony admissibility, called the Daubert Standard, under which the court provided guidelines to determine whether or not an expert’s methodology is valid. The Daubert guidelines consist of five factors: 1. Whether the theory or technique in question has been tested 2. Whether it has been subjected to peer review and publication 3. What is the known or potential error rate 4. The existence and maintenance of standards controlling its operation 5. Whether it has attracted widespread acceptance within a relevant scientific community.
By Bernard F. Pettingill, Jr. Ph.D. and Federico R. Tewes These criteria intend to prevent unreliable or otherwise “junk science” from being heard as evidence in an expert’s substantive testimony. The burden is on the proponent of the testimony to establish its admissibility by a preponderance of proof.
Officially launched in 2005, Google Earth was the first widely available, interactive composite map of our world. Soon after its official launch, at the time Hurricane Katrina, programmers launched into action, creating real-time imagery overlays of heavily affected areas on top of its existing 3D global platform. The National Oceanic and Atmospheric Administration (NOAA) and satellite imagery from DigitalGlobe (one of Google Earth’s primary providers) revealed the scope of the Hurricane Katrina’s destruction. Google Earth made this data publicly available and therefore responders had eyes again.i
Regarding the admissibility of scientific evidence, Rule 702 of the Federal Rules of Evidence makes no distinction between “scientific knowledge” and “technical knowledge” or “other specialized knowledge.” Under Federal Rule 702, persons that are qualified as experts based on knowledge, experience, training, and education are permitted to offer expert opinion testimony if the following conditions have been met:
1. The expert’s scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact at issue 2. The testimony is based on sufficient facts or data 3. The testimony is the product of reliable principles and methods and 4. The expert has reliably applied the principles and methods to the facts of the case.
The federal courts are all governed by the Daubert standard. Each state also has a Rule of Evidence defining the rules under which an expert can testify. In most states, this rule is codified as Rule of Evidence 702. Some states apply Daubert, others apply Frye. In fact, some states apply a modified Daubert or Frye Standard. The Frye Standard is commonly referred to as the “general acceptance test” under which generally accepted scientific methods are admissible, and those that are not sufficiently established are inadmissible. As of 2013, nine states have declined to adopt the Daubert standard in their state courts. Instead, these states apply the Frye or “Frye-plus” standard.ii
A Daubert challenge seeks to exclude an expert’s testimony on the basis that it is not reliable or relevant under Rule 702 of the Federal Rules of Evidence. A Daubert challenge is one of the strongest legal mechanisms available to counsel, with the goal of discrediting the validity of an expert’s testimony. Consequently, executing a Daubert challenge can be the deciding factor in whether a case is won or lost. Daubert challenges can be made in many forms, including: a separate motion; as part of summary judgement; a motion in limine; as an objection made at the time the testimony is given; and in a post-trial motion. Within the confines of Daubert, there are several different areas one can challenge: namely an expert’s qualifications, an expert’s methods, or the science relied upon.
When choosing any expert witness, a Daubert challenge should be of foremost importance. The best strategy is an expert witness whose work will best fit the requirements laid out by the Daubert rule. The best strategy for surviving a Daubert challenge is to remember to establish the relevance and reliability of any expert’s testimony. One word is consistently at the forefront of successful Daubert challenges: methodology. For example, when drafting any successful motion to exclude expert testimony, the challenging attorney should focus on the Daubert criteria and analyze the expert’s technique. If done properly, one of two possible outcomes should result: first, dismissal of the case, or second, a weakening of the case for the opposing side.
Given the description of the Daubert challenge and given the extent to which scientific evidence must be presented by any expert, we introduce a new scientific tool to assist the trier of fact in determining the validity of any claim. In order to demonstrate the methodology of “The Science of Walking Around” or “The Science of Inspecting Premises” after any disaster, two examples are reported below that occurred recently in 2019 – 2020, which resulted in an obvious Daubert challenge that all but eliminated the opinion of the expert.
