Author Archives: Kimberly DelMonico

About Kimberly DelMonico

Kimberly DelMonico is a licensed attorney in New York and Nevada. She received her law degree from William S. Boyd School of Law at University of Nevada, Las Vegas and her undergraduate degree from New York University, where she studied psychology and broadcast journalism.

Disabled man, wheelchair

Suit Claims Requiring Disabled Attorneys to Present Experts is Discriminatory

A new suit filed in California district court claims that the California State Bar discriminates against attorneys with mental disabilities by requiring them to present expert witnesses to attest to their condition when they are facing discipline.

The Requirement

The Rules of Procedure of the State Bar of California outlines ten mitigating factors that a respondent may rely upon in disciplinary proceedings. Standard 1.6(d) specifies that “Mitigating circumstances may include:…(d) extreme emotional difficulties or physical or mental disabilities suffered by the member at the time of the misconduct and established by expert testimony as directly responsible for the misconduct, provided that such difficulties or disabilities were not the product of any illegal conduct by the member, such as illegal drug or substance abuse, and the member established by clear and convincing evidence that the difficulties no longer post a risk that the member will commit misconduct.”

The Lawsuit

On June 24, 2021, Michael Potere filed a lawsuit against The Board of Trustees of the State Bar of California and Donna S. Hershkowitz, the Interim Executive Director of The Board of Trustees of the State Bar of California.

Potere is disabled according to the definition provided by the Americans with Disabilities Act, which defines disability as “a physical or mental impairment that substantially limits one or more of the major life activities” or the individual in question and “mental impairment” to include “any mental or psychological disorder, such as…emotional or mental illness.” Potere has been diagnosed by numerous medical professionals as suffering from depression or major depression.

Potere claimed that he was harmed by Standard 1.6(d) because he was financially unable to hire an expert witness in his California State Bar Court proceedings. Because he was unable to provide an expert witness, the Hearing Department and the Review Department both found that Potere failed to prove that his mental disability caused his misconduct.

In his suit, Potere claimed that Standard 1.6(d) discriminated against persons with disabilities because it is the only group of respondents who are required to use expert testimony to establish a mitigating circumstance. Additionally, the respondents would be required to provide that expert witness at their own expense.

Potere points out that California is the only state that requires disabled respondents to hire an expert witness to prove that they have a disability. Every other state either follows the ABA Standard 9.32(i), which requires only “medical evidence,” or has no evidentiary requirement at all.

Potere argues that Standard 1.6(d)’s heightened evidentiary burden for disabled respondents violates their constitutional right to due process and equal protection, along with their right to be free from discrimination based on their disability pursuant to the American with Disabilities Act.

Potere brought the lawsuit on behalf of himself and those similarly situated. He asked for the court to issue a declaratory judgment that Standard 1.6(d) violates the due process and equal protection clauses of the U.S. Constitution and violates Title II of the Americans with Disabilities Act. Potere also asked the court to permanently enjoin The State Bar of California for using or enforcing Standard 1.6(d) as it is currently written.

Police

Expert from Chauvin Trial to Testify Against Nashville Police Officer

An expert on police use of force who testified against former Minneapolis police officer Derek Chauvin will be allowed to participate in the upcoming murder trial of a Nashville police officer.

The Shooting

On July 26, 2018, Nashville Metro Police Officer Andrew Delke shot and killed Daniel Hambrick, during a foot chase. The chase happened after a traffic stop. Metro Police reported officers with the Juvenile Crime Task Force had noticed a white Chevrolet Impala driving erratically. The officers tried to stop the vehicle, but it did not pull over.

Later in the evening, a Metro officer found a vehicle matching the car’s description in the parking lot of an apartment complex. The occupants of the vehicle got out of the car as Officer Andrew Delke got out of his vehicle. Hambrick began to run and Delke followed behind.

In a court hearing, Delke described the incident. He recalled seeing Hambrick pull a gun from his waistband and point it at him as he ran away. Delke claimed that Hambrick gave him a “targeted glance,” or trying to get an idea of where to shoot. Delke said that he repeatedly yelled to Hambrick to put the gun down and that he thought Hambrick presented an imminent threat.

