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.

NRA Files Motion to Exclude “Mouse Brain” Expert

The NRA has filed a motion to exclude a developmental neuroscience expert in a gun rights suit, arguing that the expert on “mouse brains” is not qualified to offer testimony in this case.

The Lawsuit

The National Rifle Association (“NRA”) filed a lawsuit against Pam Bondi, the Attorney General of Florida, and Rick Swearingen, Commissioner of the Florida Department of Law Enforcement, based on their administering and enforcing Florida laws relating to the sale of firearms.  The NRA sought declaratory and injunctive relief. The NRA wanted a declaration that Florida’s law banning adult, law-abiding citizens under the age of 21 from purchasing firearms was unconstitutional under the Second and Fourteenth Amendments. It also wanted an injunction that prevented Florida from enforcing that law.

Proposed Expert Testimony

The Florida Department of Law Enforcement retained Dr. Pradeep G. Bhide to testify on its behalf.  Dr. Bhide is a Professor and Jim and Betty Ann Rodgers Eminent Scholar Chair of Developmental Neuroscience and Director of the Center for Brain Repair at Florida State University College of Medicine.

Dr. Bhide’s proposed testimony included the statement that “Modern neuroscience establishes what parents have known for generations, that ‘on average 18-year old individuals are more likely to engage in behaviors that are impulsive, emotional, risky and that offer immediate or short time reward compared to 21-year old individuals, on average.’”

The NRA filed a motion in limine to exclude Dr. Bhide’s testimony.  In its motion, the NRA argued that Dr. Bhide had not offered any hard evidence that young adults from age 18 to 20 are more likely to commit criminal violence with a purchased firearm than other adults. The NRA claimed that Dr. Bhide’s opinion would consist only of “secondhand pseudoscience.”

The NRA argued that Dr. Bhide failed to meet the requirements of Daubert.  Specifically, it claimed that while Dr. Bhide may be an expert in the broad area of neuroscience or brain development, this was not a substitute for expertise in the area of adolescent brain development. The NRA argued that even if Dr. Bhide had academic credentials in neuroscience and taught in that area, it did not demonstrate that he was competent to give an expert opinion in every area of neuroscience.

The NRA argued that Dr. Bhide was not qualified to give the opinion that 18-to-20-year-olds were more likely to commit crimes with purchased firearms because he had not personally studied human brain development. iWhen questioned whether he had published any peer-reviewed articles that distinguished between the development of a teenage brain and an adult brain, Dr. Bhide responded that he had not written articles about the human brain, he had only written about mouse brain development.

The NRA also argued that Dr. Bhide should be excluded as an expert because his opinions were not based on any reliable methodology. Dr. Bhide’s opinion was not based on his own research, his opinion was based upon the research of others that did not relate to the risk of firearm purchase by 18-to-20-year-olds.

The motion in limine is currently under advisement in the United States District Court for the Northern District of Florida.

 

Prison, Barbed Wire

Woman Allowed to Present Expert Testimony to Overturn Shaken Baby Conviction

A Mississippi woman who pleaded guilty in 2007 to shaking an infant to death will be allowed a hearing to argue that her life sentence should be overturned.

The Infant’s Death

On July 18, 2005, Amy Wilkerson was 29-years-old when she was caring for an 8-week infant child, Tristan Chinn.  At 2 pm on that day, Wilderson called 911 and told the authorities that Tristan had stopped breathing.

Investigators questioned Wilkerson after the boy’s injuries turned out to be consistent with those of other victims of shaken baby syndrome. Court records showed that “Wilkerson gave several conflicting accounts of the events surrounding Tristan’s death. At the hospital, Wilkerson told Tristan’s mother that Tristan had been injured while riding in the car. Wilkerson later told police detectives that Tristan’s injury occurred when he fell from the couch and hit his head. Wilkerson eventually confessed that her ‘couch story’ was false and that she had shaken Tristan to death.”

The Legal System

Wilkerson was indicted for capital murder. Wilkerson initially pled not guilty, but later entered a guilty plea for depraved-heart murder. Following her guilty plea, Wilkerson was sentenced to life in prison, with eligibility for parole after 30 years.

