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.

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.

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 exited 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.

Expert Witness writing report

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 of the company’s expenditures 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.