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.

Fertilizer Plant

Appellate Court Affirms Exclusion of Toxicologist’s Opinion Linking Respiratory Disease to Pollutants from Fertilizer Plant

Rhonda Williams sued Mosaic Fertilizer, claiming that her lung diseases and other health conditions were related to toxic substances emitted by Mosaic’s plant. Mosaic made a Daubert motion to exclude the expert testimony that linked Williams’ health problems to Mosaic’s emissions. A federal district court granted the motion and the Court of Appeals for the Eleventh Circuit affirmed its decision on appeal.

Williams’ Claim

Williams has lived her whole life in Tampa, about three miles from a Mosaic factory. She alleged that Mosaic uses a number of toxic chemicals in its manufacturing process. She further alleged that Mosaic produces toxic emissions, including arsenic, cadmium, chromium, lead, manganese, nickel, phosphorous, and zinc.

Government agencies have found that sulfur dioxide in their air near Mosaic’s plant exceeded national and state standards. Measurements of particulate matter (inhalable particles that are 10 micrometers or smaller) exceeded the national standard in Williams’ neighborhood. Particulate matter is a respiratory irritant.

Williams’ lung-related health problems included pulmonary hypertension, obstructive pulmonary disease, asthma, and lower lung scarring. She also attributed her fatigue, abdominal pain, and diabetes to the pollutants or to the side effects of treating her lung conditions.

Expert Evidence

To prove that her health conditions were caused by Mosaic’s pollution, Williams relied on the expert opinion of Dr. Franklin Mink, a toxicologist. Dr. Mink opined that Williams had been exposed to a lifetime of pollutants and hazardous materials generated from Mosaic’s operations, including mining, processing, storage, transportation, and waste handling. Mink also concluded that Williams developed adverse health effects from her exposure to those pollutants and materials, and from the therapeutic agents used to treat those diseases.

Dr. Mink appended a list of sources to his report that included environmental studies and regulatory documents. However, he did not make specific references in his report to the cited sources that supported each of his conclusions. One lesson to learn from this case is that experts should carefully cite the specific sources they rely upon in support of each fact or opinion stated in an expert report.

In granting Mosaic’s Daubert motion, the trial court concluded that Dr. Mink failed to address “the hallmark of the science of toxic torts — the dose-response relationship.” The dose-response relationship is a means of proving that a toxic substance caused a particular health outcome by demonstrating that increasing exposure to the substance correlates with an increased risk that the outcome will occur.

The trial court also faulted Dr. Mink’s methodology because he:

  • “unjustifiably” relied on regulatory standards to determine the dose that would cause harm to health;
  • inferred facts from studies that contradicted his conclusions;
  • failed to consider background risks for Williams’ conditions;
  • failed to rule out other potential causes for Williams’ conditions; and
  • speculated about Williams’ exposure to the toxic substances.

Since the court deemed Dr. Mink’s methodology to be unreliable, the court concluded that his opinions were inadmissible.

Causation Standards

Without deciding whether Williams failed to prove general causation (in other words, to prove that the pollutants emitted by Mosaic are capable of causing the harmful health conditions from which Williams suffered), the Court of Appeals for the Eleventh Circuit agreed that Williams failed to demonstrate specific causation. To establish that her health conditions actually were caused by Mosaic’s toxic discharges, Williams needed to establish a level of exposure that was necessary to produce those effects, and to prove that Williams was exposed to that level. The court concluded that her expert’s failure to do so was fatal to her proof of specific causation.

Dr. Mink did not independently measure the level of pollutants in Williams’ environment, but relied on academic studies measuring the ambient concentration of air pollutants in Williams’ neighborhood. He also relied on Environmental Protection Agency (EPA) air quality standards to determine the threshold exposure to those pollutants that could produce Williams’ health problems.

The court of appeals concluded that Dr. Mink’s analysis was “methodologically problematic,” in part because one of the studies upon which he relied concluded that the concentration of pollutants emitted by fertilizer plants in the Tampa Bay area was below the level that would present a health risk to the public. Dr. Mink explained that he relied on the study’s data, not on its conclusions, but the court of appeals held that Dr. Mink never “clearly explained” until after his opinion was deemed inadmissible why he disagreed with the study authors’ conclusions.

Unfortunately, the appellate opinion does not tell the reader what explanation Dr. Mink gave that prompted the district court’s ruling, making it impossible for the reader to evaluate the clarity of that explanation. Nor does the opinion explain why Dr. Mink was less qualified to draw opinions from the data than the authors of the study.

The court also faulted Dr. Mink for relying on EPA standards to establish causation. The court noted that regulatory standards are protective, in that they might build in a “cushion” to protect sensitive people from exposures that would not adversely affect most people. According to the court, relying on EPA standards is a poor methodology because the standards, unlike the dose-response relationship, cannot predict how many people will be affected by a particular level of contamination.

The court rejected the argument that the EPA standards are, in fact, based on the dose-response relationship. The court noted that EPA cautions that its data cannot predict future risk with precision. Yet the burden in a civil case is not to prove facts with precision, but to prove that they are more likely than not true. While the court stated that it does not require experts to produce “precise numbers,” it faulted the expert’s methodology because the methodology was not based on precise numbers.

Toxic tort cases have become monstrously difficult to prove because appellate courts have set the bar for expert testimony so high that, without investing huge sums of money to establish precise dose-response relationships, experts are unable to use the “exacting” methodologies that courts believe Daubert requires. The unfortunate result is that jurors never get a chance to apply the less-than-exacting civil burden of proof to decide whether a company’s pollution probably caused a plaintiff’s injury. Whether that’s good or bad depends on how judges and legislators balance a company’s interest in being shielded from judgments against society’s interest in compensating victims of toxic torts.

Other Potential Causes of Harm

Finally, the court faulted Dr. Mink for failing to rule out other potential causes of Williams’ health conditions, such as “obesity, allergies, lifestyle, exposure to secondhand smoke, or possible genetic predisposition.” Dr. Mink testified that the probability of those factors causing Williams’ health condition was low.  The court faulted that testimony because it was unsupported by “probability studies.” That complaint arguably goes to Dr. Mink’s credibility. If Dr. Mink was testifying based on his knowledge and experience, whether he can cite supportive probability studies is an issue that could be explored on cross-examination to attack his credibility.

Credibility is generally for the jury to determine. While the court held that “[t]he law does not require the District Court to take [the expert] at his word,” the law does allow juries to do so by assigning credibility determinations to juries rather than judges. In addition, the district court declined to hold a Dauberthearing and thus gave Dr. Mink no opportunity to discuss probability studies that he did not mention (and apparently was not asked about) during his deposition.

Different courts view the elusive border between credibility and the “reasonableness” of testimony in very different ways. This case is a further example of the importance of having experts prepare reports that document every single fact upon which the expert relies in forming an opinion, even if the fact seems blindingly obvious to the expert.


Hypnosis Experts Challenged in Texas

Everyone agrees that expert evidence should be reliable. Judges have historically examined whether an expert is qualified to render a specialized opinion, and if so, whether the expert’s opinion is based on something more substantial than conjecture.