Three years later, Wilkerson filed a motion for post-conviction relief, arguing that her trial attorneys were ineffective. The circuit court denied her claim. Wilkerson appealed the dismissal of her motion, arguing that her guilty plea was involuntary and that her trial attorney was ineffective. The Court of Appeals of Mississippi affirmed the lower court’s decision.

The Innocence Project

Wilkerson brought her case to the Innocence Project. The Mississippi Innocence Project and the Wisconsin Innocence Project took her case.

With the help of her Innocence Project lawyers, Wilkerson argues that new evidence has arisen since the date of her trial. New scientific evidence has increasingly discredited shaken baby syndrome as a cause of death and an expert who had originally consulted on her case has been discredited.

Wilkerson’s original defense attorneys had consulted with pathologist Dr. Steven Hayne before trial. Dr. Hayne had opined that the cause of death was shaken baby syndrome. Dr. Hayne has since been discredited. In 2008, the Mississippi public safety commissioner removed Hayne from the state’s list of authorized medical examiners.

Four medical experts on Wilkerson’s legal team, two forensic pathologists, a pediatric neuropathologist, and a neuroradiologist, reviewed the records and believe that Tristan likely died from a stroke. Defense expert forensic pathologist Janice Ophoven wrote, “Tristan’s brain reflects a longstanding pathology that eventually led to collapse while in Ms. Wilkerson’s care, for reasons having nothing to do with intentional trauma.”

Wilkerson’s defense team presented this new evidence to the court. In 2018, Circuit Court Judge Dale Harkey denied Wilkerson a hearing. However, the Mississippi Court of Appeals reversed Judge Harkey’s ruling and decided to allow an evidentiary hearing in Wilkerson’s case.

At this hearing, Wilkerson will be allowed to present expert testimony showing that the infant’s brain injury happened before the baby was placed in her care and that the brain bleeding may have begun at the time of the infant’s birth.

Court Dismisses Expert Witness Lawsuit Against Professional Association

Texas Court Reinstates Sexual Assault Conviction After Dismissing Expert Witness Objections

The Texas Court of Criminal Appeals has reinstated the sexual assault conviction of former Baylor University football player Sam Ukwuachu after dismissing claims that defense witnesses had been improperly impeached by false evidence.

The Crime

In October 2013, a female Baylor University student-athlete alleged that Sam Ukwuachu raped her at his Waco apartment. The victim alleged that Ukwuachu took her to his apartment following a homecoming party and forced himself on her. The following day, she went to the hospital and had a rape examination. Her injuries were consistent with sexual assault.

In June 2014, Ukwuachu was indicted on two felony charges. Following a trial, he was convicted of one count of sexual assault. In 2015, Ukwuachu was sentenced to ten years of felony probation, 180 days in county jail, and 400 hours of community service.

First Appeal

Ukwuachu appealed his case. Waco’s 10th District Court of Appeals overturned his conviction because the trial court had not allowed in some text messages that could have shown that the sex was consensual. However, the Texas Court of Criminal Appeals reversed the lower appeals court and reinstated the conviction. The ruling allowed Ukwuachu to continue to appeal his case, but not on the text messaging issue.

Second Appeal

Ukwuachu appealed his conviction a second time. This time, his lawyers argued that prosecutors had improperly used cell phone record evidence to impeach two defense witnesses, which was a violation of Ukwuachu’s due process rights.

At trial, prosecutors had presented cell phone records with time and data location that showed that Ukwuachu’s roommate was across town at the time of the alleged assault, rather than in their apartment. Because the phone records were shown in UTC (Coordinated Universal Time), which was five hours different from local time, Ukwuachu claimed that the records could not show that his roommate’s testimony was not true. The trial court did not allow the admission of the phone records but allowed prosecutors to ask questions about making phone calls.

