Author Archives: T.C. Kelly

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

Bamboo stick massage

Medical Expert Opinion Ruled Admissible Despite Failure to Examine Patient

Dawn Dawsey sued Carnival and the company that provided spa services for a cruise she took, alleging that her hip was fractured when excessive force was used during a bamboo massage. Each party brought Daubert motions to exclude the expert testimony offered by the opposing party. The judge sensibly decided to admit all the expert testimony and let the jury sort it out.

Treating Physicians’ Testimony

The defendants asked the court to exclude the expert testimony of Dawsey’s treating physicians on the ground that they did not prepare expert reports. The court denied the motion as to all experts who were not providing testimony as to the cause of the fracture, because treating physicians are not generally required to provide reports concerning their diagnosis and treatment.

Plaintiff’s Expert’s Causation Testimony

Dr. Christopher Troiano, an orthopedic surgeon, reviewed Dawsey’s post-cruise medical records and concluded that the massage caused her hip injury. The defendants challenged his methodology, claiming that he had none.

In particular, the defendants complained that Dr. Troiano did not examine Dawsey, did not interview her or read her deposition testimony, relied on “anecdotal” statements that she made to treating physicians who recorded them in her medical records, reviewed only the medical records provided by her attorney, and did not consider other possible causes of the injury.

In effect, Dr. Troiano concluded that, given the absence of evidence of any other traumatic event, the massage must have caused the hip fracture. That opinion is supported by logic, as an expert should not be required to speculate about alternative causes of an injury in the absence of evidence that anything else happened to Dawsey that could have fractured her hip.

The court recognized that Dr. Troiano’s methodology was not ideal and appeared to be on the fence as to whether the doctor’s opinion was admissible. As the judge noted: “Reviewing only medical records selected by the plaintiff’s attorney is problematic, to say the least, especially when the expert does not also review the plaintiff’s medical records from before the cruise or review her deposition testimony.”

The court nevertheless took note of cases holding that a medical expert does not necessarily need to examine a patient before forming an opinion about the cause of an injury. The court concluded that it is the jury’s function to weigh evidence. After cross-examination at trial, a jury might give the expert’s opinion no weight at all. That call, however, is one that should be made by a jury, not a judge.

The court noted, however, that “Dr. Troiano’s opinion testimony on causation is far from strong and barely squeaked by the pre-trial motion to exclude it.” The court decided only that the opinion was admissible. Whether the opinion would be sufficient to support a verdict in Dawson’s favor was an issue the court could not decide until all evidence was presented at the trial.

Defense Experts’ Causation Testimony

The defense experts opined that a bamboo massage cannot result in a broken hip. Dawsey moved to exclude that testimony because none of the experts offered an opinion as to the actual cause of the hip fracture.

The court concluded that the experts were not required to explain how Dawsey’s hip was fractured. They were permitted to criticize the causation testimony of Dawsey’s expert and to opine about inconsistencies in Dawsey’s testimony that made the massage an implausible cause her injury.

Defense Radiologist’s Testimony

Dawsey also challenged the admissibility of Dr. Whiteman’s expert testimony. Dr. Whiteman is a diagnostic radiologist. Dawsey argued that Dr. Whiteman is unqualified because he is not a surgeon and does not treat hip fractures. The court concluded that the radiologist could offer an opinion about causation while noting that Dawsey was free to cross-examine him vigorously about any limitations in his medical training that could affect his credibility.

Dr. Whiteman’s report stated: “I do not know the cause of Ms. Dawsey’s left hip fracture, but it definitely was not caused by the massage.” Dawsey argued that Dr. Whiteman rendered that opinion without considering the amount of force that was exerted as the masseuse “placed a hand under the bamboo stick and against the hip and extended the stick outward to stretch the outer side muscles and hip joints.”

Repeating its ruling that defense experts do not need to pinpoint an alternative cause of an injury, the court noted that the defense has no burden to disprove causation. Rather, a defense expert’s testimony is admissible if it casts doubt on the plaintiff’s theory about the cause of an injury. Since Dr. Whiteman did so, it was up to the jury to determine whether his testimony would undermine Dawson’s theory of causation.

Motel

Conviction Reversed Because Police Officer Gave Inadmissible Expert Opinion in Prostitution Trial

The Mount Laurel, New Jersey Police Department arrested John Salyerds as the result of a sting operation. The police ran an internet ad that allegedly offered prostitution services. Salyerds was arrested in a motel room after he responded to the ad.

The police contended that the ad offered a “$50 short stay special.” Prior to the trial, Salyerds asked the prosecution to produce the ad to which he responded. Salyerds contended on appeal that the prosecution gave evasive responses to his request and never produced it.

The prosecutor made the unlikely claim that the police officers who posted the ad to the internet “did not have access to a printer” and therefore did not print a hard copy. The prosecutor also asserted that the police tried to find the ad before the trial so they could print it, but it had mysteriously vanished from the internet. The trial judge barred any reference to the content of the ad since the ad was not produced in discovery.

Salyerds called the number in the ad and asked for the “$50 special.” He was given a motel room number. Salyerds went to that room and asked for the “short stay special.” An undercover detective told him to put the money on the table. As Salyerds was doing so, the detective went into the bathroom. Armed officers then burst into the room and arrested Salyerds for engaging in prostitution as a patron (purchaser of services).

There was no prostitute in the room. The undercover detective did not intend to provide sex. No touching occurred. The judge nevertheless found Salyerds guilty because he provided money in exchange for sex. Whether the prosecution proved Salyerds’ intent was the key issue at trial.

Officer’s Testimony

During Salyerds’ municipal court trial, the prosecutor asked one of the detectives who was involved in the arrest to explain the meaning of “short stay special.” Salyerds objected that the question called for expert testimony and that the detective had not been designated as an expert.

The municipal judge overruled the objection and said that the detective could explain what the term meant to him. The real question, however, was what “short stay special” meant to Salyerds, not what it meant to a police detective.

The detective testified that a “short stay special” is “an agreement between two people to engage in an act of prostitution under circumstances where they agree to the act and the amount itself.” The detective agreed that “short stay special” is not a common term and testified that his understanding of the term was based on his training and experience as a police officer.

The municipal judge found Salyerds guilty on the strength of that testimony. On appeal from a New Jersey municipal judge’s decision, a defendant is entitled to a new trial before a Law Division Judge. The detective gave the same testimony before the Law Division Judge, who overruled an objection that the testimony constituted an expert opinion.

The Law Division Judge decided that the detective was giving an admissible lay opinion and found Salyerds guilty. Salyerds took another appeal, this time to the New Jersey Superior Court Appellate Division. That court reversed his conviction.

Appellate Ruling

Pretrial discovery obligations in a New Jersey criminal prosecution require identification of expert witnesses and production of either a copy of an expert report or a summary of the expert’s testimony. The prosecution did not comply with that rule. The question on appeal was whether the detective’s opinion was a permissible lay opinion or inadmissible expert testimony.