Surveillance video of the seconds before the shooting show Hambrick facing forward and running away as Delke shoots him. Hambrick was hit three times from behind.

Delke, a 26-year-old white police officer, was charged with one count of premeditated first-degree murder in connection with the shooting of Hambrick, who was 25 and black. Delke pleaded not guilty and claimed that he was acting out of self-defense. Delke is the first Nashville police office to be charged with murder in connection with an on-duty shooting. The trial has been delayed multiple times due the COVID-19 pandemic.

Contested Expert Testimony

Prosecutors presented Los Angeles Police Department Sgt. Jody Stiger as an expert witness. Earlier this year, Sgt. Stiger testified against Derek Chauvin, the Minneapolis police officer who was convicted of murder in connection with the death of George Floyd.

Delke’s defense team, led by attorney David Raybin, argued that Sgt. Stiger should not be allowed to testify because the connection to Chauvin, a white police officer who was convicted of murdering a black man, would overshadow the trial. The defense team claimed that using Sgt. Stiger as a witness is the state’s way of associating this case with Chauvin’s. However, the prosecution has said that they will not mention George Floyd’s name at trial.

After consideration, Judge Monte Watkins ordered that Sgt. Stiger may be listed as a state’s expert witness. Judge Watkins also decided to allow former District Attorney Torry Johnson to testify as a defense use-of-force expert.

At earlier motion hearings, Johnson has testified that Delke did have probable cause to chase Hambrick. State attorneys have characterized this testimony as Johnson’s admitting that he may not have prosecuted Delke if this had happened while he was still in office.

accountant

Damages Expert Excluded for Failure to Do Independent Verification

A plaintiff damages expert has been excluded in a false advertising case under the Lanham Act for failure to do any independent verification of the plaintiff’s cost estimates.

The Dispute

Natera and CareDx are manufacturers of kidney transplant tests. Natera created an advertising campaign aimed at showing that its kidney transplant rejection test is superior to CareDx’s AlloSure organ transplant diagnostics.

CareDx sued Natera, claiming false advertising. CareDx argued, “Natera has begun a false advertising campaign designed to deceive doctors, healthcare professionals, insurance companies, and patients — as well as investors — into believing that Natera’s ‘me too’ test is superior to AlloSure when that has simply not been shown…Natera’s dissemination of false and misleading claims about AlloSure is an attempt to poison the marketplace and must be stopped.”

CareDx specifically accused Natera of one count of false advertising in violation of the Lanham Act, one count of trademark disparagement under the Lanham Act, one count of common law unfair competition, and one count of unfair or deceptive trade practices under Delaware law.

Lanham Act Damages

According to CareDx, under the Lanham Act, 15 U.S.C. § 1117(a)(2), “a successful false advertising plaintiff can recover the costs of any completed advertising that actually and reasonably responds to the defendant’s offending ads.”

CareDx presented James Malackowski as a damages expert at trial to establish the actual costs of corrective advertising spent in 2019 and the first half of 2020 and the projected costs of continued corrective advertising for the second half of 2020 and 2021. Malackowski did not perform independent analysis of the marketing spend. Instead, Malackowski relied solely on the CareDx Chief Executive Officer’s deposition testimony containing an estimate about what the company had spent on corrective advertising.

Natera moved to exclude CareDx’s proposed expert under Rule 702 and Rule 403 of the Federal Rules of Evidence. Federal Rule of Evidence 702 requires that an expert be qualified, reliable, and fit. Federal Rule of Evidence 403 allows a court to exclude relevant evidence “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

The United States District Court for the District of Delaware agreed with Natera. The court determined that Malackowski’s corrective advertising opinions failed to meet all three requirements of Rule 702:

(1) The challenged opinions did not contain specialized knowledge outside a juror’s common understanding; therefore, they failed both the qualification and fit requirements.

(2) The challenged opinions were also unreliable. The expert’s efforts were limited to reading the CareDx CEO’s deposition, interviewing the CEO, and reviewing one SEC filing. The court noted that Malackowski failed to review ledgers, invoices, or interview any marketing or other personnel who could provide more specific data.

