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.

Forensic Expert Helps Exonerate Innocent Man Convicted Because of Discredited Bitemark Evidence

Steven Chaney was added to the National List of Exonerations after the Texas Court of Criminal Appeals declared that he was “actually innocent” of two murders. Chaney served 31 years in prison based largely on discredited bitemark evidence.

Chaney’s conviction was initially affirmed by an appellate court that said no more than this about the bitemark evidence: “Medical testimony strongly indicated that appellant inflicted the bitemarks on the victim’s forearm.”  The decision reflects the unfortunate willingness of judges to accept forensic evidence offered by prosecutors at face value.

Years later, Chaney’s defense team relied on expert testimony to free him from his unjust conviction and sentence. The Texas Court of Criminal Appeals agreed that Chaney is innocent and vacated his conviction, giving long-delayed justice to Chaney.

Police Investigation

John and Sally Sweek were stabbed to death in 1987. Oddly, the couple who observed the Sweeks’ bodies through their apartment window called a number of people to report their discovery but waited nearly two hours to call the police.

Crime scene investigators found shoeprints, boot prints, and multiple bloody fingerprints. They also found Chaney’s fingerprint on a wall near the kitchen, but there was no blood on that print. Investigators also found an apparent bitemark on John’s arm.

Investigators quickly learned that the Sweeks were drug dealers. Juan Gonzalez, the Sweeks’ supplier, was identified as a person of interest. The police ruled out Gonzalez without investigating his alleged connection with the “Mexican Mafia” and without determining whether his cowboy boots could have caused the boot prints at the crime scene.

The police were provided with a drug ledger that allegedly showed the names of people who owed money to the Sweeks. Chaney’s name was in that ledger, along with several other people, including members of the Sweeks’ family.

A caller who wanted to remain anonymous told the police that Chaney purchased cocaine from the Sweeks several times a week. The caller, later identified as Curtis Hilton, suggested that Chaney might have been responsible for the murder since he suddenly had money after the Sweeks died.

Police investigators eventually learned that Hilton owed Chaney money, but that motivation to frame Chaney apparently played no role in their assessment of the information he provided. They developed no evidence to corroborate the claim that Chaney had money after the murder.

After receiving that call, the police became laser-focused on proving Chaney’s guilt rather than following all the evidence and investigating other suspects. Police officers who decide to prove that their theory is correct rather than keeping an open mind are often responsible for wrongful convictions.

Chaney’s Trials

Hilton gave conflicting testimony before and during Chaney’s first trial. The court ultimately declared a mistrial because the prosecution had failed to disclose Hilton’s prior statements to the defense. The court concluded that the police had withheld those statements from the prosecution, a finding that should make no difference since the prosecution has a duty to obtain all exculpatory evidence in the possession of police officers.

The prosecution immediately recharged Chaney, although with only one of the two murders. Hilton again testified, and again told a different story about his interactions with Chaney.

Testimony suggested that some of the shoeprints at the crime scene “might have” been left by Chaney because the prints were made by tennis shoes and Chaney, like most people, owned tennis shoes. A forensic serologist who tested Chaney’s shoes found an “unknown substance” that “might have been” blood. The serologist admitted that the test she used can return false positives and that, if the substance was blood, she could not say that it was human blood.

The prosecution offered evidence of Chaney’s partial thumbprint on a wall, which was about three feet above the floor. The prosecutor speculated that Chaney left the print when he bent over the dead bodies. The defense noted that Chaney had been in the apartment several times and may have left the print while bending over to pet the Sweeks’ dog. The defense also argued that the prosecution failed to identify multiple bloody fingerprints that were likely left by the killer.

The investigating detective testified that he interviewed Chaney, that Chaney asked him at the beginning of the interview whether the detective wanted to talk about the murder, and that Chaney said without being prompted that he had an alibi. Since the murder was highly publicized and Chaney had purchased cocaine from the Sweeks on several occasions, it is not surprising that Chaney would assume that the police wanted to ask him about the murder. Chaney did, in fact, call a number of witnesses who accounted for his whereabouts throughout the day of the murder.

Bitemark Evidence

The prosecution bolstered its remarkably weak case with evidence of the bitemark on the victim’s arm. A forensic odontologist, Dr. James Hales, testified that the bite mark was a “perfect match” with Chaney’s teeth, that there were no inconsistencies, and that the odds of any other person leaving the bitemark were one in a million. He also testified that the bitemark was made at the time of the murder. All of those opinions were utter nonsense, but the evidence was damning because it placed Chaney at the scene when the victims were murdered.

A second forensic odontologist, Dr. Homer Campbell, testified that the bitemark actually consisted of four separate bites, and that Chaney was the one who bit the victim. In its closing arguments, the prosecution emphasized that the testimony of Drs. Hales and Campbell provided the strongest evidence of Chaney’s guilt.

Habeas Proceedings

Decades after his conviction was affirmed on appeal, Chaney sought habeas corpus, a procedure that can be used to challenge the validity of convictions that have been finalized. His petition was based in part on a 2013 Texas law that allows convicted defendants to challenge convictions based on an intervening change in scientific understanding of the evidence that the prosecution relied upon in support of a conviction.

The habeas court recognized several important changes in the science of bitemarks, including:

  • Forensic odontologists no longer believe it is acceptable to conclude that a bite “matches” a suspect’s teeth when the number of people who might have caused the bite is unknown.
  • Forensic odontologists no longer use the word “biter” to describe a suspect.
  • The expert opinions that Chaney made the bitemarks would not be offered by a well-trained forensic odontologist today.

The habeas court based those findings on unrefuted expert testimony and on guidelines published by the American Board of Forensic Odontology. The Board became more professional in its approach to science after bitemark evidence was sharply criticized by the President’s Council of Advisors on Science and Technology and by a National Academy of Sciences report.

Apart from the difficulty of making a precise measurement of bitemarks, given that skin can expand or contract in the area of a bite, unscrupulous prosecution “experts” sometimes stretched or squeezed skin until the bite took a form that they could identify as a match. Even ethical experts at the time of Chaney’s conviction failed to acknowledge that their methods were unsupported by peer-reviewed research.

Bitemark evidence is so unreliable that the Texas Forensic Science Commission voted in 2013 to recommend that its use in Texas criminal prosecutions be suspended. The opinion of the Texas Court of Criminal Appeals in Chaney’s case summarizes the current state of bitemark science and explains how studies have demonstrated its unreliability.

Many forensic experts who testified in the past subsequently revised their opinions about the reliability of bitemark comparisons they made. To his credit, Dr. Hales acknowledged that his opinions were probably wrong and that the bitemark could have occurred two or three days before the victim’s death. And to its credit, the State conceded that its bitemark evidence proved nothing.

During its closing argument in Chaney’s trial, the prosecutor admitted that he would not have pursued an indictment against Chaney in the absence of bitemark evidence. The Court of Criminal Appeals had no difficulty deciding that Chaney would not have been found guilty in the absence of the unfounded bitemark testimony.

