Mistaken Opinions Can Bite Expert Witnesses

Badly mistaken opinions can return to bite expert witnesses, as two dentists recently learned in Stinson v. Gaugerand when their claims of absolute and qualified immunity were denied by a district court.

The plaintiff, Robert Lee Stinson, spent 23 years in prison for a brutal rape and murder that he did not commit, his conviction primarily based on the testimony of two forensic odontologists. The U.S. 7th Circuit Court of Appeals agreed with the district court that absolute immunity did not apply, and qualified immunity only applied if Stinson's constitutional right of due process was not violated.

After Stinson was exonerated based on DNA evidence, he sued the lead detective and the two forensic odontologists who had investigated the murder and testified at trial.

The first odontologist involved in the case, Dr. Lowell Johnson, was a professor of dentistry and oral surgery at Marquette University, a forensic odontologist, and a diplomate of the American Board of Forensic Odontology at the time. He was asked to assist in the case by the Milwaukee County Medical Examiner. Dr. Johnson made rubber impressions of bite marks on the body and informed detectives working the case that he believed the killer had one twisted tooth and was missing the upper right lateral incisor.

The lead detective, James Gauger, with his partner, then began interviewing people who lived near the crime scene, including Stinson.

Two years earlier, Detective Gauger had tried and failed to prove that Stinson was guilty of another murder. When the detectives found that Stinson was missing his right front tooth, they assumed that Stinson was the killer, even though Dr. Johnson's description did not exactly match Stinson.

Stinson was subpoenaed through an extraordinary John Doe procedure and submitted to an examination at a hearing where Dr. Johnson was to evaluate him. Dr. Johnson concluded immediately at that hearing that Stinson's teeth matched the bite marks on the victim. Stinson was ordered to submit to a more thorough dental examination, after which the dentist came to the same conclusion.

The Assistant District Attorney then sent Detective Gauger to Las Vegas to get a second opinion from Dr. Raymond Rawson, a forensic odontologist at the Clark County Coroner’s Office in Nevada, an adjunct professor of biology at the University of Las Vegas and a diplomate of the American Board of Forensic Odontology. After a short review of the evidence in Detective Gauger's hotel room, Dr. Rawson agreed that Stinson was a match.

The prosecution provided Stinson’s counsel with a list of odontologists that could be hired to review the bite-mark evidence, but the odontologist they picked from the list agreed with Dr. Johnson and Dr. Rawson. Stinson was found guilty and sentenced to life in prison.

Twenty-three years later, Stinson was exonerated with the help of the Wisconsin Innocence Project which showed that the DNA evidence excluded Stinson, and also enlisted a panel of odontologists who reexamined the bite-mark evidence and determined that it too excluded Stinson. Stinson also retained a new forensic odontologist, Dr. C. Michael Bowers, who found that "Johnson’s and Rawson’s conclusions were far afield of what a reasonable forensic odontologist would have concluded."¹ 

After his release, Stinson sued Dr. Johnson, Dr. Rawson and Detective Gauger, alleging that Gauger convinced the dentists to fabricate their opinions, and all three suppressed evidence of the fabrication, all in violation of his right to due process of law.

The appellate court found that absolute immunity does not apply to this alleged misconduct as it occurred before there was probable cause. During an investigation, before probable cause to arrest someone exists, neither detectives, prosecutors nor expert witnesses have absolute immunity (see Buckley v. Fitzsimmons). They do, however, have qualified immunity, which in the case of expert witnesses, protects them even when they are badly mistaken.

Writing the unanimous opinion, Justice Sykes noted that expert witnesses have qualified immunity for mistaken opinions, but not fabricated ones. He acknowledged that it would be difficult to prove that an expert knowingly falsified an opinion, even when that opinion was proven to have been grossly wrong. Stimson demonstrated "... at most that the odontologists acted unreasonably, not that they fabricated their opinions".²

While these forensic experts were found immune, they still had the burdens of litigation and trial, which were substantial. Perhaps as well, knowing the role they played in the wrongful imprisonment of Stinson for 23 years gave them another burden to bear.

Expert witnesses may enjoy immunity in almost all cases, but they may still be bitten by badly mistaken opinions.