Some version of the Daubert standard for determining the admissibility of expert testimony now prevails in most states. That standard gives judges a greater role in deciding whether expert testimony is based on a reliable methodology.

Reliability standards have tended to be more stringent in civil cases because the insurance industry and business lobbyists have campaigned for admissibility standards that serve their interests by excluding expert testimony that might convince a jury of a corporate defendant’s liability. Reliability standards have tended to be more lax in criminal cases because prosecutors have advocated standards that serve their interests in obtaining convictions. The different approaches to reliability in civil and criminal cases make it easier for “junk science” to be admitted in criminal trials, as the President’s Council of Advisors on Science and Technology made clear in 2016.

Sometimes experts who do not testify influence the testimony of other witnesses. In those cases, the question of reliability becomes more difficult for courts to assess. Testimony that is “refreshed” by hypnosis is an example of an expert’s use of a methodology that may cause juries to hear unreliable testimony.

Hypnotically Refreshed Recollection

Charles Flores and Richard Childs were charged with murdering a 64-year-old woman who was unexpectedly at home when they burglarized her house. The murder was committed in 1998. Childs made a deal and was sentenced to 35 years in prison. He was released after serving 17 years.

Flores was found guilty in a trial and was sentenced to death. When Childs entered his guilty plea, he admitted that he killed the victim, but a jury found Flores guilty because of evidence that he participated in the robbery that ended in the victim’s death. Allowing the killer to go free after 17 years while the non-killer is sentenced to death is an outcome that causes people to wonder what is wrong with the criminal justice system.

Two witnesses testified that Flores admitted to being at the crime scene. A third witness testified that she smoked methamphetamine with Flores and Childs before telling them that there was money hidden in the victim’s home.

The only eyewitness who placed Flores at the crime scene testified after her memory was hypnotically “refreshed.” Before being hypnotized, she could only recall seeing two men get out of a Volkswagen and enter the victim’s home at about the time the murder was committed. She couldn’t make an identification because she only glimpsed the men while peeking through the blinds shortly before sunrise.

Other neighbors saw two white men leave the Volkswagen. They described the men as having a medium build and long hair. Flores is Hispanic, obese, and had short hair at the time the crime was committed.

After being hypnotized, the neighbor who testified was suddenly able to identify Flores as being one of the men. Was her recollection hypnotically refreshed, or did the hypnosis influence her identification?

The witness was hypnotized by a police officer. She was the first and only person he ever hypnotized. Even if hypnosis might refresh a memory without changing it, there is reason to question whether a police officer who is not an experienced hypnotist is the kind of expert who can produce a reliable result.

Hypnosis Challenged as “Junk Science”

Flores was scheduled to be executed, but he received a stay so that he could challenge the reliability of memories that are refreshed through hypnosis. He may have an uphill battle, given that Texas appellate courts have twice upheld hypnosis as a forensic tool, while purporting to place safeguards on its use.

It may be time for Texas to reexamine those precedents. More than half of all states have deemed hypnosis to be “junk science” and have banned testimony that would not have been given in the absence of hypnosis. The modern trend, based on new research into how memories are formed and stored, has rejected the reliability of hypnosis as a tool for producing accurate memories.

Studies have found that hypnosis does not help people recall events more accurately. Instead, it makes people more confident of their memories, whether or not the memories are correct. In fact, studies suggest that hypnosis converts guesses and hunches into statements of absolute fact.

Studies have also demonstrated the risk that questioning under hypnosis will implant false memories. That risk is particularly concerning when the hypnotist is a law enforcement officer rather than a neutral expert.

In states that allow testimony based on hypnotically refreshed memories, it is imperative for defendants to call an expert witness who can explain to the jury why hypnosis is not a reliable means of producing accurate memories. If Flores loses his challenge, he may one day be executed because his lawyers failed to present critical expert testimony to the jury.


Firearms Instructor Not Permitted to Testify as Expert Witness

Carlos Jones was convicted of second degree murder for causing the death of his wife, Tabatha Smith. Jones testified that he woke up in the morning and got out of bed to check on the children. When he returned to the bedroom, his wife rolled over onto the gun he kept beneath his pillow. She said, “You and this gun” in an apparent reference to the discomfort it caused.

Jones testified that he removed the gun from beneath the pillow and assured Smith that it was not loaded. He put the gun in the back pocket of his jeans, but it fell through a hole and landed on the floor. He testified that when he picked it up, the gun fired two or three times. His wife said, “I told you.”

Jones could not say exactly how the gun fired, but testified that the shooting was accidental. He said he did not aim the gun and did not recall pulling the trigger.

When he realized that his wife had been shot, Jones rushed her to the hospital. She was still conscious at that point, but did not answer the questions posed to her by police investigators.

Jones spoke to an acquaintance at the hospital. He allegedly stated the gun had a hair trigger, that the trigger “stuck,” and that it fired multiple times.

At some later time, the police attempted to question Smith again, but she could not speak. When an investigator asked her whether Jones shot her, she lifted her hand slightly.

Smith died after fifteen days in the hospital. She was struck by two bullets, one of which damaged her jugular vein and struck the vertebrae in the back of her neck.

Prosecution Expert

Carl Fullilove, who is identified in the appellate opinion only as a “forensic scientist,” testified that he tested Jones’ gun to determine whether it would misfire. Fullilove was unable to make the gun fire without pulling the trigger, even after striking it with a rawhide hammer. Fullilove opined that it was necessary to pull the trigger once per shot to make the gun fire.

Defense Expert

Consumers of the news might recall the FBI agent whose gun fell out of his pocket while he was dancing. A video captures the gun firing accidentally as the FBI agent picked it up. That gun, however, fired only once. Jones’ problem was convincing the jury that he accidentally shot his wife twice.

The defense attempted to overcome that problem by calling Darrell Carey, a firearms instructor, as an expert witness. The trial court refused to admit him as an expert witness because his testimony was not “based on sufficient facts or data” or “based on reliable principles and methods.” The judge noted that Carey had not produced any written documentation or publication, and that “his testimony was strongly weighted or heavily weighted toward firearm shooting and not the mechanics of the firearm itself, i.e., the assembling, disassembling, [or] the methodology of how it operates.”

It isn’t clear why the judge thought that hitting the gun with a “rawhide hammer,” the methodology used by the prosecution expert, was any more reliable than Carey’s methodology. Nor is it clear why the assembling or disassembling of the gun is important. The relevant question was whether the gun would fire accidentally, not how the gun operates.

The judge allowed Carey to testify about his personal observations as a lay witness. Carey testified that he was able to recreate an accidental discharge of the gun, as was shown on a video recording that was admitted into evidence. He found that by picking up the gun with a finger on the trigger, the weight of the gun against his hand could cause the gun to fire in quick succession.

Carey testified that the heavy weight of the slide caused the gun to bump against his trigger finger. He testified that one time the gun fired twice, and another time the gun fired three times, without consciously pulling the trigger.