The court also agreed that Hales’ testimony that only “one in a million” individuals could have produced the bitemark on the victim’s arm was false and misleading. Hales admitted that he simply made up that testimony. Since the Constitution prohibits using a lie to convict a defendant, that admission also required Chaney’s conviction to be set aside.

Chaney Released from Prison

The Court of Criminal Appeals’ decision explores other flaws in Chaney’s conviction, including a pattern on the part of his prosecutor of concealing evidence that pointed to his innocence. In addition, DNA testing excluded Chaney as the source of the skin found under the female victim’s fingernails and of the DNA in all other testable evidence found at the crime scene.

The State’s recent investigation identified two suspects belonging to a drug cartel who probably committed the murder. Given all of the evidence, the Court of Criminal Appeals determined that Chaney is actually innocent of the murder. The court ordered his release from prison. Since he has been found innocent, he cannot be retried.

Should Blood Splatter Experts Be Excluded Under Daubert?

Fans of the CSI shows know that forensic experts can provide valuable evidence to help convict the guilty. Criminal defense lawyers know that forensic experts can help innocent defendants avoid conviction by exposing junk science relied upon by prosecutors.

Examples of junk science that lead to wrongful convictions include bite mark comparisons, hair analysis, and ballistic tests. The National Commission on Forensic Science had undertaken the important work of documenting the use of junk science in criminal courts until the Justice Department under former Attorney General Jeff Sessions decided not to renew its mandate.

That more work needs to be done was made clear by a recent ProPublica investigation of blood splatter experts. While judges in Daubert states insist upon rigorous scientific validation before admitting expert testimony in civil cases, judges have consistently allowed blood splatter experts to testify in criminal cases without requiring proof that their opinions are based on a reliable methodology and sufficient facts.

The Birth of Blood-Splatter Analysis

Blood-pattern analysis was popularized by Herbert MacDonell in the 1970s. After setting up the unaccredited Laboratory of Forensic Science in his basement and naming himself its director, MacDonell began traveling around the country in a quest to convince prosecutors that he had refined a forensic technique that would help prove the guilt of criminal suspects.

MacDonell soon began to earn a living by setting up Bloodstain Evidence Institutes and teaching 40-hour courses in blood-pattern analysis. He opened the course to anyone who wanted to take it, including police officers who had no scientific training. He gave certificates to students who passed. Of course, her certified nearly all of his students as experts.

According to the Texas Court of Appeals, “MacDonell’s studies are based on general principles of physics, chemistry, biology, and mathematics, and his methods use tools as widely recognized as the microscope.” An appropriate response to that observation might be, “So what?” There is a vast difference between citing “general principles of science” and applying specific principles as part of a reliable methodology that produces accurate results.

The court apparently believed that blood-splatter analysis is reliable because MacDonell and the prosecutors who relied upon him assured the court that MacDonell’s techniques were reliable. Courts accepted those assurances without demanding validation. No studies in peer-reviewed journals concluded that blood-splatter analysis achieves predictable outcomes. As ProPublica notes, the dubious science of reconstructing a crime based on blood patterns nevertheless swept through the nation’s criminal courts, revealing “the startling vulnerability of judges, and juries, to forensics techniques, both before, and after, they’ve been debunked.”

Courts continued to allow blood splatter experts to testify even after a 2009 report by the National Academy of Sciences (NAS) found that “the uncertainties associated with bloodstain pattern analysis are enormous,” and that experts’ opinions were generally “more subjective than scientific.” Courts largely ignored that report, and MacDonell continued to testify as the field’s leading expert until 2012, when he was accused of sexually assaulting two minors. He retired that year.

Criticism of Blood Splatter Analysis

The groundbreaking NAS critique of forensic sciences concluded that blood-pattern analysis may have some value, but that complex overlapping patterns are easily mistaken for simple patterns. The NAS report notes that “in many cases their interpretations are difficult or impossible.”

The report explains that patterns blood might make when exiting a wound are “highly variable” and will depend, among other factors, upon the particular damage done to soft tissues, the motion of the body after the wound is inflicted, and the impact of gravity on blood as it exits a wound. Blood-splatter experts often lack sufficient data to make an informed judgment, and many experts “extrapolate far beyond what can be supported” by the physical evidence.

According to the NAS, the interpretation and reconstruction of blood stains requires, at a minimum, an understanding of applied mathematics, the physics of fluid transfer, and the pathology of wounds. Yet most crime scene analyists who testify as “experts” in blood-splatter analysis are police officers who have no scientific education at all, much less an understanding of applied mathematics, physics, and wound pathology. The NAS specifically notes that workshops are not an adequate substitute for knowledge gained through scientific training, experimentation, and experience.

The report also criticized organizations that purport to “certify” bloodstain experts based on a certain number of training hours. Certifications are awarded to people (usually police officers) who have no scientific education and who have not demonstrated a mastery of the “rigorous and objective hypothesis testing” and “complex nature of fluid dynamics” that is essential to the formation of reliable opinions about the cause of blood patterns.

In the end, the report notes, “the opinions of bloodstain pattern analysts are more subjective than scientific.” Yet courts around the nation have been bamboozled into admitting prosecution-oriented evidence from police officers who are deemed to be experts on the basis of meaningless certificates awarded by training institutes that exist solely to make money.

The Future of Blood Splatter Expert Evidence

Concluding that the “uncertainties associated with bloodstain pattern analysis are enormous,” the NAS report recommends a methodology that includes “many experiments . . . to determine what characteristics of a bloodstain pattern are caused by particular actions during a crime and to inform the interpretation of those causal links.” Rare will be the police officer “expert” who conducts any experiments at all.

While enthusiasm for Daubert was driven by business and insurance interests that lost civil trials due to expert testimony they believed to be founded on “junk science,” courts have been slow to apply Daubert to the shaky forensic science upon which criminal prosecutions are often built. Defense attorneys should nonetheless mount vigorous challenges in Daubert states to the unreliable methodology and insufficient data that underlies most expert blood-splatter testimony. In non-Daubert states, attorneys should use the NAS report and experts of their own to challenge the qualifications of a police officer who has no scientific education beyond completion of a blood pattern course.

Given the judicial reluctance to screen dubious evidence in criminal prosecutions, defense attorneys should also engage qualified experts, including experts in fluid dynamics and science methodology, to discuss flaws in the conclusions drawn by prosecution experts. Whenever the prosecution relies upon dubious experts, the defense should counter with reliable experts who can help juries understand the difference between real science and junk science.

Administrative Agency Rejects Expert Testimony Concerning Metadata in Audio Recordings

Metadata (the electronically stored data in digital photographs and recordings) has become an increasingly important source of information for attorneys. Expert witnesses who understand metadata are frequently called upon to explain the hidden properties of digital data to courts and administrative agencies.

