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.

Expert’s Review of Summary Judgment Submission Does Not Justify Disregarding Expert’s Opinion

A Postal Service employee needed, and was given, a parking spot that allowed him to load and unload his wheelchair from his van. Remarkably, the Postal Service took away that spot and failed to replace it with one that was suitable for a wheelchair.

The Rehabilitation Act is a federal law that protects federal employees from disability discrimination. Like the Americans with Disabilities Act, the law requires federal employers (and certain other employers that receive federal funds) to accommodate employees who have disabilities.

The postal employee, Tony Sansone, persuaded a jury that the Postal Service violated the Rehabilitation Act. An accessible parking spot is a reasonable accommodation for an employee in a wheelchair. The fact that Sansone had such a spot before it was taken from him was compelling evidence that the accommodation could have been provided without causing undue hardship to the Postal Service.

The jury found in favor Sansone and awarded damages. The Postal Service appealed, arguing that jury instructions concerning the Postal Service’s expert witness was incorrect. The Court of Appeals for the Seventh Circuit agreed in an opinion that remanded the case for a new trial on compensatory damages.

Facts of the Case

Sansone developed multiple sclerosis during his employment by the Postal Service. He was given a parking spot near the loading dock that provided sufficient room for him to deploy his wheelchair ramp. That accommodation allowed him to perform his job duties. Making it possible for disabled employees to work is exactly the goal that Congress hoped to achieve by prohibiting disability discrimination.

Sansone continued to use the parking spot for the next twelve years. A new manager came along and told Sansone to stop parking in that spot. She claimed it was unsafe to park there, a claim that was belied by Sansone’s history of parking in the spot without a problem.

The manager told Sansone to park in a visitor’s disabled parking spot in front of the building. Most of those spots would not have allowed him to deploy his ramp and the few that might have worked were usually taken by members of the public, for whom they were intended.

The manager also told Sansone he could use her spot at the back of the building, but her spot did not provide sufficient room for the ramp. Even if he used it, he would need to travel in his wheelchair along a busy truck route in the dark. That option would have been considerably less safe than continuing to park in the spot that he had used uneventfully for years.

Dealing with the recalcitrant manager proved to be stressful. Sansone tried to work with a Postal Service disability coordinator, who only promised to try to identify a reasonable accommodation. Sansone eventually received a form letter asking him to identify the nature of his disability and to provide medical documentation.

Sansone was frustrated with the Postal Service’s bureaucratic approach because the Postal Service was well aware that he suffered from MS and that he had been confined to a wheelchair for more than a decade. Whether the Postal Service needed “documentation” under those circumstances was a question that the jury answered in Sansone’s favor.

Sansone’s direct supervisor told him to keep parking in his original spot until the issue was resolved. The plant manager, however, noticed that Sansone’s van was parked near the loading dock and sent Sansone an email threatening to have his van towed. Sansone had a panic attack, fearing that he would be stranded at work without transportation. He took some time off. After his condition worsened, he eventually applied for an was granted a disability retirement.

A jury found that the Postal Service failed to accommodate Sansone’s disability. It awarded Sansone $300,000 in compensatory damages and more than $800,000 for lost pay from the date he took a disability retirement until the date he had planned to retire. The Postal Service appealed.

Expert Witness Testimony

Sansone’s compensatory damages were largely based on evidence that Sansone suffered from emotional distress caused by the failure to accommodate his disability. To challenge that evidence, the Postal Service relied on the expert testimony of Diana Goldstein.

Goldstein acknowledged on cross-examination that she read a brief filed by the Postal Service in support of a summary judgment motion that the court denied. She denied, however, that her view of the evidence was based on the statement of material facts that the Postal Service included in the brief. Rather, she testified that she gleaned the facts from a meeting with Sansone and a review of his medical records, although she reviewed the summary judgment brief to give “context” to those facts.

The court expressed surprise that Goldstein did not review the deposition of the plant manager (she testified that it wasn’t relevant to her assessment of Sansone’s emotional distress) but did review a lawyer’s argument filed in support of an unsuccessful motion. The court admonished the Postal Service’s lawyer for giving the brief to Goldstein for her review.

Expert Witness Jury Instruction

The court later instructed the jury that a summary judgment motion is based on the contention that all the relevant facts are undisputed. The court explained that it denied that motion because it determined that the facts were disputed and that the disputed facts should be decided by a jury.

The court also told the jury that it was inappropriate for the Postal Service to give its expert a statement of facts and legal argument that the court had rejected, and that its inappropriate conduct was compounded by its failure to give the expert the successful argument filed by Sansone’s lawyers. The court deemed it even more inappropriate to fail to give the expert a copy of the court’s decision that rejected the Postal Service’s view of the allegedly undisputed facts.

The court’s instruction also faulted Sansone’s counsel for not raising the issue prior to trial. The court told the jury it could consider its instruction in its evaluation of Goldstein’s testimony, and repeated the standard instruction that the jury was entitled to give her testimony whatever weight it deserved.

Appellate Ruling

The Court of Appeals disagreed with the trial judge that the Postal Service lawyers violated Rule 703 of the Federal Rules of Evidence by giving Goldstein a copy of their summary judgment submission. That rule governs the information upon which experts may base opinions, not the information they may be given to them.

The summary judgment brief was not admissible evidence, and if experts do not generally rely on summary judgment briefs in forming opinions (the court assumed that they do not), it would have been error to admit expert testimony that was based on the brief. But Goldstein testified that she did not rely on the brief for her view of the facts. To the extent that reviewing the brief filed by one side but not the other is indicative of bias, cross-examination is the means to expose that bias.

Experts are generally allowed to testify even when they are biased, provided they base their opinions on a reliable methodology and adequate facts. While some overzealous judges view their “gatekeeping” role as a license to exclude expert testimony if they think the expert is biased, the Seventh Circuit has repeatedly explained that whether bias renders an expert opinion unworthy of belief is for the jury to determine.

Since the court all but instructed the jury that it should not believe Goldstein, the court’s instruction deprived the Postal Service of a fair trial on the issue of compensatory damages. That error did not affect the jury’s finding of liability or its determination of lost pay. The Court of Appeals therefore affirmed those parts of the jury verdict but remanded for a new trial on the issue of compensatory damages.

