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.

Police Expert Witness

Experts Examine Cause of Tiger Woods’ Crash

Forensic car accident experts have offered theories on how the recent car crash involving famed golfer Tiger Woods took place.

The Accident

Tiger Woods, 45, was traveling north outside of Los Angeles when his 2021 Genesis SV80 SUV left its lane, crossed the median into the southbound lane, went off the road, hit a tree, then rolled over. Woods broke multiple bones in his right lower leg and his car sustained major frontal damage. He was alone at the time of the incident.

The Experts

Jonathan Cherney, a former police detective who provides car accident analysis as an expert witness in car cases, examined the Woods’ crash site in person. Cherney told USA Today Sports that, “To me, this is like a classic case of falling asleep behind the wheel, because the road curves and his vehicle goes straight.” Cherney continued, “It’s a drift off the road, almost like he was either unconscious, suffering from a medical episode or fell asleep and didn’t wake up until he was off the road and that’s where the brake application came in.”

Los Angeles County Sheriff Alex Villanueva said that there were no skid marks on the road to indicate braking. He said that he didn’t know the vehicle’s speed yet, but it may have been a factor. Inattentiveness may have also been a factor. Villanueva said, “This stretch of road is challenging, and if you’re not paying attention, you can see what happens.” He noted that the crash was “purely an accident” and that there was no evidence of impairment or medication. Woods was “lucid” at the time a sheriff’s deputy arrived at the scene.

Felix Lee, an accident reconstruction expert, noted that Woods’ vehicle did have anti-lock brakes, so “you wouldn’t necessarily see tire marks” at the crash scene even if Woods did slam on the brakes. Lee also noted that the vehicle did not change direction when it entered the curve. Lee opined, “My feeling is that speed wasn’t that much of an issue… It was just some kind of inattention that caused the curb strike.”

Rami Hashish, a principal at the National Biomechanics Institute, a company that analyzes the cause of accidents, said that the fact that Woods’ vehicle went about 400 feet before stopping without evidence of steering input suggests a “very delayed response” or that Woods was not paying attention at all. Hashish noted that Woods’ injuries would have been greater if he had been traveling at excessive speed. The speed limit at the site of the crash was 45 mph. Hashish said, “You can walk away with a broken leg from 45 to 50 mph… If you’re hitting 60, 65 and you’re hitting a stationary object, your likelihood of death increases exponentially.” If he was going 80 mph, “he wouldn’t be having an open fracture in this leg, he’d be dead.”

The LA Sheriff’s Department has said, “The traffic collision investigation is ongoing, and traffic investigators have not made any conclusions as to the cause of the collision.”

Expert Witness

Expert Witness Report Rule Relaxed in Expedited Litigation

A Virginia district court has relaxed the expert witness report rule in the case of expedited litigation.

The Abduction

Bryce Gerald Randall Nowlan and Nina Lynn Nowlan were married and had a daughter, “AEN.” Bryce Nowlan is a Canadian citizen who resides in Canada. Nina Nowlan is an American citizen who currently resides in Virginia. Bryce Nowlan alleges that Nina Nowlan wrongfully took their daughter from his custody in Canada to Virginia.

Bryce Nowlan filed a petition for AEN’s return to Canada under The Convention on the Civil Aspects of International Child Abduction (the Hague Convention) and the International Child Abduction Remedies Act. He also filed a motion to expedite the proceedings under the Hague Convention.

Court Proceedings

The parties submitted a proposed scheduling order. The parties agreed on all matters with one exception. Bryce Nowlan proposed that both parties should provide “full and complete expert disclosures as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure” and “full and complete rebuttal expert disclosures, which shall also comply with Rule 26(a)(2)(A)-(C). Nina Nowlan objected to “importing the strict disclosure requirements of Rule 26, particularly since this matter is proceeding on an expedited basis.” Rule 26 requires that a witness prepare and sign a detailed report at the expense of the disclosing party. Since Nina Nowlan is indigent, she requested that the court instead require counsel for each party to provide summaries of each expert’s anticipated opinions.

