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.

#9867034 Mallet And Stethoscope Over Sound Block In Court

Ohio Supreme Court Rejects Hospital Executive as Expert Witness

The Ohio Supreme Court has ruled that a hospital executive that does not directly oversee physicians who treat patients does not meet the requirements to testify as an expert witness in a medical malpractice suit.

Trial Court

Mark Johnson, Glenda Johnson, and Gary Johnson filed a medical malpractice suit on behalf of their brother, David Johnson. The lawsuit claimed that Dr. Anthony Abdullah was negligent in his treatment of David in 2011.

At trial, Dr. Abdullah called Dr. Ron Walls to testify as an expert witness regarding the standard of care. The Johnsons objected to Dr. Walls’ testimony, arguing that he was not involved in the active clinical practice of medicine. The trial court determined that Dr. Walls was competent to testify and he testified on Dr. Abdullah’s behalf. A jury found that Dr. Abdullah was not negligent in treating David.

Court of Appeals

The Johnsons appealed to the First District Court of Appeals. Upon review, the court addressed only the trial court’s decision to admit the testimony of Dr. Walls. The court noted that Dr. Walls was the chief operating officer of a hospital system, but that his job was “almost entirely administrative.” The court rejected Dr. Abdullah’s argument that Walls was engaged in the active clinical practice of medicine and determined that the trial court should have prevented Dr. Walls from testifying. The court reversed the trial court’s judgment and ordered a new trial.

The Supreme Court of Ohio

Dr. Abdullah appealed to the Supreme Court of Ohio. On appeal, Dr. Abdullah argued that the First District improperly reweighed Dr. Walls’ credibility. The Supreme Court disagreed. It determined that the First District did not find that Dr. Walls’ testimony was untruthful; instead, it had concluded based on Dr. Walls’ testimony, that Dr. Abdullah had failed to establish that Dr. Walls devoted at least one-half of his professional time to the active clinical practice of medicine.

Evid.R. 601(B) provides in relevant part that a person is disqualified to testify as a witness when the court determines that the person is

(5) …giving expert testimony on the issue of liability in any medical claim, as defined in R.C. 2305.113, asserted in any civil action against a physician, podiatrist, or hospital arising out of the diagnosis, care, or treatment of any person by a physician or

podiatrist, unless:

(b) The person devotes at least one-half of his or her professional time to the active clinical practice in his or her field of licensure, or to its instruction in an accredited school.

In Celmer v. Rodgers, 114 Ohio St.3d 221, 2007-Ohio3697, 871 N.E.2d 557 (plurality opinion), the court explained that the purpose of the active clinical practice requirement was to prevent testimony from physicians who spend most of their time testifying as professional witnesses and lack experiential background in the area at issue in the case. The key issue in Celmer was not whether the expert’s professional activities constituted the active clinical practice of medicine; the key issue was whether a trial court may permit an expert to testify when they did not meet the requirements of Evid.R. 601 at the time the trial took place, but did meet those requirements when the trial was originally supposed to start, but then the trial was delayed by the request of the opposing party. Dr. Abdullah argued that this Celmer exception should apply here to consider the expert’s duties at the time of the alleged malpractice.

The Supreme Court declined to expand the Celmer exception. The court noted that the facts of this case are significantly different from those in Celmer. There, the court carved out a limited exception to consider the expert’s activities at the time the trial was originally scheduled to begin. Here, Dr. Abdullah asked to extend that limited exception to consider an expert’s activities long before this case was even filed.

The court noted that Dr. Walls testified that about 90 percent of his work would be considered purely executive or administrative. It determined that Dr. Abduallah failed to show that Dr. Walls was involved in the active clinical practice of medicine at the time of the trial and affirmed the ruling of the First District Court of Appeals.

Pennsylvania Justice

Pennsylvania Supreme Court to Determine “Cause of Death” in Medical Malpractice Cases

The Pennsylvania Supreme Court is set to determine the legal definition of “cause of death” in medical malpractice cases.