Operating room

Standard of Care Expert Opinions Held Sufficient to Defeat Summary Judgment

Doctors commit malpractice when they breach the standard they should follow when caring for a patient. The applicable standard of care is a matter of expert opinion. Reversing a summary judgment in favor of a doctor, the Georgia Court of Appeals recently emphasized that it is the job of a jury, not the trial judge, to decide whether an expert’s standard of care opinion is credible.

Allegations of Malpractice

Fritz Swint alleged that his nerves were damaged, causing a limitation of the use of his right hand, as the result of robotic and laparoscopic prostate surgery in 2009. He filed a medical malpractice lawsuit against Dr. Paul Alphonse, Jr., who performed the surgery, and Midtown Urology, P.C., which employed Dr. Alphonse, Jr.

During Swint’s surgery, the operating table was tilted at a steep angle, raising his feet above his head. While the “Trendelenburg position” is commonly used in certain surgical procedures, Swint’s body remained in the same position for more than 9 hours.

After the surgery was completed, Swint had pain in his shoulders and arms. He was diagnosed as suffering from compartment syndrome, a condition that occurs when pressure builds up in a particular “compartment” of the body. Failing to relieve the pressure can stop the flow of blood into muscles, leading to tissue or nerve damage.

The morning after the operation, Swint had surgery to relieve the pressure causing his condition. After the surgery, Swint did not regain full use of his right arm and hand. He attributed that disability to being left in the Trendelenburg position for an extended period of time.

Dr. Alphonse, Jr. moved for summary judgment, arguing that no breach of a standard of care caused Swint’s disability. The trial court granted that motion. The court’s decision was reversed by the Georgia Court of Appeals.

Urologist’s Expert Opinion

Swint relied on the expert opinions of two physicians. Dr. Michael Palese, a urologist, had experience performing robotic and laparoscopic urological surgery.  In fact, Dr. Palese established a robotic surgery program and has authored textbooks on the subject.

Dr. Palese expressed the opinion that the standard of care for a patient placed in the Trendelenburg position requires the patient to be given a “positional holiday” after four or five hours to relieve the buildup of pressure. The patient’s body should be returned to a horizontal position for a period of time until it regains equilibrium.

Dr. Palese believed that Dr. Alphonse, Jr. should have assessed the situation at the four-hour mark, should have determined that the surgery would not soon be completed, should have prepared Swint’s body for a positional holiday, and should have placed Swint in a horizontal position before the fifth hour of surgery. Dr. Palese believed that the failure to do so breached the appropriate standard of care.

In his deposition, Dr. Palese testified that the standard of care was well-known and followed in 2009 for surgeries involving the Trendelenburg position. In addition, robotic prostatectomies were common in 2009, and it had become routine for surgeons performing the procedure to give the patient a positional holiday.

Dr. Palese testified that that the compartment syndrome may have started before the four-hour mark, but opined that the damage was worsened by the failure to give Swint a positional holiday. Dr. Palese candidly acknowledged that he was not qualified to determine whether treating the compartment syndrome more quickly could have lessened the severity of Swint’s injury, because urologists do not treat compartment syndrome.

Vascular Surgeon’s Expert Opinion

In response to Dr. Alphone, Jr.’s complaint that Dr. Palese was not qualified to determine whether an alleged breach of the standard of care caused Swint’s compartment syndrome, Swint presented the affidavit of Dr. Paul Collier, a vascular surgeon. Dr. Collier treats patients who suffer from compartment syndrome.

Dr. Collier opined that Swint probably did not develop compartment syndrome until after he was in the Trendelenburg position for more than 4 hours, because his symptoms would likely have been worse if the syndrome had developed earlier. He also made a differential diagnosis that the compartment syndrome was caused by being in the Trendelenburg position after ruling out other possible causes of the syndrome.

Summary Judgment Ruling

Despite Swint’s reliance on a standard of care expert and a causation expert, both of whom were well qualified, the trial judge granted summary judgment in favor of Dr. Alphonse, Jr. The judge agreed that the evidence supported a finding that Dr. Alphonse, Jr. breached the standard of care. Citing Dr. Palese’s testimony that the compartment syndrome may have been caused before Swint had been in the Trendelenburg position for five hours, however, the judge concluded that no evidence supported a finding that Dr. Alphonse, Jr.’s breach of the standard of care caused Swint’s injury.

The judge rejected Dr. Collier’s opinion that failing to give Swint a positional holiday caused or worsened his compartment syndrome. Applying the Daubert standard, the court ruled that Dr. Collier’s opinion was not based on adequate facts or data. The judge accordingly dismissed the lawsuit.

Daubert and Medical Opinions

Swint’s case is an example of how a mechanical application of the Daubert standard is ill-suited to an analysis of medical opinions. Some judges seem to think that Daubert require proof that opinions are true with a high degree of certainty, when a civil plaintiff is only required to prove that the elements of a claim are more likely than not true.

Medical science is far from certain. While expert opinions cannot be based on speculation, the “facts and data” upon which medical experts rely do not always include rigorous scientific studies, simply because studies are not always available. Researchers cannot ethically place hundreds of text subjects in the Trendelenburg position for varying lengths of time to measure the onset of compartment syndrome.

Medical experts rely on their own experience and the experience of their colleagues when studies have not answered a medical question. Years of experience practicing medicine and handling patients with similar conditions can assure that the expert’s opinion is not based on conjecture, which is the ultimate goal of the Daubert standard. As long as an opinion has a sound basis, whether to accept the opinion is up to the jury, not the trial judge.

Appellate Ruling on Standard of Care

Dr. Palese’s testimony might been contradictory in some respects. At one point, he seemed to say that the standard of care would allow a surgeon to go as long as six hours without repositioning the body. Perhaps he meant that a surgeon who expects to finish within five hours but then discovers that the surgery will require six hours to finish need not reposition the patient.

As the appellate court noted, if an expert’s testimony is inconsistent, that inconsistency goes to his credibility. It is the jury’s function to sort out inconsistent testimony and to decide what part of an expert’s conflicting testimony, if any, is worthy of belief.

In Georgia, the “self-contradictory witness rule,” which allows a judge to discount contradictory testimony given by a party when deciding a summary judgment motion, does not apply to expert witnesses. A court may not base a summary judgment finding upon expert testimony that is unfavorable to the party who offered the testimony if the expert’s additional testimony contradicts that finding.