An administrative appeal in New Jersey addressed metadata (or its absence) in audio recordings. The digital recordings were only admissible if they were authentic — that is, if they were genuine and unaltered copies of the original digital recordings. The question before the agency was whether the failure to reproduce metadata in the original recordings precludes the admission of copies into evidence.

Nature of the Case

The New Jersey Department of Banking and Insurance began an enforcement proceeding against John Savadjian alleging eight violations of New Jersey insurance regulations. The allegations involved transfers of life insurance policies to new company representatives without the policyholder’s knowledge or consent.

The Department also alleged that Savadjian forged a number of insurance documents. The Department later amended its charges to allege that Savadjian impersonated other people when contacting Prudential Insurance for the purpose of obtaining policyholder information that he used to transfer accounts to his son without the policyholders’ knowledge.

Prudential has a computerized system that automatically records telephone calls. Prudential supplied the Department with a spreadsheet identifying the dates and times of the calls allegedly made by Savadjian. Digital copies of the calls were embedded in the spreadsheet.

Savadjian asked Prudential for copies of the recordings with their original metadata. The metadata on the recordings that were copied to the spreadsheet showed only the dates on which the recordings were downloaded from Prudential’s system, not the dates on which the recordings were made. Prudential refused to produce the original recordings and the Department moved forward without obtaining them.

Authentication of Recordings

Evidence offered as an exhibit must be authenticated — that is, it must be shown to be what it purports to be. Under New Jersey law, audio recordings must be authenticated by proving (among other requirements) that the recordings accurately reproduced the recorded conversation and that the recordings were not subsequently altered.

Audio recordings are usually authenticated by the person who made the recording. That person can testify that he or she participated in the recorded conversation and that the recording of that conversation is accurate and unchanged.

In this case, the recording was made by a computer, not by a person. The Department did not rely on testimony of the various Prudential employees who participated in the conversations to authenticate them. Instead, it planned to call the Director of Prudential’s Criminal Investigation Division, who listened to the original recordings and prepared the spreadsheet. However, Prudential fired the Director ten days before the hearing.

The Department called a different employee of Prudential, Charles Shanley, to provide the authentication testimony. Shanley testified that he listened to each original recording and compared them to the recordings on the spreadsheet to assure that the spreadsheet contained authentic copies.

After considering an expert opinion about metadata in the recordings, the ALJ was not satisfied that the recordings were authenticated. The ALJ therefore declined to admit the recordings as evidence. The Department appealed that ruling to the Commissioner of the Department.

Expert Opinion

On appeal, the Commissioner concluded that Shanley’s testimony established that the copies of the recordings embedded in the spreadsheet were identical to the recordings that existed on the date the spreadsheet was created. Shanley’s testimony that he compared the originals to the copies was sufficient to satisfy that aspect of authentication.

More problematic was the necessity of proving that the recordings that were copied to the spreadsheet were unaltered and accurately captured the conversations between the caller and the Prudential employees. Savadjian relied on the opinion of digital forensics expert Tino Kyprianou to cast doubt on the recordings’ authenticity.

Kyprianou pointed out that the metadata attached to the original recordings was missing from the copies embedded in the spreadsheet. He regarded the failure to supply the metadata as a “deletion” of data and concluded that the files embedded in the spreadsheet were altered in a way that compromised or destroyed their original properties.

In addition, the user manual for the recording system indicates that recordings captured by the software can be modified. Suspicion that the original recordings were altered may have been fostered by Prudential’s refusal to produce the original recordings, including their metadata, in their native format.

Commissioner’s Decision

On appeal, the Commissioner focused on the audio content of the recordings rather than the metadata. While the ALJ was concerned that the missing metadata raised concerns about the trustworthiness of the original recordings, the Commissioner noted that the burden of authenticating evidence is rather low.

In the absence of any evidence that the voice recordings (as opposed to the metadata) were altered in any way, the Commissioner was satisfied that the identical copies (except for the metadata) were sufficiently authenticated by Shanley’s testimony. While not rejecting the expert’s testimony that the copies did not contain the metadata present in the original recordings, the evidence that needed to be authenticated was the recordings of the conversations, not the metadata. The Commissioner accordingly ruled that the ALJ should have admitted the spreadsheets containing the recordings.

Expert Attacked for Opinions Unrelated to His Field of Expertise

The extent to which an expert witness’ controversial beliefs may be used to impeach the expert, when the beliefs are unrelated to the expert’s testimony, was spotlighted in a ProPublica report concerning Dr. David Ayoub. Dr. Ayoub is a radiologist who often testifies as an expert in child abuse cases.

Credibility Attacked

Dr. Ayoub’s credibility has been attacked on cross-examination because he believes that efforts to increase vaccination rates in poor countries are part of a conspiracy to control third-world population growth by giving allegedly dangerous vaccines to children. While Dr. Ayoub once accused the Gates Foundation of promoting infanticide, the accusation misconstrues the position taken by those organizations. The Gates Foundation and the World Health Organization, among other entities, hope that vaccinations will reduce infant mortality and thus reduce the incentive for parents to have large families in the hope of some of their children will grow to adulthood.

Dr. Ayoub’s credibility was also challenged because he supported the “anti-vax” movement based on his concern that vaccinations contain mercury and other metals that contribute to autism. While a compound containing mercury has been used as a vaccine preservative, its link to autism has not been clearly established, and has been ruled out by some studies. According to the Centers for Disease Control and Prevention, the single-dose vials that contain vaccines administered in the United States contain no preservatives, and the multiple-dose vials that are often distributed in poor countries are highly unlikely to cause autism.

Dr. Ayoub became the medical director for two anti-vaccination groups. He acknowledges that his views about the link between vaccinations and autism place him on the fringe of medical opinions, and his views about the use of vaccinations to commit infanticide (from which he has at least partially retreated) place him on “the fringe of the fringe.”

Everyone is entitled to an opinion. The question is whether an expert’s credibility should be attacked by fringe opinions that have no relevance to the subject matter of the expert’s testimony.

Relevance and Credibility

There is a difference between controversial opinions about the subject matter of an expert’s testimony and controversial opinions about unrelated matters. For example, an Australian hematologist who has testified as an expert witness in child abuse cases maintains that some alleged cases of shaken-baby syndrome (a controversial condition that has often been misdiagnosed) are vaccine-related. Cross-examination of that opinion can fairly be based on the fact that most experts disagree that vaccinations are at all harmful to children.

But Dr. Ayoub’s testimony relates to medical conditions that make bones fragile to explain how injuries might be unrelated to child abuse. The tendency to mistake the cause of a fracture as child abuse rather than bone disease is well established. Dr. Ayoub’s views on vaccination have nothing to do with that testimony.