The court granted Nina Nowlan’s request and required each party to provide “detailed written summaries of their experts’ opinions and conclusions.” The court noted that it was “cognizant of the onerous burden imposed by Rule 26 regarding expert witness disclosures and Ms. Nowlan’s objection to complying with the strictures of the rule due to both time and expense. The court agrees and notes that this, at bottom, is a summary proceeding with expedited deadlines, modified procedures, and relaxed standards for the admissibility of evidence. Given these unique factors, respondent’s objection is persuasive. The court will grant the parties latitude during the cross examination of any expert witness as necessary to account for any expert report that is less than fulsome than a standard Rule 26 report.”

Bryce Nowlan objected to the “truncating” of expert-disclosure obligations under Rule 26(a)(2)(B) in light of Nina Nowlan’s claims that he had sexually abused AEN. His objection stated that the court’s order did not provide him with the opportunity that he would have had under Rule 26 to note any Daubert challenges or move in limine to exclude a proposed expert in advance of trial.

Court Ruling

The court noted that district courts are “afforded substantial discretion in managing discovery.” It also noted that Rule 26(a)(2)(B) contemplated deviations from the typical requirements for expert witnesses’ written reports by including the language “unless otherwise stipulated or ordered by the court.”

The court noted that its order still required the parties to produce “detailed, written summaries” and that it had granted the parties “latitude during the cross examination of any expert witness as necessary.”

The court was satisfied that the parties were able to adequately prepare for the bench trial and bring any purported insufficiencies or shortcomings of the other party’s expert witnesses at trial and overruled Bryce Nowlan’s objections.

Discrimination

Pratt & Whitney Wants Experts Disqualified in $1 Billion Soil Toxins Suit

An aerospace and defense company wants a Florida federal judge to disqualify the expert witnesses presented by property owners who have accused it of contaminating their water supply and devaluing their homes.

The Lawsuits

Five married couples who have children who are members of a pediatric brain tumor cluster designated by the Florida Department of Health and two property owners who claim their land is far less valuable because of soil contamination filed two consolidated suits against United Technologies Corporation, which does business as Pratt & Whitney. The parties claim that the company sent toxic and carcinogenic chemicals into the porous underground aquifer that their properties share.

The cases are Cotromano et al. v. United Technologies Corp. et al., case number 9:13-cv-80928, and Adinolfe et al. v. United Technologies Corp., case number 9:10-cv-80840, in the U.S. District Court for the Southern District of Florida.

The total claims are estimated at $1 billion.  The cases were initially dismissed by the trial court, but were reinstated by the Eleventh Circuit, which ruled that the trial court had erred in requiring excessive factual proof at the dismissal stage of litigation.

The Experts

The plaintiffs retained numerous experts to help them prove their claim. Pratt & Whitney filed motions arguing that each of those experts should be excluded.

The plaintiffs presented Dr. Marco Kaltofen as an expert to testify that there is evidence that the plaintiffs had been exposed to contaminants that originated at the Pratt & Whitney facility. Pratt & Whitney argued that Dr. Kaltofen’s testimony should be excluded because he failed to apply or identify a methodology that would allow him to conclude that there was radioactive contamination in the property. Pratt & Whitney also claimed that Dr. Kaltofen’s testimony failed to identify any actual source of materials or address how the materials were allegedly transported to the plaintiffs’ properties.

The plaintiffs presented toxicologist Dr. William Sawyer to support their claims. Pratt & Whitney argued that Dr. Sawyer’s opinions should be excluded as lacking in fit because they are “fundamentally unreliable.” Pratt & Whitney noted that Dr. Sawyer had not issued an expert report in support of the plaintiffs’ property claims; instead, the plaintiffs relied upon Dr. Sawyer’s previously-disclosed cause opinions from three personal injury cases. Pratt & Whitney argued that because none of the other personal injury cases dealt with the cancer cluster designation, Dr. Sawyer’s opinions were not relevant here. Pratt & Whitney also argued that Dr. Sawyer’s methodology was unreliable. The company noted that for two plaintiffs, Dr. Sawyer had no calculation of the alleged dose of Thorium-230 to which they were exposed. For another plaintiff, Dr. Sawyer relied upon a flowed dose calculation that was based on samples taken from her spine years after she was diagnosed with brain cancer.

