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.

A bill to end wrongful convictions due to faulty expert witness testimony has passed the California Senate Public Safety Committee.

SB 243

California Senate Bill 243 is a criminal justice reform bill that was authored by Senator Scott Wiener, a Democrat from San Francisco, and introduced on January 21, 2021. The bill proposes to add Section 806 to the Evidence Code and amend Section 1473 of the Penal Code. It relates to trial testimony.

Wiener has stated that the bill will “help exonerate innocent people across California, by strengthening the grounds for those wrongfully convicted based on faulty expert testimony to seek ‘post-conviction relief.’”

According to Wiener, currently

courts have discretion over which expert testimony is admissible. Studies show that courts accept most forensic science and expert testimony without sufficient scrutiny, leaving significant room for imprecision and human error. This error leads to the high rate of wrongful convictions. Expert testimony that fails to rely on sound logic should not be considered expert testimony at all.

SB 243 amends the standards for evaluating expert testimony and forensics in courts both in the pre- and post- conviction phases. SB 243 updates the definition of false testimony to include opinions that are based upon “flawed scientific research or outdated technology that is now unreliable or moot, and opinions about which a reasonable scientific dispute has emerged regarding its validity.”

Wiener stated,

Faulty ‘expert’ witness testimony is one of the main reasons innocent people are sent to prison for crimes they did not commit. That is an unacceptable miscarriage of justice. Even one innocent person in prison is too many. SB 243 will ensure that when expert witness testimony is given, the science behind it is reliable. This is an important criminal justice reform measure that will help many innocent people.

Melissa Dague O’Connell, Staff Attorney and Policy Liaison for the Northern California Innocence Project, has said, “The Committee’s vote to move SB 243 forward recognizes how important it is for our criminal courts to stay lockstep with the advancements in and scrutiny of forensics and expert testimony to not just prevent wrongful convictions, but to intervene and restore justice when a wrongful conviction occurs.”

SB 243 is sponsored by the California Innocence Coalition, which includes the Northern California Innocence Project, Loyola Project for the Innocent, and the California Innocence Project. The bill was passed by the Senate Public Safety Committee in a unanimous vote. The voting members were Senators Bradford, Kamlager, Ochoa Bogh, Skinner, and Wiener. The bill will now move on to the Senate Appropriations Committee.

Other Reform Bills

SB 243 is part of a larger group of California Innocence Coalition reform bills. Another bill is SB 923, which was also authored by Senator Wiener. SB 923 ensures that law enforcement must use evidence-based procedures when obtaining eyewitness identification. Before this bill was signed into law in 2018, California had no statewide standards or best practice for eyewitness identification.

An Idaho federal district court has affirmed its role as the gatekeeper of expert witness testimony, by granting in part and denying in part a defendant’s motion to exclude expert witness testimony.

The Incident

Maria Elosu and Robert Brace owned a vacation cabin in McCall, Idaho. The cabin was part of a homeowners’ association called Middlefork Ranch, Incorporated (MFR). The cabin had a wrap-around deck with a propane-fired refrigerator on the north side.

On the day before the incident, Brace stained the deck using an oil-based stain. That night, Elosu smoked cigarettes on the deck. The next morning, Brace and Elosu used rags to clean up the excess oil from the deck. An MFR employee changed the propane on the refrigerator and relit the pilot light.

At 4pm, a fire started in or around the cabin when no one was home. A group of contractors discovered the fire and testified that the fire was isolated to the east side of the cabin when they first arrived. One witness testified that there were no flames around the propane-fired refrigerator. The fire destroyed the cabin and its contents.

The Lawsuit

Brace and Elosu sued MFR for negligently starting the fire. They claimed that the employee knew of the hazard when he lit the refrigerator pilot light on the oil-stained deck. Brace and Elosu hired a fire investigator, Michael Koster, and a mechanical engineer, Richard Mumper, to support their claims. Koster inspected the scene ten months after the fire. Mumper conducted lab tests. Both experts opined that the fire started on the north deck when the pilot light from the refrigerator ignited excess oil vapors.

MFR filed a motion to exclude Koster’s testimony as speculative and not supported by evidence. The court agreed. It found that Koster failed to meet the standards set by Daubert and Federal Rule of Evidence 702 because his conclusion was speculation or contrary to or unsupported by evidence. The court noted that Kosted admitted that there was no concrete physical or testimonial evidence to support his theory that the fire started on the north side of the deck.

MFR also filed a motion to exclude Mumper’s opinion because he is not a certified fire investigator. Brace and Elosu hired Mumper to examine the remnants of the appliances, including the propane refrigerator. Mumper conducted lab tests and examined the evidence. He concluded that there was no mechanical malfunction and opined that the pilot light started the fire.

While Mumper was not a certified fire investigator, the court noted that he worked for a firm that specializes in forensic fire investigations, so he might be qualified to offer opinions about the origins of the fire. However, the court ruled that Mumper could not testify about the origins of the fire in this case because his opinions lacked a proper foundation. Here, Mumper’s role was limited to investigating whether any of the appliances malfunctioned. He did not independently look into any other possible causes.