At a motion for a new trial hearing, Ukwuachu presented an affidavit from an expert in computer forensics that opined “that it was impossible to accurately verify location data solely from the records without additional review by an expert, that the latitude and longitude given on this type phone records was rarely precisely accurate, and that it would take many hours for an expert to accurately provide the location of where an individual was when a call was made.”

Waco’s 10th Court of Appeals agreed with Ukwuachu’s arguments and reversed his conviction.

The Texas Court of Criminal Appeals reversed the decision of the lower court. The court ruled, “The phone records at issue were never admitted into evidence nor made part of the record. Further, no expert testimony was introduced to establish that the state misled the jury regarding any particular information shown in the records. Without these phone records or such expert testimony, Appellant cannot prove that the state actually elicited witness testimony that conflicted with the substance of those records.”

The court remanded the case to Waco’s 10th Court of Appeals for consideration of the remaining appeal issues.

 

Fourth Circuit Allows Recovery of Expert Witness Fees

The Fourth Circuit Court of Appeals has allowed the recovery of expert witness fees in Maryland where a fee=shifting provision specifically used the word “fees” separately from “attorney fees.”

The Underlying Dispute

In November 2005, Lennar entered into a contract with three companies (Settlers Crossing, Washington Park Estates, and Bevard Development Company) to purchase 1,250 acres of land in Prince George’s County for $200 million. Lennar paid $20 million in deposits. Sandler, the sole owner of a seller company, personally guaranteed the return of the $20 million deposit if the seller companies breached the contract.

In 2006, Lennar asked the seller companies to renegotiate the contract because of the decline in the residential housing market. The companies agreed and in May 2007, the purchase price of the property was reduced from $200 million to $134 million. All parties agreed to a guarantee of specific performance by Lennar. During this time, the seller companies received a $100 million loan from iStar, which was partially secured by the property and the sellers’ rights under the purchase agreement.

In 2008, following a series of disputes, Lennar notified the companies that it elected to terminate the contract and demanded a refund of its $20 million deposits. The seller companies refused. During this time, the seller companies defaulted on their loan to iStar and iStar foreclosed upon the property.

The District Court Case

In July 2018, Lennar filed a lawsuit against iStar, Sandler, and the three seller companies in the United States District Court District of Maryland. Lennar alleged breach of contract, fraudulent inducement, concealment breach of environmental representations and warranties, and claim for declaratory judgement. The seller companies and iStar filed a joint counterclaim for declaratory relief and specific performance of the contract.

Following pretrial proceedings, two main issues remained for trial: (1) whether the seller companies denial of Lennar’s access to the property constituted a breach of contract; and (2) whether the seller companies had breached the environmental representations and warranties in the purchase agreement. A bench trial was held to resolve these issues.

The majority of the trial was spent on the environmental representations claim. Lennar presented three expert witnesses to testify on this issue. iStar called four experts to testify on this issue.

Following the bench trial, the district court determined that Lennar had failed to satisfy its burdens and iStar was entitled to specific performance of the contract. The district court entered judgment in favor of iStar. Lennar appealed and the Fourth Circuit affirmed the judgment.

The Fee-Shifting Agreement

Following the Fourth Circuit’s affirmance, iStar sought reimbursement of its costs, fees, and expenses in accordance with a fee shifting provision in the purchase agreement. Specifically, iStar requested $14,880,227.82 in attorneys’ fees, $656,002.12 in expert witness fees, and $553,712.56 in costs.

The relevant provision stated:

In the event of any litigation arising under or pursuant to this agreement . . .
the parties hereby agree that . . . the prevailing party in such matter shall be
entitled to recover from the non-prevailing party[] such party’s costs, fees
and expenses incurred in such litigation, including actual and reasonable
attorneys’ fees and court costs.

Lennar challenged the reasonableness of the attorneys’ fees and the entitlement to expert witness fees.

The district court determined that the plain language of the provision entitled authorized the recovery of all attorney fees, fees, and costs. Lennar contested the awarding of expert witness fees, arguing that Maryland law does now allow the recovery of expert witness fees under a fee-shifting agreement. Lennar cited two district court cases where the district court determined that the recovery of “all costs” and “expenses” did not provide for the recovery of expert witness fees.