The term “short stay special” is not self-defining. The term may have different meanings, depending on context. A resort might use “short stay special” to refer to a discounted room price for a weekend getaway. Prostitutes might use the term to mean something very different.

While municipal judges typically allow police officers to give any testimony the prosecution wants to elicit, the Appellate Division paid close attention to the law governing expert evidence. The prosecution offered the detective’s opinion precisely because the detective had more knowledge than the judge about what “short stay special” might mean when that term is used by prostitutes.

Lay opinions might help a judge understand evidence, but New Jersey law confines lay opinions to knowledge acquired through a witness’ perceptions. A witness who simply interprets what the witness saw or heard, without relying on other information, is giving a lay opinion. “It looked to me like he was aiming the gun” is an example of a lay opinion.

Expert opinions, on the other hand, depend on specialized knowledge that is beyond the ken of an ordinary person. The detective testified that his understanding of the term “short stay special” was informed by his training and experience as a police officer. Since the detective relied on specialized knowledge to help the court understand a term of art allegedly used by prostitutes, the detective was testifying as an expert.

Slang Experts

Police officers often testify about their understand of drug jargon in drug prosecutions to explain how a defendant might have understood common words like “rock” (crack cocaine) or “bump” (one gram). They identify numbers jotted on a piece of paper as a “drug ledger.” All of those opinions are based on a claim of specialized knowledge and can only be provided if the prosecution complies with rules governing the admissibility of expert testimony.

The Appellate Division concluded that the trial judge failed to apply the proper legal standard when it ruled that the detective could give a lay opinion about the meaning of a slang term. Since the detective was testifying as an expert, the prosecution’s failure to identify him as an expert witness barred his testimony.

Finally, the court noted that Salyerds engaged in no sexual behavior and did not discuss sex with the undercover officer, except to refer to a “short stay special.” The only evidence of Salyerds’ criminal intent was therefore his use of that phrase. Since Salyerds’ conviction hinged on the detective’s inadmissible opinion that the phrase referred to an act of prostitution, Salyerds’ conviction had to be reversed.

Texas flag and gavel

Attorney-Client Privilege Shields Attorney Communications with Expert Who Is Employed by Party

On occasion, a party in a case will act as his or her own expert witness. When a party proposes to testify as an expert, is the opposing party entitled to obtain communications between the party and the party’s attorney concerning the expert testimony?

Certain communications between a testifying expert and the attorney who retained the expert are discoverable. On the other hand, communications between an attorney and a client are privileged. Which rule controls when the client testifies as an expert?

The Texas Supreme Court tackled that question in In re City of Dickinson. The decision comes down on the side of attorney-client privilege.

Facts of the Case

Hurricane Ike damaged property owned by the City of Dickinson. The city made a claim under its windstorm insurance policy. The city sued Texas Windstorm Insurance Association when the company failed to pay all the insurance proceeds that the city demanded.

Texas Windstorm relied on the affidavit of its corporate representative and senior claims examiner, Paul Strickland, in opposing a summary judgment motion. The affidavit stated facts and also expressed expert opinions. Strickland testified in a deposition that the affidavit had gone through a process of revision based on emails with Texas Windstorm’s attorney.

The city demanded production of those emails, citing a Texas discovery rule that allows a party to obtain all documents “provided to, reviewed by, or prepared by” an expert “in anticipation of a testifying expert’s testimony.” That rule would typically require production of written communications from a party’s lawyer that the expert reviews before preparing a report or affidavit.

Texas Windstorm resisted production of the documents on the ground of attorney-client privilege. Texas Windstorm’s attorney argued that Strickland was the liaison between Texas Windstorm and its law firm. In counsel’s view, the emails were privileged communications between the law firm and its client.

The trial court ruled that Texas Windstorm waived attorney-client privilege by using an employee of its client as an expert witness. Texas Windstorm challenged that ruling with a writ of mandamus. The Texas Court of Appeals ruled that the emails were privileged.

The city petitioned the Texas Supreme Court for mandamus, arguing that the court of appeals abused its discretion in failing to apply clear discovery rules to experts who are also parties to litigation. The conflict between expert discovery rules and attorney-client privilege had not previously been resolved in Texas.

Texas Supreme Court’s Legal Analysis

The supreme court noted that a comment to the expert discovery rule suggested that the work-product privilege does not shield materials prepared by an attorney from discovery when they are shared with an expert. However, the comment suggested that other privileges might still apply.

The supreme court observed that the rule governing discovery from expert witnesses was subject to a broader discovery rule that allows discovery of all materials that are relevant and not privileged. The expert discovery rule creates no explicit exception to attorney-client privilege. Reading the rules together suggests that no discovery of privileged materials (except those covered by work-product privilege) can be obtained from experts.

A question left open by that analysis, however, is whether a client waives attorney-client privilege by designating its own employee as an expert. The expert discovery rule makes no distinction between experts who are retained and those who are employed by a party. The failure to make that distinction might imply that an expert who is employed by a party should have no greater right to shield documents from discovery than an expert who is retained by a party.

Parties are deemed to waive attorney-client privilege when they knowingly disclose facts that would otherwise be privileged. The city argued that Texas Windstorm waived the privilege by using an expert with knowledge that the expert would be subject to the discovery rules that apply to testifying experts.

The supreme court rejected that argument. The rule states that a party “may request” disclosure from experts but does not require the expert to disclose anything. The supreme court decide that the city was entitled to request the emails but Texas Windstorm was not required to provide emails if they were protected by an applicable privilege. Of course, the rule writers would not have compelled parties to make discovery requests, so the use of the phrase “may request” rather than “must request” probably has nothing to do with the obligation of the opposing party to respond to the request.

Texas Supreme Court’s Policy Analysis

The answer comes down to a question of competing values. Do we want parties to give up the important benefits of attorney-client privilege when they use their employees as expert witnesses? Do we want businesses to shield themselves from discovery of materials that influence expert opinions by using their own employees as experts?

To the extent that the Texas Supreme Court engaged in a policy analysis, it focused on the attorney-client privilege as “quintessentially imperative” to the legal system. The privilege assures that lawyers can give candid advice to their clients. While that might be a quintessential imperative, the privilege also assures that the opposing party will never learn the extent to which a lawyer shaped the expert’s opinions when the expert is the lawyer’s client.

Fortunately, while the court’s decision frustrates discovery of attorney communications that may influence or dictate an expert’s opinion when the expert is employed by a party, that loss of discovery is mitigated by the reality that judges and juries recognize the inherent bias of a party’s employee. Parties who use their own employees as experts take a substantial risk thata judge or jury will not regard the employee as a credible witness. Retaining an independent expert reduces the risk that a jury will see the expert as biased. For that reason, parties do not usually use their own employees as critical expert witnesses in litigation.