The plaintiffs presented Dr. Bernd Franke as a radiological researcher to support their claims. Pratt & Whitney argued that Dr. Franke’s testimony should be excluded because there was no fit between his analyses and any issue to be resolved at trial, he relied upon improper and unjustified assumptions, and his methodology was not reliable. Pratt & Whitney noted that Dr. Franke’s testimony was only related to one individual who was not part of the cancer cluster identified by the FDOH.

The parties participated in a seven-hour hearing on the issues, but the matter remains unresolved. The hearing was continued and the parties were instructed to contact the court with their available dates in the next two weeks.

Georgia

Georgia Supreme Court Hears Argument on Paying Expert Witness Fees for Defendant with Private Attorney

The Georgia Supreme Court has heard oral argument of the issue of whether Georgia’s Indigent Defense Act allows for public funding for expert witnesses when a defendant is represented by a private attorney.

The Crime

In October 2005, high school teacher Tara Faye Grinstead was reported missing. Her disappearance remained a mystery until 2017, when Bo Dukes reported that his friend Ryan Alexander Duke had confessed to the murder. Dukes told the authorities that Duke told him that he had broken into Grinstead’s home to rob her, but that he ended up strangling her to death. Dukes claimed that he helped Duke to transport Grinstead’s body and assisted him in burning it.

On February 22, 2017, Duke confessed to authorities that he was solely responsible for Grinstead’s murder. Duke was indicted for malice murder, felony murder, aggravated assault, burglary, and concealing a death in connection with Grinstead’s death.

Expert Witness Funding Issue

Duke was initially represented by the Tifton Judicial Circuit Public Defender. In 2018, private attorneys offered to take on his case pro bono. Duke’s attorneys filed a pretrial motion requesting state funding to pay for an investigator and defense expert witnesses. The trial court denied the motion. It stated, while Duke “has a constitutional right to be represented by private, pro bono counsel if he so chooses, he is not simultaneously constitutionally entitled to experts and investigators funded by the State.” Duke’s attorneys appealed.

The Georgia Supreme Court granted an appeal to answer the question, “Did the trial court err in holding that an indigent defendant in a criminal case who is represented by private, pro bono counsel does not have a constitutional right or a statutory right under the Indigent Defense Act…to state-funded experts and investigators?”

The Georgia Supreme Court heard oral argument on the issue on January 12, 2021.

Duke’s attorneys argued that he is entitled to receive funding under the United States Constitution, the Georgia Constitution, and the Indigent Defense Act in order to protect his Sixth Amendment rights to counsel and a fair trial. His attorneys pointed out that a trial court judge made a specific finding that Duke is indigent and that his need for experts in this case was “compelling.” The attorneys argued that if the trial court’s ruling is allowed to stand, indigent defendants will be forced to choose between having an attorney with sufficient time, knowledge and skill to defend the case or work with a potentially overworked attorney with little time to devote to the case to have the benefit of working with experts.

The State argued that indigent defendants do not have a constitutional or statutory right under the Indigent Defense Act to state-funding investigators or experts. The State also claimed that Duke does not even qualify as indigent because of his evidence of “other resources,” such as his ability to pay for private counsel. The State argued that under the Indigent Defense Act, an indigent who opts out of public representation also opts out of public defense resources.

The Georgia Supreme Court took the matter under advisement. The court typically makes its ruling on cases within six months of oral argument. After its ruling, Duke’s case will be sent back to Irwin County court to schedule a new date for trial.

 

Texas flag and gavel

Texas Law Firm Claims Allstate Uses Unqualified Experts to Drive Up Litigation Costs

A Texas law firm has filed a class-action complaint, claiming that Allstate Fire and Casualty Insurance Company has been using unqualified expert witnesses to drive up litigation costs.

The Complaint

The Estes Law Firm is a Texas law firm that practices personal injury law.  Estes Law claims that Allstate has been putting forth unqualified expert witnesses, “knowing they will put out fraudulent information with the intention of preventing justice for the injured citizens of Texas.” Estes Law alleges that Allstate is knowingly conspiring with unqualified “experts” that have repeatedly demonstrated that they have given untrue and fraudulent information.

Estes Law argues that Allstate has the intent to drive up the cost of litigation for Texas citizens and to enhance its own profitability at the expense of injured people.