The risk of allowing an expert to be cross-examined regarding controversial beliefs (as Dr. Ayoub was in a Maryland trial) is that the jury will discount his expert testimony simply because they disagree with the expert’s beliefs about issues that are not relevant to the expert opinions he expressed. The fact that a witness might hold controversial opinions about an unrelated subject should not be used as proof as the expert cannot testify credibly about any subject. After all, we don’t let lawyers ask witnesses who they voted for in the last election in the hope that half of the jurors will disbelieve the witness because he or she voted for the “wrong” candidate.

Trustworthiness of Expert Opinions

Attacks upon an expert’s credibility generally focus on the expert’s qualifications, bias, methodology, reasoning, or the adequacy of the facts upon which an opinion is based. Those attacks are relevant to the specific opinion about which the expert testifies.

Attacks on credibility should not be confused with attacks on character. As a general rule, the credibility of any witness, including an expert, can be attacked with evidence that the witness is not a trustworthy individual, but only if the evidence is relevant to the witness’ truthfulness.

Under the federal rules, evidence of bad character is not generally relevant to credibility unless it relates to a character for truthfulness. If a white supremacist testifies against a nonwhite party, for example, the witness’ repugnant views about race would be relevant to establish his or her bias, but not to prove that the witness is a bad person and therefore unworthy of belief.

The fact that an expert holds unorthodox beliefs about subjects that are unrelated to the expert’s testimony will not usually be relevant to an expert’s truthfulness or bias. It is difficult to understand how an expert’s beliefs about vaccinations in a case that has nothing to do with vaccinations is relevant to the expert’s trustworthiness.

The lesson to learn from ProPublica’s conflation of Dr. Ayoub’s writings about vaccinations and his expert testimony about bone disease is that lawyers should be prepared to address anything in an expert’s background that may prove to be controversial. If an opposing party might attack an expert’s credibility at trial because of controversial opinions that are unrelated to the expert’s testimony, lawyers may want to raise that issue prior to trial by seeking an order barring cross-examination about irrelevant matters that have no bearing on the expert’s truthfulness.

Judge Allows Experts to Testify in Case Alleging that Asbestos in Railroad Cars Caused Mesothelioma

Nancy Little sued The Budd Company in a Kansas federal court, alleging that Budd manufactured and sold railroad cars that caused her father’s mesothelioma. Little’s father worked for a railroad. For many years, he was exposed to pipe insulation that contained asbestos.

The Budd Company moved to exclude the testimony of two expert witnesses. Dr. Arnold Brody was offered as an expert in general causation. Dr. Barry Castleman was offered as an expert in industry knowledge of the risks of asbestos. Budd made no challenge to the testimony of the pathologist Little planned to call to prove specific causation.

The court denied the motion to exclude Dr. Brody’s testimony. The court generally allowed Dr. Castleman’s testimony about industry awareness but did not allow him to testify about the specific knowledge that Budd may or may not have had about the health risks associated with asbestos.

Dr. Brody’s Expert Opinion

Dr. Brody is a professor of pathology who has focused his research on how asbestos causes lung disease. Dr. Brody’s report examined tests of animals that inhaled asbestos and demonstrated that asbestos fibers inhaled by humans and by animals come to rest in the same part of the body. Dr. Brody also demonstrated that the cells affected by asbestos fibers are the same in both animals and humans.

Dr. Brody’s expert report explains how asbestos fibers cause mesothelioma. The report explains that repeated exposures to asbestos increase the likelihood of developing mesothelioma, and that each exposure above background level contributes to the development of the disease. Exposure to asbestos is the only known cause of mesothelioma.

Dr. Brody explained that no exposure can be excluded as a cause of mesothelioma. The consensus of scientific opinion is that no exposure above background levels is too low to induce mesothelioma.

Relevance of Dr. Brody’s Opinion

Budd did not challenge Dr. Brody’s qualifications to render an expert opinion. It instead contended that his opinion was irrelevant and unreliable. Budd’s relevance objection was based in part on the fact that Dr. Brody did not assess the impact of asbestos inhalation on Little’s father. However, since Dr. Brody was offered as an expert in general causation — that is, whether asbestos inhalation is capable of causing mesothelioma — his unfamiliarity with Little’s father did not affect the relevance of his opinion.

Budd also claimed that Dr. Brody’s opinions were not relevant because they were based on animal testing rather than human testing. Since Dr. Brody explained that animals and humans share the same cells that are affected by asbestos, and since researchers cannot ethically induce mesothelioma in human test subjects, animal testing was a reliable substitute for human testing. Budd’s objections went to the weight of Dr. Brody’s testimony rather than its admissibility.

Reliability of Dr. Brody’s Opinion

Budd claimed that Dr. Brody would testify that every inhalation of asbestos fibers above background exposure could cause mesothelioma. Budd argued that there is no known threshold of exposure that causes mesothelioma, rendering Dr. Brody’s opinion unreliable.

The court rejected Budd’s argument because it mischaracterized Dr. Brody’s opinion. Dr. Brody’s report explained that there is a dose-response relationship between asbestos and mesothelioma. The more asbestos a person inhales, the more likely it is that the person will acquire mesothelioma.

Once a person acquires mesothelioma, however, it is not possible to exclude any exposure as a causative factor, because each exposure contributes to the disease. No exposure above background levels is “too low” to contribute to the disease, so every exposure must be viewed as adding to the total dose of asbestos that caused a patient’s mesothelioma.

The court differentiated Dr. Brody’s testimony about general causation from testimony that a specific exposure to asbestos was a substantial cause of a specific individual’s mesothelioma. Since Dr. Brody’s testimony explained the disease process and did not address specific causation, and since his testimony was based on widely-accepted scientific research, the testimony was reliable and therefore admissible.

Little planned to call a pathologist to provide an expert opinion regarding specific causation. Budd complained that Dr. Brody’s testimony was therefore cumulative and unnecessary. Given that toxic tort defendants have spent years convincing courts that plaintiffs must prove both general and specific causation, it seems disingenuous to argue that it is cumulative to call separate experts to prove those separate facts. The court denied the motion to exclude Dr. Brody’s testimony.

Dr. Castleman’s Expert Opinion

Dr. Castleman has a Doctor of Science degree in Health Policy. He has conducted comprehensive research into asbestos as a public health problem. His report reveals that the railroad industry knew by the 1930s that asbestos was a lethal material and knew by the 1940s that inhaling asbestos could cause lung cancer.

Budd asserted a “state of the art” affirmative defense. It intended to prove that its railroad cars were as safe as they could have been at the time of their manufacture. Little proposed to call Dr. Castleman as a rebuttal witness to refute that defense.

Challenges to Dr. Castleman’s Testimony

The court rejected Budd’s argument that Dr. Castleman’s testimony would confuse the jury and waste time. Budd placed the state of the art in issue by raising the affirmative defense. Little was entitled to introduce evidence to counter that defense.

