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Iowa university faculty can earn big bucks as expert witnesses

But what happens if their testimony cuts against interest of Iowans?

A courtroom at the Wapello County Courthouse in Ottumwa. (File photo/The Gazette)
A courtroom at the Wapello County Courthouse in Ottumwa. (File photo/The Gazette)
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Faculty at Iowa’s public universities, especially doctors, psychiatrists and engineers, can make big money as expert witnesses in civil trials.

But some critics say state employees shouldn’t be allowed to trade on their universities’ names for a sideline that might not be in the best interest of Iowans.

James Brown, a University of Iowa urologist, said in 2017 he was hired as an expert for litigation 42 times in four years, earning up to $600 an hour. These payments from legal clients would have been on top of his state salary, which was $330,000 that year.

Brown’s clients have included Swift Pork, now JBS USA, the nation’s largest pork and beef producer, cited by Iowa OSHA in 2016 for not letting employees at the Ottumwa pork processing plant use the restroom when needed.

Marc Linder, a UI law professor whose focus is on labor law, said Brown’s testimony in the JBS case could have caused Iowa workers to lose rights.

“When you testify about a standard that affects 100 million workers, you are engaged in public health. He could have unleashed or helped to unleash terrible consequences for workers of Iowa,” Linder said. “This is a big issue for a university — what people are doing on the outside.”

Expert witness service ‘supports the educational mission of the university’

Iowa’s state universities generally allow faculty to serve as paid expert witnesses. But faculty must report to supervisors such activities done during the work day or that take the professor away from assigned duties, such as teaching classes.

“Expert witness service by UI faculty supports the educational mission of the university,” the UI said in a statement to The Gazette. “The knowledge they obtain offers valuable insights for students and trainees when the faculty engage with learners in their teaching roles.”

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Iowa State University employees can get paid professional activity leave of up to nine days per semester for expert witness work, provided it “does not go against the interest of the State of Iowa,” ISU said.

UI Health Care, which includes the Carver College of Medicine and the Hospitals and Clinics, is the only UI unit with a public database disclosing employees’ outside paid activities.

“Because of the unique and trusting relationship required between providers and their patients, UI Health Care believes it is in the best interests of its patients for them to know whether their provider is tied to the medical industry, such as a medical device or pharmaceutical company,” the UI said in explaining why is has the database.

Who serves as an expert witness?

The UI Health Care disclosure database displays only one year of data at a time and can be searched only by employee name. Employee pay for outside work is reported only in wide ranges, so it can be hard to determine the total value. Using the database, The Gazette found 14 employees in the database who listed expert witness work on their spring disclosures, but there could be far more.

One of those was Dan McGehee, an engineering professor who also works in occupational health and emergency medicine. He reported earning between $10,001 and $25,000 from each of two companies — FAF, an Ohio-based trucking company, and Gallagher Bassett Services, a risk and claims management company with an office in Davenport. This is in addition to his $178,000 salary last year.

The UI has since removed McGehee’s information from the database, determining that since he doesn’t work at least half time for UI Health Care he should not have been listed.

McGehee, director of the UI National Advanced Driving Simulator, occasionally testifies in one of his fields of expertise — texting while driving.

“I have done about 10 cases over the last 18 years,” McGehee said in an email to The Gazette. “I’m very selective, do any related work after hours or on the weekends, and only provide testimony and/or analysis for cases that directly relate to my personal research.”

McGehee testified for the state in the 2016 trial of Colton Bills, a Dayton, Iowa, man charged with vehicular homicide, according to the Fort Dodge Messenger.

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Prosecutors alleged Bills had been texting with his girlfriend when he ran a stop sign and struck another car, killing two people. McGehee used the 911 call and Bills’ phone records, to create a timeline showing Bills likely was texting when the crash occurred.

Bills was convicted and sentenced to two 10-year prison terms, both suspended. The judge said his focus was on rehabilitating a young offender.

Charles R. Clark, a veteran UI orthopedic surgeon, reported earning between $500,001 and $1 million in each of the past seven years for expert witness work on behalf of Charles R. Clark MD LLC, a company incorporated with the Iowa Secretary of State in 2010. This is in addition to his $160,000 salary that year. His salary this year is $150,000 as part of a phased retirement.

It’s unclear what expert witness work Clark does for his private company — he declined an interview — but he’s in high demand for medical malpractice cases.

In 2006, Clark testified in a federal case in Ohio in which Cynthia Yanovich claimed the knee replacement implants she received in 2003 were defective.

Clark, working for Sulzer Orthopedics, testified the company’s Natural Knee II wasn’t defective, but that Cynthia Yanovich’s body mechanics weren’t aligned. The lawsuit was dismissed.

Medical faculty may be called to testify as fact witnesses, speaking about a specific patient they treated. For example, a county attorney trying an assault case might call an emergency room doctor to testify about the injuries a victim suffered. Many UI Health Care employees don’t charge for this type of testimony, considering it part of their duties as state employees.

Expert witnesses, on the other hand, are asked to make judgments based on their expertise.

Academics in demand

J. Stephen C. Smith, an Iowa State University agronomy lecturer, testified for the prosecution in the 2016 trial of Mo Hailong, a Chinese national accused of digging up corn seeds from an Iowa farm and trying to take them to China as part of a conspiracy to reverse engineer crops without paying for the research.

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“It was really serious in terms of potential effects on international trade and basically pulling the rug out from corn companies and U.S. farmers and U.S. society as a whole,” Smith said. “The people buying the seeds had paid for the research. This company in China was trying to get it all for free.”

Smith, who worked for DuPont Pioneer until 2015, testified about how many DNA segments were needed to identify inbred lines of maize, which helped prove the corn found with Mo was developed by U.S. companies. Mo pleaded guilty to conspiracy and was sentenced to three years in prison and ordered to pay $427,000 in restitution.