Expert’s Qualifications

The Mississippi Court of Appeals affirmed the trial court’s decision not to allow Carey to provide expert testimony. The court noted that Carey did not hold an engineering degree and had never published any scholarly articles, although the relevance of that observation is doubtful.

Like most states, Mississippi law specifically allows an expert to base testimony on “technical, or other specialized knowledge,” which can be acquired from experience rather than academic training. Mechanics routinely testify as experts on the vehicle engines and parts, but few mechanics have published academic articles about their knowledge. The fact that Carey was not an engineer went to his credibility, not to his qualifications as an expert.

The appellate court also agreed with the trial court that Carey was unable to testify about the mechanics of a gun. Again, his testimony might have been stronger if he had measured the amount of pressure that was required to pull the trigger, but as someone who teaches firearm operation, Carey plainly had more knowledge of how firearms fire and misfire than a lay person.

The fact that he could not testify about handgun engineering went to his credibility, but he was plainly qualified to testify about handgun operation. Since the question was whether the firing mechanism was operated intentionally or accidentally, Carey was qualified to give the jury a helpful opinion based on knowledge that most jurors would not have.

Expert vs. Lay Testimony

Finally, the appellate court noted that Carey’s testimony “was largely contingent upon his own personal observations of the handgun’s functionality, in light of Jones’s theory of defense.” The relevance of that observation is unclear.

Any expert who performs tests and testifies about the result is relying on his or her personal observations. Carey tested the gun and explained the results of the tests to the jury. That’s what experts do. It is the expert’s experience in interpreting observations, not the fact that testimony is based on observations, that distinguishes expert from lay testimony.

While the court’s analysis is far from convincing, it isn’t clear that Carey would have testified any differently if the court had allowed him to testify as an expert. Nor is it clear whether the jury would have viewed his testimony in a different light if the court had identified him as an expert rather than a lay witness. The trial court’s error might have been harmless, but that is a question the appellate court did not address.


Appellate Court Upholds Admission of DRE Testimony

The North Carolina Court of Appeals ruled that a trial court did not err by admitting expert testimony from a drug recognition expert (DRE) in an impaired driving trial. Usually, a DRE provides probable cause to justify an arrest, while a subsequent blood test establishes that the defendant had consumed a controlled substance.

In most cases, a jury infers impairment from drug consumption, bad driving, and other indicia of intoxication. Whether a DRE should be allowed to offer an expert opinion as to impairment is, at best, a controversial issue. When a court allows a DRE to testify, defense attorneys should be prepared to counter the testimony with experts of their own.

Facts of the Case

Stacie Fincher uses prescription medications to control her bipolar disorder. During the early morning hours of February 10, 2015, she took another prescription medication, Xanax, to help her sleep.

Stacie drove to her doctor’s office for a follow-up examination related to her ankle surgery. She then drove to a pharmacy to pick up a prescription. She was in a fast food drive-thru lane when her foot slipped off the brake and she rear-ended another car.

Two Asheville police officers who responded to the scene testified (as officers invariably do when they make an impaired driving arrest) that Stacie had glassy eyes and slurred speech. Stacie admitted that she had taken Xanax several hours earlier.

One of the officers administered field sobriety tests to Stacie, including the Horizontal Gaze Nystagmus (HGN) test. He determined that Stacie had the maximum number of points on that test, which is supposedly a sign that the test subject has a prohibited blood alcohol concentration.

Relying on shaky science, the National Highway Traffic Safety Administration (NHTSA) “validated” the HGN as a means of determining probable cause that a driver’s blood alcohol concentration exceeds 0.08%. A notable fact overlooked by the court of appeals is that the NHTSA developed the HGN to detect a prohibited blood alcohol concentration, not to detect impairment from drug use.

Since Stacie was wearing an ankle boot, the officer did not have her perform the other standardized field sobriety tests, which are only valid if an individual has the ability to walk normally regardless of alcohol or drug ingestion. The officer administered a preliminary breath test and found that Stacie had consumed no alcohol.

The officer arrested Stacie for driving under the influence of drugs based on her glassy eyes, slurred speech, the HGN test, her admission to taking Xanax, and the fact that she had been in an accident. She agreed to have her blood drawn.

DRE Evidence

The arresting officer then had Officer Scott Fry, a certified DRE, perform a twelve-step evaluation of Stacie. A DRE is trained and certified by the police. A DRE completes a course that teaches the officer to administer a twelve-step drug evaluation and classification protocol that theoretically determines whether a suspect is impaired by the consumption of a drug, and to classify the drug that caused the impairment.

At Stacie’s trial, Fry testified that Stacie’s blood contained “measurable amounts” of Xanax. The fact that a “measurable amount” of a drug is present in blood, however, does not establish that a sufficient quantity of the drug was consumed to impair safe driving.

Fry also testified about his conclusions as a DRE. The defense apparently offered no expert testimony to challenge the scientific validity of drug recognition evidence.

The court instructed the jury that Xanax is an “impairing substance,” although whether an “impairing substance” has actually caused an impairment is a different question. The jury found Stacie guilty of DWI.

Appellate Opinion

In a cursory opinion, the court of appeals concluded that the DRE’s testimony was admissible, and that the evidence was sufficient to prove that Stacie was impaired by her consumption of Xanax. The opinion is not a model of judicial reasoning.

The court noted that Stacie’s eyes were red and glassy and that her speech was slurred, but pointed to no evidence that Xanax causes those side effects. The court cited Stacie’s performance on the HGN test but failed to acknowledge that no peer-reviewed scientific literature validates the HGN as evidence of impairment resulting from the consumption of Xanax.

The court also noted that Stacie rear-ended another car, but hundreds of people are involved in rear-end accidents every day, most of whom are not impaired. That leaves the DRE’s testimony as the critical evidence of Stacie’s guilt.

North Carolina law generally follows the Daubert standard, but in an apparent effort to make it easier for prosecutors to obtain DWI convictions, North Carolina does not require the same standard of reliability for DRE evidence. The state legislature apparently concluded that protecting corporations from money damages was more important than protecting individuals accused of crime from imprisonment.

A North Carolina statute allows a “witness who has received training and holds a current certification as a Drug Recognition Expert” to offer an opinion “whether the person was under the influence of one or more impairing substances, and the category of such impairing substance or substances.” The “category” into which Xanax falls is “central nervous system (CNS) depressant.”

A study shows that DRE-trained officers are able to correctly identify a test subject as being under the influence of a CNS depressant only 42% of the time. It is startling that the North Carolina legislature concluded that being right less than half the time is good enough for North Carolina criminal cases.

Since the DRE who examined Stacie had a certificate, the court determined that his testimony was properly admitted. Whether his methodology was reliable, the court decided, was a question that the North Carolina legislature had already determined.

A DRE will always be a police officer testifying for the prosecution. North Carolina’s DRE law is plainly intended to allows officers who pass a class to help prosecutors obtain convictions by posing as experts, whether or not their testimony has any scientific validity.