Estes Law brought its complaint on behalf of itself and all law firms in the state of Texas who represented clients in cases against Allstate and Allstate’s counsel and spent time and resources responding to improper controverting affidavits filed by Allstate’s unqualified experts. Estes Law believes that the number of members in this proposed class exceeds $10,000.

The firm is suing for actual and punitive damages.

The Proposed Experts

Estes Law takes issue with three specific experts that Allstate has hired for its cases: Marc Chapman, Jana Schieber, and Rhonda Guitreau.

Marc Chapman has a background as a reimbursement manager at a hospital and runs a consulting firm. Chapman is not a doctor. Allstate has repeatedly hired Chapman to prepare controverting affidavits and offer opinions that medical bills for plaintiffs are too high. Chapman has only sent out bills for hospitals in the Austin area. He has no experience in billing outside of hospitals or experience billing in any other city in Texas. Estes Law listed 13 cases as an example of a few of the cases that have stricken Chapman as an unqualified expert. Estes Law claims that Allstate continues to hire Chapman to prepare controverting affidavits to harass and delay lawyers who represent plaintiffs.

Jana Schieber worked as a nurse in the Dallas area in the 1990s. Allstate has retained Schieber to opine about billing rates for orthopedic surgeons, orthopedic doctors, primary care doctors, chiropractors, radiologists, diagnostic testing facilities, and other medical providers. Estes Law listed 10 cases as an example of the many cases where Schieber’s opinion has been stricken. Estes Law notes that all of Schieber’s controverting affidavits are nearly identical and they rely upon an online database called “Context4 Healthcare.” Estes Law claims that Allstate continues to hire Schrieber to harass and delay lawyers for plaintiffs.

Rhonda Guitreau is a former hospital administrator from the Dallas area who Allstate has presented as an expert medical billing consultant. Guitreau had no experience billing outside of the hospital setting or working in any area outside of Dallas. Estes Law listed 10 different cases where Guitreau’s affidavit was stricken. All of Guitreau’s controverting affidavits are nearly identical and rely upon an online database called “Context4 Healthcare.” Estes Law argues that the only reason that Allstate continues to hire Guitreau is to harass and delay the lawyers who represent plaintiffs.

Police Brutality

Police Captain Who Testified at Rodney King Trial to Testify in George Floyd Case

The retired Los Angeles police captain who testified that the officers did not use excessive force in the Rodney King trial is set to testify as a defense expert in the upcoming George Floyd trial.

George Floyd Case

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 as he said he couldn’t breathe. Chauvin and the other three officers who were present were fired and are scheduled to stand trial.

Chauvin is charged with unintentional second-degree murder and second-degree manslaughter.  The three others, Thomas Lane, J. Alexander Kueng, and Tou Thao, are charged with aiding and abetting both counts.

Each of the former police officers will be tried separately.

Use-of-Force Expert

Former Minneapolis police officer Thomas Lane is represented by attorney Earl Gray. Gray filed a notice that he plans to call Greg Meyer as a use-of-force expert at his client’s trial.

Greg Meyer is a retired Los Angeles police captain who was employed by the Los Angeles Police Department from 1976 to 2006. Meyer is also an expert on police training, intervention, detention, and arrests.

Meyer offered testimony at the Rodney King federal civil trial in 1994. In 1991, Los Angeles police officers were trying to stop an unarmed King from speeding when he fled. After a high-speed chase, the officers used stun guns and beat King with batons. Bystander video of the incident led to increased concern over the effect of race on policing.

At the trial, Meyer testified that the officers did not use excessive force when they beat Rodney King in 1991. Meyer testified that the officers had not used excessive force because of police policy. Jurors awarded King $3.8 million in damages, but declined to award punitive damages.

Meyer has been critical of bans of neck restraint holds and upper-body control holds or “chokeholds.”

Meyer wrote an opinion piece for the L.A. Times in 1994. In his piece, Meyer blamed the City Council and board of police commissioners for stopping the use of chokeholds. Meyer explained that an upper-body control hold applies pressure to the carotid artery in the neck to render the subject unconscious. When chokeholds were banned, some warned that the next level of force would be the baton.

Meyer noted that after the chokehold ban, injuries to suspects had risen 661{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} and injuries to officers had risen 521{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4}.

