Attorney Sanctioned for Electrocuting Expert on Stand

By Ryan Thompson, Esq
Is being an expert witness becoming more dangerous?

The potential dangers of testifying against certain people or at certain trials is well understood. Mobsters, gangsters and murderers come to mind. Trials can often be long, spanning days, months or even years.  It’s why President Nixon signed a law that established the Witness Protection Program in 1970.

However, witnesses need not be protected while on the actual witness stand, do they? And certainly the courts need not be worried with protecting expert witnesses at civil trials, right?
For one state judge, the concerns over one expert witness’ protection and safety became a serious issue recently.
Just days after an accused killer and member of the Crips street gang was shot dead inside a Salt Lake City courtroom for attempting to stab a testifying witness with a pen, Utah State Court Judge James Brady handed down sanctions relating to another assault of a witness in a courtroom less than 100 miles away.
The weapon? Another pen. The attacker? An attorney.
“A witness is entitled to be safe and protected from assaults or physical intimidation,” Hon. Brady wrote in his ruling filed earlier this month. “Witnesses are not familiar with trial procedure or the expectations of attorneys. They are called up to answer questions testing their qualifications, memory, and truthfulness, to recall their prior testimony and explain any inconsistencies. To add a requirement that they do this in a physically hostile environment where they may be subjected to electrical shocks without warning is far removed from the decorum and professionalism required by attorneys, and has no place in a court room.”
Subjected to electrical shocks without warning? Shocking indeed.
In the multimillion dollar case of Gunn Hill Dairy, et al. v. Los Angeles Department of Water & Power, et al., in which the effects of stray electrical voltage on local cattle are at issue, a lawyer for the plaintiffs attempted to discredit an expert witness’ testimony that an electrical shock emitted from a AAA battery could not be felt by a human. To do this, Harvard-trained attorney Don Howarth handed an electrically charged pen to witness A.P. Meliopoulos and said the following:
Howarth:  Sir, you just told the jury that, if you completed the circuit with this AAA battery, you wouldn’t even feel it, right?
Meliopoulos:  That’s correct.
Howarth:  Sir, in this pen, I put a AAA battery. The circuit will be completed when you press the back of the pen. Would you like to see whether you can feel the AAA battery, Sir?
Meliopoulos:  What are you going to do?
Howarth:  Go ahead and push the back of the pen and tell the jury whether you feel it or not. The top of the pen.
Dr. Meliopoulos pushes the top of the pen. His body recoils. He drops the pen.
Meliopoulos:   I got an electric shock.
Howarth:  And you felt it, didn’t you, Sir?
Meliopoulos:  Yeah. What is this?
Howarth:  It’s AAA. May I have it?
Meliopoulos:  It cannot be AAA.
Howarth:  Will you open it up, Sir?
Sure enough, there was a AAA battery inside. Unbeknownst to Dr. Meliopoulos or the judge, there was also a DC/AC power inverter that transforms the battery’s 1.5 volts of direct current into approximately 750 volts of alternating current.
Meliopoulos, an inventor and electrical energy expert at Georgia Tech, was quickly on to the prank. 
 “I’ll take it to my lab and show you the trick you placed,” he testified.
However, Judge Brady was not so forgiving and did not take lightly this “battery of a witness,” as the judge humorlessly refers to in his written opinion. “[I]t is concerning to the court that Mr. Howarth intentionally caused a harmful or offensive contact with the person of Dr. Meliopoulos. It is within the court’s inherent authority to sanction any attorney who causes harmful or offensive contact with a witness.  Had Mr. Howarth disclosed his intent to deliver a shock to Dr. Meliopoulos, the court would not have allowed it.”
In his ruling on the defendants’ motion to revoke Howarth’s pro hac vice admission to practice law in Utah, the judge went into considerable details as to the dangers of these electrical shock pens and the need for our courts to protect witnesses from these types of attacks.
Particularly concerning for the judge was that the packaging of these pens warned of the potential dangers if used on people over 60 years old, in poor health, who have epilepsy, or those who use pacemakers. Howarth neither knew nor inquired about these factors before shocking the witness, who was, in fact, over 60 years old.
For this, Judge Brady sanctioned Howarth $1,000, to be paid to Meliopoulos for his shock and suffering.
Furthermore, the judge found that Howarth’s deception regarding the DC/AC inverter, as well as his attempt to prohibit Meliopoulos from testifying about the inverter, was equivalent to misrepresentation to the court.
“The demonstration was intended to mislead,” Judge Brady wrote in his ruling. “After achieving his desired effect, Mr. Howarth failed to make disclosures or any effort to mitigate the misrepresentation. His actions undermined the integrity of the adjudicative process. The court concludes that Mr. Howarth intentionally misled the jury, the court and Dr. Meliopoulos during the trial and made no sufficient effort to correct the misrepresentation.”
For this, Judge Brady sanctioned Howarth $2,000, to be paid to the defendants for having interfered with the conduct of the trial and causing defense attorneys and expert witnesses to divert from their trial preparations and instead expend efforts to correct Howarth’s misrepresentations.
The judge, however, did deny the motion filed by defendant, the Intermountain PowerPlant, and refusing their request to remove Howarth from the case, but instead prohibiting the Los Angeles lawyer from cross-examining any witnesses in any further trials. The 12 cattle-owner plaintiffs are embattled in a decade-long set of trials, seeking up to $400 million.
Dr. Meliopoulos and the defendants claim that the low voltage radiating from the power plant and power supply lines, which connect Utah to Southern California, cannot be responsible for any negative health effects or fatalities suffered by the plaintiffs’ cows. Like lightning, the electricity dissipates quickly, transforming into a harmless and innocuous remnant of energy, they claim.     
One of the defense attorneys even placed a AAA battery on his tongue to show the unnoticeable effect of low voltage. It was this participatory courtroom tactic that inspired the plaintiffs’ trial team to devise the electrical pen prank.
It’s a “children’s toy,” Howarth’s co-counsel said.
It was a “battery,” the judge declared.

We would be delighted to hear from you about this.  What’s the most unconventional action you have seen used in court in an attempt to discredit expert testimony?

Maggie Tamburro

Maggie Tamburro is an attorney and writer who holds a Juris Doctor from The John Marshall Law School and a Bachelor of Arts from the University of Texas. She was admitted to the Illinois Bar in 1994 and Florida Bar in 1999 and has significant experience in legal research, editing, and writing. Maggie is active her in local community, holding various publicly appointed civic board positions.

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