How far will some lawyers go when cross-examining an expert witness?

Electrical engineer AP Meliopoulos found out the hard way in a Utah case.

Dr. Meliopoulos was being cross-examined by Atty. Don Howarth.

Judge James Brady described what occurred:

1. Dr. Meliopoulos was an expert witness, called by IPP to testify before this court.

2. During Dr. Meliopoulos’ testimony, Mr. Howarth intentionally handed Dr. Meliopoulos an electronic device disguised as a retractable pen, and Mr. Howarth represented it to be a pen.

3. The electronic device is sold as a novelty item and is designed to give unsuspecting individuals an electric shock if they press the button to extend or retract the pen cartridge.

4. The pen came in a package with warnings on it including:

a. The user “gets a harmless powerful shock,
b. It is not recommended for children under 12 years of age,
c. It is not recommended for adults over 60 years of age,
d. It is not recommended for anyone with poor health.

5. Dr. Meliopoulos is over 60 years of age.

6. Mr. Howarth made no inquiry into Dr. Meliopoulos’ age or the condition of his health before inviting him to activate the device.

7. Mr. Howarth did not disclose to the witness, the court, or to opposing counsel that the pen was a novelty which would deliver a shock to Dr. Meliopoulos.

8. When he handed the pen to Dr. Meliopoulos, Mr. Howarth knew that upon depressing the button on the top of the pen, Mr. Meliopoulos would receive an electrical shock without warning.

9. Mr. Howarth asked the following questions and made the following representations to Mr. Meliopoulos to encourage him to depress the button and receive the electrical shock:

a. “Sir, you just told the jury that if you complete the circuit with this AAA battery, you wouldn’t even feel it, right?”
b. “Sir, in this pen, I put a AAA battery. The circuit will be complete when you press the back of the pen. Would you like to see whether you can feel the AAA battery, Sir?”
c. “[g]o ahead and push the back of the pen and tell the jury whether you feel it or not.”

10. Dr. Meliopoulos complied with the request and received a strong electronic shock which cause his body to jerk and to drop the pen.
11. The pen did not contain only a 1.5 volt AAA battery.

12. The pen contained a 1.5 volt battery and a transformer that converts the battery’s DC current to AC current, and transforms the 1.5 volts supplied by the battery up to several hundred volts.

13. Shock pens like the one Mr. Howarth had Dr. Meliopoulos operate, can generate up to 750 volts, enough to cause death in people with health conditions.

14. Shock pens can malfunction, and deliver hundreds of volts continuously for a relatively long time, which can injure a person.

15. Shock pens should not be used on people who have pacemakers or other electronic devices in their body, are not recommended for people with heart problems or epilepsy, can deliver painful and aggravating shocks, and the electronic current they generate can interfere with medical treatment and further exacerbate medical conditions.

The court went on to limit Atty. Howarth’s participation in the trial and fined him $3,000.00.

The court stated that:

The demonstration was intended to mislead. 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 mislead the jury, the court and Dr. Meliopoulos during the trial and made no  sufficient effort to correct the misrepresentation.

Gunn Hill Dairy v. Los Angeles Department of Water & Power, 4th District Court, State of Utah