Smith was glad to help in such an important case, but he doesn’t have a desire to do more expert witness work.

“I don’t need the stress, and I don’t need the money,” he said.

Kim MacLin, a University of Northern Iowa psychology professor, serves as an expert witness for defendants charged with crimes based on eyewitness testimony or a photo lineup. She talks about how memory evidence is collected, how stress can affect memory and how flaws in photo lineups can prejudice results.

“It’s not fair to use evidence in a case against someone if it’s been improperly collected or it’s been contaminated in some way,” she said.

Paid $82,000 by UNI last year, MacLin said she’s allowed to spend the equivalent of one work day a week on outside activities, such as being an expert witness. But she devotes far less time to expert witness work and must ask for permission every time she needs to miss a class or other scheduled duty, MacLin said.

She charges $200 an hour as an expert witness, recently increasing her fee from $150 an hour after another expert said she wouldn’t be taken seriously if her fee was too low. But because MacLin usually works for public defenders, there often is a cap of $1,500 or $2,000 for an expert witness. MacLin always offers a free initial consultation and has taken some cases for free, she said.

“I have met some of the coolest, most hardworking attorneys who are busting their butts for their clients,” she said.

Expert industry

When attorneys need expert witnesses, they talk with other lawyers, search the internet or hire a service like the Expert Institute, a New York-based company that has worked on more than 30,000 cases since its founding in 2011.

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“We custom recruit experts on a case-by-case basis,” said Joe O’Neill, Expert Institute marketing director.

The company’s website is a little like a dating platform, showing photos and brief descriptions of each expert, but no names because the Expert Institute wants to make the introductions.

University faculty are desirable as witnesses because they’re up on the latest research and, as teachers, know how to talk with laypeople, O’Neill said. The caliber of the professor’s academic institution also matters.

“The prestige of having somebody who is an academic at a nationally-known or regionally-known institution definitely lends weight to the testimony at trial,” he said.

The average hourly rate for expert witnesses across the Unites States is $350 for case review and $460 for courtroom testimony, the Expert Institute reported. But in-demand experts, such as urologists, plastic surgeons or neurosurgeons called testify in medical malpractice cases, can earn $600 to $950 an hour.

Marty Diaz, an Iowa City-based trial lawyer who specializes in medical malpractice, said it’s often hard for plaintiffs to find an expert witness because doctors don’t like to testify against other doctors.

“It’s a sort of circle-the-wagons mentality,” he said.

Diaz would like to see hospitals and professional organizations encourage doctors to testify for both plaintiffs and defendants.

Urination case

Brown, the UI urologist who testified in the Ottumwa pork processing plant case, said at his 2017 deposition he frequently gets calls to be an expert witness in part because he’s “getting gray and bald and a full professor at a better-respected institution.”

Brown’s pay requirements for the case were a $1,000 retainer, followed by $500 an hour for case review and report preparation and $600 an hour for trial and deposition testimony, according to court records.

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“I enjoy this work ... and with three kids in college, the payment I receive is welcome. So I do this work whenever I can,” Brown said in a deposition.

But expert witness work isn’t all about the money, he said.

“I think I’m good at it, and I think I’m the type of person that should be doing it,” Brown said. “A full professor at a state university with 20 years experience are people who probably should be providing opinions rather than younger, less-experienced urologists.”

The JBS case came about after Iowa OSHA fined the pork producer $3,500 for not allowing employees to use the bathroom promptly.

Iowa OSHA investigated after receiving a complaint about JBS supervisors threatening to reprimand employees for leaving their tasks to go to the bathroom. The complainant, anonymous in the court file, also said employees had soiled themselves waiting for permission.

JBS fought the fine, but also asked an administrative law judge to reinterpret an OSHA sanitation standard requiring employers to provide prompt access to bathroom facilities. Brown testified the company’s work schedule with breaks every three hours fit with the average person’s urinary frequency.

The judge reversed the fine, but rejected the meat processor’s efforts to invalidate the standard.

Linder, the UI law professor, co-wrote a book with urogynecologist Ingrid Nygaard in 1998 called “Void Where Prohibited: Rest breaks and the right to urinate on company time.” The book helped shape the standard allowing employees freedom to go to the bathroom when needed, Linder said. He feared the JBS case would overturn that.

“If they succeeded, it could result in a situation in which OSHA would have to take a hands-off attitude,” he said.

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The more he researched the JBS case, poring over the 49-page deposition transcript and attending the hearing in Des Moines, Linder came to believe Brown didn’t know enough about the JBS workers, the factory or the subject of urinary frequency to testify.

Brown acknowledged in the deposition the bulk of his work was with cancer patients, not people with incontinence.

Linder complained to Brooks Jackson, UI vice president for medical affairs, but Jackson replied in a July 10, 2018, email that Linder and Brown just have a “different view on these issues” and said “diversity of opinion is tolerated if not promoted at a university.”

Brown reported receiving $10,001 to $25,000 from expert witness work last year. In 2017 he reported $50,001 to $100,000. There also is a note in his disclosure report that year saying he had done expert witness work back to 2009, although it is not noted on previous years’ reports.

Brown declined to be interviewed for this article, but the UIHC sent a statement on his behalf:

“Dr. Brown fully complies with all reporting requirements related to potential conflicts of interest,” the UIHC reported. “The American Urological Association believes that experienced and knowledgeable urologists have an ethical obligation to serve an active role in educating participants in the judicial system about proper standards of care in urology and have to be willing to serve for either defendant or plaintiff in a fair and impartial manner.”

Gazette staffer Josh Hlibichuk assisted with the data analysis for this story.

l Comments: (319) 339-3157; erin.jordan@thegazette.com

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