The Fourth Circuit noted that the fee-shifting provision in this case was broader than the provision in the other cases. Here, the provision specified “attorney fees” as a separate item from “fees.” The court determined that the plain language of the contract indicated that attorney fees were only a subset of that total fees that may be recovered. Accordingly, the Fourth Circuit determined that the awarding of expert witness fees was proper.

a doctor and a child

Rising Trend of Experts Questioning Legitimacy of Shaken Baby Convictions

A growing number of experts are challenging the existence and symptoms of Shaken Baby Syndrome/Abusive Head Trauma — a medical diagnosis that has sent many people to prison over the years.  This is leading to a rise in appeals and overturned convictions.

The Science

In the early 1970s, pediatric neurosurgeon A. Norman Guthkelch first hypothesized Shaken Baby Syndrome/Abusive Head Trauma as a way to explain infants who had bleeding on the brain but showed no external signs of trauma.

Throughout the 1970s and 1980s, pediatricians published numerous studies on Shaken Baby Syndrome, finding that it could be diagnosed through three distinct symptoms: subdural or subarachnoid hemorrhages (bleeding on the brain), cerebral edema (brain swelling), and retinal hemorrhaging (bleeding in the eye). By the mid to late 1990s, Shaken Baby Syndrome was a widely accepted medical diagnosis.

Pediatricians and researchers hypothesized that caregivers would become frustrated with a baby’s crying, then pick up the child and shake him or her back and forth.  This motion would cause the brain and retina to bleed, brain swelling, and then death.

The American Academy of Pediatrics has released numerous consensus statements on Shaken Baby Syndrome/Abusive Head Trauma over the years. It advised, “While physical abuse has in the past been a diagnosis of exclusion, data regarding the nature and frequency of head trauma consistently support a medical presumption of child abuse when a child younger than 1 year of age has intracranial injury.” It has also advised that short falls are incapable of producing the same symptoms.

Dr. Michael Baxter, a Tulsa child abuse pediatrician, assistant professor of pediatrics at University of Oklahoma in School of Community Medicine in Tulsa and medical director of the Children’s Advocacy Center, has said that, “There’s been multiple consensus statements done — Abusive Head Trauma is an accepted medical diagnosis.”  On average, Dr. Baxter sees between six and eight cases of Abusive Head Trauma per year and two to three cases involving a death.

Questions Regarding Legitimacy

However, a growing number of experts has begun to question the legitimacy of Shaken Baby Syndrome/Abusive Head Trauma diagnosis.  These experts have offered other explanations to explain the symptoms that were previously found to be only attributable to Shaken Baby Syndrome/Abusive Head Trauma.

Dr. John Plunkett, a forensic pathologist who initially supported the theory, published a paper showing that retinal hemorrhaging was present in four out of six children whose eyes were examined after people witnessed them suffering short falls.

As opposition to the Shaken Baby Syndrome/Abusive Head Trauma diagnosis rises, so does the number of appeals for those who have been convicted of this offense.

Andrea Miller, legal director of the Oklahoma Innocence Project, has said that child abuse pediatricians who testify in Shaken Baby cases often make claims for which there is no scientific backing. She said, “You often hear in the prosecution of these cases that a head injury like this could only be caused in a car accident going 70 miles per hour or a drop from a 20-story building — all of which is unprovable because you can’t subject a 2-month-old to any of those circumstances.”

In recent years, the Oklahoma Innocence Project has taken up multiple shaken baby case appeals.  There have been several recent shaken baby cases nationwide that have been overturned on appeal, including at least five cases in Oklahoma and one death penalty case in Texas.

dollar bills

Expert Testimony Causes Monsanto to Ask Ninth Circuit to Dismiss $20M Verdict

Agrochemical and agricultural giant Monsanto has asked the Ninth Circuit to overturn a $20 million jury verdict, arguing that the district court judge allowed the jury to hear from an unreliable expert witness.