The court also noted that even if the challenged testimony were admissible under Rule 702, it should be excluded under Rule 403 as unfairly prejudicial, misleading to the jury, and needlessly presenting cumulative evidence.

The court excluded Malackowski’s testimony.

New Scam Targets Expert Witnesses

A new scam in the Indiana area is targeting professionals, demanding money for not appearing as expert witnesses in court.

The Scam

Dr. Allison Bush, a physical therapist, says that she got a phone call from someone claiming to be Sergeant Donald Gilmore from the Vanderburgh County Sheriff’s Office. The caller gave her a badge number and told her that she owed more than $8,000. He claimed that the fee was owed because she had failed to show up as an expert witness at trial. Dr. Bush said that she initially believed the caller because this type of thing could happen in her line of work.

Dr. Bush said that the caller kept saying, “Do you understand this? Do you understand this? Okay 10-4.” The caller told her that someone had signed her name on a subpoena that she had been sent in the mail, but if they determined that the signature was a forgery, they would reimburse her.

Dr. Bush said that the caller insisted that she tell him the make and model of her car and that she meet him on Martin Luther King Boulevard to send the money over on a kiosk. The caller would not let Dr. Bush speak with her lawyer and threatened her with jail time if she did not pay the fine.

Dr. Bush said, “He tells me I have a gag order on me, and that the gag order means I can’t talk to anybody, not even my lawyer.” Dr. Bush eventually hung up on the caller and called the Vanderburgh County Sheriff’s Office to check up on the caller’s story.

Verifying the Facts

When Dr. Bush spoke to a detective at the Vanderburgh County Sheriff’s Office, the detective was not surprised. The detective told Dr. Bush that others had reported the same scam. “Was it Donald Gilmore?,” he said, “You’re the third person today to call me today on this scam.” The detective told Dr. Bush that the call was definitely a scam and not to give the caller any information.

Eyewitness News for TriStateHomepage.com spoke to a detective at Vanderburgh County Sheriff’s Office. The detective advised that scammers have been running similar scams for a while. Sometimes the scammers will give victims fake names and badge numbers and speak in police lingo in an attempt to seem legitimate. The detective advised that sheriff’s deputies would never call and request payment for a failure to appear in court. This would be something that would be handled by the court.

The Vanderburgh County Sheriff’s Office has even posted a notice on its website warning that scammers have been calling victims and impersonating law enforcement officers. Sheriff Dave Wedding advised, “At no time would a member of the Vanderburgh County Sheriff’s Office call someone to demand payment. If someone says they are from the Sheriff’s Office and asks for money, request their name and badge number and then call the Sheriff’s Office directly.” The website warned not to trust caller ID, because this can easily be spoofed to make a call appear legitimate.

Gavel and scales

Guilty Verdict Thrown Out for Expert Testimony That Went Beyond Scope

The Michigan Court of Appeals has thrown out a jury’s guilty verdict and granted a new trial after determining that a doctor’s testimony went beyond the scope of what doctors may testify about in criminal sexual conduct cases.

The Crime

A minor child accused Ryan William Cole, 37, of sexually assaulting her three times in 2014. She claims that she told her mother and other relatives about the first incident, but not the others. Her mother claims that the girl never told her about the abuse and that she had learned about the allegations after a claim was made with Child Protective Services.

The Trial

Prosecutors retained Dr. Lisa Markman to testify as its expert witness. At the time of the trial, Dr. Markman was serving as an assistant professor of pediatrics and the associate medical director of the Child Protection Program at C.S. Mott Children’s Hospital at the University of Michigan in Ann Arbor.

At trial, Dr. Markman testified that she had interviewed and physically examined the girl. Dr. Markman testified that the girl told her that Cole had sexually abused here when she was 5 and 6 years old. She also testified that she did not observe any physical signs of abuse and that she concluded that the girl had been sexually abused solely on the basis of the girl’s account of the alleged incidents.

A Lenawee County Circuit Court jury found Cole guilty of two counts of first-degree criminal sexual conduct involving a person younger than 13. Circuit Judge Margaret M.S. Noe sentenced Cole to 25 to 75 years in prison.

