Gad-zooks – Expert Witness Dishonesty

This is the first in what I hope will be a continuing series, tagged as the Expert Witness Hall of Shame.

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Shayne Cox Gad is a toxicologist and a principal in the firm, Gad Consulting Services, in Cary, North Carolina. In 1977, Gad was awarded his doctorate in pharmacology and toxicology by the University of Texas (Austin). Some years later, Gad apparently awarded himself a Silver Star, and three Purple Hearts.

The Stolen Valor Act[1], effective in December 2006, made false representations of having received military decorations or awards a federal crime. Gad was charged with violating the Stolen Valor Act, and in February 2009, he pleaded guilty to dishonesty and specious claiming prohibited by the Act.

Before and after his conviction by guilty plea, Gad testified as an expert witness in litigation. He was an expert witness for plaintiff in an Oklahoma state court case, Helton v. Allergan, Inc., in which Dr. Sharla Helton complained that Botox caused her neurologic problems and pain that prevented her from working as an obstetrician/gynecologist.

Whatever the merits of the claims about Botox, Allergan might well have resisted settling a case in which plaintiff’s claim rested upon the testimony of an expert witness, convicted for dishonesty. Trial counsel for Allergan, Vaughn Crawford, cross-examined Gad, on April 27, 2010. Vaughn’s examination went immediately to prior conviction. “Allergan unmasks anti-Botox expert” (April 28, 2010; updated Aug. 21, 2013). Vaughn sprung the impeachment:

Q You are the same Shayne Cox Gad who has been adjudged guilty by the Eastern Federal District Court in North Carolina for crimes involving false statements and dishonesty, aren’t you, sir.

A Yes, sir.

Q Yes. Specifically in February of 2009, you were adjudged guilty by that Court of falsely representing that you had been awarded military decorations and medals including the Navy cross, aren’t you, sir.

A Yes, sir.

Helton v. Allergan, Inc., Notes of Testimony by Shayne Cox Gad at 48-49 (April 27, 2010).

Crawford pressed. Not only had Gad confessed to the crime, he had made various acts of contrition in his Pre-sentencing Report, in which Gad asked that he be placed on probation rather than incarcerated. One of the representations Gad made in the Report was that he would no longer testify as an expert witness in litigation. Gad’s plea was accepted and he was placed on probation as he and his lawyer requested.

As dramatic as Crawford’s impeachment of Gad must have been, the jury shrugged it off and awarded Dr. Helton 15 million dollars, which came to 18 million with pre-judgment interest. Helton v. Allergan Inc., No. CJ-2009-2171 (Okla. Dist. Ct., Oklahoma Cty.) (jury voted 10 to 2 to award actual but no punitive damages). The Oklahoma intermediate appellate court affirmed in an unpublished opinion, and the Oklahoma Supreme Court refused to grant discretionary review. Helton v. Allergan Inc., No. 2009-2171 (Okla. Civ. App. Sept. 6, 2013); “Okla. Appeals Court Backs $15M Award In Botox Injury,” Law 360 (Sept. 10, 2013). See PR Newswire, “Botox Victim Wins $18 Million: Oklahoma Supreme Court Affirms Botulism Verdict for McGinnis Lochridge Client Against Allergan, Inc.,” (May 9, 2014) (law firm press release misleadingly claiming that the Oklahoma Supreme Court had affirmed, when in fact, the Court had declined discretionary review).

Having pled guilty in federal court, Gad would have recited the facts of his crime in court before the imposition of sentencing, as required under Federal Rule of Criminal Procedure 11. Furthermore, even if Gad’s criminal defense lawyer drafted the Pre-sentencing Report, Gad was the principal responsible for his agent attorney’s representation that he, Gad, would not testify again as an expert witness.

Gad tried to resist the gist of the cross-examination by suggesting that others, not he, had made the representation. And on redirect, plaintiff’s counsel Chester elicited an apology, not to the court, or to the defendants, but to Dr. Helton, the plaintiff:

Q Would you, at least, apologize to my client for me because she hired me and I hired you.

A I do apologize for that.

Q Have you lied about anything in this case?

A No, sir.

Q You put five kids through college; is that right?

A Yes, sir.

Q You’ve had this career. Why would you do something like this?

A Well, that, of course, was discussed in a lot more detail in the documents having to do with it, but it was something that got out there 25 years ago and I thought it was put away. I did my best to expunge it from the record, and I was unsuccessful. Twenty-five years ago I was a very different person, a lot younger than I am now.

Helton v. Allergan, Inc., Notes of Testimony by Shayne Cox Gad at 141 (April 27, 2010).