Because the trial court interpreted Dr. Palese’s testimony to mean that the standard of care required a positional holiday before the sixth hour of surgery, and because Dr. Palese testified that the compartment syndrome may have developed before the fifth hour of surgery, it concluded that Dr. Alphosne, Jr.’s breach of the standard of care did not cause Swint’s condition. Since the court relied on a standard of care that differed from at least part of Dr. Palese’s testimony, its ruling was mistaken.

Appellate Ruling on Causation

The trial court also erred in rejecting Dr. Collier’s opinion that Swint’s compartment syndrome probably developed after he had been in the Trendelenburg position for more than six hours. While the trial judge concluded that Dr. Collier’s opinion was not based on “sufficient facts or data,” the opinion was based on Dr. Collier’s review of the medical records, on a differential diagnosis, and on his own experience and training. Any alleged deficiency’s in Dr. Collier’s testimony went to his credibility and to the weight a jury might assign to the testimony, not to whether the testimony, if accepted as true, was sufficient to establish causation.

In addition, Dr. Palese testified that Swint’s condition was made more severe by the failure to give him a positional holiday. The fact that Dr. Palese is a urologist who does not treat compartment syndrome did not justify the trial court’s rejection of that opinion. Dr. Palese was familiar with the kind of surgery that was performed, was familiar with why a positional holiday is necessary to prevent compartment syndrome, and had sufficient training and experience to opine that the longer a patient is kept in the Trendelenburg position, the worse his condition is likely to become.

Since the expert opinions of Drs. Palese and Collier, both separately and taken together, would allow a jury to conclude that Dr. Alphonse, Jr. breached the standard of care and that the breach harmed Swint, the trial judge erred by granting summary judgment. The expert evidence entitled Swint to have his medical malpractice claim decided by a jury.

Election Experts Testify in Virginia Voter ID Case

Court Excludes Expert Testimony Because Witness Has a Contingent Financial Interest in Litigation Outcome

Whether experts should be allowed to testify when they have a financial stake in the outcome of litigation is a question that divides courts. In an unusual case, a judge in the Western District of Virginia excluded the expert testimony of a witness who sold a litigation interest in a claim brought by his company. The sale proceeds were contingent on winning the lawsuit, a fact that (according to the court) disqualified the witness from giving expert testimony.

Facts of the Case

David Steffens co-founded Keystone Transportation Solutions and served as its CEO. He eventually tried to sell the business to Northwest Hardwoods. When that effort failed, Keystone ceased doing business.

Keystone’s former president, Thomas Mereen, went to work for Northwest Hardwoods. Keystone sued Northwest Hardwoods, alleging that it improperly gained access to Keystone’s trade secrets. The lawsuit also alleged that Northwest Hardwoods interfered with Keystone’s business interests.

Keystone sold its interest in the lawsuit to Clarendon, described in the court’s opinion only as “another business entity.” Keystone’s operating agreement with Clarendon provides that Clarendon will receive ten percent of any recovery that Keystone receives. The remaining recovery will be split equally between Steffens and the other co-founder of Keystone.

Keystone designated Steffens as an expert witness. Among other opinions, Steffens proposed to testify that Keystone’s alleged trade secrets were valuable within the lumber transportation industry, that the information was propriety and not readily available from a review of public information, and that Keystone’s efforts to maintain its trade secrets were commercially reasonable. Steffens also opined that Northwest Hardwoods relied on Keystone’s confidential information when it committed to opening a new business unit and that its business model for operating that unit depends on Keystone’s trade secrets.

Northwest Hardwoods moved to exclude Steffens’ expert testimony. Among other reasons, Northwest Hardwoods claimed that Steffens is an unreliable witness because he has a financial interest in the outcome of the litigation.

Steffens’ Bias

The potential for bias affects the credibility of any witness, including an expert witness. Credibility is for the jury, not a judge hearing a pretrial motion, to determine. Reliability, on the other hand, is something a court can determine after deciding whether the expert has based opinions on sufficient facts and a reliable methodology.

The trial court thought that an expert’s bias might render a witness “inherently unreliable” and that the expert could therefore be excluded under Daubert. While there is precedent to support that doubtful proposition, the fuzzy line between credibility and reliability is difficult to discern when reliability is based on allegations of bias rather than the analysis that informs the expert’s opinions. After all, police officers and crime lab employees are often employed by the same government that uses them as expert witnesses in criminal trials, but their obvious potential for bias does not result in the wholesale exclusion of their testimony.

Steffens’ situation is somewhat different in that he had a direct financial interest in the outcome of the litigation. The court considered a Fourth Circuit decision hold that assignments of interests in lawsuits are against public policy in Maryland because they promote the interests of the entity to which they are assigned rather than the interests of the injured party and thus promote unnecessary litigation.

Apart from the fact that Keystone brought its case in West Virginia rather than Maryland, the Fourth Circuit precedent is not easily squared with the facts of the Keystone case. The founders of Keystone will share 90% of the proceeds if their interests are vindicated in court. Had they not sold the litigation interest they would have received 100%.

This case is plainly not an example of “lawsuit-mining” that the Fourth Circuit claimed to deplore. Rather, it seems to be an example of business owners exercising reasonable judgment to raise the capital they need to fund litigation that will protect their interests. It is difficult to see how that harms public policy.

Experts and Contingent Fees

An afterthought in the Fourth Circuit decision referred to a proposal to hire experts on a contingent fee basis, which it viewed as threatening “the very integrity of the judicial process which depends on the truthfulness of witnesses.” The concern seems overblown, as it is unclear why a contingent fee is more threatening to judicial integrity than the common practice of a corporation paying its own employees or independent contractors huge fees to testify on the employer’s behalf.

Substantial payments always have the risk of instilling bias, whether or not the payments are contingent. The potential for compensation to affect an expert witness’ opinions is one that juries evaluate every time an expert testifies. Juries understand that experts need to be paid and they are capable of deciding whether compensation affects an expert’s credibility.

While most states prohibit employing an expert on a contingent fee basis, that rule governs the conduct of lawyers, not experts. Recognizing that distinction, the Seventh Circuit has wisely decided that the existence of a contingent fee agreement goes to the expert’s credibility, which can only be determined by a jury. Attorney disciplinary rules have nothing to do with an expert’s reliability.

Steffens’ contract with Clarendon had little to do with the rules of professional responsibility. Steffens’ agreement to share in the proceeds was not contingent on whether he testified as an expert witness. Steffens was an owner of the business that brought the lawsuit. Business owners always have a financial interest in the outcome of litigation affecting their business, but that does not preclude them from testifying as experts in that litigation.