The Importance of Defense Experts

Courts that apply more rigorous standards to DRE opinions often come to a different conclusion. For example, a Maryland trial court determined that DRE evidence is inadmissible under Maryland’s Frye standard because the methodology employed by drug recognition experts is “not generally accepted in the fields of medicine including specifically pharmacology, neurology, ophthalmology and psychiatry.”

The court concluded that acceptance of DRE evidence by NHTSA and the International Association of Chiefs of Police (IACP) should not be conflated with acceptance by a scientific community. The court noted that “NHTSA and the IACP are long-time proponents of the DRE program and have a vested interest in its acceptance and use.” The court probably realized that NHTSA has a long history of developing field tests that purport to be scientific without validating them using peer-reviewed, independent (not funded by NHTSA) scientific analysis under the conditions in which the field tests are actually employed.

The court examined four independent, double-blind studies that “conclusively show” that a DRE’s predictions of impairment based on the DRE protocol are “no better than chance.” Since no peer-reviewed studies accepted the legitimacy of the DRE protocol, and since it is so obviously biased to favor the police in making arrests, the court declined to admit DRE testimony as evidence of guilt.

Even when courts allow a police officer to testify as a DRE, defense attorneys have the opportunity to challenge that testimony. Medical experts can explain why no medical professional would make a judgment of impairment based on the DRE protocol. Experts in scientific methodology can explain why the DRE protocol should not be accepted as valid. A vigorous cross-examination of the DRE may be sufficient, but when a defendant can afford to hire an expert, the opportunity to raise a reasonable doubt about the DRE testimony increases exponentially.

Junk science has no place in a criminal trial. Whenever a police officer purports to give scientific testimony, it is critical for the defense to retain experts who can educate the jury about the difference between scientific methods that have been independently validated and result-oriented junk science that NHTSA or police agencies have developed to make it easier for the police to make arrests.


Utah Supreme Court Reverses Murder Conviction Based on Psychologist’s Opinion that Deceased Did Not Commit Suicide

Did Shannon Lopez commit suicide or was she murdered? A Utah jury convicted her husband of homicide. The Utah Supreme Court reversed the conviction, in part, because the jury may have been influenced by improper expert testimony assessing Shannon as a low risk for suicide.

Facts of the Case

Komasquin and Shannon Lopez were both familiar with guns. Komasquin served in the military and worked in law enforcement, while Shannon was a recreational shooter. They kept multiple guns in their home and one in their car.

On the night of her death, Shannon consumed toxic levels of methamphetamine. She picked up Komasquin at work. Komasquin then began driving. Komasquin told the police that they argued about Shannon’s drug use and financial problems as they drove home.

Komasquin allegedly told the police that Shannon claimed she had packed a bag and planned to take the kids to her father’s home. Komasquin testified that he was the one who threatened to leave.

As they were driving, Shannon was shot in the head. Komasquin tried to turn the car around but crashed into another car. The position of her body and of a gun that the police found in the car was disputed.

At various times in the months before she died, Shannon threated to kill herself. She did so in a conversation with her son and in a text message to Komasquin. One threat specifically referenced an intent to shoot herself.

A medical examiner, a blood splatter analyst, and a gunshot residue analyst all testified for the prosecution. None of those expert witnesses could rule out suicide as the cause of death.

Testimony of Suicide Experts

Faced with inconclusive evidence of Komasquin’s guilt, the prosecution bolstered its case with the testimony of a clinical psychologist. Dr. Craig Byran specializes in the treatment of suicidal patients. He assesses suicide risk by using the Fluid Vulnerability Theory of Suicide (FVTS).

The FVTS model assumes that certain factors (including genetic and demographic factors) create a baseline risk of suicide, and posits that certain triggering events create an acute risk that an individual will commit suicide, but only if that individual has an elevated baseline risk.

Over a defense challenge, the court allowed Bryan to testify that Shannon’s behavior prior to her death was inconsistent with the behavior of people who commit suicide. The court did not allow Bryan to testify that his opinions were definitive or based on scientific certainty.

The defense countered with expert testimony that Shannon’s death was a “classic suicide.” Komasquin appealed his conviction on the ground that Bryan’s testimony was inadmissible.

Reliability of FVTS Assessment

Utah judges must determine whether an expert is qualified to render an opinion, whether the proposed expert testimony would be helpful to the jury, and whether the expert’s opinion is based on a reliable application of reliable principles or methods to sufficient facts or data. The reliability of principles or methods can be established by their general acceptance within a relevant scientific community or by other evidence of reliability.

Apparently lacking empirical evidence that the FVTS is reliable, the prosecution attempted to prove that the FVTS has been generally accepted by psychologists as a reliable means of predicting the risk of suicide. The prosecution pointed to Bryan’s testimony that psychologists rely on the FVTS when treating patients, and that identification of risk plus treatment has been shown to reduce suicidal behaviors.

That testimony did little to establish that the FVTS reliably assesses risk. Treating a population with suicide reduction therapies is likely to reduce suicidal behaviors among those who receive the treatment, but that tells us nothing about whether untreated individuals who are identified as low risk go on to commit suicide. Nor does it tell us whether an individual who has ingested toxic levels of methamphetamine might be more inclined to commit an impulsive suicide than a sober individual, regardless of other risk factors.

If people who commit suicide would always have been assessed as “high risk” while people who do not commit suicide would always be assessed as “low risk,” the FVTS might be a valid tool for predicting future behavior. However, the prosecution pointed to no studies establishing that people who are assessed as low risk never commit suicide.

Nor did Bryan discuss peer-reviewed studies or other evidence establishing that the relevant scientific community has accepted the FVTS for any purpose other than deciding whether to treat someone by using suicide prevention strategies. As the state supreme court recognized, the relevant question in this trial was whether the FVTS correctly assesses that a deceased individual committed suicide. Proving that FVTS “is generally accepted to establish a suicide risk in living patients is not the same thing as demonstrating that it is generally accepted to gauge whether a decedent died by his or her own hand.”

Sufficiency of Data

Finally, the court noted that data used in the FVTS is gathered in clinical practice by interviewing the patient. Bryan had no opportunity to interview Shannon before she died. Nor did he explain how he could accurately assess risk factors like “mood” or “positive outlook” without interviewing Shannon.

As the court pointed out in a shocking footnote, Bryan didn’t interview anyone. He based his opinion solely on information that had been carefully selected by the prosecution to support the conclusion that prosecutors wanted Bryan to reach. That methodology falls well short of basing opinions on reliable and sufficient data.

Given the prosecution’s failure to prove that Bryan’s opinions were based on reliable methods, the supreme court had no difficulty concluding that the evidence was inadmissible. And given that other evidence of whether Shannon committed suicide was ambiguous, the court concluded that Bryan’s inadmissible opinions may have influenced the guilty verdict. The court therefore ordered a new trial.