Meyer wrote;

“Police officers and jailers will continue to have violent confrontations with persons who choose to resist. And the public will grow tired of making millionaires out of convicted criminals and others who resisted arrest. The public must insist on a re-evaluation of police policy in a more rational policy-making process than Los Angeles experienced in the early 1980s. Law-enforcement leaders must adopt a more humane use of force on a scale governed by the severity of injuries that result from any given tactic.”

He continued, “If we can put a man on the moon and return him safely to Earth, why can’t we put a man on the ground and take him safely to jail?”

Death Row Inmate Freed After Bite Mark Evidence Discredited

A Mississippi man that sat on death row for over a quarter of a century has been freed and exonerated after the bite mark evidence that was used to convict him was discredited.

The Crime

In 1992, 84-year-old Georgia Kemp was found dead in her home in Lowndes County, Mississippi.  Her autopsy revealed that she had died from two stab wounds. Kemp also had injuries consistent with rape, but no visible bite marks.

Prosecutors retained Dr. Michael West as an expert witness. West is a forensic dentist known for his analysis of bite marks. Over a period of 15 years, West testified in 71 trials in 9 states. West examined Kemp’s body with ultraviolet light and found bite marks, which he testified matched the teeth of Eddie Lee Howard.

Court Proceedings

Howard was indicted on the charge of capital murder with the underlying felony of rape.  He was convicted in 1994 and sentenced to death. In 1997, Howard’s conviction and sentence were reversed and remanded for a new trial.

In May 2000, Howard’s second trial began. Dr. West testified again, stating that he was certain to a reasonable degree of medical certainty that Howard had left the bite marks found on Kemp’s body.  Howard was convicted of capital murder and sentenced to death. The conviction was upheld in numerous appeals and post-conviction relief proceedings.

Exoneration

In December 2010, the Mississippi Supreme Court allowed Howard to file another post-conviction petition for relief due to new DNA testing of physical evidence that had excluded Howard as a source.

The court reviewed the DNA evidence and also Dr. West’s bite-mark testimony. Dr. West’s techniques have come under criticism for overstating his findings and testifying on subjects where he had limited expertise. Dr. West’s practices were investigated and he was eventually suspended by the American Board of Forensic Odontology. Dr. West has also stated in a 2012 deposition that he no longer believes in bite-mark evidence and that it should not be used in court cases. That testimony is small comfort to the 71 defendants who were subjected to Dr. West’s unreliable opinions.

The court noted that there has been a change in the scientific understanding of the reliability of identification through bite marks since Howard’s conviction. Today, bite mark testimony would be inadmissble evidence. The court also concluded that Dr. West’s identification of Howard was the most important evidence presented at trial. Given the inadmissibility of bite mark evidence and the fact that that the DNA of another man was present on the murder weapon, the court found that a jury would probably not find Howard guilty beyond a reasonable doubt.

In August 2020, the Mississippi Supreme Court vacated Howard’s conviction and sentence and remanded his case for a new trial.

In December 2020, Howard was released from death row and on January 8, 2021, Howard was officially exonerated. Lowndes County District Attorney Scott Colom decided not to retry Howard’s case, noting that there was not enough evidence to convict Howard “beyond a reasonable doubt” and stating that “My ethical and legal responsibility requires that I dismiss the case.”

 

Court

Judge Rules Gender Equality Expert’s Opinion is Credible and Reliable

An Iowa federal judge has ruled that a gender equality expert’s opinion is both credible and reliable and has temporarily blocked the University of Iowa from cutting its women’s swimming and diving program.

The Dispute

On August 21, 2020, the University of Iowa announced its decision to eliminate women’s swimming and diving as a varsity intercollegiate sport for the 2021-22 academic year.  Six students, Sage Ohlensehlen, Christina Kaufman, Alexa Puccini, Kelsey Drake, Miranda Vermeer, and Abbie Lyman, who are female student-athletes on the women’s swimming and diving team, were torn between remaining at the school and pursuing their athletic careers elsewhere.

The students filed a class-action lawsuit against the University of Iowa, its president, and its athletic director, claiming that the University failed to provide equal participation, equal treatment, and equal scholarship opportunities for female athletes as required under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.