Florida Supreme Court

Florida Supreme Court Adopts Daubert After Rejecting It

What a difference a judge makes. Or, in the case of the Florida Supreme Court, three newly appointed justices.

On October 15, 2018, the Florida Supreme Court rejected the state legislature’s adoption of the Daubert standard for expert witness testimony. The majority opinion concluded that the standard infringes the jury’s role to determine whether expert testimony is reliable.

Just seven months later, the court ruled that the “grave constitutional concerns” about Daubert’s now “appear unfounded.” What changed in the seven months since the court rejected Daubert? Did the weight of precedent compiled over a mere seven months persuade the court that it had made an incorrect decision? It usually takes years, and often decades of accumulated rulings, before a court disturbs its own precedent.

The only thing that changed is the composition of the court. The 2018 decision was authored by Justice Peggy Quince. Her opinion was joined by Justices Barbara Pariente, R. Fred Lewis, and Jorge Labarga.

Since then, Justices Quince, Pariente, and Lewis have all reached Florida’s mandatory retirement age. They have all been replaced by Gov. Ron DeSantis, creating what the Sun-Sentinel describes as “the most conservative Florida Supreme Court in decades.”

Ironically, Gov. DeSantis championed his appointments as masters of “judicial restraint” who oppose “judicial activism.” Overruling a recent precedent simply because a court wants to move Florida law in a more conservative direction is the very definition of judicial activism.

The Court’s Opinion

The court decided in 2017 that it would not adopt Daubert as part of Florida’s evidence code, notwithstanding the legislature’s desire to do so. The 2018 decision reversed a trial court ruling that applied Daubert.

The court’s newest decision claims not to “readdress” the correctness of its 2018 decision. Rather, the court’s decision reconsidered its 2017 decision not to adopt the Daubert standard.

The court decided to “revisit the outcome of the recommendation on the Daubert amendments.” The court decided that “the ‘grave constitutional concerns’ raised by those who oppose the amendments to the Code appear unfounded.”

To support that conclusion, the court quoted extensively from a dissenting opinion in the 2017 decision. As Justice Labarga noted in dissenting from the new opinion, the court acted “without further input from the Committee or the public.” The court held no new hearings and considered no new evidence. The only intervening change suggesting that the “grave constitutional concerns” identified in 2017 had suddenly become “unfounded” was the addition of three new justices who agreed with the 2017 dissent and saw an opportunity to impose their will on Florida law.

Ramifications of Adopting the Daubert Standard

Whether the Florida court’s judicial activism is wise depends on the reader’s perspective. Florida’s Frye standard has its faults, chief among them its failure to recognize that expert opinions might be well founded even if they are based on new or novel techniques that are not yet generally accepted by the scientific community. Those faults persuaded the U.S. Supreme Court to reject the Frye standard in Daubert.

The Daubert standard also has its faults, including its tendency to force judges who are unschooled in science to evaluate the reliability of scientific methodologies. There is little evidence that judges are more capable of evaluating expert testimony than jurors who might collectively have a stronger background in science than the judge. The decision has been justly criticized for diminishing the importance of juries in civil trials by substituting a judge’s opinion of expert evidence for the community’s opinion as represented by jurors whose duty is to evaluate evidence.

Business lobbyists and the insurance defense industry are the strongest proponents of Daubert because they view it as a shield against “junk science.” They tend to view any science offered by plaintiffs in toxic tort and products liability cases as “junk” if it might cause corporate defendants to lose trials.

Another view of Daubert, however, sees the decision as liberalizing the standard for admitting expert evidence by permitting expert testimony to be heard even if it is based on new or novel methods, provided those methods are reliable. Whichever interpretation of Daubert a court might adopt, it is clear that Daubert has increased the cost of litigation by encouraging Daubert motions that are advanced for strategic reasons, regardless of their merit.

The disparity in those competing views of Daubert explains why different courts have sharply divergent ideas about how Daubert should be applied. Empirical studies suggest that judges are excluding significantly more expert evidence after Daubert than before Daubert, despite the Supreme Court’s stated intent to liberalize the standard for admitting expert opinions.

To the extent that junk science was ever a serious problem in civil cases, studies suggest that judges in civil cases have become less likely to admit expert evidence that is scientifically groundless, whether or not they apply the Daubert standard. In criminal cases, however, junk forensic science remains a problem of crisis proportions. If the adoption of Daubert encourages Florida judges to be skeptical of prosecutors who use unreliable evidence in an effort to prove guilt beyond a reasonable doubt, the Florida Supreme Court’s abrupt “about face” might improve the quality of justice.

OSHA Faults Expert for Failing to Investigate Facts Before Rendering Opinion

A company relied on an expert witness to convince the Occupational Safety and Health Administration (OSHA) that its workplace could not have been made safer than it was at the time of an accident that killed an employee. The expert based his opinion on an understanding of the facts that was not supported by the evidence.

The decision rendered by the Department of Labor affirmed the rejection of the expert’s testimony. The decision serves as a reminder that experts should gain personal knowledge of the facts whenever they can.

Employee’s Death

CSA Equipment is a stevedoring company that loads and unloads cargo from ships. Certain CSA employees at the Port of Mobile in Alabama are tasked with checking large steel coils after they are unloaded from a vessel.

At the time of the accident, forklift operators delivered the coils to one of the warehouse entrances. A CSA employee verified the condition of each coil and determined where it should be stored in the warehouse. The employee then wrote location numbers on the coils so a forklift operator who worked inside the warehouse would know where to take them.

Forklift operators drive in reverse when moving the coils because the coils block their forward view. Their view to the rear is obstructed by the forklift’s counterweight. The forklift emits a beep when operating in reverse and employees who check cargo are instructed to listen for the beep and to get out of the way of oncoming forklifts.

An earlier procedure had employees standing near a yellow safety post as they checked the cargo. They then signaled forklift operators to move in after they completed the checking. The evidence persuaded OSHA that CSA abandoned that procedure, despite objections that its new procedure was less safe, to appease a customer who wanted cargo moved into the warehouse more quickly.

A forklift struck and killed a CSA employee who was checking coils inside the warehouse. After the accident, CSA had its employees check coils immediately after they were unloaded by crane from the vessel. After the crane unloaded four coils, the crane moved away and the employees checked the coils. Then the employees moved away and signaled for a forklift operator to move the coils to the warehouse.

OSHA Proceedings

An OSHA investigation determined that CSA violated a federal law that imposes a duty on employers to maintain a workplace that is “free from recognized hazards.” The hazard that OSHA identified involved CSA’s failure to designate paths for forklift travel that provided the forklift operator with a clear view, exposing employees to the risk of harm while they were checking materials into the warehouse. The citation identified three ways that CSA could avoid the hazard it created.