Budd argued that Dr. Castleman is not a medical doctor and is thus unqualified to interpret the literature upon which his opinion is based. However, Dr. Castleman did not propose to offer diagnostic or causation testimony. As an expert in public health, he was well qualified to explain “the historical development of knowledge regarding the health hazards of asbestos.” The court recognized that an expert does not necessarily need a medical degree to understand medical literature.

The court agreed with Budd that Dr. Castleman had no specific knowledge about what Budd actually knew about the health risks of asbestos when it built the railroad cars. The court cited cases suggesting that Dr. Castleman should not be allowed to testify about what Budd “should have known,” but since Dr. Castleman was allowed to testify about publicly available knowledge, his testimony would certainly allow the jury to infer that Budd should have known about the dangers of asbestos, even if Dr. Castleman cannot articulate that inference himself.

Finally, Budd argued that Dr. Castleman cannot establish that the medical articles upon which he relied were reliable. Dr. Castleman did not propose to vouch for the reliability of the studies. Published studies are nevertheless relevant to the state of knowledge about disease processes. Since medical studies are the type of data that experts in public health routinely rely upon in discussing the progress of medical knowledge, Dr. Castleman was entitled to use them as the basis for his expert opinion.

FTC

FTC Experts Fail to Persuade Judge that DIRECTV Advertising Was Deceptive

The Federal Trade Commission (FTC) relied on the testimony of two expert witnesses in bringing an unsuccessful claim of deceptive advertising against DIRECTV. The judge’s analysis of the expert testimony sheds light on how experts may need to design consumer surveys to satisfy federal judges.

The FTC’s Claims Against DIRECTV

The FTC sued DIRECTV to enforce two federal laws that protect consumers from unfair or deceptive advertising and marketing practices. The FTC did not contend that DIRECTV made false statements in its advertising, but federal law regards advertising as deceptive when an advertiser “hides” information that would be important to a consumer’s purchasing decision by failing to disclose it before the purchase is made. In addition, federal law requires online vendors to obtain a consumer’s informed consent before making recurring charges to the consumer’s credit card.

In the FTC’s opinion, DIRECTV violated those laws by advertising its satellite television services without disclosing that:

  • the introductory price only lasts 12 months;
  • the subscriber must agree to receive services for 24 months;
  • a subscriber who cancels before the end of the 24 months is charged a fee of $20 per month for the remaining months of the agreement; and
  • a subscriber who requests a “free” premium channel (like HBO) for 3 months must cancel the channel before the 3-month period ends to avoid further charges.

DIRECTV advertised its services on television, through internet banner ads that (if clicked) would lead consumers to its website, in circulars that were distributed in Sunday newspapers or mailed directly to consumers, and by a variety of similar advertising tactics. Much of the FTC’s case was based on the contention that when DIRECTV disclosed the terms mentioned above, it buried them in fine print or hid them behind hyperlinks.

To prove that DIRECTV violated the law, the FTC needed to establish that a reasonable consumer’s net impression of DIRECTV’s purchase terms, after reviewing DIRECTV’s advertising, would have been more favorable than the actual terms. For example, if a consumer’s net impression would be that the introductory offer could be cancelled at no charge after 12 months when, in fact, DIRECTV would charge a cancellation fee, the advertising would be misleading.

To prove that DIRECTV’s advertising would cause reasonable consumers to have an inaccurate net impression of DIRECTV’s purchase terms, the FTC relied on expert testimony. Dr. Tülin Erdem conducted an online survey that asked respondents to view a print advertisement that DIRECTV distributed in 2013. She testified that the advertisement was representative of other DIRECTV ads.

Court’s Analysis of the DIRECTV Print Ads

Before reaching the survey results, the court noted its own impression of the ad. The judge (who presumably reads ads with greater care than average consumers, particularly when the ads are introduced as trial exhibits) thought the ad sufficiently disclosed that the promotional price for a 24-month contract would only last 12 months and that a $20 per month cancellation fee would be charged if a customer cancelled the contract before it ended.

Those disclosures appear at the bottom of the ad in print that is considerably smaller than the promotional price, which is prominently advertised as lasting for 12 months. The judge nevertheless thought that consumers would read the entire ad because deciding upon a particular DIRECTV package requires consumers to consider a wealth of information. The judge cited no evidence to support his view that consumers read fine print before making complicated decisions.

The judge accepted that it was not possible for DIRECTV to disclose the price increase that consumers would face after the 12-month promotional price ended because DIRECTV had not yet decided what fee it would charge in the following year. The judge accordingly concluded that failing to disclose the price increase in advance was not deceptive. By that logic, DIRECTV could impose an outrageous price hike and consumers, having no reason to suspect that prices could increase so dramatically, would nevertheless be stuck paying a $20 per month cancellation fee for services they were no longer receiving.

Expert Testimony – Dr. Erdem

Since experts survey ordinary consumers, not federal judges who closely scrutinize exhibits offered in lawsuits, the court was required to consider Dr. Erdem’s opinion about how a consumer who received a DIRECTV ad in the mail would have understood it. Dr. Erdem presented survey participants with the original ad and with an ad that she modified to disclose the contract terms more conspicuously. She found that the modified ad increased consumer understanding of the terms.

The court concluded that the survey did not reveal whether the original ad was likely to mislead reasonable consumers based on the net impression that the ad created. The court agreed with DIRECTV that changing the ad did not test whether the original ad was misleading. The survey did not test the overall impression of consumers, which was the relevant question. The fact that the ad could have been better didn’t mean that the existing ad violated the law.

The court faulted Dr. Erdem for not doing a deception study that would have tested the overall impression that consumers draw from the ad. The court also faulted Dr. Erdem for lumping together participants who said they “did not know” the contract terms and those who “did not remember” the terms.

Because Dr. Erdem asked no follow-up questions, she could not determine whether a participant’s failure to recall the contract terms was related to the way information was presented in the ads. Nor could she determine whether participants who did not recall the terms had formed an incorrect impression of the terms after reading the ad.

Finally, the court was skeptical of the value of a web-based survey that focused on a print ad. A consumer reading the ad could view it as a whole and read the fine print by looking at the bottom of the page. A survey participant needed to scroll to reach the disclosures.

While it seems reasonable to believe that survey participants who are asked to look at an ad on a computer screen would scroll through the ad, the court thought that survey participants might not realize that it was important to read the entire ad and therefore might not do so. Of course, people who receive newspaper flyers might not realize it is important to read the fine print at the bottom of the ad, which was the point Dr. Erdem tried to make when she testified that “a majority of consumers don’t read the fine print.” The court was unimpressed by that testimony.

Expert Testimony – Dr. Patkanis

Dr. Anthony Pratkanis also testified for the FTC as an expert witness. He discussed general principles of “social influence,” including the principle that making a “lowball” offer — an initially discounted price or a free gift — will induce consumers to purchase goods or services, even if the price will later increase.