The Injury

Ed Hardeman and his wife spent many years living in Sonoma County on 56 acres of land. In the 1980s, Hardeman began using Roundup products to treat the poison oak, overgrowth, and weeds on his property. Hardeman continued to use Roundup products regularly until 2012.

In February 2015, Hardeman was diagnosed with B-cell non-Hodgkin lymphoma (NHL). The following month, the International Agency for Research on Cancer (IARC) classified glyphosate, one of the key ingredients in Roundup, as a “probable human carcinogen.”

The District Court Case

In 2016, Hardeman filed a lawsuit against Monsanto in federal district court, claiming that Roundup was a substantial factor in causing his non-Hodgkin lymphoma. Numerous other plaintiffs also filed similar suits against Monsanto. These cases were consolidated. The judge presiding over the cases, Judge Vince Chhabria, chose Hardeman’s case as the lead case in this matter.

Monsanto disputed Hardeman’s claims, arguing that his non-Hodgkin lymphoma was more likely caused by his prior history with Hepatitis C, cirrhosis of the liver, and two different forms of skin cancer.

At trial, Hardeman’s attorney’s presented expert witnesses to strengthen his case. Monsanto challenged the admissibility of these experts. Following a week of hearings, Judge Chhabria ruled that three of Hardeman’s experts on the causal connection between glyphosate and cancer were “shaky but admissible.”

One of Hardeman’s witnesses was Dr. Dennis Weisenberger, a Southern California pathologist who specializes in cases of non-Hodgkin lymphoma. Dr. Weisenberger testified that the lack of protective gear combined with heavy Roundup use for almost three decades meant that Hardeman had high exposure to Roundup, which increased his risk for developing non-Hodgkin lymphoma. Dr. Weisenburger testified, “Roundup was a substantial contributing cause for him with regard to his developing non-Hodgkin lymphoma.”

A six-person jury awarded Hardeman about $5 million in compensatory damages and $75 million in punitive damages. Judge Chhabria later reduced the punitive damages award by $50 million, finding it to be excessive.

The Appeal

Monsanto appealed the decision to the Ninth Circuit Court of Appeals. On appeal, Monsanto argues that Dr. Weisenberger should not have been allowed to testify because he failed to meet the standard set in Daubert v. Merrell Dow Pharmaceuticals.

A three-judge panel heard argument on the matter. Attorney for Monsanto, Seth Waxman, argued that the trial should have never taken place. He argued that Judge Chhabria applied a more lenient standard than other circuits. Waxman noted that 70{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} or more of non-Hodgkin’s lymphoma cases have no known cause.

Attorney for Hardeman, David Wool, argued that Dr. Weisenberger was uniquely qualified to testify about causation because of his work studying the cause and effect of non-Hodgkin lymphoma as it relates to pesticides for over 30 years. Wool noted that Daubert does not require that an expert prove causation beyond a reasonable doubt. Wool argued that Dr. Weisenberger’s testimony would pass any interpretation of Daubert’s expert standard. He noted, “We had statistically significant, fully adjusted epidemiology showing an odds ratio of over 2.0, which Monsanto concedes is sufficient infer specific causation.”

The panel took the arguments under submission.

Idaho Justice Legal System Concept

Medical Malpractice Decision Reversed for Improperly Excluded Expert Testimony

The Idaho Supreme Court has ruled that an Idaho family will have another chance to prove that a hospital is vicariously liable for the actions of doctors because a lower court improperly excluded its expert witness testimony.

The Injury

In May 2015, Duane Dlouhy went to the emergency room at Kootenai Health because of rectal bleeding. Dr. Robert Seeley performed a CT scan on Dlouhy and found “no obvious mass,” but noted the presence of “dark red blood.” A radiologist noted that a “neoplasm could not be excluded.” Dlouhy was discharged from the hospital.

Just hours later, Dlouhy went back to the hospital when the rectal bleeding resumed and his wife found him passed out in the bathroom. Another doctor saw Dlouhy and noted that the CT scan that had been performed earlier that day revealed “some thickening of the lateral aspect of the rectum.” Dr. Michael James performed a colonoscopy on Dlouhy but was unable to get a complete view of the rectum. Dr. James suspected that the bleeding was diverticular and noted that there was a large amount of blood and clotting in the mid-ascending colon. Dlouhy was discharged and followed up with his primary care physician in June 2015.