The following two examples of Daubert meet Google Earth are false claims under Florida’s Wrongful Death Act – FL Stat § 768.21 (2016), which is the state’s legal blueprint for redressing a death caused by negligence. “All potential beneficiaries of a recovery for wrongful death, including the decedent’s estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged. Each survivor may recover the value of lost support and services from the date of the decedent’s injury to her or his death, with interest, and future loss of support and services from the date of death and reduced to present value. In evaluating loss of support and services, the survivor’s relationship to the decedent, the amount of the decedent’s probable net income available for distribution to the particular survivor, and the replacement value of the decedent’s services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered.”iii
In the first example, under the Florida Death Statute 768.21, the claim was made for replacement services around the home by the surviving spouse. In this instance, replacement services were provided for the following services: yard maintenance, lifetime cost $89,180; pool maintenance, lifetime cost $23,173; gardening and house repairs, lifetime cost $30,650; and other incidental home maintenance expenses exceeding $35,001. When these claims were added together, a figure in excess of $175,000 was claimed by the plaintiff attorney’s experts, namely a vocational expert and forensic economist. In conjunction, these two ‘experts’ attempted to prevail by putting forth estimates of the replacement value of services. Upon applying Google Earth to inspect the alleged home, yard, and pool of the deceased and his wife, it was pointed out by satellite pictures of Google Earth that there was no existing home being occupied by the deceased’s wife. Instead, for seven years the couple resided in a rented trailer inside a trailer park facility with no pool, no yard, and no need to paint and maintain the residence because it was a rented trailer, and certainly no need for more than $175,000 of additional monies to make the surviving spouse ‘whole’. As cited by Google Earth plus a report by the opposing economist with accompanying Google Earth satellite color photos, this false claim evaporated.
In the second example of this travesty on the court, namely attempted fraudulent claim for replacement services occurred in another Florida death case involving a so-called rancher who allegedly owned and maintained over 10,000 acres of cattle land which had to be serviced after the demise of the principal breadwinner coupled with additional services allegedly performed by the deceased. Here is another example where Daubert met Google Earth to totally discount any claim for replacement services for an alleged 10,000 acres cattle land property. Instead, on inspection and given a review of the property’s deed, only 613 acres were under farmland designation and a total of 927 acres existed on the property that was claimed to have had a 10,000 acre operational cattle ranch attached to the decedent’s homestead. No such farm existed. Case dismissed.
In summary, one of the new methods determining scientific evidence is Google Earth, which meets the criteria for surviving a Daubert challenge, whereby the qualifying expert who is responsibly examining and inspecting properties that could result in a claim for exorbitant replacement services. Absent Google Earth, these two false claim cases may have resulted in entirely different verdicts.
In 1986 Congress amended the civil False Claims Act under qui tam to encourage whistleblowers to come forward with allegations of fraud. For example, if the government prevails in a qui tam action, the whistleblower typically receives a portion of the recovery ranging between 15 and 30 percent. Thanks to these incentives, recoveries assisted by whistleblowers since 1986 now total more than $62 billion. In fiscal year 2019 a total of 633 qui tam suits were filed, with an average of more than 12 new cases every week. As a result, the Justice Department recovered over $3 billion from cases stemming from the False Claims Act.iv
On average, approximately one in five civil cases are fraudulent claims in part. Regarding household services, we have identified 7 possible fraud points to consider:
1. A Vocational rehabilitationist does not visit the home site of the claimant, but alleges that the yard maintenance is required, handyman services are needed, and a pool man is necessary. 2. Economist routinely forecasts the need for these alleged services and reduces them to present value. 3. Google Earth, which can produce pictures of the home and yard, including side view, street view, and satellite images indicates that there may not be a yard, definitely not a pool, and in fact, the need for handyman services is minimal. 4. As a result, hundreds of thousands of dollars of claims can lead to exaggerated verdicts. Instead, by utilizing Google Earth and proven beyond a shadow of a doubt that there is no need for handyman, yard man, and pool man, the claim for these embellished services vanishes. 5. Options include Daubert challenge, sanctions, case dismissal, and if in trial when these fraudulent claims are reported, an automatic mistrial. 6. In many instances, injuries to the neck, back, shoulder, etc. carry with them claims for services that presumably cannot be done around the home based on weight limitations, restrictions on bending, stepping, stooping, etc. These are also fraudulent if not completely checked out and reinforced by the evaluating physician. 7. Finally, any claim for replacement services should be substantiated by receipts, cancelled checks, credit card proof, etc. Absent these documents, any claim for minimal or possible excessive services can be proven fraudulent.v
As this list of possible fraudulent claims show, there is no limit to the creativity of those making false claims. This is particularly true for insurance companies that generally rely on data to determine the validity of false claims, and other times when they may not hire a third-party to perform a scientific method called “the science of walking around” that generally is sufficient evidence on inspection. Since insurance companies already rely on data to determine the validity of claims, we are introducing a new method whereby Google Earth images satisfy the burden of proof to survive a Daubert challenge.