CSA contested the citation. According to CSA, no paths can be designated for forklift operation because the warehouse configuration changes constantly. The Administrative Law Judge (ALJ) who heard the case agreed with OSHA that one abatement procedure — setting up a “safe area” where employees could check materials into the warehouse without being exposed to unexpected forklift traffic — was feasible and had, in fact, been implemented after the accident.

OSHA appealed the ALJ’s finding, arguing that the proposed abatement procedure created hazards of its own. OSHA remanded the case and directed the ALJ to make specific findings regarding that defense.

CSA Expert Witness

There was no dispute that, at the time of the employee’s death, CSA recognized that forklifts created a hazard to its employees. The only question was whether a feasible and effective means existed to reduce the hazard.

CSA relied on the expert testimony of Eustis John Faulk. In her first decision, the ALJ found Faulk’s testimony to be unreliable because she regarded his opinion that “you couldn’t conduct cargo handling operations unless you had people on the ground and you had machines in the immediate area” to be in conflict with evidence that CSA had “in fact” separated the employees from the forklifts at the dock under its post-accident checking procedure.

OSHA instructed the ALJ to reconsider whether Faulk’s testimony nevertheless established that the proposed abatement procedure continued to place employees at risk. The judge reviewed the testimony again, describing it as “speculative, hyperbolical, and not grounded in the facts established by the undisputed testimony of the eyewitness who actually observed and experienced the pre-accident and post-accident operations at issue.”

The ALJ faulted the expert for failing to inspect the work site before rendering his opinion. The ALJ rejected the expert’s “idealized” explanation of how coils were unloaded and moved inside the warehouse because he assumed that coils were unloaded, checked, and moved away from the checking area one at a time, when witnesses testified that coils frequently “backed up,” creating a hazardous environment for employee who checked the coils.

The ALJ also faulted the expert for testifying that the new system posed its own hazards because workers who check the coils stand under the cranes as the coils are unloaded. Witnesses who actually worked at the site testified that workers wait until the coils are unloaded and the crane moves away before approaching them.

The ALJ concluded that the expert “manifested a stubborn refusal to acknowledge the actual pre-accident and post-accident operations as established by eyewitnesses.” It is not clear where the expert got his information, but he did not get it from personal observation. The ALJ credited the testimony of witnesses who actually viewed the worksites before and after the accident, rather than the testimony of an expert who apparently never saw the worksite that he described.

The ALJ again found that creating a safe work area for checking coils was a feasible and effective means of reducing the risk of workplace accidents. CSA again appealed, but OSHA affirmed that decision. This time, OSHA agreed that “Faulk ignored contradictory testimony from the three eyewitnesses, all of whom had personally observed the coil-checking procedures.” OSHA therefore rejected the claim that the ALJ had no basis for discrediting Faulk’s expert testimony.

Lesson Learned

Experts must apply their expertise to real-world facts. Sometimes they have no choice but to rely on facts supplied to them by the party that hires them. When facts are in dispute, experts can base an opinion on one view of facts while acknowledging that they are not deciding which view of the facts is true. Resolving disputes of fact is the task of judges and juries, not expert witnesses.

Experts should nevertheless be wary of relying on facts that have no support in the evidence. Faulk could not have known about working conditions at the accident site on the day of the accident, but his reliance on an “idealized” view of the facts was suspect in the absence of any dispute that coils “backed up” as they were brought to the warehouse.

More troubling is Faulk’s failure to assess the risks associated with the post-accident procedure that CSA implemented. Whenever possible, an expert should gain personal knowledge of the facts that the expert relies upon in testifying.

If Faulk had visited the worksite and seen employees standing under the crane, his expert opinion would have carried more weight. Basing an opinion on facts that do not actually exist damages an expert’s credibility, particularly when the expert could have investigated the worksite and based an opinion on his own observations, rather than making assumptions about risks that did not actually exist.

Texas flag and gavel

Texas Supreme Court Reverses Decision that Expert’s Standard of Care Opinion Was Conclusory

Appellate courts often arrive at conflicting conclusions about the sufficiency of expert testimony to identify a standard of care and its breach in a medical malpractice lawsuit. The recent case of Windrum v. Kareh in Texas illustrates the danger of taking the evaluation of expert testimony away from juries, which have primary responsibility for deciding whether expert evidence establishes a physician’s breach of a standard of care.

Facts of the Case

Lance Windrum was in a parking lot when he suddenly became disoriented and confused. His speech was slurred and he was having problems with his balance. An ambulance took him to a medical center, where he had a CAT scan and an MRI. Windrum reported that he had suffered from two similar but milder episodes in recent weeks. He also reported that he suffered from encephalitis when he was six years old.

The MRI suggested that Windrum had aqueductal stenosis, a narrowing of the aqueduct that carries cerebrospinal fluid through the brain. Aqueductal stenosis can cause hydrocephalus, a condition in which excess cerebrospinal fluid builds up within cavities inside the brain, potentially increasing pressure within the skull.

There are various kinds of hydrocephalus. A neurologist, Dr. Harpaul Gill, diagnosed Windrum’s condition as compensated obstructive hydrocephalus. That condition is characterized by partial or full blockage of the aqueduct, causing the brain to compensate for the increased pressure. The condition is usually treated by inserting a shunt to relieve the pressure.

Dr. Gill recommended surgery to insert a shunt. He referred Windrum to Dr. Victor Kareh, a neurosurgeon. The next day, Dr. Kareh met with Windrum, who was no longer experiencing any symptoms. Dr. Kareh did not review Windrum’s medical history, but decided to insert a ventricular drain rather than a shunt and to monitor Windrum’s intracranial pressure for the next 24 hours.

Windrum was released from the hospital after 24 hours of monitoring because the pressure did not redevelop during that time. About two months later, he had additional symptoms. A new MRI revealed that his aqueductal stenosis had worsened. Dr. Gill did not inform Dr. Kareh of that result.

About a week after the MRI, Windrum died in his sleep. An autopsy attributed his death to complications of hydrocephalus due to acqueductal stenosis.

Lawsuit and Appeal

Windrum’s wife, on her own behalf and on behalf of her children, sued Dr. Gill and Dr. Kareh for Windrum’s wrongful death. A jury found that both doctors were negligent. The jury assigned 20% of the fault to Dr. Gill and 80% to Dr. Kareh. The jury awarded Windrum’s wife and children more than one million dollars in damages.

Dr. Kareh appealed, arguing that the expert evidence was insufficient to establish that he breached the applicable standard of care by failing to install a shunt in Windrum’s brain. The Texas Court of Appeals agreed, reversing the judgment against Dr. Kareh. Over four dissenting votes, the court refused to grant en banc review of its decision. The Texas Supreme Court granted review of the lower court’s decision to determine whether the experts’ opinions regarding breach of the standard of care were, as the court of appeals concluded, “conclusory.”

Challenge to Expert Testimony

As is true in other states, a medical malpractice plaintiff in Texas must prove that a negligent medical professional caused harm by breaching the standard of care that the professional should have followed while treating the plaintiff. The standard of care is what an ordinarily prudent doctor would have done under the same circumstances.