Dr. Patkanis pointed to two representative print ads that employed a lowball strategy by calling attention to the promotional price by using a large font and a brightly colored background while relegating the less favorable terms to a small black font against a white background at the bottom of the page.

Favoring his own impressions over those of Dr. Patkanis, the court concluded that the ads were not deceptive. The court gave “minimal weight” to Dr. Patkanis’ testimony because he conducted no surveys to determine whether the ads were likely to confuse consumers and because some of his testimony (such as his opinion that consumers would regard a “slashed out” price as the regular price) were not supported by empirical research.

Web-Based Ads

Given the court’s reliance on its own understanding of the advertisements and its disagreement with the analysis offered by the expert witnesses, the court ruled against the FTC and concluded that the DIRECTV print ads were unlikely to deceive ordinary consumers. The court reserved judgment, however, with regard to DIRECTV’s website.

Dr. Erdem’s consumer survey regarding the website supported her conclusion that the website created a net impression that deceived consumers. The court noted that the website conspicuously disclosed that the 12-month discounted price was offered as part of a 24-month contract, but other significant details (including the early cancellation fee) were only revealed by hovering over an “offer details” link.

Consumers had to click through other pages to make a purchase, but full details continued to be hidden behind links. While those links were labeled “additional offer details,” nothing called attention to the importance of those details. Even the shopping cart page hid critical information behind a “terms and conditions” link.

Victory for DIRECTV

The court had not yet heard DIRECTV’s evidence when it evaluated the testimony of the FTC experts. Although it was willing to dismiss the FTC’s claims regarding the print ads, it deferred its ruling regarding the website until hearing all the evidence, including the testimony of DIRECTV’s experts. At the same time, the court observed that the FTC’s evidence that various iterations of the website were misleading was “far from overwhelming.”

Probably seeing that the handwriting was on the wall, the FTC decided to dismiss the case. Since it was seeking a judgment of $4 billion, the dismissal represented a significant victory for DIRECTV, and may have provided an object lesson in how experts should design surveys that might satisfy federal judges.

Toxic Chemical

Third Circuit Affirms Exclusion of Expert Testimony Regarding Fear of Enhanced Cancer Risk

Robert Morris sued Consolidated Rail Corporation for exposing him to vinyl chloride, a toxic chemical. Morris suffered no long-term physical harm, but sued for expenses he alleged he would incur to monitor his medical condition and for emotional distress. The emotional distress claim was based on his fear that the exposure would cause cancer later in his life.

The trial judge excluded evidence from Morris’ expert witness regarding his need for medical monitoring and fear of cancer. The jury agreed that Consolidated had exposed him to a toxic chemical but, in the absence of evidence that his harm was more than temporary discomfort, awarded him only $500 in damages. The Court of Appeals for the Third Circuit affirmed the trial court’s decision to exclude the expert testimony and thus affirmed the $500 judgment.

Facts of the Case

The lawsuit arose after a freight train derailed while crossing a bridge in New Jersey, releasing about 20,000 gallons of vinyl chloride into the atmosphere. The National Cancer Institute explains that vinyl chloride “is associated with an increased risk of a rare form of liver cancer (hepatic angiosarcoma), as well as brain and lung cancers, lymphoma, and leukemia.”

The train apparently derailed because the swing-span bridge was not in a locked position. In the year before the accident, the National Transportation Safety Board received 23 complaints from train crews about the failure of the bridge to close and lock. Consolidated owned the bridge and the train that derailed while crossing it.

Morris was enveloped by a cloud of vinyl chloride after the derailment. He sued Consolidated and retained Dr. Omowummi Osinubi to determine whether he had any medical conditions associated with the exposure and whether he would benefit from a medical monitoring program.

Dr. Osinubi prepared an expert report. He concluded that Morris faced an increase in the risk of liver cancer due to his exposure to vinyl chloride and that annual weight-loss and lifestyle coaching would reduce that risk.

Consolidated moved to exclude Dr. Osinubi’s testimony on the ground that it was not supported by a reliable methodology. The trial court granted the motion. While Consolidated also argued that Morris could not prevail at trial without Dr. Osinubi’s testimony, the trial court allowed the case to proceed to trial based on Morris’ own testimony concerning the pain and suffering that resulted from his exposure to a toxic chemical.

Daubert Hearing

The trial court conducted a Daubert hearing before excluding Dr. Osinubi’s testimony. For reasons that are not made clear in the appellate opinion, Dr. Osinubi did not attend the hearing. The outcome of the case may have been different if Dr. Osinubi had been present to defend his methodology.

Consolidated relied on the testimony of its own expert, Dr. Douglas Weed, who agreed that exposure to vinyl chloride increases the risk of liver cancer, but faulted Dr. Osinubi’s report for not making clear that it only increases the risk of a specific type of liver cancer.

More problematic is that Dr. Osinubi’s report relied on data about the increased cancer risk caused by chronic exposure to vinyl chloride, while Morris was exposed to vinyl chloride only once and for a short period of time. Dr. Weed opined that the specific kind of liver cancer caused by vinyl chloride exposure only results from prolonged exposure to higher levels of of the chemical than Morris experienced.

Dr. Weed complained that Dr. Osinubi’s report failed to reveal that Dr. Osinubi reviewed scientific literature and failed to explain what criteria, if any, she relied upon in rendering her opinion. Dr. Weed faulted Dr. Osinubi’s methodology as “devoid of reliability” and contended that her opinions amounted to personal subjective views rather than reliable scientific evidence.

Appellate Opinion

The Court of Appeals rejected Morris’ argument that the trial court departed from its gatekeeping role when it declared its intention to make sure that the toxic chemical exposure caused Morris’ injuries. The Court of Appeals concluded that Morris took that comment out of the context provided by the entirety of the trial judge’s remarks during the Daubert hearing.

The trial judge stated that he was not attacking Dr. Osinubi’s opinions but was asking whether she used a recognized method to arrive at those opinions. The trial court based its decision on the absence of any study linking short-term exposure to vinyl chloride to an increased risk of liver cancer. In her deposition, Dr. Osinubi admitted that no such studies existed.

The Court of Appeals thought it was significant that Dr. Osinubi failed to consider more than forty studies that Dr. Weed brought to the court’s attention. The downside to not having Dr. Osinubi present during the hearing was that Morris had no way to explain whether Dr. Osinubi made a reasonable and considered decision not to rely upon those studies. Morris’ counsel could only tell the court that Dr. Osinubi was never asked about the studies during her deposition — a response that failed to explain whether the studies were, in fact, relevant to the legitimacy of Morris’ fear of cancer.

Since Dr. Osinubi had no scientific evidence that Morris’ short-term exposure to vinyl chloride elevated his cancer risk, the trial court concluded that there was no basis for Dr. Osinubi’s belief that Morris required medical monitoring in the future. And since New Jersey law requires expert evidence to establish that a fear of enhanced risk of contracting a future disease is reasonable, there was no basis for Morris’ claim that he suffered emotional distress based on a fear of future injury.