The Court of Appeals

Cole appealed to the Michigan Court of Appeals and it denied his appeal. He appealed to the Michigan Supreme Court, which returned the case to the Court of Appeals to determine whether the prosecution’s expert witness had impermissibly vouched for the credibility of the alleged victim.

Upon review, the Court of Appeals determined that Dr. Markman had impermissibly offered testimony about the credibility of the alleged victim beyond what doctors are allowed to testify about in criminal sexual conduct cases.

Court of Appeals Judges Cynthia Diane Stephens, Deborah A. Servitto, and Anica Letica noted that Michigan Rules of Evidence and two earlier court opinions say that one witness is not permitted to comment on the veracity of another witness’ testimony because credibility matters are to be determined by the jury.

Here, the case “turned on the jury’s assessment of the victim’s credibility because there was no physical evidence, no witnesses to the alleged assaults, no inculpatory statements, and the defendant denied the allegations.” Since Dr. Markman’s opinion was based on the girl’s account of the incidents and her opinion of the girl’s truthfulness, her testimony violated the principle that “an examining physician cannot give an opinion on whether a complainant had been sexually assaulted if the conclusion is nothing more than the doctor’s opinion that the victim had told the truth.”

The Court of Appeals threw out the jury’s guilty verdict and sent the case back to circuit court for a new trial.  Lenawee County was not conducting jury trials during the COVID-19 pandemic; however, its numbers have declined below the threshold for conducting jury trials. Because this case is from 2014, it will be the first trial on the schedule once the county gets the go-ahead from the Michigan State Court Administrative Office.

Fee Agreement

Lawyers Claim that Prosecution Expert Threatened Witnesses

The lawyers who represent one of the Minneapolis police officers charged in the death of George Floyd claim that an outside expert prosecution witness coerced the state medical examiner to change his opinion on what killed Floyd.

George Floyd’s Death

On May 25, 2020, George Floyd, who was a black man in handcuffs, died after Derek Chauvin, a Minneapolis police officer pressed his knee against Floyd’s neck for more than nine minutes  as he said he couldn’t breathe. Chauvin and the other three officers who were present were fired and charged with various crimes in connection with Floyd’s death.

Chauvin has been convicted of second-degree murder, third-degree murder, and second-degree manslaughter.

The three other officers, Thomas Lane, J. Alexander Kueng, and Tou Thao, were charged with aiding and abetting Chauvin.  The trials of the three officers have been pushed back until March 2022.  Judge Peter Cahill cited federal charges against the three officers that trump the state charges. He also said that he wants to put distance between the state trial and the publicity that surrounded Chauvin’s murder trial.

The Claims

Defense attorneys for former Minneapolis police officer Officer Tou Thao have filed court documents claiming that Dr. Roger Mitchell, the former chief medical examiner in Washington, D.C., blackmailed Dr. Andrew Baker, who conducted George Floyd’s autopsy, into changing his opinion.

The court records claim that Dr. Baker originally told prosecutors that his May 26, 2020 autopsy done the day after Floyd died, “revealed no physical evidence suggesting that Mr. Floyd died of asphyxiation. Mr. Floyd did not exhibit signs of petechiae, damage to his airways or thyroid, brain bleeding, bone injuries, or internal bruising.”

The criminal complaint filed against Derek Chauvin three days later “stated that the full report of the ME was pending, but that the preliminary findings ‘revealed no physical findings that support a diagnosis of traumatic asphyxia or strangulation.’”

Thao’s lawyers claim that sometime before June 1, 2020, Dr. Mitchell called Dr. Baker and challenged his findings, telling Mitchell that he didn’t think “neck compression” caused Floyd’s death.

Thao’s lawyers claim that Dr. Mitchell called Dr. Baker back and told him he would publish an op-ed in the Washington Post criticizing Baker.  Dr. Mitchell reportedly told Dr. Baker, “You don’t want to be the medical examiner who tells everyone they didn’t see what they saw. You don’t want to be the smartest person in the room and be wrong.” Thao’s lawyers say Dr. Mitchell told Dr. Baker that “neck compression has to be in the diagnosis.”