Expert testimony is nearly always required to prove the standard of care. Texas court decisions require specific expert evidence of what the defendant should have done differently. Conclusory opinions that the defendant did something wrong do not establish a breach of the standard of care.

An expert’s opinion is conclusory if it has no basis or explanation. The medical expert’s role is to justify an opinion that the standard of care was breached by reference to specific facts accompanied by an explanation of why the defendant’s breach caused the patient’s injury. There must also be evidence of the specific facts upon which the expert relies.

Dr. Robert Parrish, a neurosurgeon, testified as an expert on behalf of Windrum’s family. Dr. Parrish reviewed Windrum’s medical records, the autopsy report, and the deposition testimony of Windrum’s treating physicians. Dr. Parrish also reviewed information in medical textbooks and literature. He testified that he based his conclusions on that information as well as on his experience treating patients with hydrocephalus and other conditions causing pressure inside the skull.

Dr. Parrish concluded that Windrum’s MRI revealed “classic symptoms” that called for the insertion of a shunt. He therefore opined that inserting a shunt was the appropriate standard of care and that Dr. Kareh’s failure to do so was a breach of that standard.

The court of appeals faulted Dr. Parrish because he cited no specific medical literature stating that inserting a shunt is the appropriate standard of care for treating the specific symptoms that Windrum exhibited. The court decided that Dr. Parrish’s opinion was conclusory because it was merely his opinion rather than an opinion that could be found in medical literature

The Expert’s Role in Explaining a Standard of Care

The Texas Supreme Court rejected the court of appeals’ narrow view of the facts upon which a medical expert must rely in defining a standard of care. Medical experts are entitled to rely on their training and experience when they form an opinion. Dr. Parrish testified that he instructs medical students in neurosurgery and that the recognition and treatment of hydrocephalus, including the use of a shunt, is part of his hospital’s teaching program.

Dr. Parrish explained the structure of the brain, the way in which aqueductal stenosis causes obstructive hydrocephalus, and the potential consequences of not treating the condition with a shunt. Dr. Parrish explained why he disagreed with defense expert opinions that there was no evidence of pressure on Windrum’s brain, including testimony that there was no evidence of pressure on Windrum’s optic nerve.

While Dr. Parrish could point to no medical literature supporting his view that the absence of pressure on the optic nerve could easily be explained by scar tissue preventing the pressure from reaching the back of the eye, he testified that it is widely known in the medical field that the absence of evidence of pressure on the optic nerve cannot be taken as proof that no intracranial pressure exists. Dr. Parrish’s experience qualified him to opine about facts that are widely known in the profession, even if those facts do not appear in textbooks.

Substantial portions of Dr. Parrish’s opinions, if not his ultimate conclusion as to the standard of care, were expressly supported by medical literature. He also explained why alternative causes of death (including a “brain-eating virus”) suggested by defense experts were unlikely. His explanation referred to specific symptoms that would accompany those conditions that Windrum did not have.

Dr. Parrish ultimately relied on evidence that Windrum had slurred speech, was staggering, and had MRI results that revealed aqueductal stenosis. The totality of the symptoms and test results, in Dr. Parrish’s view, would have convinced a prudent neurosurgeon that Windrum was suffering from obstructive hydrocephalus that needed to be relieved with a shunt.

Supreme Court Reinstates Verdict

The court of appeals made the mistake of concluding that an opinion as to a standard of care is only valid if the standard has been described by researchers or medical textbook authors. The reality is that the various combinations of symptoms that doctors treat are so vast that each potential standard of care will not always be discussed in medical literature.

Dr. Parrish articulated his reasoning and the facts upon which he based his opinion. He did not make the unsupported statement that “I know what the standard of care is and Dr. Kareh breached it.” Nor did he testify that “this injury would not have happened if Dr. Kareh had not been negligent” with nothing more.

Since Dr. Parrish’s opinion was not conclusory, it was up to the jury to evaluate it. When medical experts disagree about a standard of care, it is the function of the jury, not the judge, to resolve that disagreement. Since the jury was entitled to believe Dr. Parrish and to reject the opinions of the defense experts, the court of appeals erred in reversing the judgment. The Supreme Court accordingly reinstated the jury’s award of damages.

Amtrak train

Expert Testimony Excluded in Amtrak Crash Trial

The exclusion of expert evidence likely contributed to a not guilty verdict for a driver who was accused of causing a crash with an Amtrak train. Dana Naylor, Jr. was charged with involuntary manslaughter after an Amtrak train crashed into the garbage truck he was driving.

The crash occurred near Crozet, Virginia. A co-worker in Naylor’s truck was killed and another was injured. Some Republican legislators who had chartered the train suffered minor injuries.

The prosecution obtained a grand jury indictment before the National Transportation Safety Board (NTSB) completed its investigation of the accident. The NTSB recently released a document claiming that “video from the train shows the truck driving around the gates.” That video was not introduced as evidence at Naylor’s trial. Train operators, however, testified that Naylor drove around the barriers.

The defense contended that Naylor’s garbage truck was already on the track before the barriers came down. A defense witness who lives near the crossing testified that “safety arms at the crossing have malfunctioned in the past, and they don’t seem to activate with enough time when high-speed passenger trains are coming through.”

The NTSB and the waste disposal company that employed Naylor tried to recreate the accident by driving a similar garbage truck around the barriers. They discovered that it was impossible to drive the truck around the barriers after they were already down.

If the barriers were not functioning properly, fault for the accident may rest with the train company, which has a duty to maintain the barriers. The final NTSB report has not been released, so whether the NTSB drew any conclusions about the operation of the barriers is unclear.

If the barriers began to descend after the truck was already entering the tracks, that malfunction might explain why the video would show Naylor apparently “driving around the gates.” He may have been maneuvering to avoid having his truck hit by a descending barrier.

DUI Evidence

Naylor had also been charged with a crime known colloquially as “DUI maiming.” The prosecution’s theory was that Naylor was under the influence of THC, the active ingredient in marijuana. A small amount of marijuana was found in a lunch pail inside the truck.

The DUI maiming charge required evidence that Naylor was under the influence of THC. Shortly after the accident, the police obtained a warrant to take a blood sample from Naylor. The warrant was supported by an officer’s doubtful claim that Naylor “smelled like beer.” Subsequent testing of Naylor’s blood showed no presence of alcohol, suggesting that the police obtained the warrant under false pretenses in a routine fishing expedition for evidence of a crime.

The blood test did show the presence of THC, prompting the prosecutor to allege that Naylor was driving under the influence of THC, the active ingredient in marijuana. The prosecution hoped to rely on the testimony of Dr. Jayne Thatcher, a forensic toxicology expert, to prove its case.