The Death

On April 28, 2010, Mary Ann Whitman died as the result of a ruptured abdominal aortic aneurysm. Five days prior to her death, her primary care physician, Dr. Conaboy, requested that Whitman have a CT scan, which was reviewed by Dr. Charles Barax. Dr. Barax reviewed the scan and drafted a report that stated that Whitman had an abdominal aortic aneurysm that was “poorly visualized.” His report did not mention any possible rupture.

The Underlying Case

In April 2011, the administratrix of Whitman’s estate, Linda Reibenstein, filed a Wrongful Death Act and Survival Act lawsuit against Dr. Barax and his employer, Mercy Hospital, Scranton. During discovery, Reibenstein made many attempts to depose Dr. Barax. She was finally able to depose Dr. Barax in February 2015, with the intervention of the court. At Dr. Barax’s deposition, he testified that he had spoken with Dr. Conaboy about the CT scan, told him that it showed a previously undocumented abdominal aortic aneurysm, that he could not visualize it very well, and that he could not confirm whether it was bleeding or rupturing.

In March 2016, following Dr. Barax’s deposition, Reibenstein initiated a separate wrongful death and survival suit against Dr. Conaboy and his medical practice. The trial court consolidated the two lawsuits.

The Conaboy defendants filed a motion for summary judgment, arguing that the two-year statute of limitations for personal injury actions prevented the lawsuit. Initially, the trial court denied the motion, concluding that there were genuine issues of material fact. On reconsideration, the court granted summary judgment because it found “no evidence of affirmative misrepresentation or fraudulent concealment of the cause of death.” Reibenstein appealed.

Appeals Court

Reibenstein appealed to the Superior Court of Pennsylvania. There was one issue on appeal, whether the trial court erred in granting summary judgment in favor of the Conaboy defendants on the ground that the statute of limitations governing the wrongful death claim could not be equitably tolled because Whitman’s medical cause of death was correctly identified on her death certificate.

Specifically, Reibenstein argued that Dr. Barax’s concealment of his communications with Dr. Conaboy regarding Whitman’s aneurysm is directly related to her death; therefore, the two-year statute of limitations should have been equitably tolled according to subsection 40 P.S. § 1303.513(d). She noted that the statute did not define “cause of death” or explain how the defendant must conceal the cause of death for equitable tolling to be applied.

Dr. Conaboy responded that the statutory language was clear, Whitman died of a ruptured abdominal aortic aneurysm, the cause of death was correctly recorded on her death certificate, and that the statute of limitations should not be tolled.

Upon review, the Superior Court noted that “cause of death” was never defined in the statute and there was a question as to whether it meant the immediate medical cause of death listed on a death certificate or whether it also included conduct leading up to the decedent’s death. The Superior Court reasoned that both interpretations were reasonable.

The Superior Court noted that the stated purpose of the Medical Care Availability and Reduction of Error Act was to ensure that high quality health care is available and to provide compensation to persons who sustain injury as the result of medical negligence, while controlling the costs of medical malpractice insurance rates. The court adopted the broader interpretation of “cause of death” and found that the trial court erred in concluding that no equitable tolling applied. Reibenstein v. Barax, 236 A.3d 1162 (Pa. Super. 2020).

Reaction to the Case

The American Medical Association and other physician advocacy groups heavily criticized the Superior Court’s opinion. They argue that “cause of death” is a term so common in the medical community that it is unambiguous and should not be subject to the court’s interpretation.

The case is currently pending before the Supreme Court of Pennsylvania, where it will be up to the highest court in the state to determine the legal definition of “cause of death.”

Maryland AG Names Team to Review Ex-Chief Medical Examiner’s Work

The Maryland Attorney General has selected an independent panel of experts to investigate the police custody deaths that took place during the tenure of the state’s former chief medical examiner, Dr. David Fowler.