Dr. Baker’s autopsy findings were released on June 1, 2020. Neck compression was concluded in the autopsy report.  Thao’s lawyers claim that the autopsy report “was contrary to Dr. Baker’s conclusion before speaking with Dr. Mitchell twice.”

Thao’s lawyers claim that Dr. Mitchell’s conduct violated Minnesota’s laws against coercion. They want the case against Thao to be dismissed.

The prosecutors dispute these claims and stated that they plan to file a motion to rebut them. Given that Dr. Baker testified under oath about his findings in Chauvin’s case and that other doctors agreed with his findings, it seems unlikely that a court would find that outside encouragement to tell the truth constitutes blackmail.

Medical Malpractice Sex Assault Case Fails for Lack of Expert

A patient who claims that her medical provider touched her inappropriately during an exam lost her medical malpractice suit because she didn’t have an expert witness to testify about the appropriate standard of care.

The Alleged Assault and Battery

In September 2016, Erica Vipond had a medical appointment with Lance Beebout, a physician’s assistant with Heartland Orthopedics Specialists.  Vipond had been experiencing knee pain, shooting pain in her back and legs, and numbness and tingling.

Vipond claims that during the examination, Beebout instructed her to remove all of her clothing from the waist up, including her bra, to examine her for scoliosis.  Vipond claims that Beebout did not leave the room while she undressed and that he instructed her to bend over and straighten her back several times, while her clothes were removed.  After she was fully clothed and on the exam table, Vipond claims that Beebout examined her spine and lower body.  Allegedly, the exam included Beebout touching Vipond on the front of her pelvic bone and on the inside of her leg near her pelvic area.

Minnesota District Court

Vipond sued Beebout in Douglas County District Court, alleging that Beebout had committed tortious assault and battery against her during the examination.

Vipond submitted an affidavit from expert witness Mark R. Halstrom, M.D.  The affidavit stated that Dr. Halstrom had read the complaint, that he was “familiar with the standard of care” for such situations, and that Beebout had “deviated from the applicable standard of care and by that action caused injury to Vipond.”

Beebout filed a motion to dismiss, arguing that the affidavit did not meet the specificity requirements of Minn. Stat. § 145.682.  The district court agreed and dismissed Vipond’s claims.

Minnesota Court of Appeals

Vipond appealed.  On appeal, the Minnesota Court of Appeals noted that Minn. Stat. § 145.682 requires an expert witness affidavit to “contain specific details of the plaintiff’s claims, including (1) identification of any experts expected to testify, (2) ‘the facts and opinions to which the expert is expected to testify,’ and (3) ‘a summary of the grounds of each opinion.’”

Vipond argued that no expert testimony was required at trial to make a finding of malpractice because her claims fell “within the general knowledge or experience of laypersons” or that Dr. Halstrom’s affidavit was sufficient.  The court disagreed.

The court ruled that an expert affidavit was necessary because all of the alleged conduct occurred during a medical examination and an average layperson would not be equipped to know whether this examination fell outside the standard of care.  The court also ruled that Dr. Halstrom’s affidavit was insufficient to satisfy the disclosure requirements of Minn. Stat. § 145.682 because he failed to state what the applicable standard of care is or how it was violated.  He also failed to identify any facts that he used to formulate his opinion, aside from referencing that he read the complaint.

The Minnesota Court of Appeals affirmed the dismissal of Vipond’s complaint.

Pills

Scope of Health Expert Testimony in Dispute in Opioid Trial

The scope of a health expert’s testimony is a matter of heated contention between the parties in a landmark federal opioid trial.

The Dispute

The Cabell County Commission and the City of Huntington in West Virginia claim that three wholesale drug companies, McKesson, Cardinal Health, and AmerisourceBergen, should be held accountable for the costs of opioid addiction in West Virginia communities. The government entities claim that the three wholesalers compounded the opioid crisis by saturating the region with opioids.

According to the Cabell County Commission and the City of Huntington, the drug companies distributed nearly 100 million opioid pills in Cabell County over a 10-year period. A West Virginia drug overdose death report states that 7,200 West Virginians died with at least one opiate in their system between 2001 and 2015. Cabell County attorney Paul Farrell Jr. has stated that there have been about 1,100 opioid-related deaths and 7,000 overdoses in the past decade in Cabell County alone.