Expert Testimony Excluded

Dr. Thatcher’s testimony was offered to prove that Naylor was under the influence of THC. Her testimony would also have been relevant to the manslaughter charge if she could establish that Naylor placed lives at risk while driving under the influence.

Naylor’s defense lawyers moved to exclude the testimony. Testifying outside the presence of the jury, Dr. Thatcher conceded that the presence of THC in blood does not establish that a driver was under the influence of marijuana. “You cannot say whether or not a person was impaired based on toxicology,” Dr. Thayer testified.

Thatcher nevertheless relied on a study that purported to show that “71 percent of participants with 2.5 to 5 nanograms per milliliter of THC in their blood samples were found to be impaired when fulfilling three different performance tests.” Studies in controlled environments, however, have little relevance to real-world driving. When a study compared driving by someone who smoked a controlled amount of marijuana to someone who smoked a placebo, smoking marijuana had no significant effect on vehicle handling, driving in traffic, traffic observation, or turning.

Even taken at face value, the study that Dr. Thatcher relied upon would demonstrate that almost 30% of marijuana users with a high concentration of THC in their blood were not under the influence of marijuana. The study offered no way to establish whether a particular test subject was or was not impaired without conducting other tests.

Dr. Thatcher’s admirable honesty about the limits of science should be a model for all testifying experts. The court granted the defense motion to exclude her testimony because she forthrightly acknowledged that she could not say whether Naylor was or was not impaired by marijuana when he was driving. The prosecution was forced to dismiss the DUI charge and the jury found Naylor not guilty of manslaughter based on the ambiguous admissible evidence.

Marijuana

Conviction Reversed Because Police Officer Gave Unreliable Expert Testimony

As is common in other states, the maximum sentence for a drug crime in South Carolina is tied to the quantity of drugs involved in the crime. For most drugs, quantity is measured by weight. Possessing ten pounds of marijuana is classified as a serious drug trafficking crime in South Carolina, while the penalties for possession of fewer than ten pounds are less severe.

While it might seem that the weight of a drug would be an uncontroversial fact, drug quantities are often subject to dispute. For example, marijuana weighs more at the moment it is harvested than it weighs after the plants and their buds lose water in the process of drying. Apart from questions about whether police officers have their thumbs on the scale when weighing marijuana, weight is something that can change over time.

Daniel Herrera was charged with possessing (and because of the quantity, “trafficking in”) 10 pounds, 2.78 ounces of marijuana. Had he been charged with possessing three fewer ounces, he would have been tried for a less serious crime.

South Carolina classifies drug trafficking as a violent crime, whether or not the crime involves violence. Defendants convicted of violent crimes in South Carolina must serve a larger percentage of their sentence than other offenders before they are eligible for parole.

Herrera denied that he knowingly possessed any marijuana at all. He also challenged the admissibility of the testimony about the weight of the marijuana that was given by the state’s expert witness, a police officer. The trial court allowed the testimony and Herrera was convicted. He renewed his challenge to the expert testimony on appeal.

The South Carolina Court of Appeals affirmed the conviction without giving serious attention to Herrera’s challenge to the expert testimony. The South Carolina Supreme Court accepted review of the court of appeals’ decision and reversed the conviction.

Expert Testimony

Herrera picked up a package at the post office containing six bags of suspected marijuana. The police arrested Herrera and charged him with drug trafficking. Herrera claimed he did not know that marijuana was in the package, a claim the jury rejected.

In most drug cases, prosecutors prove that the defendant possessed an illicit drug by calling a crime lab analyst who has a background in chemistry. The lab analyst will testify that one or more tests were conducted to confirm the identity of the suspected drug.

The Scientific Working Group for the Analysis of Seized Drug (SWGASD) recommends that the analysist conduct at least two tests, one of which should meet the “gold standard” for testing (such as infrared spectroscopy). When the best tests are not available, the SWGASD recommends conducting three independent tests, two of which should be in the “second best” category of drug identification tests.

According to the National Academy of Sciences, marijuana is usually identified by two of the “second best” tests — thin-layer chromatography and low-powered microscopic identification, as well as a presumptive color test. The presumptive color test is often used as a field test to support probable cause for an arrest, but the color test returns too many false positives to be reliable proof of drug identity.

While the SWGASD standards permit marijuana to be identified by its morphological characteristics, its standards require both microscopic or macroscopic examination of the suspected drug. When visual (including microscopic) examination is used to identify marijuana, SWGASD recommends that the identification be made by a botanist.

To prove that the package seized from Herrera contained marijuana and that the marijuana weighed more than ten pounds, the prosecutor relied on the testimony of Detective Jared Hunnicutt. Hunnicutt is not a botanist. The trial court decided that Hunnicutt was qualified to testify, despite having no scientific training, based on his training and experience.

Hunicutt’s training consisted of attending a single course in drug identification sponsored by a law enforcement group. His experience consisted of arresting people for suspected marijuana crimes.

Admissibility of Hunnicutt’s Expert Testimony

Remarkably, the supreme court decided that Hunnicutt’s qualifications as an “expert” presented a “close question.” The trial judge expressed discomfort in ruling that Hunnicutt had the qualifications of an expert, but ultimately acceded to the prosecutor’s questionable contention that police officers have more knowledge about the appearance of marijuana than jurors.

Like many other appellate courts, the supreme court decided the question of the officer’s qualifications in favor of the prosecution with scant attention to the foundation for Hunnicutt’s alleged expertise. Courts too often defer to a police officer’s claim that “I know marijuana when I see it” without considering SWGASD standards or National Academy of Sciences recommendations for drug identification testimony — standards that legitimate experts would understand and follow.

The court drew a line, however, when it considered Hunnicutt’s testimony about the weight of the marijuana. The prosecutor promised the trial judge that Hunnicutt would testify as an expert only as to drug identification, then broke that promise by asking Hunnicutt if he “tested” and “analyzed” the marijuana.

The judge sustained defense objections but apparently grew weary as the prosecutor continued to ask improper questions. The judge eventually allowed Hunnicutt to testify that he weighed the marijuana at the police department and that the marijuana weighed more than ten pounds.

Expert Standards for Weighing Drugs

Given the importance of weight to the charged crime, the supreme court concluded that the trial judge erred by allowing Hunnicutt to testify about the weight of the marijuana. Hunnicutt did not calibrate the scales he used to weigh the marijuana and had no personal knowledge of when or whether the department’s evidence technician had done so. A real expert would have used precise measuring instruments that had been recently calibrated to assure that the measurement of weight was accurate.

In addition, Hunnicutt weighed the drugs while they were inside the bags that held them. Packaging materials are not drugs and, with rare exceptions, the weight of packaging materials cannot be considered when measuring drug quantity.

Hunnicutt purported to account for the weight of the six baggies holding the drugs by weighing a different baggie that he found at the police department and multiplying that weight by six. It is fair to say that the supreme court was appalled by Hunnicutt’s “expert” methodology. The weight of a baggie that was “similar” in appearance to the bags that held the marijuana had no relevance to the actual weight of the marijuana minus the packages that held it.