Fowler’s Judgment Called into Question

Fowler served as a key witness in the trial of Derek Chauvin, whose high-profile trial ended with a jury convicting the former Minneapolis police officer of murder and manslaughter in connection with the death of George Floyd.

At trial, Dr. Fowler testified that Floyd died of cardiac arrhythmia due to his heart disease while being restrained by the police and that Floyd’s cause of death was “undetermined” and not a homicide. Dr. Fowler’s testimony was contradicted by several other experts who testified that Floyd died due to a lack of oxygen.

Fowler testified that his “opinion was formulated after the collaboration of thirteen other highly experienced colleagues in multiple disciplines” and wrote that “our evaluation set an ethical standard for the work needed in sensitive litigation.”

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.

After receiving this letter, Maryland Attorney General Brian Frosh made the decision to review all cases from 2002 to 2019, which fell under Dr. Fowler’s tenure.

The Panel of Experts

As the first step of this review process, Maryland Attorney General Brian E. Frosh has selected a panel of experts to decide how to investigate the police custody deaths that were overseen by former Maryland chief medical examiner David Fowler.

The panel of experts will be composed of seven members, who have national and international expertise in the fields of forensic pathology and behavioral science. The panel will develop its own process for reviewing the in-custody death determinations.

According to Raquel Coombs, a spokeswoman for Frosh, the panel will “shape the scope and methodology of the audit, including the manner in which cases for review will be selected.” Once the panel has designed the audit, Frosh will select the team members who will conduct it.

The members of the panel are:

● Stephen Cordner, a retired professor of forensic pathology who heads the international program of the Australia-based Victorian Institute of Forensic Medicine.

● Jack Crane, the former state pathologist for Northern Ireland.

● Deborah Davis, a professor of psychology at the University of Nevada at Reno who has served for decades as an expert witness on eyewitness memory, interrogation and confession, sexual consent communications, and forensics.

● Itiel Dror, a Harvard-educated expert in human cognition and decision-making who serves at University College London.

● Michael Freeman, a consultant in forensic medicine and forensic epidemiology and a professor at Maastricht University in the Netherlands.

● William C. Thompson, professor emeritus at the University of California at Irvine, where he has held academic appointments in criminology, psychological science and law.

● Alfredo E. Walker, a registered forensic pathologist in Ontario.

Mental Health

Death Sentence Thrown Out Due to Misleading Expert Testimony

A federal judge has thrown out a death sentence for a man who was convicted of murder due to misleading experts and insufficient investigation into the defendant’s mental health.

The Crime

In November 2003, Dru Katrina Sjodin, a 22-year-old University of North Dakota student, was abducted while walking to her car after finishing her shift working at the mall. Sjodin had been on the phone with her boyfriend at the time, who heard her say “Okay, okay,” before the phone call ended. Sjodin’s body was later found in Minnesota on April 17, 2004.

On May 11, 2004, Alfonso Rodriguez Jr. was charged with the kidnapping and killing of Sjodin. Rodriguez had a history of sexual assault and had been released from prison about six months before Sjodin’s murder. A jury found Rodriguez guilty and sentenced him to death for his role in Sjodin’s death.

The Appeals

Rodriguez appealed to the Eighth Circuit Court of Appeals in 2009 and lost his case. The U.S. Supreme Court refused to hear his case. In October 2011, his attorneys filed a federal habeas corpus motion, which is considered the last step in the appeals process. Rodriguez’s habeas corpus motion came before Judge Ralph Erickson.

Death Sentence Thrown Out

Judge Erickson ruled that the misleading testimony of the coroner, the failure of defense counsel to outline the possibility of an insanity defense, and the evidence of severe post-traumatic stress disorder had violated Rodriguez’s constitutional rights. Judge Erickson threw out Rodriguez’s death sentence and ordered a new sentencing hearing be conducted.

In his ruling, Judge Erickson characterized Ramsey County Medical Examiner Michael McGee’s testimony as “unreliable, misleading and inaccurate” about the cause of Sjodin’s death. Judge Erickson pointed to McGee’s interpretation of the sexual assault evidence. The judge noted that McGee had offered opinions at trial that were not in his autopsy report—specifically that semen was found during his examination of the body and that it had been deposited in the body within 24 to 36 hours of Sjodin’s death.