Because more than 7,000 separate insurance companies collect more than $1 trillion in premiums annually, this industry is a prime target for the 10 possible fraud claims listed above. Excluding the health insurance industry, American families pay an additional $400 to $700 in higher premium costs annually because of the five most common types of fraud listed below:
First, false claims, i.e. making a claim for an accident that never happened or was staged or work that was never performed. Second, inflated claims, which can happen at any time, but tend to be most plentiful in the wake of natural disasters. For example, some type of standard home maintenance is ripe for inflated claims, such as roof repairs where the insurance company is billed for high-quality materials that were switched for sub-par materials when the work is performed. Third, disaster fraud, where because of the high volume of claims being made, the insurance company does not have the personnel available to go out and investigate every claim. For example, Hurricane Katrina caused roughly $100 billion in damages and more than $34.4 billion in insurance payouts were made in addition to $80 billion in government funding. More than $6 billion in government funds went towards insurance fraud because of the lack of personnel available to investigate during the high number of claims declared. Fourth, fake deaths claims, which is whenever an individual will take out a large insurance policy on themselves and fake their own death, later to receive the insurance payout and ride into the sunset. Fifth, insurance agency fraud and those false claims made by insurance agents. For example, premium diversion whereby the agent pockets the client’s premium instead of sending it to the insurer. Furthermore, fee churning generally occurs when an insurance agent continually changes life insurance policy to different insurers to receive more commission monies. These five most common types of insurance fraud amount to $40 billion annually. vi
In conclusion, high tech equipment like Google Earth is meeting the Daubert challenge today and in the future.
i Foerch, Andrew. “The Genesis of Google Earth.” Trajectory Magazine, 1 Nov. 2017, trajectorymagazine.com/genesis-google-earth/.
ii Burk, Bruce. “The History of Daubert v. Merrell Dow Pharmaceuticals.” Expert Institute, 19 Feb. 2020, www.expertinstitute.com/resources/insights/the-history-of-daubert-v-merrell-dow-pharmaceuticals/.
iii “2016 Florida Statutes :: TITLE XLV - TORTS :: Chapter 768 - NEGLIGENCE :: Part I - GENERAL PROVISIONS (Ss. 768.041-768.37) :: 768.21 - Damages.” Justia Law,
iv “Justice Department Recovers over $3 Billion from False Claims Act Cases in Fiscal Year 2019.” The United States Department of Justice, 21 Jan. 2020, www.justice.gov/opa/pr/justice-department- recovers-over-3-billion-false-claims-act-cases-fiscal-year-2019.
v Pettingill, Bernard F. “Household Services – Possible Fraud Points to Consider” 25 November 2019.
vi “5 Most Common Types Of Insurance Fraud.” TransUnion, www.iovation.com/topics/5-most-common- types-of-insurance-fraud.