Risk Assessment Tools and the Helpfulness of Expert Testimony

The court could just as easily have applied a “helpfulness” analysis to arrive at the same result. Unless people who are assessed as low risk on the FVTS never go on to commit suicide, FVTS results cannot help the jury determine whether a death was caused by suicide or murder. If some low risk people commit suicide, the FVTS is not a helpful means of separating murder from suicide as a cause of death.

By their nature, risk assessment tools only tell us about relative risks within a population of people. They tell us nothing about how a single individual within that population will behave. For that reason, risk assessment tools might be useful for treatment purposes but are rarely reliable evidence of how a particular individual behaved or will behave in the future.


Expert Helps Florida Defendant Avoid Conviction of Nonexistent Crime

The Winter Springs Police Department in Seminole County, Florida arrested Christopher Toro for murder in January 2018, as the Orlando Sentinel reported. Prosecutors might have cringed at headlines that reported the subsequent dismissal of that charge after an expert witness explained why Toro’s alleged conduct was not covered by the Florida law that was then in effect.

Criminal Justice and Drug Overdoses

Like many parts of the country, Seminole County has experienced a steep increase in opioid-related deaths. Some of those deaths have been related to fentanyl, a powerful painkiller that is primarily prescribed to cancer patients. Fentanyl and similar synthetic opioids are also manufactured illicitly.

According to the Centers for Disease Control, more than 72,000 Americans died from opioid overdoses in 2017. In an effort to be perceived as attacking the problem of drug-related deaths, Seminole County prosecutors have aggressively charged alleged drug dealers with murder for supplying drugs to addicts who die from an overdose.

Prosecutors charged Toro with murder based on the allegation that he provided fentanyl to Alfonso Pagan, who apparently mixed it with heroin. While nobody forced Pagan to use those drugs, charging drug providers with murder when drug addicts overdose is a long-standing but largely ineffective strategy in the war on drugs.

Using the criminal justice system to address a public health problem has never been smart. Charging 72,000 drug suppliers (some of whom are doctors) for murder because opioid users made unwise decisions isn’t a practical way to tackle the problem of deaths caused by drug overdoses.

Devoting public resources to arrests and prosecutions rather than treatment and prevention has been counterproductive, but arrests make headlines. Arrests give public officials an easy way to show the public that they are doing something, even if they aren’t doing something helpful or smart.

Expert Explains Fentanyl to the Court

At the time Toro was charged, the Florida law permitting drug dealers to be charged with murder applied to deaths resulting from the consumption of specific drugs, including “opium or any synthetic or natural salt, compound, derivative, or preparation of opium.” Fentanyl, however, is not synthetic opium.

Fentanyl was not added to the list of drugs to which the murder statute applies until eight days after Pagan’s death. The prosecutor understood that the revised law had not taken effect, but perhaps understanding the value of a good headline, charged about a dozen defendants under the old law.

The prosecutor took the unsupportable position that the statutory reference to “opium” includes all “opioids,” apparently on the theory that different words mean the same thing if they share a root.

Toro’s public defender used the state’s own expert witness to explain the prosecution’s error. Jannet Brown, a crime analyst with the Florida Department of Law Enforcement who testifies as an expert for the state, forthrightly admitted that “fentanyl is a synthetic opioid and not made from opium.”

The prosecutor had no ready explanation for the legislature’s addition of fentanyl to the statute if fentanyl was already covered in the statute’s inclusion of opium. Courts presume that legislatures do not add needless words to statutes.

Charge Dismissed

The judge agreed with the expert, ruling that “fentanyl is not made from opium at all and essentially has nothing to do with opium.” Toro can thank the honest testimony of the state’s expert witness for saving him from being convicted of a nonexistent crime.

Similar logic will likely lead to the dismissal of other Florida murder charges involving deaths allegedly resulting from fentanyl distribution, including a charge against a man who accepted $50 to introduce a drug user to the dealer who sold her the fentanyl on which she overdosed. The theory that a “middleman” commits murder by introducing a drug user to a drug dealer would have strained even if the statute applied to fentanyl.

Whether or not making an introduction can be charged as a murder, the charge should be dismissed because fentanyl was not yet listed in the statute that applies to deaths caused by illicit drug ingestion. Expert testimony is again likely to establish that Seminole County charged a defendant with a crime that did not exist.

Florida Computer Expert Arrested for Lying About Credentials Under Oath

Florida Supreme Court Rejects Daubert— Again

As ExpertPages reported last year, the Florida Supreme Court declined to adopt the Daubert standard of expert witness admissibility after the Florida legislature added it to the state Evidence Code. The Florida Supreme Court has the power to determine procedural rules that govern Florida’s court system and can reject legislation that invades that domain.

The court typically defers to legislation that changes court procedures, but reserves the power to overturn procedural legislation when it has doubts about its constitutionality. The court expressed concerns about the impact that Daubert has on the right to a jury trial because it substitutes a judge’s view of an expert’s testimony for a view that a jury might reasonably take.

Opponents of Daubert argue that it is the jury’s function to determine the credibility of witnesses. Proponents of Daubert make a distinction between the reliability of an expert’s methodology and the expert’s credibility.

Since an expert’s credibility typically hinges on the reliability of an expert’s methods, there is good reason to question whether the distinction is illusory. The Florida Supreme Court, in choosing not to adopt Daubert, placed its faith in juries to decide whether experts form their opinions in a reliable way.

The court’s decision in 2017 not to adopt Daubert as a rule of evidence avoided ruling on whether the legislature’s 2013 addition of the Daubert standard to the Evidence Code violated the Florida Constitution. That issue came before the court in DeLisle v. Crane because Florida’s Fourth District Court of Appeal ruled in 2016 that a trial court erred by not applying Daubert to exclude expert evidence.

Facts of the Case

Richard DeLisle developed mesothelioma, a form of cancer that is caused by inhaling asbestos fibers. He sued a number of businesses that may have exposed him to asbestos. His case went to trial against three defendants. Two other potential sources of asbestos exposure were included on the verdict form.

The jury found that all five entities named on the verdict form, including the three defendants, were responsible for DeLisle’s mesothelioma. The verdict against Lorillard Tobacco was based on evidence that DeLisle smoked Kent cigarettes in the 1950s. The filters in Kent cigarettes at that time contained asbestos. The filters were supplied by a former subsidiary of Hollingsworth and Voss Co. (“H & V”). The jury’s verdict against H & V was based on its use of asbestos in cigarette filters. The verdict against Crane Co., a manufacturer of valves and pumps, was based on its use of gaskets that contained asbestos.

One of DeLisle’s experts testified that every exposure to asbestos during a lifetime substantially contributes to mesothelioma. Two of his experts testified that low level exposures to the kind of asbestos used by Crane might not substantially increase the risk of mesothelioma.

Lorillard and H & V moved to exclude the causation testimony of four expert witnesses: a toxicologist, an environmental scientist, a pulmonologist, and an industrial hygienist. The companies argued that the testimony did not satisfy the standards of Daubert contained in the state statute that the legislature enacted. The trial court held a Daubert hearing and admitted the testimony.