District Court

The students filed their lawsuit in the U.S. District Court for the Southern District of Iowa. On December 3, 2020, the plaintiffs filed a motion for a temporary restraining order and preliminary injunction. The court denied emergency injunctive relief, but ordered that the matter proceed on an expedited basis. The court reviewed each party’s written briefs, affidavits, and documentary evidence and held a hearing on the matter.

The Equity in Athletics Disclosure Act requires universities that receive federal funding to submit an annual report detailing the total number of full-time male and female undergraduate students enrolled at the university, the varsity intercollegiate athletic teams it sponsors, and the number of participants on each team on the date of that team’s first competition.

According to the information that the University provided in response to the Equity in Athletics Disclosure Act, the University of Iowa has been increasing its percentage of women undergraduate students over the past 10 years. Currently, the University offers 24 intercollegiate athletic programs; 13 are women’s teams and 11 are men’s teams.

At issue is whether the University of Iowa will comply with Title IX after eliminating the women’s swimming and diving team alongside three men’s teams. The students retained Dr. Donna Lopiano, Ph.D., to testify on their behalf. Dr. Lopiano reviewed the participation data and compared it with University-sponsored website rosters and raw competition data. She opined that she was confident to a high degree of certainty that women’s intercollegiate athletics at the University of Iowa would not be proportional to female student enrollment.

The University dismissed Dr. Lopiano’s opinions as “unduly speculative” and characterized them as “conspiracy theories.” The University made a motion that Dr. Lopiano’s opinions should be stricken from the record.

Upon review, U.S. District Court Judge Stephanie Rose determined that Dr. Lopiano was a highly credible expert and that her opinion was “exceedingly reliable.” Judge Rose noted that Dr. Lopiano is a highly accomplished expert on gender equity in intercollegiate athletics and Title IX compliance. Her opinion demonstrated that the students had a fair chance of demonstrating that the University is not in compliance with Title IX by providing its female athletes with athletic participation opportunities substantially proportionate to their representation in the student body.

Judge Rose granted the motion for a preliminary injunction, which prevents the University of Iowa from eliminating the women’s swimming and diving team or any other women’s intercollegiate athletic team until there is a full trial on the merits.

Election Experts Testify in Virginia Voter ID Case

Virginia Supreme Court Allows in Evidence of Expert’s History of Testifying as an Expert

The Supreme Court of Virginia has ruled that evidence of an expert witness’ past testimony as an expert is admissible evidence.

The Accident

In December 2015, Deborah Graves was driving her vehicle when she was hit from behind by Samantha Shoemaker. Graves experienced back, hip, and neck pain, along with increased depression and anxiety in the months following the crash. Graves sought medical care and physical therapy that cost over $26,000. Graves filed a lawsuit against Shoemaker seeking $150,000 in damages.

The Expert Witness

Shoemaker’s insurer, State Farm, hired attorney John P. Cattano to represent her in the lawsuit. Cattano retained Dr. William C. Andrews, an orthopedic surgeon who specializes in medicolegal work to testify as a defense expert witness.

Dr. Andrews reviewed Graves’ medical records and prepared an expert report. Dr. Andrews opined that much of the pain that Graves complained of after the crash was caused by preexisting conditions. Dr. Andrews also found that most of the treatment that Graves received was not medically necessary or reasonable to treat her minor injuries. State Farm paid Dr. Andrews $3,362 to issue this report.

Shoemaker’s attorney deposed Dr. Andrews and discovered that Dr. Andrews had been hired by Cattano or his firm 30 to 35 times over the past 10 to 12 years and that he only testified on behalf of a plaintiff one of those times. Dr. Andrews admitted that State Farm had paid him $793,198 for testimony he provided for their insureds from 2012 to 2018. However, he claimed that he was not aware that State Farm was the insurer until he was told at the deposition.

Trial Court

Shoemaker admitted her fault, so the case went to trial on the issue of damages only. Graves made a motion to introduce evidence of Dr. Andrews’ previous relationship with Cattano’s firm and State Farm.  After hearing arguments on the issue, the trial court allowed in evidence that Dr. Andrews had testified on behalf of Cattano’s clients 30 to 35 times in the past. She was not allowed to ask about prior work for State Farm because they were not in a “direct relationship.”