Judgment Affirmed

Of course, victims of chemical exposures who are not doctors or environmental scientists might reasonably fear the future onset of cancer after reading on a government website that vinyl chloride causes cancer. The fact that studies show a correlation between chronic exposures and an elevated risk does not rule out the possibility that a short-term exposure might also cause cancer. That possibility might produce a legitimate fear that leads to emotional distress. Without any serious discussion of the issue, the appellate court apparently assumed that a fear of a future health consequence is not reasonable unless studies establish that the health consequence is likely to occur.

In the absence of a reliable methodology to establish that the exposure caused Morris any harm, the trial court affirmed the exclusion of Dr. Osinubi’s testimony. The court also affirmed the judgment, rejecting Consolidated’s argument that Morris was not entitled to a trial in the absence of expert evidence. Stipulated facts allowed the jury to conclude that any exposure to vinyl chloride can irritate eyes, affect respiration, and cause other short-term symptoms. A government report established that many people exposed to the toxic cloud had difficulty breathing after the train derailment.

Coupled with Morris’ own testimony about eye irritation, headaches, dizziness, vomiting, and a burning sensation on his skin immediately following exposure to the cloud of vinyl chloride, the jury had objective evidence upon which to base a finding that the vinyl chloride caused pain and suffering to Morris. Since objective evidence supported that finding, New Jersey law did not require expert testimony to establish causation of effects that immediately followed the exposure.

New York US State Law Legal System Concept

New York Court Permits Life Care Planning Expert to Rely on Hearsay

Thomas Tornatore sued his chiropractor for malpractice. A New York jury determined that the chiropractor, Dr. Jean Cohen, was responsible for Tornatore’s injuries. A portion of the jury’s award of damages covered future life care expenses.

Tornatore presented an expert in life care planning to testify about his future life care expenses. The trial court rejected Dr. Cohen’s challenge to that testimony. The Appellate Division affirmed the trial court’s decision.

Life Care Plans

Attorneys for victims of permanent or long-term injuries use life care planning experts to determine the future expense of coping with a disabling condition. A life care plan considers all of the injury victim’s future needs that arise from the injury, including future medical treatment, rehabilitative therapy, medical equipment and supplies, and medications.

Life care plans assess the injury victim’s ability to live independently in the future. They consider whether the injury victim will need a caretaker or home health aide to assist with the activities of daily living as well as other tasks. A life plan considers whether and when the injury victim will need to reside in an assisted-care facility. If the injury victim’s mobility has been compromised, the life plan will consider the kinds of transportation assistance that the victim will require.

After gathering that information, a life planning expert then determines the accident victim’s life expectancy and investigates the cost of providing for future needs over the course of the victim’s remaining lifetime. All of that information is then presented in a report that becomes the basis for the expert’s testimony.

Expert’s Methodology

The expert in Tornatore’s case testified that he followed the methodology customarily employed by life planning experts when they develop a personal care plan. He reviewed medical records to glean an understanding of the recommendations made by Tornatore’s treatment providers. He interviewed Tornatore about his work history, injuries, and treatments. He assessed Tornatore’s level of independence before and after his injuries.

After determining Tornatore’s future healthcare needs, the expert researched the ongoing cost of coping with Tornatore’s injuries. He consulted a medical costs database in arriving at his conclusions. The expert then prepared a life care plan and reviewed its elements with Tornatore’s treating physician before finalizing his report.

Expert’s Reliance on Hearsay

Dr. Cohen moved to strike the testimony of the life care planning expert on the ground that she based her opinion on hearsay statements made by Tornatore’s treating physician. New York follows the general rule that experts must base opinions on facts that have been admitted into evidence or that are within their personal knowledge.

New York also follows the general exception to that rule that allows experts to rely on facts that members of the expert’s profession customarily regard as a reliable basis for an expert opinion. The exception allows experts to consider reliable hearsay when forming an opinion, provided that members of the profession would commonly rely on hearsay of the same nature and that the hearsay is not the sole basis for the expert’s opinion.

Applying that rule, the Appellate Division had no difficulty determining that the life care planning expert was entitled to rely on hearsay in forming his opinions. The information the expert obtained from Tornatore’s physician about Tornatore’s future medical needs was hearsay, but life care experts routinely rely upon medical opinions when they form a life care plan. The expert’s opinions were not based solely on information provided by the physician, as the opinions were only a link in a chain of reasoning that included reliance on a medical costs database, information provided by Tornatore, and the expert’s own experience.

Reliability of Expert’s Testimony

Dr. Cohen objected that the expert opined that Tornatore would require greater care in the future than he received in the past. Since the expert explained the basis for his opinion, Dr. Cohen’s objection went to the weight the jury should give the opinion, not to its admissibility.

Finally, Dr. Cohen complained that certain medical information relied upon by the expert was outside the scope of the treating physician’s expertise. However, Dr. Cohen did not move to strike the testimony on that ground. Since New York law requires such a motion to preserve the error, the Appellate Division did not address it.

Eyes

Texas Court Bars Ophthalmologist from Giving Standard of Care Testimony About Eyelid Injury Caused by Bone Surgery

Kathleen Broussard fell and fractured a bone in her eye socket. Dr. Thomas Cook, a craniofacial plastic surgeon, operated to repair the fracture. During surgery, Broussard’s lower eyelid was torn. She sued Dr. Cook and his surgical assistant for medical malpractice.

As Texas law requires, Broussard offered an expert report explaining why Dr. Cook breached the appropriate standard of care. Her expert, Dr. Peter Kastl, was a full-time professor of ophthalmology who performs and teaches ophthalmic surgical techniques. He has published more than one hundred articles in the field of ophthalmology.

Based on his examination of Broussard’s medical records, Dr. Kastl noted that Broussard’s lower lid was torn by a retractor. The surgical assistant was apparently holding the retractor while Dr. Cook was using a medical instrument that slipped from his grasp. Dr. Kastl opined that a torn eyelid is not a known complication of the surgery and could only have resulted from medical negligence.

Dr. Kastl explained that he is familiar with the type of surgery performed by Dr. Cook. He expressed the opinion that the standard of care “for a blowout fracture of the orbit is to repair the fracture without causing further injury to the patient.” That opinion seems self-evident, but Dr. Cook challenged Dr. Kastl’s qualifications to render it.

The trial court rejected the challenge and ruled that Dr. Kastl could testify at trial. Dr. Cook took an interlocutory appeal to the Texas Court of Appeals, which reversed the trial court’s decision.

Texas Law

Texas is one of many states that makes it more difficult to prove medical malpractice by limiting the range of experts who are allowed to testify about a physician’s standard of care. The law in those states requires judges to ignore the actual qualifications of the proposed expert and to apply an artificial test devised by the state legislature at the urging of medical industry lobbyists. That test often requires the expert to have recently practiced medicine in the same board-certified specialty as the allegedly negligent defendant.