Dlouhy had additional follow-up visits related to his gastrointestinal issues in June 2015, September 2015, and January 2016. The possibility of colorectal cancer was not discussed or charted at any of these visits. In August 2016, Dlouhy was diagnosed with stage IV colorectal cancer.

The Lawsuit

In May 2017, the Dlouhys filed a complaint against the Kootenai Clinic and two physicians, alleging medical malpractice.  On June 5, 2017, Dlouhy died of colorectal cancer. Amended complaints were filed, adding Dlouhy’s children as plaintiffs and adding additional doctors, Western Medical Associates, and Kootenai Health as defendants. The parties settled claims against all defendants, with the exception of Kootenai Health.

The Dlouhys retained expert witnesses to testify on their behalf. Two experts, Kenneth J. Hammerman, M.D., and Judy L. Schmidt, M.D., were retained to testify about the standard of care. Kootenai Health filed a motion for summary judgment, arguing that the Dlouhys failed to establish an essential element of their claim because they had not presented experts with “actual knowledge” of the applicable community standard of care. The district court agreed with Kootenai Health and granted the motion for summary judgment. The Dlouhys appealed.

Dlouhy v. Kootenai Hospital District

The Idaho Supreme Court reviewed the district court’s ruling for an abuse of discretion. In Idaho, for an expert to testify about the applicable community standard of care, “he or she must have actual knowledge of the community standard as it existed ‘at the time and place of the alleged negligence.’” Plaintiffs may use local experts (who practice in the same community as the defendant health care provider with actual knowledge of the community standard of care that applies) or out-of-area experts (who must also explain how he or she came to be familiar with the community standard of care). Both Dr. Hammerman and Dr. Schmidt were out-of-area experts.

The court noted that for board-certified specialists, the local standard of care is equivalent to the national standard of care. Both of the proposed experts were board-certified in gastroenterology.  By reviewing the record, the court determined that Dr. Hammerman learned that the community standard of care did not deviate from the national standard of care by reviewing depositions. The court also determined that Dr. Schmidt had not given a timely affidavit or declaration in response to the motion to summary judgment. The court concluded that the district court had erred in excluding Dr. Hammereman’s testimony only.

The Idaho Supreme Court reversed the order granting summary judgment and remanded the case to the district court for additional proceedings.

 

Judge Rules “Mask Experts” Unqualified to Testify

A Connecticut judge has ruled that a psychologist and ophthalmologist lacked the expertise required to testify as expert witnesses on the use of masks.

The Mask Mandate

In June 2020, the State of Connecticut Department of Education released a publication titled, “Adapt, Advance, Achieve: Connecticut’s Plan to Learn and Grow Together.” The publication was Connecticut’s comprehensive plan for returning to in-school, full-time instruction for the 2020-21 academic year.

The plan required students to be educated and engaged in new health practices and protocols to prevent the spread of diseases.The publication specifically mentioned social distancing, frequent hand washing and the use of hand sanitizer, the use of face coverings that completely cover the nose and mouth, respiratory and cough etiquette, and enhancing cleaning and disinfection of surfaces.

CT Freedom Alliance Lawsuit

In August, four families and the CT Freedom Alliance filed a suit against the State of Connecticut Department of Education and Miguel Cardona, the commissioner of the Department of Education.  The plaintiffs alleged that the mask requirement was a violation of Conn. Gen. Stat. § 4-168(a), Article Eight of the Connecticut Constitution, the right to due process of law, and a form of negligence.

The complaint asked the court to order the Department of Education to rescind all requirements regarding the use of face coverings, masks, and face shields by students in schools. The plaintiffs also requested the court to issue an order stating that no educational agency or school within the State of Connecticut can require the wearing of face masks at any time during the school day, during after-school programs, or during transport to and from school property.