Police officers are notoriously sloppy expert witnesses. Their unsound methodologies reflect their inherent bias in favor of the shared goals of police and prosecutors. Why the prosecution did not use a crime lab analyst or an independent expert to weigh the drugs is unclear, but its decision to rely on Hunnicutt to prove its case resulted in the reversal of Herrera’s conviction.

Comedian microphone

Judge Rules Elayne Boosler Cannot Testify as an Expert in Conan O’Brien Joke Theft Trial

Experts testify about a wide range of subjects, but experts in telling jokes rarely take the witness stand. A writer suing Conan O’Brien was hoping to call Elayne Boosler as an expert witness to help him prove that O’Brien stole jokes that the writer had authored. The jury will likely hear testimony from some funny people, but a judge recently disallowed the request to call Boosler, as well as a more traditional expert — a statistician — as witnesses in the trial.

Conan O’Brien Lawsuit

The lawsuit was filed by Robert “Alex” Kaseberg, a freelance comedy writer who has sold jokes to Jay Leno and other comedians. He also tells jokes on his blog and Twitter.

According to Kaseberg, some of those jokes ended up in O’Brien’s monologues. The jokes referenced in the lawsuit concerned the Washington Monument, Tom Brady, Caitlyn Jenner, and the target of every traveler’s furious joking, Delta Airlines.

The Delta joke was excluded from the lawsuit after O’Brien produced email evidence proving that his joke was created hours before it appeared on Kaseberg’s blog. Kaseberg added a fifth joke to the lawsuit but the court eventually excluded the joke because it was insufficiently similar to the one O’Brien told.

The lawsuit claims that O’Brien infringed Kaseberg’s copyright interest in the jokes by telling them without attribution and without compensating Kaseberg. In addition to O’Brien, defendants include network owner Time Warner and cable station TBS, which broadcasts the “Conan” show.

O’Brien asked the court to throw out the lawsuit, but the similarity between jokes that O’Brien told and jokes that Kaseberg blogged or tweeted is sufficiently strong to raise the inference that the jokes were stolen. O’Brien’s defense is that he (or his writing team) created the jokes independently, without knowledge of Kaseberg’s creations.

Expert Evidence

Kaseberg proffered the testimony of two expert witnesses. Rule 702 of the Federal Rules of Evidence and the Daubert decision impose limits on a party’s right to rely on expert testimony while recognizing the need to prove facts with witnesses who have specialized knowledge that jurors will usually lack.

Does joke telling require specialized knowledge? Nearly everyone tells jokes, although some joke tellers are obviously better than others. Comedians give more thought to what makes a joke funny than most people, so their insights might be include the kind of specialized knowledge that would qualify them as joke experts.

The trial will not address whether the jokes at issue are funny; the issue is whether they were stolen. Whether expert evidence would be helpful to the jury in deciding that issue was the question before the court.

Statistical Evidence

Kaseberg wanted to present the testimony of David Barsky, a statistician who analyzed the “pattern” of jokes created by Kaseberg that appeared in Conan monologues to determine “whether this pattern suggested that this might be a chance occurrence.” O’Brien challenged Kaseberg’s methodology, arguing that he adopted Kaseberg’s definition of O’Brien jokes that are “similar” to his own without conducting an independent analysis of similarity.

One might argue that no expertise is required to know whether one joke is similar to another. Under those circumstances, agreeing with Kaseberg is not necessarily the same as deferring to Kaseberg.

The judge, however, adopted a skeptical stance toward “statistics created in anticipation of litigation.” The judge echoed other courts that have criticized statistical models that are prepared with litigation in mind.

It seems a bit silly to fault Kaseberg for not preparing a statistical model to analyze jokes before he was hired to do so. Why would he (or any other statistician) engage in an apparently random statistical exercise until there was a reason to do so? The fact that an expert did not devise a model for analyzing statistics until the expert was hired to do so should usually be seen as a credibility issue that a jury should consider.

The reliability of the statistical model and the data to which it was applied is a more troubling question. The court faulted the expert for making assumptions about the number of jokes that Kaseberg told each day, given that O’Brien’s expert came up with a different number. Kaseberg’s expert also based his opinion on the existence of five similar jokes while the court determined that only three similar jokes remain at issue in the case.

Errors in assumptions that drove the statistical model would affect the reliability of the analysis, but the expert did not correct those errors. However, whether they actually were errors or simply differences of opinion might be seen as an issue for the jury, not the judge, to resolve.

The largest problem with the statistician’s opinion, and the problem that doomed it, was its failure to address a meaningful issue. The statistician’s opinion about the odds of overlapping jokes occurring was not tethered to the issue the jury needed to resolve.

Two joke writers who make jokes about current events have some likelihood of telling similar jokes about the same newsworthy events. The statistician’s model could not evaluate whether two similar jokes were or were not created independently. Since independent creation is the key issue in a copyright infringement lawsuit, the statistician’s opinion about a “pattern” of similar jokes would do little to enlighten the jury. The court excluded the opinion for that reason.

Elayne Boosler

Kaseberg wanted to call comedienne Elayne Boosler as an expert in the similarity of the jokes told by Kaseberg and those told by O’Brien. In particular, she would have testified that the jokes are objectively the same because they share the same premise and punchline.

While the court agreed that Boosler is an expert at telling jokes, her ability to determine that one joke is similar to another is no greater than a typical juror’s. Comparing the content of two jokes is something an average person can do as capably as a professional joke teller.

A conclusion that requires no expert analysis is unhelpful to juries. Boosler’s opinion would have amounted to telling the jury what decision to reach. Since that is not the proper function of expert witnesses, the court disallowed Boosler’s testimony.

Ohio wooden Mallet

Medical Expert’s Unsupported Testimony that Suspect Shook a Baby Causes Reversal of Ohio Conviction

Chantal Thoss was convicted of felonious assault in an Ohio court. The only evidence supporting her conviction came from an expert witness. Because the expert overstepped the boundaries of acceptable expert testimony, the Ohio Court of Appeals reversed the conviction.

Trial Evidence

A police officer was dispatched to a home in response to a call concerning an injured baby. Thoss was babysitting in the home. She was distraught. She told the officer that she placed the baby on a couch and left to get a diaper. She heard a thud and the baby screamed. When she returned, she discovered the baby on the floor. He was on his back and his leg was raised and propped against the couch.

Thoss told the officer that the baby’s head snapped back and hit her shoulder when she lifted him. Later, his head began to bobble. He stopped moving and became silent. Thoss called 911 and gave the same information to the dispatcher. The officer had no reason to suspect foul play.

Paramedics soon arrived and took the baby to a hospital for treatment. The treating physician spoke to Thoss and the mother, noting that both were distressed and concerned about the baby’s condition. He saw nothing to suggest the baby had been abused.

