Court Room

Over the past year, not only have several circuit splits occurred, in cases where criminal defendants sue parties in civil court, claiming a tortious violation of their rights, but attorneys need to be aware of what is taking place in different geographical areas and the implications for their expert witnesses. Much of the controversy has centered on the standard of review for expert testimony on appeal.  With respect to this, one case has caused many legal analysts to do more than merely raise their eyebrows in confusion: Wagner v. County of Maricopa, where the Ninth Circuit Court of Appeals admitted to an existing “open issue in the circuit and circuit split on ‘whether construction of a hearsay rule is a matter of discretion or a legal issue subject to de novo review.’” “Prospective: Ten Key 2013 Evidence Issues,” Federal Evidence Review, (Jan. 1, 2013) (citing Wagner, 673 F.3d 977, 980 (9th Cir. 2012).

Part of the confusion arising from Wagner dealt with the fact that in an earlier case, the Ninth Circuit claimed that, rather than utilizing de novo review in the manner it did in Wagner, “We review a district court’s evidentiary rulings for abuse of discretion. This includes the exclusion of evidence under a hearsay rule.” U.S. v. Stinson, 647 F.3d 1196, 1210-11 (9th Cir. 2011). If the Ninth Circuit had been clear in Wagner as to what it intended, attorneys and their experts may have had a useful guideline, as to when expert testimony is considered to be “hearsay.” However, because the Court itself admitted that prior and existing case law still leaves the matter open, attorneys in the Ninth (and other) Circuits, as well as district court judges, may find it hard to comprehend just what Wagner means.


Wagner involved a party who had been criminally charged and placed in a California jail. See Shaun Martin, “Wagner v. County of Maricopa (9th Cir.-March 7 2012),” California Appellate Report (Mar. 7, 2012). After three weeks of defendant Wagner’s release from jail, he was granted bail. Id. Wagner had been previously diagnosed as schizophrenic and was warned by his mother that, upon his release, he could face additional charges for struggling with and spitting upon an officer while he was incarcerated. Id.

Emotionally distressed, Wagner fled, violating his bail, by jumping out of a moving vehicle, then running approximately five miles. Subsequently, Wagner died of heart failure, and his estate sued in civil court for his death, claiming it was a tort. See id. While the jury found for the defendants, the Ninth Circuit reversed, claiming, “the district court excluded an expert under Daubert who wanted to say that the heart attack three weeks later was ‘likely’ caused when Wagner recalled being dressed at jail. But everyone agreed that schizophrenics have a greater risk of heart attacks and that running five miles didn’t help.” Id.

The major issues, which should be of note to attorneys and their experts, involved whether the expert testimony should have been excluded, whether such exclusion was a “harmless error” or not, and what standard of review attorneys and litigants should expect, when a trial court’s inclusion or exclusion of expert testimony is at issue, particularly in the context of whether or not such testimony constitutes “hearsay.” See id.

What to Expect: A guideline for Attorneys & their Expert Witnesses:

In addition to the Ninth Circuit’s own admitted split within itself, the Sixth and Second Circuits have addressed the issues raised in Wagner, in similar or analogous cases. Both Circuits held that whether or not a statement is considered “hearsay” at the district court level is to be determined via de novo review. Federal Evidence Review, supra. With de novo review, the appellate court treats the issues raised on appeal as if it were conducting a new trial, and it makes its own determination as to whether a district court applied the law correctly. However, under the “abuse of discretion” standard of review, a court of appeals will not overturn a district court’s opinion unless no reasonable basis for the decision can be found. Many legal commentators have noted that the “abuse of discretion” standard is much more lenient to district court judges and generally preserves the lower court’s holding, unless that holding is considered “arbitrary and capricious.” See, e.g., “Abuse of Discretion,” Legal Information Institute (Aug. 19, 2010).

While many, if not most attorneys are familiar with the differing standards of review, they may not be prepared to know which one will be applied on appeal, given Wagner’s lack of clarity. For those practicing in the Ninth Circuit, the best advice may be to: First, tell clients that the standard of review is not necessarily set in stone and that no promises can be made regarding what the Ninth Circuit may decide, with respect to what standard it will apply. Second, attorneys should be ready, before a case ever gets to an appellate tribunal, to prepare themselves and their experts for either standard of review and, accordingly, to try to avoid any chance of an appeal not going in their favor. To accomplish this, attorneys must work with their experts early, often, and closely. Knowing precisely what every expert’s qualifications are and what each expert is likely (or will) attest to in court is critical. Moreover, attorneys should retain experts who can explain predictable counterarguments. Regardless of whether Wagner was decided correctly, attorneys on both sides should have been (and hopefully were) aware of what they faced.

The plaintiffs had to prove, through expert testimony, that the conditions Wagner faced, while incarcerated, were enough to establish a causal relationship between his actions and later death. The defendants needed to show that the expert testimony, regarding Wagner’s alleged suffering in prison, had nothing to do with his later heart attack. They must have been prepared to argue, forcefully, that the jail employees’ behavior was not a contributory cause to Wagner’s death, and that his schizophrenia and attempt to violate the law, by “jumping” bail and overexerting himself, were the true reasons for his death.


In either event, attorneys have their work cut out for them, particularly if they practice in California or other Ninth Circuit states. The Ninth Circuit encompasses Alaska, Arizona, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and parts of Washington, in addition to California. “What is the Ninth Circuit,” United States Courts for the Ninth Circuit, available at (retrieved May 13, 2013). Attorneys who practice in other Circuits should be aware of Circuit splits and that the U.S. Supreme Court has not yet addressed what the definitive standard of review should be, when considering whether expert testimony is “hearsay” or not. Further, litigators must know that the Daubert Rule may not be consistently applied. (Daubert, which was decided in 1993,comes from Daubert v. Merrill Dow Pharmaceuticals, which determined that it is the guideline for Federal Rule of Evidence 702).

Regardless of where an attorney practices, he or she should be aware of the recent holdings pertaining to expert witnesses and hearsay, and every litigator must be ready with offensive, not defensive, reasons why the expert testimony the attorney utilized is trustworthy, reliable and should not be considered “hearsay” under Daubert or, for that matter, Wagner. While de novo review may appear to be the trend, the open admission of the Ninth Circuit that it does not have a conclusive standard of review, coupled with other Circuit Court splits, should help attorneys prepare themselves and their experts to utilize testimony that can meet the most stringent requirements and will, therefore, significantly increase the chances of prevailing, both at the district and appellate court levels.

By: Kat Hatziavramidis, Attorney-at-Law