The jury returned a verdict of $8 million. The jury apportioned 22% of the fault to H & V, 22% to Lorillard, and 16% to Crane. The remaining fault was attributed to the two entities that were not on trial. The trial court rejected all challenges to the verdict and entered judgment in favor of DeLisle.

The court of appeals reversed the judgment after concluding that the trial court failed to exercise its gatekeeping function under Daubert. The state supreme court agreed to review the decision to determine whether the legislature violated the principle of separation of powers by making a procedural change to the rules of evidence.

Supreme Court’s Rule-Making Power

The Florida legislature adopted the Florida Evidence Code in 1979. The Florida Supreme Court, while questioning the legislature’s power to impose procedural rules on the Florida court system, used its rule-making authority to adopt the Evidence Code to the extent that the Code’s provisions were procedural. The supreme court adopted the Code to avoid prolonged battles as to which of its sections address substantive law and which are procedural.

Since 1979, the supreme court has generally adopted legislative changes to the Evidence Code. In 2000, however, it declined to adopt a rule that would have allowed former testimony of a witness to be admitted at a criminal trial, even if the witness was available to testify. That rule would have violated a defendant’s constitutional right to confront witnesses, as the court decided three years later when it reversed a trial court decision that admitted testimony under the legislature’s rule.

The supreme court subsequently declined to adopt other procedural rules enacted by the legislature, including a rule that would have rendered inadmissible the testimony of out-of-state experts in medical malpractice cases unless the experts subjected themselves to disciplinary review by the Florida Board of Health. Last year, the court declined to adopt the legislature’s addition of the Daubert rule to the Evidence Code.

Substance v. Procedure

The Florida Supreme Court formally adopted the Frye standard to determine the admissibility of expert opinions in 1989. The Frye test equates an opinion’s reliability with the expert’s use of a generally accepted methodology to arrive at that opinion.

The U.S. Supreme Court replaced the Frye standard with the Daubert standard in 1993. While proponents of the Daubert test argue that it keeps “junk science” out of the courtroom, the Florida Supreme Court declined to adopt Daubert because (as it explained in a 1997 decision) it viewed Frye as a stricter test that was more likely to assure the reliability of expert evidence.

As the Florida Supreme Court explained: “Frye relies on the scientific community to determine reliability whereas Daubert  relies on the scientific savvy of trial judges to determine the significance of the methodology used.” Since judges are not scientists, the court deemed Frye to be the better test for judging reliability.

Responding to demands made by lobbyists for the insurance industry and other corporate interests, the Florida legislature adopted Daubert  in the Evidence Code. However, the Florida Constitution requires a two-thirds legislative majority to change the Florida Supreme Court’s procedural rules. The vote in the Florida House fell well short of that margin.

The supreme court decided that a rule governing the admissibility of expert testimony is procedural. Substantive rules create, define, or regulate substantive rights while procedural rules regulates the actions of litigants in court proceedings. There is no substantive right to present the testimony of a particular expert. Rather, courts decide whether to admit expert testimony by following a procedure that determines whether the testimony is reliable.

Under the Florida Constitution, it is the Florida Supreme Court that is empowered to define court procedures. The court decided that the legislature unconstitutionally infringed upon that procedure by adopting the Daubert  standard. Florida will therefore continue to use the Frye standard to determine the admissibility of expert opinions.

Court Reinstates Verdict

Given the Florida Supreme Court’s refusal to use its rulemaking authority to adopt Daubert after the legislature amended the Evidence Code, it should come as no surprise that the supreme court reversed the court of appeals’ reliance on the legislatively-adopted Daubert  standard.

The supreme court noted that Frye only excludes opinions that are based on new or novel methodologies that the scientific community has not accepted. In all other cases, it is the jury’s role to assess the reliability of expert testimony.

The supreme court held that medical causation testimony concerning mesothelioma is not new or novel and is therefore not subject to the Frye standard. Nor does an assessment of the risk of harm caused by substances containing asbestos depend on new or novel methods of analysis.

One expert’s disagreement about the reliability of another expert’s methodology is exactly the kind of factual dispute that juries should resolve. The court concluded that judges should not usurp the jury’s role in “choosing between legitimate but conflicting scientific views.”


Appellate Court Concludes Cardiologist Was Qualified to Testify About General Practitioner’s Standard of Care

Dr. Melissa Sotillo is board certified in obstetrics/gynecology (OB/GYN). She prescribed Cytomel to a patient for weight loss management after the patient’s weight loss plateaued. Prior to taking Cytomel, the patient had been taking phendimetrazine that Dr. Sotillo also prescribed.

When she prescribed Cytomel, Dr. Sotillo followed the recommendations of a software program known as the Weight Loss and Wellness Program. The program was developed by Dr. G’s Franchising Companies, LLC.

Fifteen days after she began taking Cytomel, the patient died from a cardiac occlusion. An autopsy revealed that the occlusion caused a total closure of her left coronary artery.

The patient’s widower sued Dr. Sotillo and Dr. G’s. He alleged that prescribing and (in the case of Dr. G’s) recommending Cytomel to a patient who had been taking phendimetrazine was negligent.

Expert Opinions

Two experts prepared reports for the widower. Christine Stork, Pharm.D., explained that phendimetrazine decreases the diameter of the coronary artery and increases a patient’s heart rate. According to her report, an excess amount of Cytomel can also cause an increased heart rate. She also noted that a black box warning on Cytomel cautions that the drug should not be used for weight loss.

Bruce M. Decter, M.D., an internist and board-certified cardiologist, expressed opinions about Dr. Sotillo’s breach of the standard of care. Because weight loss was outside of Dr. Sotillo’s specialty, Dr. Decter expressed his opinion as to the standard of care that would apply to a general practitioner rather than an OB/GYN.

According to Dr. Decter, Dr. Sotillo breached the standard of care in three ways. First, she failed to take a full history and to perform a full physical examination of the patient. Second, she prescribed medication that went beyond the parameters of the informed consent that the patient signed.

Third, Dr. Sotillo prescribed Cytomel in combination with phendimetrazine. He opined that prescribing the drugs in combination was the proximate cause of the occlusion that was the direct cause of the patient’s death.

Dr. Decter also opined that the combined negative effects of Cytomel and phendimetrazine are well known, and that Dr. G deviated from the standard of care by recommending that they be taken in tandem.

Challenge to Expert Opinions

The trial court granted Dr. Sotillo’s motion to exclude Dr. Decter’s opinion on the ground that he was not a general practitioner and therefore was not qualified to render an opinion as to the standard of care that applied to Dr. Sotillo when she acted as a general practitioner. The court also excluded Dr. Dector’s opinion as to Dr. G’s Weight Loss and Wellness Program because Dr. Decter was not a computer software expert.

Having excluded all of the relevant evidence against both defendants as to the issue of causation, the court granted summary judgment against the widower. He appealed to the Superior Court of New Jersey Appellate Division. In an unpublished opinion, the appellate court reversed the summary judgment.