Judge Erickson noted that new evidence had demonstrated that McGee was simply guessing and that his opinions were not scientifically supported by literature or any other expert who testified at trial. He wrote, “Few trials are perfect. Admittedly, even fewer trials are riddled with error because expert testimony is later proven to be so unreliable that had all the circumstances been known it would have been inadmissible…But, these post-conviction relief proceedings have uncovered credible evidence demonstrating that in the trial of this case, the truth was obscured.”

Judge Erickson further noted that if the jury had been made aware of the “severity of Rodriguez’s mental health condition,” then it was likely that at least one of them would have voted against the sentence of death.

He wrote, “An adequate investigation would have exposed a possible insanity defense, and, at a minimum, information indicating that Rodriguez suffers from post-traumatic stress disorder (‘PTSD’) so severe that he sometimes has dissociative experiences…Because this evidence was not developed for trial, during the trial the government was able to discount and dismiss any possibility that Rodriguez suffers from PTSD.” 

He continued, “The government told the jury repeatedly that this case was about Rodriguez’s intentional and deliberate choices. A choice to search for a female on November 22, 2003; a choice to sexually assault that female; and a choice to kill that female. That may not be the truth.”

Patent law

USPTO Cannot Shift Expert Witness Fees

The U.S. Court of Appeals for the Federal Circuit has issued a precedential decision denying the U.S. Patent and Trademark Office’s request to shift expert witness fees.

The Underlying Dispute

Gilbert Hyatt is an individual who has filed and litigated many U.S. patents. In 1995 alone, Hyatt filed hundreds of lengthy and complex patent applications. Four of the many patent applications that Hyatt filed in 1995 included 1:05-CV-2310-RCL, 1:09-CV1864-RCL, 1:09-CV-1869-RCL, and 1:09-CV-1872-RCL.

After adverse results at the U.S. Patent and Trademark Office (PTO) regarding the four patents at issue, Hyatt sued the PTO under 35 U.S.C. § 145, which allows a patent applicant to challenge a PTO decision in district court. The PTO filed a motion to dismiss Hyatt’s suit, arguing that his patent should be unenforceable because of the unreasonable and unexplained delay in prosecuting his patent, which was an abuse of the patent system. The district court rejected the PTO’s arguments and ordered it to issue a patent covering some of Hyatt’s claims. The PTO appealed.

While the appeal was pending in the U.S. Court of Appeals for the Federal Circuit, Hyatt filed a motion to recover his attorney’s fees under the Equal Access to Justice Act. The district court granted this motion in part because Hyatt had won his case in district court. The U.S. Court of Appeals for the Federal Circuit vacated and remanded this decision, ruling that the PTO had met its initial burden of proving its case, therefore, Hyatt was not the prevailing party and not entitled to attorney’s fees.

The PTO simultaneously filed a motion to recover its expert witness fees under 35 U.S.C. § 145, which states that “[a]ll the expenses of the proceeding shall be paid by the applicant.” The district court noted that there was no precedent dealing with the American Rule presumption against fee-shifting and denied the award of expert witness fees. The PTO appealed.

The U.S. Court of Appeals for the Federal Circuit

The court immediately vacated the district court’s award of attorney’s fees to Hyatt because, after it had remanded the case, he could not be considered a prevailing party. It then examined whether 35 U.S.C. § 145’s language that “[a]ll the expenses of the proceedings shall be paid by the applicant” requires that the applicant pay the expert witness fees of the PTO. 

The court noted that the U.S. Supreme Court has upheld the “American Rule,” which requires that litigants pay their own fees “unless a statute or contract provides otherwise.” For a law to overcome the presumption set by the American Rule, “Congress must provide a sufficiently ‘specific and explicit’ indication of its intent to overcome the American Rule’s presumption against fee shifting.”