Court’s Ruling

While Steffens was not earning a contingent fee for testifying, the court deemed Steffens’ contingent financial interest in the litigation’s outcome to be analogous to a contingent fee. For reasons that are not clearly explained, the court deemed it important that Keystone is no longer operating. Whether or not the business continued in operation, Steffens was likely to benefit from the lawsuit’s favorable outcome, with or without a contingent agreement to share in the outcome of the lawsuit. The court’s conclusion that selling a litigation interest is the same as a contingent fee for testifying is not persuasive.

The court nonetheless deemed Fourth Circuit questionable precedent regarding contingent fees for expert witnesses to be controlling. It excluded Steffens’ expert testimony on that basis. The court went on to exclude his testimony on more defensible grounds, including the fact that some of his proffered opinions were beyond the scope off his expertise and others reflect his subjective beliefs without the support of a reasoned methodology.

Steffens will be allowed to testify as a fact witness. The court noted that some of the narrative in his expert report would be admissible as lay testimony. To the extent that Steffens gives that testimony, however, he will not be allowed to bolster his opinions by portraying them as expert opinions.

North Caroline sign

Experts Differ in State Court Challenge to NC Redistricting

Expert witnesses have finished tangling, at least for the moment, in the North Carolina redistricting dispute. After a narrow majority of the Supreme Court refused to impose constitutional barriers to partisan redistricting, federal challenges to political gerrymandering in North Carolina became impossible to pursue.

Challengers are now basing their claims on the state constitution, a strategy that put an end to partisan gerrymandering in Pennsylvania. The U.S. Supreme Court noted that state courts applying state laws and constitutions have the power to address political gerrymandering, even if federal courts do not.

On the other hand, the Supreme Court has long recognized that redistricting schemes may not disenfranchise nonwhite voters. Evidence that a map-drawing expert may have done just that could lead to a renewed federal challenge to North Carolina’s redistricting, even if the state challenge does not succeed.

Constitutional Challenges to Gerrymandering

In a 5-4 decision reflecting the ideological division of the Supreme Court, the majority ruled that partisan gerrymandering — drawing congressional districts in a way that favors one political party, diminishing the voting power of voters for the opposing party — is not a constitutional violation that federal courts are capable of remedying. “That’s politics” is a shortened version of the majority’s decision.

The fact that Republican legislators in North Carolina drew districts during the 2010 redistricting to favor Republicans is readily (even proudly) acknowledged by some Republican state legislators. Democrats did the same thing when they drew maps during the 1990 and 2000 redistricting. Courts struck down many of the maps drawn by Democrats and did the same to the Republican map. In those cases, the maps were invalidated as racial gerrymandering.

The Republican-controlled legislature redrew the maps again in 2016, supposedly to eliminate racial gerrymandering. Candidates from the Republican and Democratic parties received almost an equal number of votes in the 2018 congressional elections, but Republicans were elected to Congress in 10 of the state’s 13 districts. Gerrymandering is the only reasonable explanation for that result.

The North Carolina Democratic Party and Common Cause are now challenging partisan redistricting in state court. They argue that the free speech and association protections of the state constitution are violated by a redistricting process that deliberately gives disproportionate representation to one political party.

Expert Testimony

Several experts have testified in the state court trial. The 2016 maps were drawn by recently deceased mapmaker Thomas Hofeller. Expert witness Wesley Pegden, using mathematical algorithms, drew millions of maps of districts that were contiguous and roughly equal in population — the standards required by state law. He testified that none of those maps, drawn at random, gave Republicans the same advantage as Hofeller’s maps.

Pedgen, an associate professor in Carnegie Mellon University’s department of mathematical sciences, concluded that the maps were deliberately drawn to favor Republicans. A court in Pennsylvania accepted his methodology and conclusions when it struck down a partisan gerrymander in that state.

Other expert witnesses, including Christopher Cooper, a professor at Western Carolina University, arrived at the same result. After he was given access to Hoffler’s files, Cooper discovered that lines had been carefully drawn to move Democratic Party voters into districts that were safely held by Republican representatives. He concluded that Hofeller deliberately attempted to dilute the voting power of Democrats.

Exclusion of Expert Testimony

Hofeller’s daughter made his files available to the challengers after his death. While the Republican legislators claimed that the files were not the daughter’s to give, the court ruled that at least some of the data in the files could be admitted as evidence.

The challengers contend that Hofeller secretly and improperly used racial data to help him draw the maps that the legislature enacted, a practice that has long been forbidden. The Republican legislators contend that Hofeller drew maps of his own as a hobby and that he did not use racial data in drawing the maps he presented to the legislature.

After reviewing the files, expert witnesses for the challengers concluded that Hofeller relied on racial data to complete the maps before the legislature created rules that prohibited him from considering race. To counter that testimony, the Republican legislators called political scientist Douglas Johnson as an expert witness.

Johnson testified that Hofeller’s “personal maps” were dissimilar to the maps the legislature actually approved. On cross-examination, however, Johnson admitted that his analysis failed to consider eleven districts on the “personal maps” with boundaries nearly identical to those of districts approved by the legislature.

Johnson also admitted that his analysis relied on unweighted population calculations that should have been weighted. That error compounded the unreliability of his statistical analysis.

The Republican leader of the North Carolina Senate had claimed that Hofeller’s “personal maps” more closely resembled maps that Common Cause proposed as fair in 2017 than maps that the legislature enacted. Johnson admitted that he provided that opinion to the senate leader and that he probably owed the senate leader an apology for doing so.

Applying a Daubert analysis, the court concluded that Johnson did not base his opinion on reliable data or a reliable methodology. Johnson essentially cherry-picked data to support the conclusion he wanted to reach. The court therefore decided it would not consider Johnson’s unreliable conclusions.

Trial Concludes

Another expert for the Republican legislators, Thomas Brunell, testified that partisan gerrymandering is an accepted outcome of the political process. He opined that the map adopted by the legislature was not outside the norms of redistricting.

Having heard all the expert evidence, the three-judge panel will likely render a decision in the coming months. The dispute is unlikely to end quickly, however, as the party that loses is almost certain to appeal.

Police officer tazer

Controversial Taser Expert Accused of Having Conflict of Interest

An ideal expert witness is neutral. A neutral expert has no financial ties to either party in a dispute, apart from being retained to provide an expert opinion. Since they have no financial interest in the outcome of a court case, juries generally regard neutral experts as more credible than experts who have a financial incentive to slant their testimony.