Texas law is less strict. It requires an expert’s curriculum vitae to demonstrate that the expert: (1) is practicing medicine or was practicing when the claim arose; (2) has knowledge of accepted standards of medical care regarding the injury or condition involved in the claim; and (3) is “qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care.”

A standard of care expert in Texas is qualified when the expert is “board certified or has other substantial training or experience in an area of medical practice relevant to the claim” and “is actively practicing medicine in rendering medical care services relevant to the claim.” An expert need not practice in the same specialty as the defendant to be qualified to offer an expert opinion. The question is “whether the expert’s expertise goes to the very matter on which he or she is to give an opinion.”

Appellate Court’s Analysis

Dr. Kastl has substantial training and experience regarding eye injuries and was actively practicing in the field of eye surgery. The question before the court was whether that training and experience qualified him to testify about a surgical standard of care when the surgery caused an eyelid injury.

The court of appeals relied on a Texas precedent that barred an anesthesiologist from testifying about the standard of care a surgeon should follow when inserting a stent and managing complications during heart surgery. The court decided that the anesthesiologist’s self-professed knowledge of the applicable standard of care was insufficient to demonstrate his expertise in heart surgery.

The court held that the anesthesiologist’s bare assertion of familiarity with a standard of care did not establish that his knowledge, skill, experience, training, or education qualified him to render an opinion about particular breaches of the standard of care applicable to a cardiologist dealing with complications arising from a surgical procedure. That decision is uncontroversial, given the difference between the medical procedures performed by an anesthesiologist and those performed by a heart surgeon.

Guided by that precedent, the court of appeals held that Dr. Kastl’s report failed to demonstrate that he had substantial training or experience in plastic surgery or other bone surgery. His training was in ophthalmology, a branch of medicine that focuses on the eye. While the surgery involved a bone in Broussard’s eye socket, the court held that the proximity of the eye socket to the eye “does not change the fact that this case concerns bone surgery, not eye surgery.”

That analysis would be more convincing if not for the fact that the injury to Broussard’s eyelid was caused by a retractor that was grasping the eyelid when the surgeon’s hand slipped. The training and experience of an ophthalmologist certainly includes the use of a retractor to hold an eyelid.

Dr. Kastl’s opinion that the injury resulted from an “inappropriate motion” by either the surgeon, the assistant who was holding the retractor, or both seems obvious. It should be equally obvious that slipping and causing an eyelid to tear defies any reasonable standard of care for a bone surgeon and the surgeon’s assistant. Disallowing Dr. Kastl’s opinion assures that an injury victim who had clear evidence of a medical team’s negligence will be denied compensation for her injury.

Perhaps Dr. Kastl’s report should have more clearly articulated his experience with retractors and eyelid injuries. The court of appeals concluded that Texas law prevents the court from inferring expertise. That rule, however, is another barrier that protects negligent doctors from the consequences of their malpractice while preventing injury victims from having a jury decide whether an expert with relevant medical knowledge is qualified to render a standard of care opinion.

Wisconsin Justice Concept

Expert Opinion of Involuntary Intoxication Excluded Because Expert Was Unqualified to Assume the Existence of a Medical Condition

Paul Ayala was charged with operating a vehicle while under the influence of an intoxicating drug in Milwaukee County, Wisconsin. The trial court excluded the testimony of his expert witness and Ayala was convicted. The Wisconsin Court of Appeals affirmed the trial judge’s exclusion of the expert testimony.

Facts of the Case

A police officer observed Ayala’s car facing west in an eastbound traffic lane. The engine was running but the car was not moving.

The officer noted that the car was damaged. Two mirrors were broken, the bumpers were dented, and the car had a flat tire. Ayala seemed confused and his speech was slurred.

Ayala failed field sobriety tests and was arrested. A blood test revealed the presence of Ambien in an amount well in excess of a therapeutic dose. Ayala denied taking Ambien on the night of his arrest.

Expert Evidence

Ayala wanted to raise the defense of involuntary intoxication. To that end, he proffered the testimony of Dr. Esam Dajani, a toxicologist and pharmacologist.

Dr. Dajani’s expert report expressed the opinion that Ayala suffered from a medical condition that inhibited his ability to absorb Ambien, causing it to remain in his stomach for two to three days. Dr. Dajani opined that Ambien built up in Ayala’s system over a period of time and that the cumulative effect of the Ambien, coupled with some antihistamines he took before he started driving, produced his intoxicated state.

The prosecution moved to exclude Dr. Dajani’s testimony on the ground that he was offering a medical opinion that he was not qualified to give. The trial court held a Daubert hearing before granting that motion.

The court based its ruling on Dr. Dajani’s assumption that Ayala suffered from the medical condition that supposedly inhibited his ability to absorb Ambien. Dr. Dajani based that assumption on medication that had been prescribed to Ayala. However, Ayala’s medical records did not include a diagnosis confirming that medical condition.

Appellate Review

While the Wisconsin Supreme Court declined for many years to adopt the Daubert standard, the state legislature amended the Rules of Evidence to require trial courts to subject expert testimony to Daubert scrutiny. Wisconsin appellate courts nevertheless give trial courts “broad latitude” in deciding how to determine the reliability of an expert’s opinion.

The Wisconsin Court of Appeals applied that deferential review to the trial court’s exclusion of Dr. Dajani’s opinion. The appellate court deferred to the trial court’s finding that, as a pharmacologist and toxicologist, Dr. Dajani was not qualified to diagnose a medical condition. Since his expert opinion depended on a diagnosis that Dr. Dajani could not make, his opinion was not reliable.

The outcome may well have been different if Ayala’s medical records had confirmed that he had the medical condition that Dr. Dajani inferred was the basis for the medication that Ayala’s doctor had prescribed. Dr. Dajani’s expertise would likely have permitted him to render an opinion about the absorption of Ambien into the system of a patient who suffers from that condition. But since the condition had never been diagnosed (or at least had never been recorded in the medical records that Dr. Dajani reviewed), Dr. Dajani had no reliable facts upon which to base his expert opinion.

Lesson Learned

It isn’t clear whether Dr. Dajani contacted Ayala’s physician to inquire about the missing diagnosis. Had he done so, and had the diagnosis been consistent with the condition upon which Dr. Dajani based his opinion, Dr. Dajani would presumably have been relying on the kind of facts that experts are permitted to consider in forming an opinion. Since his opinion would then have had a foundation, Dr. Dajani would presumably have been allowed to testify.

Perhaps the defense made a calculated gamble not to contact the physician for fear that the physician had not made a diagnosis that would support Dr. Dajani’s opinion. If so, the gamble did not pay off. Hindsight is always 20-20, but the lesson to be learned is that an expert who is not a physician and whose opinion is conditioned on a medical diagnosis should confirm that a physician actually made that diagnosis rather than inferring that the diagnosis must have been made.