The court then interpreted the language of § 145 and determined that it was not sufficiently specific to overcome the presumption against fee-shifting. It affirmed the decision of the district court.

California Law Legal System Concept

California Court Limits Rule that Expert Can’t Give Declaration Contrary to Prior Discovery Responses

A recent California court decision has limited a rule that an expert witness cannot give a declaration that is contrary to prior discovery responses.

The Underlying Dispute

From August 1973 to May 1974, Michael Harris worked on the U.S.S. San Jose as a hull maintenance technician for the United States Navy. Thomas Dee Engineering Company performed repairs on the boiler aboard the U.S.S. San Jose during the fall of 1973.

Michael Harris was diagnosed with mesothelioma in March 2014. Two months later, he and his wife Beth filed a complaint against Thomas Dee Engineering Company and other defendants for negligence, strict liability, and loss of consortium. The complaint alleged that Thomas Dee’s work on the U.S.S. San Jose had exposed Harris to asbestos. 

Michael passed away in October 2014. In July 2015, Beth and her children amended the complaint to include wrongful death and survival claims.

Motion to Dismiss

In June 2017, Thomas Dee filed a motion for summary judgment on the issue of asbestos exposure. The company argued that Harris had testified that he had not seen anyone working on the boilers and Harris’ expert had testified that Harris would not have been exposed to asbestos if he was not present when the work was being done.

To oppose the motion, the Harrises offered their expert’s “re-entrainment theory,” an opinion which was not previously disclosed and contradicted by his deposition testimony. Under the re-entrainment theory, Harris would not have needed to be present during Thomas Dee’s work to be exposed to asbestos. The trial court granted Thomas Dee’s motion for summary judgment. The Harrises appealed.

Court of Appeal of the State of California, First Appellate District

On appeal, the Harrises argued that the trial court erred by refusing to give weight to their expert’s declaration and that the declaration raised a triable issue as to whether Thomas Dee’s activities exposed Harris to asbestos.

The court of appeals noted that the trial court should not have disregarded the Harrises expert’s declaration simply because it wasn’t mentioned in his deposition. Prior cases had prevented experts from testifying at trial about opinions that exceeded the scope of deposition testimony. The court distinguished the current case — here, the introduction of the re-entrainment theory came in a motion in opposition to summary judgment, not at trial. If the theory was new, there was nothing that prevented Thomas Dee from re-deposing the expert prior to trial.

The court also noted that the fact that the expert’s declaration and his deposition testimony contradicted each other did not necessarily eliminate the declaration’s evidentiary value. Here, the expert’s declaration related to a scientific theory he had not mentioned in his deposition and his statement did not directly contradict any prior testimony regarding facts that he had observed. 

The court noted that it was a decision for the ultimate factfinder to decide what weight to give to the expert’s testimony in light of his previous deposition testimony. Therefore, the trial court erred by refusing to give the expert’s declaration any weight and granting summary judgment. The court of appeals reversed the order granting summary judgment in favor of Thomas Dee.

Defense Expert Disqualified for Insufficient Credentials

A defense expert in a capital murder case has been disqualified for insufficient credentials.

The Crime

On January 13, 2018, Dr. Shauna Witt, an optometrist, was seeing a patient at a Walmart Vision Center in Starkville, Mississippi. Her ex-boyfriend, William Thomas “Tommy” Chisholm, entered the store and proceeded into a patient room. Dr. Witt told Chisholm to go away and he pulled out a gun. Dr. Witt tried to escape but didn’t make it. 

Dr. Witt’s assistant, Kaylace Dorman would later testify that “I remember seeing Tommy pointing the gun and hearing shots…I remember hearing shots and I remember looking at her, looking at Dr. Witt and thinking she was going to get away. Then I saw her get hit and fall in the corner near the door.” The incident was also captured by surveillance video and first responder body cameras.

Dr. Witt died as the result of her injuries. Chisholm was charged with capital murder in connection with the crime.