Proposed Expert Testimony

The CT Freedom Alliance presented two experts to testify on its behalf, psychologist Andrew Kaufman and ophthalmologist James Meehan Jr. Attorney for the state, Darren Cunningham, challenged the qualifications of the proposed experts, arguing that their work made them “ideological advocates for one side of the issue rather than experts on whether masks can cause harm.”

Superior Court Judge Thomas Moukawsher held a hearing on the issue. At the hearing, Kaufman testified that he believed that viruses do not exist and that COVID-19 is a hoax. It was revealed that Meehan had authored a blog post that stated that herd immunity will protect the vulnerable members of society and prevent pandemics.

Judge Moukawsher determined that the two proposed experts lacked specific expertise and held anti-science views that made them unsuitable to testify in this case. He stated that while Meehan is an expert ophthalmologist, he was not credible to testify on anything related to COVID-19. Judge Moukawsher ruled that Kaufman was not qualified because he could not allow an expert testimony “on a matter of life or death” from “a man who defies science so firmly established as to be beyond rational dispute.”

Judge Moukawsher gave the CT Freedom Alliance one week to come up with new experts.  CT Freedom Alliance proposed two new experts, epidemiologist Knut Whittkowski, Ph.D., Sc.D., and psychiatrist Mark McDonald, M.D.  The court has scheduled a future hearing to determine if these two proposed experts are qualified to testify in this matter.

 

Utah

Utah Supreme Court Rules That Expert Testimony Went Too Far

The Utah Supreme Court has ruled that a district court went too far when it allowed an expert to offer undisclosed causation testimony.

The Injury

Noe Arreguin-Leon was injured while installing an exit sign on the shoulder of I-15. A driver had fallen asleep at the wheel and the car veered off the road and into a ladder, where Arreguin-Leon was standing.

At the time of his injury, Arreguin-Leon was employed by Highway Striping & Signs. This company had been hired by Hadco, a general contractor, to install signage for the Utah Department of Transportation. Part of Hadco’s task was to implement a “traffic control plan” to protect workers from traffic and drivers from the construction site. Hadco had failed to do so. At the time of Arreguin-Leon’s accident, there were no traffic control measures in place.

Arreguin-Leon suffered significant injuries and sued the driver and Hadco.

District Court

In district court, Arreguin-Leon retained Bruce Reading to testify as an expert on traffic control standards. Hadco’s counsel chose to depose Reading instead of receiving an expert report. At trial, Reading testified “that Hadco or its subcontractor had violated five specific engineering practices, regulatory standards, and contractual provisions and that there was no traffic control plan in place at the accident site.”

Arreguin-Leon’s counsel asked Reading, “If [200 yards from the construction project is] where [the driver] started to exit the roadway, what effect would a correctly installed buffer zone have had on his driving?” Hadco’s counsel objected, arguing that this testimony was going toward causation and was beyond the scope of the opinion that was disclosed. Arreguin-Leon’s counsel argued that because a deposition had been elected instead of a report, Reading’s testimony was not limited. The court overruled the objection.

Reading testified that a proper traffic plan would have included an area where the driver would have to have hit one or more plastic barrels and “would have had closer to six seconds to wake up and take corrective action.” He also testified that if the accident had still taken place, it would not have taken place in the same location.

A jury ultimately found that Hadco was partially liable for Arreguin-Leon’s injury. Hadco appealed.

Court of Appeals

On appeal, Hadco argued that the district court erred by allowing Reading to offer an undisclosed opinion on causation. Arreguin-Leon argued that Hadco could not make this argument without relying on the expert disclosures and deposition transcript, but these were not a part of the trial record. The court of appeals acknowledged that these documents were not officially part of the trial record, but considered them because of the unique facts of the case.

The court of appeals concluded that the district court abused its discretion in allowing Reading to testify about causation at trial. It determined that the error was harmful and required a new trial.

Utah Supreme Court

Arreguin-Leon petitioned the Utah Supreme Court for certiorari. The court granted his request.