The internet is, however, unforgiving and unforgetting. A curriculum vitae for Gad, labeled August 2005, states the following for military service:

June 1970 to April 1974 (Active):

Served on riverine craft in Mekong Delta of Vietnam and as O.I.C. of Armory, Quonset Point, Rhode Island. Served on USS Intrepid (CVS-11) as special 7 weapons officer, deck division officer and as First Lieutenant. Qualified as O.D. underway on Intrepid. Made several deployments overseas – mainly to Europe and the Mediterranean. Released from active duty in the permanent grade of LT(jg). Received Silver Star, 3 Bronze Stars, 3 Purple Hearts.  * * *

Holds current (2003) top secret clearance.”

C.V. for Shayne Cox Gad, Ph.D., D.A.B.T., A.T.S. (emphasis added).

The charging document against Gad, from United States v. Gad, also refutes the notion that Gad’s false statements occurred in the distant past, but rather that they were made “[o]n or about November 2004, and continuing up to and including March 29, 2007 … .” Immunity from prosecution for perjury in another case, United States v. Caputo appeared to be part of the consideration for the plea deal in U.S. v. Gad. Thus the inclusion of a representation, in the pre-sentencing report, that “[a]dditionally, Dr. Gad has agreed to no longer testify as an expert witness in the future.”

The mischief Gad created by his dishonesty was thus not limited to the Helton case. Gad’s testimony looks even more dubious in view of the Caputo case, a criminal case in which Gad testified for a federal prosecutor. In Caputo, the prosecutor informed the defendants, executives of AbTox Inc., that Gad “had committed perjury by falsely claiming military experience and decorations.” United States v. Caputo, Case No. 10-1964, 397 Fed. Appx. 216, (7th Cir. Oct. 12, 2010) (unpublished). See alsoAbTox Execs Seek New Trial Over Witness ‘Perjury’ – Law360” (Sept. 16, 2010).

The Caputo defendants had been charged with lying to the FDA and selling a misbranded medical sterilization devices. United States v. Caputo, 517 F.3d 935 (7th Cir. 2008) (affirming convictions). In rebuttal, Gad testified that defendants could not reasonably have held the beliefs they claimed to have held in good faith. Because of how the issue of good faith arose, the Circuit held that Gad’s perjurious testimony was harmless error that could not support the grant of a new trial. United States v. Caputo, Case No. 10-1964, 397 Fed. Appx. 216, (7th Cir. Oct. 12, 2010).

When the government informed the defendants that Gad had committed perjury, the Caputo defendants moved for a new trial on grounds of newly discovered evidence. The defendants went beyond Gad’s perjury disclosed by the prosecutors, and charged that Gad’s resume was a sham and that Gad had lied about other credentials as well.

According to the defendants’ motion in Caputo, Gad had misrepresented several credentials and misleadingly claimed to have had professional experience in medicine and toxicology, which experience Gad, in fact, lacked. The defendants, in Caputo, alleged other misrepresentations. Gad had testified in their case, and in the Helton case, that he had taught a course at the Duke University Medical School in the early 2000s and had lectured at the school since. Gad’s resume listed a professorship of toxicology at the College of St. Elizabeth, where he purportedly developed the school’s bachelor of science toxicology program, according to the motion. In their motion for a new trial, the AbTox executives, Caputo and Riley, provided an offer of proof that neither Duke University Medical School nor the College of St. Elizabeth had any record of Gad’s faculty status, and St. Elizabeth lacked a bachelor’s program in toxicology. Caputo and Riley also adverted to the federal prosecutors’ own earlier finding that Gad had lied about his military record during their trial.

I don’t know whether Gad testified again.  Some of Gad’s dubious views on toxicology are cited with approval by legal commentators who would dilute the scientific standard for causation[2].

“Falsus in uno, falsus in omnibus.” The essence of the crime is specious claiming.


[1] United States v. Alvarez, 132 S. Ct. 1421 (2012) (holding that the Stolen Valor Act was unconstitutional).

[2] See Shayne C. Gad, “Model Selection and Scaling,” in Shayne C. Gad & Christopher P. Chengelis eds., Animal Models in Toxicology 813 (1992), cited by Carl F. Cranor & David A. Eastmond, “Scientific Ignorance and Reliable Patterns of Evidence in Toxic Tort Causation: Is There a Need for Liability Reform? 64 Law & Contemporary Problems 5, 27 & n.120 (2001), and by Erica Beecher-Monas, Evaluating Scientific Evidence An Interdisciplinary Framework for Intellectual Due Process at 74 & n.63 (2007) (citing Gad’s book at page 826, for the argument that humans may be more sensitive to chemical effects than smaller species).

 

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