The Proposed Expert

Chisholm faced trial in Oktibbeha County Circuit Court before Judge Lee Howard. His defense was that he was not guilty by reason of insanity.

The defense team presented Dr. Jennifer Carroll, a licensed professional counselor, as an expert witness.  Dr. Carroll performed an evaluation on Chisholm’s mental state at the time of the incident. While Dr. Carroll works in the field of psychology, she is not a licensed psychologist or licensed to practice any type of psychology. Instead, she is a counselor who holds a doctoral degree in general psychology.

Assistant District Attorney Marc Amos argued that in the state of Mississippi, it is illegal for someone to claim to be a psychologist or to practice psychology without a license. Dr. Carroll claimed to do both on her curriculum vitae.

Judge Lee Howard ruled in the state’s favor, reasoning that only a licensed psychologist or psychiatrist may be hired to perform a mental evaluation on a suspect.

Chisholm’s defense attorney Mark Cliett moved for a mistrial, claiming that the defense team was under the impression that Dr. Carroll had the credentials required to testify. “We were under the impression from talking to Dr. Carroll that she was able to make these opinions to a reasonable degree of psychological certainty, and all of the issues that were addressed on cross-examination about a license and accreditation, I addressed those things to her,” Cliett said. “She assured me that she was able to make those opinions.”

Judge Howard denied Cliett’s motion.

Judge Howard allowed the admission of previously recorded testimony by Dr. Robert M. Storer, a licensed psychologist, who had evaluated Chisholm in June 2019. This video was only intended to be used as rebuttal if the defense had presented an expert witness, but both parties agreed that the recording could be shown. 

Dr. Storer testified that Chisholm was in a proper state of mind at the time of the crime.  “Based on all of the information that I reviewed… in my opinion, to a reasonable degree of psychological certainty, Mr. Chisholm did not have a mental disease, defect or disability that could have interfered with his ability to know the nature and quality of his alleged acts or the wrongfulness or those alleged acts at the time of the offense,” he said.

Trial Result

Following a four-day trial and 26 minutes of deliberation, a jury found Chisholm guilty of murdering Dr. Shauna Witt. Chisholm was sentenced to life in prison without the possibility of parole.

gun and bullets

Court to Evaluate Validity of Forensic Ballistics

A Virginia court will evaluate the validity of forensic ballistic and firearm examination.

The Crime

On February 17, 2018, 74-year-old Mary Jackson and her pregnant granddaughter, 33-year-old Tiffany Byers, were found shot to death at home. The body of Byers’ husband, 45-year-old Aaron Byers, was later found in a shallow grave on a property owned by 37-year-old Paul Brock.

Justin Collins, who was Mary Jackson’s grandson and Tiffany Byers’ brother, testified that he was at the property at the time of his grandmother’s and sister’s shooting. Collins said that he heard a gunshot and did not see the shooter, but heard his sister say, “Paul, you shot me.” Collins later identified a photo of Paul Brock as a person that he recognized as previously visiting his home.

Brock was charged with three counts of capital murder, fetal homicide, tampering with physical evidence, and being a first-degree felony offender in connection with the deaths. Brock would later admit to killing Aaron Byers, but said it was done in self-defense. Brock claims that he had nothing to do with the deaths of Mary Jackson and Tiffany Byers.

The Forensic Examination

A forensic examiner took apart and examined the bullets that were used to kill Mary Jackson, Tiffany Byers, and Aaron Byers. She examined the pieces under a microscope and determined “that the lands and grooves on each individual bullet were of similar agreement, which is what they call it to determine if they were fired from the same gun … all the bullets from all the bodies came from the same weapon.”

The Commonwealth wanted to present this evidence, but Brock’s defense team objected. The court held a Daubert hearing to determine whether the evidence should be admitted.