Courts do not generally condition the admissibility of expert testimony on an expert’s neutrality. For example, crime lab experts often work for a state or local government and invariably testify in support of prosecutors who bring criminal cases on the government’s behalf. The fact that they are employed by the party might be seen as evidence of partiality, but it does not disqualify a crime lab employee from giving testimony.

On occasion, however, the absence of neutrality suggests a conflict of interest that creates controversy. The competing roles of Dr. Jeffrey Ho provide a recent example.

Dr. Ho’s Alleged Conflicts of Interest

Jeffrey Ho carries a badge, a Taser, and a stethoscope (not necessarily at the same time). Dr. Ho is the head of paramedics at Minnesota’s Hennepin County Medical Center (HCMC). That job requires him to oversee the response that paramedics make to 911 calls.

Dr. Ho is also a part-time sheriff’s deputy in rural Minnesota. That allegiance to policing has raised ethical questions about his third job: acting as a paid advocate for Axon Enterprise, the company that manufactures Tasers.

In 2005, Axon paid Dr. Ho to write an article disputing well-documented evidence that suspects have died because the police shot them with Tasers. Dr. Ho blamed the deaths on “excited delirium,” an alleged condition that is not recognized by the American Medical Association, the American Psychiatric Association, or the World Health Organization.

Dr. Ho’s theory is that people who suffer from “excited delirium,” a condition characterized by extreme agitation and paranoia, are prone to cardiac arrest. If that is the case, Dr. Ho suggests, officers should be trained to recognize the symptoms and to avoid tasering suspects who exhibit them.

Some researchers agree that excited delirium might be an actual condition. Others find the medical evidence in support of the alleged condition to be unconvincing. The key issue, however, is whether Dr. Ho’s research results are influenced by his employment.

Axon has paid HCMC about $140,000 a year to fund Dr. Ho’s position, including his Taser research. Dr. Ho earns a salary of about $460,000 from HCMC and, according to court records, is paid as much as $70,000 a year by Axon to provide consulting services, including serving as an expert witness in cases alleging that a Taser caused a death. Dr. Ho also serves as an expert witness for law enforcement officers who are charged with causing harm by Taser use.

It isn’t unusual for industries to pay medical researchers to discount the harm caused by their products. Whether medical researchers produce reliable results when they are being paid by an industry that benefits from the research is usually a question for the jury to answer.

While Dr. Ho contends that he always declares conflicts of interest, news reports suggest that Dr. Ho’s allegiance to his fellow police officers and to Axon is not always made clear. For example, Dr. Ho contributed to a 2009 white paper that described excited delirium as “a real syndrome of uncertain etiology,” but the paper did not disclose Dr. Ho’s financial interest in helping Axon avoid liability for Taser deaths.

Dual Allegiance

Dr. Ho’s tenure at HCMC and his service as a law enforcement officer have been controversial for additional reasons. The StarTribune reported that Dr. Ho’s “dual allegiances to medicine and policing collided last summer” when investigators found that police officers were urging paramedics to sedate emotionally disturbed suspects with ketamine.

The suspects then participated, without their consent, in an HCMC study of ketamine. Dr. Ho was the lead researcher in that study. He was investigating whether ketamine counteracts excited delirium.

While HCMC’s chief executive resigned when the cozy relationship between law enforcement and HCMC was exposed, Dr. Ho has continued in his position. A member of the city council questioned whether it is appropriate for a doctor to act as an advocate for the use of weapons against potential patients.

Dr. Ho’s position is that Tasers save lives because they are less likely to be lethal than shooting a suspect with a gun. Since Tasers are usually employed against unarmed suspects, however, the question is whether less lethal alternatives to Tasers might usually be appropriate.

The bottom line is whether the controversies surrounding Dr. Ho will affect his credibility as an expert witness. The answer to that question may depend on the extent to which judges allow opposing parties to cross-examine Dr. Ho about his ketamine research, his loyalty to the law enforcement community, and his history as a well-paid consultant to the company that sells Tasers.

side view of empty hospital bed

Texas Court Allows Expert Physician to Testify in Nursing Home Malpractice Case

Chester Nugent died from a combination of sepsis, sacral decubitus, and malnutrition. Sepsis is a condition caused by the body’s response to an infection. In Nugent’s case, the infection was caused by a bedsore. Sacral decubitus refers to an ulcer, including a bedsore, near the spine in the lower back.

Three days after undergoing hip surgery, Nugent was transferred to Highland Pines, a nursing home in Texas. Nugent had developed a bedsore during his hospital stay. He remained in Highland Pines for about three weeks. His bedsore worsened and he was transferred to a hospital in a state of septic shock. Nugent died a few weeks after the transfer.

Nugent’s estate sued a number of healthcare providers, including Highland Pines. His lawsuit alleged that Highland Pines was negligent in failing to treat the bedsore and that its negligence caused Nugent’s death.

Texas law required Nugent’s estate to serve the report of an expert witness as a condition of bringing the lawsuit. The trial court dismissed the lawsuit after determining that the expert did not have the qualifications that Texas law required. The Texas Court of Appeals reversed the dismissal.

Texas Law

In a malpractice case, Texas requires an expert to prepare a report that identifies the proper standard of care and to explain how a failure to meet that standard caused harm to the patient. The expert’s report must demonstrate that the expert meets the qualifications imposed by Texas law, including an active practice treating patients in facilities that are “substantially similar” to the defendant’s.

In general, any physician can provide an expert opinion about causation. To render an opinion about whether the defendant provided the appropriate standard of care, however, Texas law requires the expert to be practicing in a field that involves the same type of care or treatment as that delivered by the defendant. “Practicing” includes serving as a consulting healthcare provider and being licensed, certified, or registered in the same field as the defendant healthcare provider.

In addition, the expert must be qualified by training or experience to offer an opinion as to the appropriate standard of care and must have knowledge of that standard. An expert report must demonstrate that the expert’s “knowledge, skill, experience, training, or education” relates to “the specific issue before the court.” That requirement should suffice to assure that an expert’s opinion will assist the jury, regardless of whether the expert is currently providing the same kind of care or treatment as the defendant.

Many states, at the urging of the medical industry and insurance lobbyists, have adopted laws that impose unnecessary limits upon the “qualifications” an expert witness must have. The goal of those laws is to protect healthcare providers and their insurers from liability by making it more difficult for injury victims to find expert witnesses who will be deemed “qualified” to testify in support of their claims. Insurance lobbyists know that injury victims struggle to find a doctor who currently practices in the same specialty and who is willing to testify against another doctor.