In reviewing the case, the court determined that the expert disclosures and deposition transcript were not necessary to Hadco’s argument or the court of appeals’ ruling. The court noted that the fact that a party’s opponent chooses a deposition instead of an expert witness report does not mean that the expert’s trial testimony can be a “free-for-all.”

The Utah Supreme Court agreed with the court of appeals that Reading improperly testified about causation and that the error was harmful. The court affirmed the court of appeals’ decision and remanded the case to the district court for a new trial.

 

California Law Legal System Concept

Expert Witness Testimony Improperly Tossed Out

A California Court of Appeals has reversed a trial court’s summary judgment order and reinstated a wrongful death lawsuit after it concluded that the trial court had improperly thrown out “clear, reasoned” expert testimony.

The Death

In October 2013, Marleny Escobar attended her first prenatal appointment with her ob/gyn, Dr. Azmath Qureshi. She complained of pain with urination and blood in her urine. Her lab tests showed a low white blood cell count and low platelet counts. Dr. Qureshi prescribed her medicine for urinary tract infections.

Over the course of Escobar’s pregnancy, she experienced a fever, a sore throat, congestion, cough, and an earache. Escobar failed to gain weight after her initial prenatal appointment and eventually lost ten pounds. Her urinalysis showed abnormal levels of proteins, ketones, and bilirubin, and her lab results showed that her white blood cell count remained abnormally low. Dr. Qureshi prescribed her an antibiotic and did not order additional lab tests.

In March 2014, Escobar was admitted to the hospital for the early onset of labor. She arrived at the hospital with a fever, an enlarged fatty liver, and gallstones. Her lab work showed that her white blood count was still abnormally low and that she had “severely deranged liver function.”

Escobar gave birth to a healthy son and was transferred to Long Beach Memorial Medical Center where she was treated by Dr. Jennifer McNulty. Within a week, Escobar’s new physician was considering hemophagocytic lymphohistiocytosis (HLH), a rare immunodeficiency disease, as a diagnosis. Within days, Escobar began treatment for HLH. Escobar died on April 17, 2014. Her autopsy confirmed a diagnosis of HLH and a fungal infection throughout her body.

Superior Court

Two years after Escobar’s death, her husband and sons sued Dr. Qureshi for wrongful death. The lawsuit alleged that Dr. Qureshi’s failure to investigate Escobar’s HLH symptoms fell below the standard of care and led to her premature death.

The court dismissed the husband’s claims on the grounds that his case was time-barred. Dr. Qureshi then filed a motion for summary judgment against the remaining plaintiffs, arguing that they failed to prove causation. Dr. Qureshi claimed that Escobar’s symptoms did not meet the criteria for HLH while she was pregnant, therefore he could not have diagnosed her and given her treatment.

The plaintiffs submitted testimony from obstetrician-gynecologist Dr. Paul Sinkhorn, opining that if Dr. Quereshi had investigated Escobar’s symptoms while she was pregnant, it was more likely than not that she would have survived. The trial court did not admit Dr. Sinkhorn’s testimony because he did not have any experience treating patients with HLH. The court also decided that the testimonyt did not raise a triable issue of fact about causation because Dr. Sinkhorn did not opine that Escobar’s “chance of survival would have been greater than 50{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} if Defendants had acted differently.”

The trial court granted Dr. Qureshi’s motion for summary judgment.

California Court of Appeals

The plaintiffs appealed to the California Court of Appeals. On appeal, the Court of Appeals determined that the trial court abused its discretion by striking Dr. Sinkhorn’s testimony. The appeals court noted Dr. Sinkhorn’s more than thirty years of experience working as an obstetrician-gynecologist, the time he served as a professor at several local medical schools, and the time he spent reviewing Escobar’s medical records. The court determined that he was qualified to testify about whether the defendants’ acts or omissions caused Escobar’s death.

The Court of Appeals also stated that Dr. Sinkhorn’s declaration was sufficient to raise a triable issue of fact as to whether Escobar’s chance of survival would have been more than 50{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} if Dr. Qureshi had taken the proper steps to investigate her symptoms. The court reversed the summary judgment order.