The Daubert Hearing

Gregory Klees, an examiner with the Bureau of Alcohol Tobacco Firearms and Explosives, testified as an expert witness for the Commonwealth. Klees testified that the firearms testing was valid and that the theories and techniques of ballistics examination have been subject to review for over 100 years. When asked whether he knew of any jurisdictions that did not allow firearms examination testimony, Klees responded, “Except for some individual court cases, I don’t know of any standard or federal courts that have excluded it all together.”

Brock’s defense team called Dr. Jeff Salyards, a Principal Analyst with Compass Scientific Consulting and former Chief Scientist for the US Army Criminal Investigation Laboratory as an expert witness. Dr. Salyards noted his concern with the validity of the peer-review process used by ballistic examiners. Dr. Salyards testified that until recently, the firearms examination field did not use blind review studies. Dr. Salyards also stated that the average industry error rate of less than 2 percent could be attributable to the way that studies surrounding the forensic science had been set up.

At the conclusion of the hearing, Whitley County Circuit Court Judge Dan Ballou ordered both sides to submit briefs on their arguments. The case is scheduled for one additional status hearing prior to Brock’s jury trial, which is scheduled to begin on September 8, 2021. 

Opioids

Opioid Manufacturers Challenge Addiction Expert’s Testimony

The attorneys for the manufacturers of opioids have challenged the credibility of an addiction expert who testified that their client’s misleading marketing materials helped to cause the opioid epidemic that has plagued thousands of families in Long Island since the late 1990s.

The Case

The lawsuit at issue was filed in New York State Supreme Court. It alleges that drug manufacturers and distributors created a public nuisance by misleading physicians and patients with marketing that minimized the dangers and addiction risks of opioids.

State and county officials have stated that they hope to hold the drug manufacturers and distributors responsible for the death and suffering caused by the opioid epidemic and to recover hundreds of millions of dollars for treatment, recovery, and prevention.

The drug manufacturers and distributors have denied responsibility. They claim that they followed all regulations and are being blamed for the actions of health regulators who encouraged opioid use and the doctors who overprescribed them.

The case is before Supreme Court Justice Jerry Garguilo — In re Opioid Litigation— New York Supreme Court, Suffolk County, No. 400000-2017. It will be the first case of its kind to go before jurors in the United States. This case puts the entire opioid supply chain on trial. In similar cases, only a small number of the companies that were actually sued were taken to court. Most parties reached settlements in those cases before the trials began. Hundreds of witnesses are expected to be called over the course of the trial.

Expert Witness Dr. Anna Lembke

The state and the counties retained Dr. Anna Lembke to testify as an addiction expert. Dr. Lembke is a professor of psychiatry at Stanford University and a physician who treats patients who are struggling with substance abuse.

Dr. Lembke testified that the drug manufacturers and distributors’ marketing materials helped to fuel the opioid epidemic. She stated that defendants Teva Pharmaceuticals, Endo Pharmaceuticals, and Allegan Finance, used misleading promotional materials to convince health care providers that their opioid medications were safe.

Cross-Examination

Attorneys from the drug companies attempted to discredit Dr. Lembke. Under cross-examination from Teva Pharmaceuticals attorney Harvey Bartle, Dr. Lembke admitted that she had been paid hundreds of thousands of dollars to appear as an expert witness for plaintiffs who have been suing opioid makers in recent years. 

Bartle played a video of Dr. Lembke at a 2015 Stanford panel on opioids. During this panel, Dr. Lembke also stated that opioid prescriptions surged in the 1980s because of a “groundswell” among doctors who feared that they were not doing enough to alleviate pain. Dr. Lembke also stated that this increase in opioid prescriptions “came from a really good place” and “really needed to happen.” Dr. Lembke responded that Bartle had mischaracterized her testimony.

Under cross-examination from Jim Heirschlein, attorney for Endo Pharmaceuticals, Dr. Lembke admitted that she did not know how many physicians in Nassau and Suffolk Counties or New York State had been influenced by pharmaceutical marketing messages or how many prescriptions had been written in the states since the 1990s, when the opioid epidemic began.

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.