Qualifications of Estate’s Expert Witness

The estate offered the expert report of Dr. Jeffrey Stone. Dr. Stone is board certified in wound management. He has specialized in that field for 23 years and has treated hundreds of patients for chronic, non-healing wounds. A large percentage of his patients suffer from decubitus ulcers.

Dr. Stone’s report explains that he has “extensive experience of providing wound care in the nursing home/acute and long-term rehabilitation facilities that are competitors of and substantially similar to Highland Pines.” He has written orders for the care and treatment of patients suffering from decubitus ulcers and has supervised the execution of those orders by nurses. He has served as the medical director for wound care at several nursing homes and has lectured “nursing staff on prevention of wounds and interventions that they would do to improve patient outcomes.”

Trial Court Ruling

While there is no doubt that Dr. Stone was eminently qualified to determine the standard of care for the treatment of bedsores, Highland Pines complained that he did not demonstrate his “specialized knowledge of the protocols, policies, or procedures of a nursing home.” The trial court agreed. The trial court also determined that Dr. Stone’s report did not demonstrate that he was “actively practicing in a nursing home.”

The trial court’s dismissal of the estate’s malpractice claim served the goal of protecting the pocketbooks of an allegedly negligent nursing home at the expense of a victim whose death was, in Dr. Stone’s opinion, caused by malpractice. Protection of pocketbooks is the unspoken intent of Texas law, but the trial court’s application of the law in this case demonstrates the potential injustice of disregarding an expert’s actual qualifications to render expert opinions.

Appellate Decision

The Court of Appeals noted that the estate’s claim was not based on Highland Pines’ “protocols, policies, or procedures.” Rather, the estate’s claim was that Highland Pines failed to follow the appropriate standard of care when it neglected to treat Nugent’s bedsore.

The appropriate standard of care did not depend upon the adequacy of the nursing home’s “protocols, policies, or procedures.” In fact, the standard of care does not depend on whether the patient is treated in a nursing home, a clinic, a hospital, or a private residence. The care of pressure ulcers requires relief from pressure, regardless of the patient’s physical location.

The appellate court also decided that Texas law did not require Dr. Stone to be actively practicing in a nursing home. Since he “is actively practicing healthcare in a field of practice that involves the same type of care or treatment as that delivered by Highland Pines,” he is qualified by Texas law to testify as an expert in the standard of care for bedsores.

The Court of Appeals reversed the trial court’s dismissal. The estate is therefore entitled to move forward with Dr. Stone as its expert witness.

Finance and business concept

When Can an Expert Testify Against a Former Client?

What happens when a party retains an expert witness who has worked for the opposing party in the past? Does the expert have a conflict of interest that precludes the expert from testifying against the former employer? The answer depends on the circumstances, as a fraud prosecution in Utah illustrates.

Fraud Allegations

Wendell and Allen Jacobson operated a business known as Management Solutions, Inc. in Fountain Green, Utah. In 2011, the Securities and Exchange Commission (SEC) alleged in a civil proceeding that the father and son had engaged in a $220 million Ponzi scheme.

The Jacobsons allegedly offered investors, many of whom were drawn from the Jacobsons’ contacts in the Mormon community, the opportunity to invest in limited liability companies that owned apartment buildings in eight states. The Jacobsons represented that the companies purchased low-occupancy buildings, renovated them, and resold the buildings for a profit.

According to the SEC, the companies were actually losing money. The SEC contended that the Jacobsons used the investments to pay their own expenses while paying returns to early investors from the investment capital they received from new investors. The Jacobsons settled the case, although the proceeding against Management Solutions continued.

In 2013, a federal judge ruled that Management Solutions did not engage in a Ponzi scheme, although its individual transactions included “many Ponzi characteristics.” Rather than pursuing the business for operating an overarching illegal scheme, the judge said that fraud would have to be proved as to each individual transaction.

In 2015, the Utah Attorney General’s Office charged the Jacobsons with multiple counts of securities fraud under state law. The criminal charge alleged that the Jacobsons made false statements and failed to disclose important facts to prospective investors.

Gil Miller’s Relationship with the Jacobsons

While the SEC was conducting its 2011 investigation but before it filed a complaint in court, Management Solutions hired Gil Miller’s accounting firm to provide consulting services. Miller is a forensic accounting expert.

At some point after the SEC filed its lawsuit, the federal court appointed Miller to act as a receiver for the Jacobsons’ business. A receiver essentially takes over the business and assures that the business owners do not dispose of income and assets that could be used to pay creditors.

Court documents noted that Miller was the premier expert in receivership in Utah. When he was appointed as receiver, Miller’s firm terminated its consulting relationship with Management Solutions.

Miller continued acting as a receiver after the SEC complaint was settled. His duties included liquidating companies that were used as part of the alleged fraudulent scheme and using proceeds from the sale of assets to repay investors.

Allegations of Conflict

When criminal charges were filed, Utah prosecutors wanted to use Miller as an expert witness. The Jacobsons objected that Miller had a conflict of interest since his accounting firm had been employed as a consultant for the Jacobsons regarding the SEC investigation.

The Jacobsons’ attorneys argued that Miller’s firm had access to confidential information, including legal theories and strategies developed by the Jacobsons’ defense team. Legal strategies are usually privileged information that a party is entitled to keep secret.

Miller denied that he had a conflict because his accounting firm had been hired by Management Solutions, not by the Jacobsons. The fraud charges were filed against the Jacobsons personally, not against Management Solutions.

Miller’s attorney complained that the defense was making it appear that Miller had “switched sides.” He contended that Miller’s involvement in the case as a receiver involved different subject matter than the consulting services his firm provided to Management Services.

The trial judge agreed that Miller had a confidential relationship with Management Solutions and therefore could not disclose information he acquired during that relationship. The judge also disqualified Miller from testifying as an expert witness, but agreed that he could testify as a fact witness about facts that he did not learn in confidence as a result of his work for Management Services.

Motion to Dismiss

In response to the judge’s ruling that Miller could not testify as an expert, the defense filed a motion to disqualify the Attorney General’s office on the ground that it learned confidential information about the Jacobsons from Miller. The defense wanted the court to build a wall between the prosecutors and any prosecutors who replaced them so that the new prosecution team would not learn of any confidential facts upon which the prosecution was based.