The lawsuits claim that the distributors breached their duty to monitor, detect, investigate, refuse, and report suspicious orders of prescription opioids coming into West Virginia over the past several years.

The Expert Witness Dispute

As the case is finally proceeding to trial after a long delay due to COVID-19, the drug companies filed objections to the proposed expert testimony of health official witnesses, who walk the line between fact and opinion witnesses. The drug companies argued that health official witnesses were interviewed without knowledge, which means they are experts expressing their opinion on the matter instead of just the facts.

The main dispute is over the testimony of Dr. Rahul Gupta. Dr. Gupta served as the Commissioner of Public Health and West Virginia State Health Officer from 2015 to 2018 and as the executive director of the Kanawha-Charleston Health Department for the five years before that. The Washington Post recently reported that Dr. Gupta is a leading candidate to head the Office of National Drug Control Policy under President Joe Biden.

The drug companies wanted to limit Dr. Gupta’s testimony to what he experienced and observed during his time dealing with the communities that have been affected by the opioid epidemic. They argued that, “Gupta’s high-level involvement in opioid-related projects do not give him carte blanche to opine as a hybrid expert on any and all issues related to the opioid epidemic in West Virginia.”

The drug companies hoped to prevent Dr. Gupta from testifying about whether opioids are a gateway to illegal street drugs, whether oversupply of prescription drugs led to overdose deaths, how the opioid epidemic affected the foster care and education systems, and the nature of addiction.

Gavel and scales

Maryland AG Invites Public to Comment in Review of Chief Medical Examiner’s Cases

The Maryland Attorney General’s Office has invited the public to comment as part of the review of in custody death investigations that were conducted by the office of Dr. David Fowler, who served as the chief medical examiner of Maryland.

The Controversy

Dr. David Fowler was a key defense witness in the trial of Derek Chauvin, the ex-Minneapolis police officer who was convicted in the murder and manslaughter of George Floyd. Dr. Fowler testified that Floyd died of a sudden heart rhythm problem due to his heart disease while being restrained by the police. He testified that Floyd’s cause of death was “undetermined” and not a homicide. Dr. Fowler’s testimony was contradicted by several other experts who said that Floyd died due to a lack of oxygen.

Following Dr. Fowler’s testimony at Chauvin’s trial, the former medical director of Washington, D.C., Roger A. Mitchell wrote a letter to Maryland Attorney General Brian Frosh, saying that Dr. Fowler’s testimony and conclusions were so far outside the bounds of accepted forensic practice that all his previous work could come into question.  This letter was signed by 431 doctors from around the country.

The letter stated, “Dr. Fowler’s stated opinion that George Floyd’s death during active police restraint should be certified with an ‘undetermined’ manner is outside the standard practice and conventions for investigating and certification of in-custody deaths. This stated opinion raises significant concerns for his previous practice and management.”

Attorney General Response

After receiving this letter, Maryland Attorney General Brian Frosh made the decision to review all cases from 2003 to 2019, which fell under Dr. Fowler’s tenure.

Frosh’s office released the following statement, “My office, in consultation with Governor Hogan’s Chief Legal Counsel, has begun working to develop the process and timeline for the audit of in-custody death determinations made by the Office of the Chief Medical Examiner (OCME) during the tenure of Dr. David Fowler.”

Frosh continued, “We are committed to overseeing a professional and independent audit that adheres to the highest standards of impartiality and integrity. We will be consulting experts, examining similar audits in other jurisdictions, and doing a preliminary review of OCME data and protocols. Our intent is to appoint a panel of independent subject matter experts to perform the audit, and at the conclusion of the review, to release a public report on its findings.”

The Maryland AG’s office also indicated that it was taking steps to wall of those in its office representing the Office of the Chief Medical Examiner and any of its current and former employees from those who are involved in the review of the office’s reports.

The Invitation to Submit Public Comments

Maryland Attorney General Frosh invited input from members of the communities affected by the focus of the audit or interest or expertise in the work of the Office of the Chief Medical Examiner. Members of the public who would like to provide a comment are encouraged to do so by June 7, 2021 through email to OCMEaudit@oag.state.md.us or via mail to the office of the Attorney General, 200 St. Paul Place, Baltimore, MD 21202.