Standard of Care Experts in New Jersey

New Jersey law requires plaintiffs asserting a medical malpractice case to file an affidavit from an expert witness explaining how the defendant deviated from the standard of care. The plaintiff’s expert must be “equivalently-qualified to the defendant physician.”

New Jersey law specifies that an “equivalently-qualified” specialist is one who practices in the same specialty as the defendant. If the defendant is a general practitioner, the plaintiff’s expert must have recently practiced as a general practitioner, or must have an “active clinical practice that encompasses the medical condition, or that includes performance of the procedure, that is the basis of the claim or action.”

Statutes like New Jersey’s have become common, and are commonly used to exclude well-qualified experts regardless of their knowledge or experience. The insurance and medical industry lobbyists who have encouraged passage of the statutes claim that they deter frivolous lawsuits by assuring that qualified experts can attest to the merits of the plaintiff’s claim.

In reality, state statutes artificially narrow the range of experts who are allowed to testify for injured patients without regard to their actual qualifications, and thus serve their intended purpose of making it more difficult to sue doctors. The statutes also undercut the critical role that juries play in evaluating the qualifications of expert witnesses.

Dr. Decter’s Qualifications to Testify About Dr. Sotillo

The trial court ruled that Dr. Decter was not qualified to define the standard of care that applies to general practitioners because his practice was primarily devoted to cardiology. The appellate court recognized that, as a cardiologist, Dr. Decter engaged in an “active clinical practice of medicine” that included prescribing medications to patients and assessing the risks and benefits associated with medications. His practice therefore encompassed the same procedures that Dr. Sotillo used when she treated her weight loss patient.

The appellate court rejected the argument that Dr. Decter was unqualified because he rarely prescribed Cytomel and never prescribed phendimetrazine. The precise medications prescribed do not affect the standard of care that applies to prescribing a medication. Dr. Decter’s inexperience with the drugs at issue went to his credibility, not his qualifications to testify about standard of care.

Nor did it matter that Dr. Decter’s practice does not encompass weight loss management. When a doctor opines about the standard of care a general practitioner must provide, the doctor is not necessarily required to have experience treating the precise condition at issue in the case. The issue here was the standard of care that applies to prescribing medications. The health condition for which medications are prescribed does not change the standard of care for prescribing drugs, which surely includes determining whether the interaction of two prescribed medications might be deadly.

Dr. Decter was well qualified to opine that a general practitioner should take a full history from a patient, should conduct a physical examination, should not prescribe medications under conditions not covered by the patient’s informed consent, and should be aware of black box warnings on drugs that the general practitioner prescribes. Since his practice encompassed taking histories, conducting examinations, reviewing informed consent forms, and prescribing medications, Dr. Decter rendered opinions that were permitted by New Jersey law.

Dr. Decter’s Qualifications to Testify About Dr. G

The trial court decided that Dr. Decter was not qualified to testify about Dr. G’s software program because he is not a software engineer. The court held that he could not determine whether the software was defective and could not express an opinion about its efficacy.

The trial court’s analysis was misguided. The program recommended the prescription of two medications that, taken together, have deadly consequences. A software engineer would not have been qualified to determine whether a recommendation to prescribe a combination of medications would be negligent, because software engineers do not understand the considerations that inform a decision to prescribe medication. It was the output of the program, not the mechanics of its operation, that was the basis for the negligence claim.

The New Jersey malpractice statute presumably does not apply to software companies, since software companies are not doctors. Accordingly, the only question is whether Dr. Decter was qualified to render opinions about the recommendations that Dr. G’s program made.

It was Dr. Decter’s expertise as a physician that made his testimony useful, while an engineer’s testimony would not have been. The appellate court easily concluded that “Dr. Decter is qualified to opine regarding the propriety of the medications recommended by Dr. G’s program,” and that he required no insight into the program’s functioning to render that opinion.

Net Opinion Rule

Finally, the appellate court concluded that Dr. Decter’s opinions did not violate New Jersey’s “net opinion rule.” That rule prohibits the admission of expert opinions that are not supported by facts or data and requires the expert to explain the causal connection between a negligent act and an injury. The explanation must state more than a conclusion; it must provide the “why and wherefore” that links negligent conduct to a resulting harm.

Dr. Decter testified that he relied on Dr. Stork’s explanation of how the interaction of phendimetrazine and Cytomel narrows the artery and increases heart rate. Dr. Decter concluded that the increased heart rate caused the occlusion that resulted in the patient’s death.

Dr. Decter was entitled to rely upon facts and data provided by Dr. Stork, and his reasoning supplied the “why and wherefore” that linked medical negligence (prescribing a contraindicated drug) to the resulting death. His opinion was therefore admissible under New Jersey’s net opinion rule.

pregnant young woman

Potential Testimony of Forensic Anthropologist and Obstetrician Creates Controversy in Skylar Richardson Prosecution

Criminal accusations against Skylar Richardson have made headlines, but news coverage has focused on the sensational and melodramatic aspects of the story. When the case finally goes to trial, crucial testimony from expert witnesses probably won’t make it into the tabloids, but might make the difference between a conviction and acquittal.

Criminal Charges

The prosecution alleges that Brooke Skylar Richardson, at the age of 18 and planning to enter college, murdered her newborn baby and buried the body in her yard. The defense contends that the baby was stillborn and that Richardson, who had concealed her pregnancy, buried the stillborn baby because she didn’t know what else to do.

The prosecution is relying on evidence that Richardson was extremely upset when her doctor told her she was pregnant, and that she ignored advice to obtain an ultrasound and prenatal care. The prosecutor characterizes Richardson as doing nothing to prepare for the baby’s birth, which it views as evidence that she never intended to allow the child to live. Richardson’s actions are also consistent with those of a young woman in denial, a theory that seems at least as plausible as the prosecution’s.

When Richardson saw her doctor again three months later, she was no longer pregnant. She told her doctor that she had given birth to a dead baby girl in the middle of the night and buried the corpse. Whether the doctor violated doctor-patient privilege by disclosing that communication to the police is one of the issues in the case.

John Faine, the lead detective who handled the murder investigation for the Warren County, Ohio Sheriff’s Office was demoted shortly before the scheduled trial. Faine, who is married to a Warren County judge, was accused of carrying on an affair while on duty with a woman he met on Snapchat.

The detective’s alleged misconduct fueled defense concerns about how the police mishandled the investigation. The trial was postponed in the wake of Faine’s demotion.

The Privilege Question

The prosecution wants Richardson’s OB-GYN to testify as a fact witness rather than an expert witness. The prosecution hopes to elicit testimony about the statements that Richardson made to her doctor, both before and after her pregnancy ended.

The trial judge agreed to allow some of Richardson’s medical records, as well as the doctor’s testimony, to be admitted as evidence. That prompted an appeal that again delayed the trial.

Statements to a treating physician are usually privileged when they are made to further the patient’s treatment. Ohio law broadly protects statements made to a physician in a doctor-patient relationship.

The privilege is intended to assure the kind of candor that promotes good health. Patients who fear that their statements will be revealed may conceal critical information from their doctors for fear that their statements will become public knowledge. That fear may inhibit medical treatment if doctors are not told facts that might affect a diagnosis or treatment.