Two more years drifted by before the court decided the motion. Noting the lack of evidence that Miller disclosed any confidential facts to the Attorney General’s office, the court denied the request to remove the prosecutors.

Undaunted by that ruling, the defense recently filed a motion to dismiss the prosecution, claiming it was tainted by the prosecution’s decision to hire Miller as an expert witness. Given the trial court’s earlier refusal to recuse the prosecutors, the motion seems unlikely to succeed. In light of the snail’s pace at which the case is proceeding, however, it might serve to further delay the trial.

Batteries

Expert Testimony Does Not Entitle LG to Summary Judgment for Exploding Battery

Katrina Williams purchased an LG lithium battery from Vape Easy, which purchased it from Madvapes. After the battery exploded in her pocket, Williams sued LG, Mad Vapes, and Vape Easy in a New York (Queens County) court for her injuries. The defendants filed summary judgment motions seeking their dismissal from the lawsuit. LG supported its motion with the testimony of an expert witness.

Facts of the Case

Williams purchased the battery for use in her vape unit. She carried the battery in her pocket because she intended to recharge it.

The president of Vape Easy contended that he sold the battery in its original packaging, as he received it from Madvapes. Each package contains two batteries.

Madvapes purchased the batteries from an LG battery distributor. Each box it purchased contained 25 packages. Madvapes took the packages out of the box, affixed a barcode to each package, and returned the packages to their box before shipping them to customers.

According to Madvapes, the battery was recommended for the vape unit by the distributor. According to LG, the battery is intended for use in power tools. The chief technical officer of Madvapes was aware of other instances of battery “malfunctions,” which is presumably an euphemism for explosions. Some of that awareness stemmed from other lawsuits.

The court refused to dismiss Madvapes from the lawsuit. The court decided that a jury should decide whether Madvapes knew or should have known that the batteries were unsuitable for use in a vape unit and whether it should have warned consumers about the dangers associated with the battery.

LG’s Expert Evidence

LG asked to be dismissed because its battery was intended for use in power tools, not for personal use. Since power tools are often employed for personal use, the distinction is difficult to fathom.

More importantly, the team leader of LG’s quality department admitted that no warnings about the unsuitability of the batteries for “personal use” (whatever that might mean) were printed on the boxes containing the packaged batteries, on the packages, or on the batteries themselves.

LG relied on the testimony of an expert witness in support of its summary judgment motion. The expert concluded that the battery exploded because the positive and negative terminals were bridged. LG thus claimed that the battery was not defective, but that Williams handled it improperly.

Trial Court’s Decision

The trial judge decided that LG’s defense will need to be evaluated by a jury. The expert did not address the likelihood that the battery would explode while carried in a consumer’s pocket. Nor did the expert explain why a consumer who purchases the battery for a power tool would carry it differently than a consumer who purchases the battery for a vape unit.

It is not usual to place a battery in a pocket while carrying it to a recharging device. Pockets might be expected to contain coins or other metal objects that could bridge the battery terminals, creating the risk of an explosion.

A jury could reasonably find that LG should have foreseen that a consumer would carry the battery in a pocket, regardless of the reason for which the battery was purchased. A jury could also reasonably find that printing a warning on the battery or its packaging would protect consumers who are unaware of the danger of bridging the battery’s terminals.

Accordingly, the judge decided that Williams was entitled to present her case to a jury. LG will also be entitled to present its expert testimony in an effort to persuade the jury that it was not liable for failing to warn consumers that its batteries might explode if the terminals are bridged.

Oil drilling

Insufficient Expert Report Results in Summary Judgment in Legal Malpractice Lawsuit

Dale Phillips, an attorney in Kentucky, provided title opinions to EQT Production Company concerning its oil interests in certain land. EQT sold its oil and gas rights in 14 Kentucky oil fields to Journey Acquisition II. The rights were conveyed by leasing the properties to Journey using Oil and Gas Leases and by assigning other leases to Journey.

At some point after granting the leases, EQT began to drill for oil and gas on some of the properties. Journey sued EQT and won a judgment for $14 million, as well as an order to convey the properties to Journey.

EQT blamed Phillips for the judgment, claiming that he provided faulty title opinions. Phillips moved for summary judgment and challenged the admissibility of opinions offered by Journey’s expert witness. The trial court declined to consider the expert’s opinion and, since legal malpractice cannot be proved without expert evidence, granted summary judgment to Phillips. EQT appealed.

Legal Dispute

According to EQT, Phillips conducted title examinations before it drilled wells on the properties and mistakenly concluded that EQT held a full interest in the areas where the wells were drilled. Phillips stated that he was never given leases or other conveyance documents and was only asked to determine whether EQT had good title when it first acquired the properties. Phillips said he offered no opinion as to the quality of title after EQT acquired it. EQT disagreed, claiming that Phillips represented that he had searched public records through the date of the title opinions, which he rendered shortly before EQT commenced drilling.

EQT sued Phillips for legal malpractice. The trial court followed the general rule that a legal malpractice claim requires proof that a lawyer failed to provide the professional standard of legal services that a lawyer of ordinary competence would provide. Unless the malpractice is obvious, the standard of care must be proved by expert evidence. Since there is nothing obvious about the law surrounding title opinions or mineral rights, the trial court decided that expert testimony was required.

Necessity for Expert Opinion

On appeal, EQT argued that no expert was needed. The Court of Appeals for the Sixth Circuit decided that whether an expert was needed depended on how the issue was framed.

If, as EQT suggested, the issue was whether an attorney breaches the standard of care by representing that he did something he failed to do, the answer might be so obvious that no expert opinion is needed. A more complicated question, however, is whether an attorney who is asked to provide an oil and gas title opinion breaches the standard of care by failing to examine conveyance documents that were executed after the land was acquired.

The dispositive question was whether Phillips did what a lawyer of ordinary competence would have done. Lay people on a jury would not know whether a lawyer providing an oil and gas title opinion should look beyond the documents by which a client acquired title to determine if the client’s interest in the property had subsequently changed. Since that is a question most jurors lack the ability to answer, the Court of Appeals decided that expert testimony was required.

Sufficiency of Expert Opinion

EQT relied on the expert opinion of James Kaiser, a lawyer who had performed title examinations for EQT in the past. Kaiser based his opinion on his legal education and thirty years of experience preparing oil and gas title opinions. Kaiser’s qualifications were undisputed.