A police detective questioned Thoss later in the evening. She provided the same information, albeit in more detail, since the detective asked her more questions than the responding officer.

The detective asked Thoss if she shook the baby and Thoss denied abusing the baby in any way. The officer was aggressive in his questioning but Thoss steadfastly denied that she had shaken the baby. She expressed her fear that she may have harmed the baby inadvertently by picking him up quickly, causing the baby’s head to snap back.

The baby was not yet rolling over or sitting up, but could kick and scoot himself in circles on the floor by using his legs. The detective wondered how the baby fell from the couch if the baby could not roll over. Thoss hypothesized that the baby slid off the leather couch while he was kicking.

The baby was flown to Mercy Hospital in Toledo to treat his intracranial bleeding. He began to have seizures the next day. At the time of trial, two years later, the child was still taking seizure medication. Nerve damage also made it difficult for the child to speak.

The baby was six months old when Thoss called 911. The baby’s mother had been disregarding instructions to bring the baby in for wellness checks after the baby was about one month old.

The detective learned from Dr. Randall Schlievert, Director of Mercy Hospital’s Child Abuse Program, that the child had prior brain bleeds. While that evidence could be indicative of earlier child abuse, the detective conducted no investigation to determine whether other individuals could have been abusing the baby.

Prosecution Expert

Dr. Schlievert testified as a prosecution witness. He described the many symptoms that doctors once identified as evidence of “shaken baby syndrome.” He testified that caregivers usually shake babies because they are frustrated that the baby is crying. He acknowledged that he had no evidence that the baby had been crying. Dr. Schlievert nevertheless attributed the baby’s injury to Thoss having shaken the baby.

Based on a 1993 study of children who fell from cribs or hospital beds, Dr. Schlivert opined that a fall from the couch would not have caused a brain injury. Dr. Schlivert identified another brain injury that was one to several weeks old, but ruled it out as a cause of the baby’s brain damage because the baby exhibited no signs of brain damage until Thoss called 911.

Dr. Schlievert concluded that the baby’s retinal hemorrhages were consistent with shaken baby syndrome, although he admitted that he did not know when the hemorrhages occurred. He acknowledged that they might have occurred a month before Thoss called 911.

Dr. Schlievert acknowledged that whether a prior brain injury makes a baby more susceptible to a new brain injury is a question that divides physicians. Based on the absence of studies that would contradict his opinion, he thought it was unlikely that serious symptoms would develop from a minor injury even if the minor injury aggravated a preexisting injury.

Defense Expert

Dr. Marcus DeGraw, a child abuse pediatrician, testified for the defense. He agreed that the baby suffered from two distinct injuries. He concluded that the second injury occurred on the date the 911 call was made and that the first injury occurred about two weeks earlier.

Dr. DeGraw testified that as a brain injury heals, the pocket of blood between the brain and the skull causes weakness that makes the brain more susceptible to further injury. A modest impact that would not injure a healthy brain can cause severe injury to a brain that has been weakened by an earlier injury.

Dr. DeGraw testified that falling from a couch could have caused sufficient trauma to injure the baby’s brain, given the preexisting brain injury. Dr. DeGraw testified that Dr. Schlievert’s opinion gave insufficient weight to the first brain injury.

Significantly, Dr. DeGraw faulted Dr. Schlievert for overstepping the bounds of an expert witness by acting as a prosecution advocate. Dr. Schlievert knew nothing about the cause of the first injury, which was never investigated, but blamed Thoss for injuring the baby. Dr. Schlievert was not present when the injury occurred and had no way to know what Thoss did or did not do.

Appellate Court’s Review of Evidence

Appellate courts almost always defer to a jury’s assessment of competing expert testimony in a criminal prosecution. In Ohio, however, appellate courts have the power to sit as a “thirteenth juror” and to set aside verdicts and order a new trial when the finding of guilt beyond a reasonable doubt is against the manifest weight of the evidence. Although appellate courts rarely substitute their judgment for that of the jury, this was an appropriate case in which to do so.

The prosecution’s case rested entirely on the expert testimony of Dr. Schlievert. Thoss made no damaging admissions and no witness observed whether the baby was shaken or fell from the couch. Nothing in the evidence suggested that Thoss was the kind of caregiver who would respond to crying by shaking a baby. In fact, nothing in the evidence suggested that the baby was crying or that Thoss had any reason to shake the baby.

Dr. Schlievert’s opinion that a short fall from a couch would not cause brain damage was based on studies that failed to address babies who had prior traumatic brain injuries. The studies failed to provide adequate data to support Dr. Schlievert’s opinion, given uncontradicted evidence that the baby suffered from earlier brain trauma.

Dr. Shlievert acknowledged, and Dr. DeGraw confirmed, that it was impossible to determine the onset date of the baby’s retinal hemorrhage. The presence of a retinal hemorrhage therefore had no relevance to the allegation that Thoss shook the baby.

The court noted that neither the treating physician nor the first investigating officer suspected abuse, that the detective’s aggressive questioning failed to uncover evidence of abuse, and that Thoss’ prompt decision to call 911 and to go to the hospital was inconsistent with an intent to harm the baby. It was only Dr. Schlievert’s opinion that triggered a criminal prosecution, and that opinion was contradicted by an equally qualified expert who explained why the evidence made it impossible to assess blame.

While juries usually resolve conflicts in expert testimony, Dr. Schlievert’s opinion alone was simply not sufficient to overcome reasonable doubt provided of Thoss’ innocence. While the court was unwilling to stay that the prosecution failed to prove guilt beyond a reasonable doubt, the court decided that the conviction was against the manifest weight of the evidence. The court therefore reversed the conviction and granted Thoss a new trial.

Lesson Learned

The appellate court expressed dismay that after Dr. Schlievert expressed the opinion that the baby had been shaken, all investigation stopped. Ignoring the weak factual basis for Dr. Schlievert’s opinion, the police and prosecution immediately decided that Thoss was guilty and did not examine important questions, including the source of the earlier brain injury. A full investigation may have exonerated Thoss.

As Dr. DeGraw explained, the job of a medical expert is to interpret injuries, to explain how they might or could not have occurred, and to place them within a time frame. Doctors are not criminal investigators, regardless of how they are portrayed on television. The doctor’s job is not to blame a particular person for causing an injury. Dr. DeGraw and the appellate court appropriately faulted Dr. Schlievert for identifying Thoss as the person who caused by baby’s injuries.

Experts who serve the prosecution play a vital role in the criminal justice system. The reversal of Thoss’ convictions stands as a reminder that experts must also serve justice. When Dr. Schlievert went beyond his legitimate role as an expert witness, he encouraged a jury to ignore other evidence and to convict a suspect who was likely innocent. Identifying suspected child abuse is important, but fixating on the guilt of one suspect without examining evidence that is inconsistent with that fixation renders an expert an advocate for the prosecution rather than a neutral source of expert information.