Human brain

Alaska Doctor Cleared of Malpractice Due to Insufficient Expert Testimony

An Alaska couple has lost their medical malpractice case against a doctor that they claimed caused the wife’s seizure for failure to support the claim with sufficient expert witness testimony.

The Incident

On February 6, 2016, William Beistline brought his wife Marcie to the Fairbanks Memorial Hospital emergency room.  She was seen by Dr. Bruce Footit, a board-certified internal medicine physician.  Marcie had been acting strangely and dealing with confusion, lethargy, and unsteadiness in the days prior to her visit.  She was also suffering from nausea, vomiting and diarrhea.

Marcie had been receiving “very unorthodox” and “fairly nontraditional” treatments for Lyme disease and insomnia. Marcie’s treatment providers had implanted a port in her chest so that she could self-administer “vitamin bags.” These providers had not given her any follow-up care for her port. Marcie was also taking Ambien, benzodiazepines, muscle relaxants, and other herbal remedies. Marcie’s medical history appeared to include depression, “potential psychiatric disease,” and chronic insomnia.

Dr. Footit was unable to determine what was in the vitamin bags or the dosage or frequency of Marcie’s medications. Dr. Footit believed that Marcie was possibly experiencing hyponatremia, or abnormally low amounts of sodium in the blood, and delirium due to her excessive medication use.  He also determined that Marcie’s change in mental status was likely due to sepsis or bacteremia from her port.

Dr. Footit ordered a hold on Marcie’s medications, a toxicology screen, IV fluid resuscitation, and the removal of her port. Two days after her port was removed, Marcie suffered a tonic-clonic seizure. She was transferred to the intensive care unit and discharged three days later.

Superior Court

In 2018, the Beistlines filed a lawsuit against Dr. Footit and the hospital. They claimed that Marcie’s seizure was the result of Dr. Footit’s decision to cut off all of her medications, which breached the standard of care.

Dr. Footit and the hospital filed a motion for summary judgment. They supported their motion with the expert affidavit of Dr. Thomas McIlraith, a licensed and board-certified internal medicine physician. Dr. McIlraith noted that Dr. Footit did not have access to Marcie’s medical records and that Marcie was delirious. He testified that the standard of care required that potential causes of the delirium be treated and that Dr. Footit did this by correcting the hyponatremia and treating the sepsis from the implanted port. He also testified that Dr. Footit acted competently, met the standard of care, and acted as a reasonable and prudent internist by withdrawing the unknown medications.

The Beistlines opposed the summary judgment motion and filed an affidavit from pharmacist Dr. Gregory Holmquist. Dr. Holmquist assumed that Dr. Footit had discontinued Marcie’s benzodiazepine drugs and Ambien and testified that there are strict protocols for how to remove patients from these drugs and that a failure to follow the protocols could contribute to seizure.

The superior court determined that Dr. Holmquist was not qualified as an expert under AS 09.20.185(a), which requires a witness to be “certified by a board recognized by the state as having acknowledged expertise and training directly related to the particular field or matter at issue.” The court ruled, “A doctor of pharmacy’s expert testimony is insufficient to rebut the testimony of a board-certified internist about the standard of care required of a board-certified internist practicing internal medicine.”

The superior court granted summary judgment for Dr. Footit and the hospital.

Alaska Supreme Court

The Beistlines appealed. The Alaska Supreme Court agreed with the superior court that a pharmacist who was not board-certified in the same field of practice as Dr. Footit would not qualify to give expert testimony about the standard of care required of a board-certified internist practicing internal medicine.

The court pointed out, “Dr. Holmquist thus concedes that he does not know whether the withdrawal protocols he describes, known to a pharmacy expert, are also ‘general knowledge to a board-certified internal medicine physician,’ although he believes that they ‘should be.’ And nothing in his affidavit indicates that he has a basis in training or experience for knowing the answer to that question or for knowing the circumstances under which an internist would consider it necessary to consult ‘the hospital’s pharmaceutical department.’”

The Alaska Supreme Court affirmed the judgment of the superior court.