Kaiser’s expert report, however, failed to address the standard that an ordinary oil and gas lawyer would have followed. Instead, Kaiser’s report explained that whenever EQT asked him to provide a title opinion, he always determined whether EQT had the right to drill at the time the opinion was provided. Kaiser then noted that Phillips failed to perform the same examination of conveyance documents that Kaiser would have performed.

The Court of Appeals agreed with the District Court that Phillips failed to address the standard of care that should be followed when drafting an oil and gas title opinion. The report did not offer even a conclusory opinion that the appropriate standard was breached. Rather, it merely stated what Kaiser did when he drafted title opinions for EQT.

Adequacy of Expert Report

Rule 26 of the Federal Rules of Civil Procedure requires disclosure of an expert report that includes a “complete statement of all opinions the witness will express and the basis and reasons for them.” The court therefore disagreed with EQT that Kaiser should be allowed to testify at trial to supplement the reasoning he provided in his report.

The report failed to explain the standard of care that a lawyer should follow and failed to articulate the basis and reasons for defining that standard of care. Accordingly, the report did not meet the requirements of Rule 26. As a consequence, the District Court appropriately disregarded the report when it considered Phillips’ summary judgment motion. In the absence of expert testimony, the District Court was entitled to grant summary judgment against EQT.

The case stands as a reminder that experts who are retained in a malpractice case cannot simply describe what they would have done differently. The case also sends the message that all experts who are hired in federal litigation, regardless of the issue, should comply with Rule 26 by writing a report that provides a complete statement of the factsupon which the expert has relied and the reasoning that supports each opinion the expert will express at trial.

Court

Illinois Allows Party to Shield Expert from Discovery After Changing Designation from Testifying Expert to Consulting Expert

In most states, a witness who is retained to offer expert opinions at trial must prepare a report. The party who retained the expert must disclose the report to the opposing party before trial.

A different rule typically applies to retained experts who will not testify. For example, a lawyer might hire an expert to explain weaknesses in a client’s case. The lawyer will not want to call the expert to present harmful testimony and will not want to disclose the expert’s opinions to an opposing party.

The distinction between testifying and nontestifying experts caused some confusion in an Illinois trial court, where a judge held a lawyer in contempt for refusing to disclose results of an EMG study conducted by an expert. The lawyer had originally designated the expert as a witness who would testify. When the lawyer decided that the expert would serve in a consulting role but not as a witness, the court required the lawyer to disclose the study results anyway. The confusion was resolved on appeal.

Facts of the Case

Alexis Dameron sued a hospital and a number of other parties for medical malpractice. Her complaint alleged that she was injured during surgery due to medical negligence.

In her interrogatory answers, Dameron disclosed David Preston, M.D. as an expert witness who would testify at trial. Dr. Preston performed EMG tests on Dameron but had not prepared a report at the time interrogatory answers were submitted.

Two months later, Dameron filed a motion to change her designation of Dr. Preston from a testifying expert to a nontestifying consultant. The motion requested that Dr. Preston be shielded from discovery pursuant to Illinois’ rules of civil procedure.

The motion explained that Dr. Preston was not a treating physician, that Dameron had not been referred to Dr. Preston by a treating physician, and that Dr. Preston did not treat Dameron’s condition. Rather, he was retained for the purpose of evaluating Dameron’s injuries. The motion alleged that Dr. Preston’s designation as a testifying expert was “inadvertent.”

The trial court denied Dameron’s motion and ordered her to produce Dr. Preston’s test results. Dameron refused, was held in contempt, and was fined $1. The court referred to the order as a “friendly contempt” that would allow Dameron to challenge the correctness of the court’s order in an interlocutory appeal.

Work Product and Expert Reports

Privileges are an exception to the general rule that parties are entitled to obtain evidence in discovery. Broad discovery rules promote the truth-seeking process, while privileges protect the confidentiality of certain information for reasons of public policy.

Illinois’ work-product privilege shields information from discovery when it was prepared in preparation for trial and contains the theories, mental impressions, or litigation plans of the party’s attorney. Illinois extends the work-product privilege to trial consultants who are employed in preparation for litigation or trial, provided that the consultant will not be called as a witness at trial.

The privilege allows a party to refuse disclosure of a consultant’s identity, opinions, and work product. The opposing party can only obtain that information by demonstrating the existence of exceptional circumstances that make it impractical to obtain the same information by other means.

Parties in Illinois are allowed to withdraw witnesses if they give sufficient notice to avoid prejudice to the opposing party. Whether a party can withdraw an expert witness and then redesignate the expert as a consultant to avoid disclosing the expert’s opinions is a question that no earlier Illinois case had decided.

Federal cases generally allow parties to withdraw an expert witness and to designate the expert as nontestimonial, but only if the expert’s report has not already been served on the opposing party. When has been no disclosure of the expert’s opinions and no indication that the party will use those opinions at trial, federal courts allow discovery from the redesignated expert only under exceptional circumstances.

Appellate Decision

The Illinois court decided to follow the federal rule. The court rejected the argument that Dr. Preston’s medical tests made him a treating physician. Dr. Preston did not treat Dameron, but tested her solely for the purpose of consulting.

The court also rejected the argument that disclosing Dr. Preston as a “controlled expert witness” in Dameron’s interrogatory answers constituted a binding judicial admission. The court noted that the disclosure was inadvertent and that the answers were amended to withdraw that designation. In any event, parties are entitled to withdraw witnesses even after disclosing them. At best, the admission would be that Dr. Preston was hired as a controlling expert witness, but that admission would not prevent Dameron from changing her mind about calling Dr. Preston as a witness.

The court disagreed with the argument that designating Dr. Preston as an expert witness waived the right to shield his report from discovery. The discovery rules only require expert reports of testifying witnesses to be disclosed, and Dameron amended her interrogatory answers to make clear that Dr. Preston would not testify.

The court distinguished precedent that required the disclosure of video evidence from which the sound had been extracted to shield a consulting expert’s mental impressions. The court concluded that an EMG study, unlike a video, might expose an expert’s thought process. It is therefore the kind of work product that is protected from discovery.

Finally, the court disagreed that it was fundamentally unfair not to disclose the test results. The fundamental fairness exception in Illinois only applies when a party invokes “the mental-health therapist-patient privilege to exploit or subvert the legal process.” Dr. Preston is not a mental health therapist and there was no evidence that changing his designation from a testifying expert to a consulting expert would exploit or subvert the legal process.