Bearing in mind the purpose of the privilege, the appellate court might draw a distinction between statements Richardson made to her OB/GYN during her pregnancy in the context of obtaining a diagnosis or treatment, and statements about burying her stillborn baby, which arguably had no relationship to medical treatment. How the court is likely to resolve the issue will probably not be known for several months.

Forensic Expert Criticized

Prosecutors, perhaps with the intent of inflaming the public and influencing the jury pool, have spent months referring to Richardson’s child as “Baby Jane Doe.” Naming the baby creates the impression that the baby was born alive, a disputed fact that prosecutors have yet to prove in court.

Richardson’s attorneys say that Richardson was looking forward to her child’s birth, and had already selected the name Annabelle. Richardson’s attorneys blame the prosecution’s forensic anthropologist for fueling public outrage by claiming that the baby had been burned before being buried. After a second expert found no evidence that the body had been burned, the prosecution quietly retracted the claim made by its forensic anthropologist — but not until after a grand jury indicted Richardson, and after the false accusation tainted the public’s view of the case.

The defense will likely use the forensic anthropologist’s mistake to cast doubt on the reliability of the prosecution’s experts. In addition, investigators originally concluded that Richardson had buried her stillborn baby, but later relied on expert opinions that the baby had been born alive. The defense will likely use that uncertainty to suggest the existence of reasonable doubt.

Richardson’s case underscores the critical need for experts to be certain in their opinions. Richardson may find it impossible to have a fair trial because of the publicity surrounding a horrific but false claim about her actions. If Richardson is guilty, the expert’s mistaken opinion might make it more difficult to secure a conviction.

Missouri Passes Daubert Bill, Governor May Veto

Missouri Appellate Court Rejects Claim that Medical Testimony Regarding Causation and Damages Was Speculative

A jury in Jefferson County, Missouri returned a verdict of $1.5 million for an accident victim who was injured while riding on a manually operated amusement device known as a Spaceball. The Missouri Court of Appeals rejected several challenges to the verdict. The most substantial challenge was to the admission of expert medical testimony on behalf of the victim.

Facts of the Case

Adam Payne attended a fundraising event for a youth football organization. The event took place at a recreational facility owned by Fiesta Corporation. Fiesta also owned a ride on which Payne was injured.

The ride, known as the “Spaceball human gyroscopic ride,” is a single-seat ride that spins sideways while rotating the rider in a circle. A harness secures the rider to the seat. The harness is locked in place with a cotter pin. An operator manually turns a control wheel that sets and keeps the ride in motion.

Fiesta claimed that it trained members of the youth football organization to operate the ride, but that they failed to appear for the event. Payne alleged that Fiesta did not train anyone. In any event, it was undisputed that the Spaceball ride was in operation throughout the event, that Fiesta employees were aware that patrons were using the Spaceball ride, and that the employees did nothing to supervise or prohibit its use in the absence of trained operators.

Payne relied on two bystanders to help him into the Spaceball harness. He testified that he assumed, but was not told, that the bystanders were trained to operate the ride. The bystanders did not secure the harness properly. Payne fell and sustained a neck fracture that resulted in a degenerative disk disease.

The jury determined that Fiesta was negligent in providing the Spaceball ride without assuring that its use was supervised by a trained operator. The jury returned a verdict for Payne of $1.5 million for future pain and suffering, about twice the amount that Payne’s lawyer asked the jury to award.

Expert Testimony

Dr. Armond Levy, a neurosurgeon, testified by video deposition. Dr. Levy took over Payne’s treatment from another physician after that physician left his practice. Dr. Levy relied upon the prior physician’s treatment notes when he treated Payne.

The first physician’s notes reflected that a joint between two neck vertebrae was injured in Payne’s fall. The physician considered surgery but wanted to try more conservative treatment first, including physical therapy, stabilization with a cervical collar, rest, and medication.

A year after the fall, when Payne first saw Dr. Levy, he complained of continuing pain. Dr. Levy testified that the pain resulted from an injury that was caused by Levy’s fall while riding the Spaceball.

Since conservative treatment did not alleviate Payne’s pain, Dr. Levy recommended an aggressive surgical approach. He ruled out less invasive surgery and concluded that a cervical fusion would be the only effective means of lessening Payne’s ongoing suffering. Payne had not decided by the time of trial whether to have the surgery.

Dr. Levy also opined that, while Payne’s fracture had healed by the time of trial, Payne suffered damage to a nerve root in the cervical spine. The fact that nerve root injections provide temporary pain relief supported that conclusion.

Admissibility of Testimony

Fiesta objected the admissibility of Dr. Levy’s video deposition. Fiesta argued that Dr. Levy’s opinions about causation and the likelihood of future pain and suffering were speculative. Fiesta contended that Dr. Levy noted but did not rule out a “preexisting degenerative and scoliotic deformity of his neck” as the source of Payne’s suffering after the Spaceball accident.

The appellate court initially noted that injuries can have more than one cause. Under Missouri law, if negligence contributes to the injury, an independent or intervening cause of the injury does not shield the negligent party from liability.

Moreover, while Dr. Levy recommended fusion surgery, he did not testify that Payne would eventually be required to undergo the surgery. Under Missouri law, a medical opinion that an injury has increased the likely need for surgery in the future is relevant evidence. Juries are entitled to consider that likelihood when they assess damages.

The court examined the whole of Dr. Levy’s testimony to determine its admissibility. While Dr. Levy expressed uncertainty during some of his testimony about the relationship between the preexisting injury and the injury caused by the fall, he also testified to a reasonable degree of medical certainty that the fracture and the nerve root damage were caused by the fall.

Fiesta’s objection to the admissibility of the entire deposition, if granted, would have prevented the jury from hearing admissible testimony. Rather than focusing its objections on specific answers to specific questions, Fiesta’s tactic of objecting to the deposition in its entirety was misguided.

Theories Supported by Evidence Are Not Speculative

Fiesta also complained that Dr. Levy could not explain with certainty why Payne continued to suffer after the fracture healed. Dr. Levy testified that nerve root damage was a “theory” that explained ongoing pain, albeit one that was supported by medical evidence.

The appellate court concluded that Dr. Levy was not required to explain the precise mechanics of the injury. He was only required to testify that the fall caused Payne’s continuing pain. That testimony was supported by the facts, including the absence of neck pain prior the fall, the efficacy of nerve root injections at relieving pain, and Dr. Levy’s review of X-rays, CT scans, and MRI scans. Dr. Levy’s opinion as to causation and the likelihood of continuing pain was therefore admissible.

The court’s decision is consistent with the general rule that medical testimony need not conclusively establish a mechanism of injury. Medical science is fraught with uncertainty, but plaintiffs in civil cases need only prove causation and damages to a standard of probability, not certainty. The fact that a doctor does not understand the precise cause of pain does not prevent a doctor from opining, based on medical judgment, that the pain is probably caused by a specific event.