The jury returned a verdict in favor of Graves for $3,000 plus interest. Graves moved for a new trial based upon the ruling that prevented her from introducing evidence of Dr. Andrews’ previous relationship with State Farm. The court denied her motion and she appealed.

The Supreme Court of Virginia

On appeal, Graves argued that the trial court’s ruling went against the Supreme Court of Virginia’s ruling in Lombard v. Rohrbaugh, 262 Va. 484 (2001) by interpreting it to mean that a party must demonstrate a “direct relationship” between an expert and an insurance company before cross-examining the expert on previous payments from that insurance company.  The Supreme Court of Virginia agreed.

The court emphasized that its decision in Lombard only required that there be a “substantial relationship” between an insurer and an expert. The court emphasized that the central issue is not “artificial labels.” Instead, the focus should be on the potential for bias because of the witness’ interest in the case.

Here, State Farm’s past payments of nearly $800,000 to Dr. Andrews over the course of 7 years created a substantial relationship that had potential to create bias in the witness. The court ruled that Graves should have been able to introduce this evidence to the jury. The court vacated the trial court’s verdict and remanded the case for further proceedings.

 

GEICO Expert Cleared to Testify in Insurance Fraud Case

A GEICO expert has been cleared to testify in an insurance fraud case where a physician has been accused of improperly certifying certain healthcare services for payment.

The Alleged False Statements

Dr. Luis Mas is a family medicine specialist with a practice in Coral Gables, Florida. Government Employees Insurance Co., GEICO Indemnity Co., GEICO General Insurance Company, and GEICO Casualty Co. filed a suit against Dr. Mas, alleging violations of the Racketeer Influenced and Corrupt Organizations Act, the Florida Deceptive Unfair Trade Practices Act, the Florida Civil Remedies for Criminal Practices Act, common law fraud, and unjust enrichment.

Specifically, the lawsuit alleged that Dr. Mas submitted thousands of fraudulent insurance charges, misrepresented coding levels on billing statements, and changed which medical provider administered treatment on the examination reports. The lawsuit claimed that unsupervised massage therapists and physical therapist assistants performed services that were billed as doctors.

The Daubert Motion

Government Employees Insurance Co., GEICO Indemnity Co., GEICO General Insurance Company, and GEICO Casualty Co. retained Dr. James Dillard to testify on their behalf.

Dr. Mas’s defense team filed a Daubert motion seeking to exclude Dr. Dillard’s testimony.  They sought to exclude Dr. Dillard because his testimony could not be used to prove that Dr. Mas falsified any medical examinations or billing records.  Instead, Dr. Dillard opined that healthcare providers committed fraud in three ways: (1) that Dr. Mas falsified his clinical judgment on the medical necessity of the treatment protocols, (2) that Dr. Mas and others falsified the examination results for the purpose of inflating medical bills, and (3) that the therapeutic care at each facility was performed without supervision.  Dr. Mas’s attorneys argued that, under Florida law, opinions were not actionable for fraud and Dr. Dillard needed to instead rely on statements of fact to undermine Dr. Mas.

Government Employees Insurance Co., GEICO Indemnity Co., GEICO General Insurance Company, and GEICO Casualty Co. argued that Dr. Mas’s motion had no merit because it contained conclusory arguments and failed to question Dr. Dillard’s qualifications or helpfulness to the jury.

The United States District Court for the Southern District of Florida ruled that even if Dr. Mas only gave a statement of opinion, he was a person with superior knowledge on the subject and he knew or should have known from the facts in his possession that the statement of opinion was false.  Because of this, Dr. Mas fell under the exception to the Florida rule that an action for fraud generally may not be predicated on statements of opinion.

The district court noted that Dr. Mas’s motion had three weaknesses.  First, it made the assumption that Dr. Mas rendered an opinion.  Second, the motion “cherry-picked” portions of cases to support its reasoning. Third, it did not take into account that an exception could apply in this case. Based on the allegations and the evidence in Dr. Dillard’s report, an exception may apply because there is a factual dispute on Dr. Mas’s involvement with how the medical facilities handled treatment and billing records.

Accordingly, the district court denied the motion and allowed Dr. Dillard to testify.