The Colorado Attorney General has warned that requiring a state agency to testify as experts in a criminal case may have an adverse effect on its ability to gather important information.

The Avalanche

On March 25, 2020, an avalanche buried a service road above the west portal of the Johnson Eisenhower Memorial Tunnels near Denver, Colorado.The avalanche deposited as much as 20 feet of debris on the road and destroyed an avalanche mitigation device.

After the avalanche, snowboarder Evan Hannibal handed over his helmet video to the Colorado Avalanche Information Center. The video shot the avalanche that triggered below his snowboard. Hannibal hoped that the video and his first-person account would help to educate other skiers and snowboarders.

The Colorado Avalanche Information Center is a program within the Colorado Department of Natural Resources that provides avalanche information and education. This agency produces weather and backcountry avalanche forecasts. The Colorado Avalanche Information Center relies upon people who cause avalanches to report information for its investigations and reports.

The Criminal Case

Summit County prosecutors used Hannibal’s video to file a criminal case against him and his backcountry partner Tyler DeWitt, seeking restitution for the avalanche mitigation device. The snowboarders face charges of reckless endangerment and restitution of $168,000.

The county filed a motion announcing that it intended to call Colorado Avalanche Information Center Director Ethan Greene to testify as its expert witness at trial.

Hannibal and DeWitt have opposed the introduction of the video evidence and the use of the avalanche center’s director as an expert, arguing that the charges against them could cause other backcountry travelers to stop sharing information with the avalanche center and its investigators.

Colorado Attorney General Phil Weiser, acting as attorney for the state’s avalanche center, agreed with Hannibal and DeWitt. Weiser’s office filed motions to quash subpoenas requiring Greene and avalanche center forecaster Jason Konisberg to testify as experts at the trial of Hannibal and DeWitt.

Weiser argued that the county’s plan to call avalanche center employees as experts “could have an unintended adverse ‘chilling’ impact on the CAIC’s ability to gather important information.”

Weiser’s motion states, “There is genuine concern by CAIC that if CAIC employees appear as an expert witness in a criminal matter it could adversely impact their ability to gather relevant information from persons involved in an avalanche. . . . The more involved CAIC is in this criminal matter, the more it looks like they are working in coordination with law enforcement, rather than in cooperation with local law enforcement, resulting in a chilling effect to the detriment of CAIC’s mission.”

Weiser also argued that requiring the state avalanche center employees to testify for two days is “unduly burdensome, unreasonable and oppressive.” He argued, “To command that Mr. Greene step away from his diverse responsibilities, during the CAIC’s busiest month of the winter season, is unreasonable and impactful to the important work of this agency generally and Mr. Greene specifically.”

A forensic doctor has testified that the science used in the capital murder conviction of Robert Leslie Roberson III was flawed.

The Death

In February 2002, two-year-old Nikki Curtis was taken to a Dallas hospital. She died of blunt force injuries to the head.

Curtis’ father, Robert Leslie Roberson III, said that she died after landing on her head during a fall from her bed. Prosecutors theorized that Roberson instead shook his daughter so hard that she slipped into a coma and then left her on her bed for hours. Roberson was charged with capital murder in connection with his daughter’s death.

The Trial

In February 2003, a twelve-person jury found Roberson guilty of murder and sentenced him to die by lethal injection.

In 2007, Roberson appealed to the Court of Criminal Appeals, but each of his 13 claims of error was rejected.

New Expert Testimony

In June 2016, the Texas Court of Criminal Appeals stayed his June 21, 2016 execution and sent the case back to trial court to consider four different claims, including the claim that “junk science” was introduced at Roberson’s original trial.

An evidentiary hearing initially began in August 2018 but was continued after a district clerk found 15-year-old evidence, including lost CAT scans. The hearing was delayed to give the prosecutors and defense teams time to review the evidence and develop expert witnesses.

Roberson’s legal team retained Dr. Janice Ophaven, a forensic pathologist with expertise in pediatric deaths. Dr. Ophaveen has been practicing since 1971. Judge Deborah Evans certified Dr. Ophaven as an expert in pediatric forensic pathology.

Ophaven explained that Curtis had “died because her brain died from cranial pressure that created a lack of oxygen and blood to the brain.” She testified that homicide could not be concluded from a post mortem exam, but said that it was “[h]ard for pathologists to be objective because they rely on law enforcement and, in some cases, law enforcement gives them information to get a confession.”

Openhaven testified,

Science does not tell us what happened to Nikki. . . . At the time of trial in 2003 it was believed a short fall could not create death, that is no longer the science. Shaken baby does not apply to children of Nikki’s age. Blunt force trauma absolutely can cause the type of injury Nikki had. In this case lack of oxygen to brain cells caused fluid to exit out of the cells and that fluid continued to build and created a sequence of events that caused her death. At the time of trial, the science was that blood in the eyes was a sign of shaken baby. It is no longer the science.

This is just another in the series of cases where experts are questioning the legitimacy of shaken baby convictions. For more ExpertPages coverage on this issue, see “Rising Trend of Experts Questioning Legitimacy of Shaken Baby Convictions” and “Woman Allowed to Present Expert Testimony to Overturn Shaken Baby Conviction.”