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.

Seal of State of Florida and Gavel

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{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the fault to H & V, 22{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} to Lorillard, and 16{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} 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.”

Malpractice

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.

USA legal system conceptual series - Illinois

Court Sanctions Lawyer for Bad Faith Accusations Against Expert Witness

A recent decision by a federal district court judge in Illinois illustrates the importance of maintaining civility in court proceedings, particularly when making statements about expert witnesses. The court sanctioned a lawyer for making a series of unsupported accusations about an expert in a bad faith attempt to intimidate the witness.

Odometer Rollback Lawsuit

Donald Twyman bought a used SUV from S&M Auto Brokers in Illinois. When Twyman took the SUV to a dealer because of poor handling, he discovered that the SUV had been rebuilt after an accident. The dealer’s records also revealed a discrepancy between the mileage that had been recorded by the service department and the mileage shown on the odometer.

Most used cars are sold “as is,” placing the burden on purchasers to discover defects, but Twyman claimed that S&M had violated an Illinois law prohibiting deceptive practices by failing to disclose that the SUV had been in an accident. In addition, Twyman sued S&M for rolling back the vehicle’s odometer, in violation of a federal law that prohibits tampering with odometers.

The lawsuit was filed in federal court. The judge set a short discovery period to control litigation costs in light of her assumption that the case wasn’t worth very much.

Personal Attacks Leveled at Plaintiff’s Lawyer

The lawyers sniped at each other as the litigation progressed. In particular, S&M’s lawyer, Joel Brodsky, accused Twyman’s lawyer of being a “recidivist” litigator because he had filed three other lawsuits bringing the same kind of claim. Given that it is the job of plaintiffs’ lawyers to file lawsuits, it is difficult to understand why Brodsky thought his complaint had merit. The judge told Brodsky to calm down.

The court noted that the lawyers were filing motions without making a serious attempt to resolve their concerns and admonished them to talk to each other as local court rules required. Talks did not go well. Brodsky sent emails to the plaintiff’s lawyer calling him an “extortionist” and an “embarrassment to the profession.”

Brodsky later asked for a protective order against certain discovery requests because “Plaintiff does not consider a lawsuit as a way to redress a legitimate grievance by uncovering the truth and applying the law, but instead considers it to be a profit making, fee generating, enterprise for attorneys.” That lawyers earn fees by bringing lawsuits should hardly come as a surprise to anyone.

The judge clearly became frustrated with Brodsky, noting that more than 150 docket entries were attributable to Brodsky’s conduct of the litigation. The judge repeatedly admonished Brodsky to be civil, particularly when he accused the plaintiff’s lawyer of lying, extortion, and attempting to create a false record. Brodsky crossed a line, however, when he attacked the plaintiff’s expert witness.

Unfair Attacks on Expert Witness

The plaintiff’s lawyer retained Donald Szczesniak as an expert witness. Szczesniak operates an auto repair business. Brodsky asked the court to strike Szczesniak’s expert report, claiming that Szczesniak had fabricated an expert report in an unrelated matter. He later accused Szczesniak of damaging another person’s fence and pointed to a number of civil judgments entered against Szczesniak’s business.

Brodsky also accused Szczesniak of sending him an anonymous fax that included a newspaper article. Brodsky claimed that Szczesniak was trying to intimidate him to prevent further investigation of his background. Brodsky asked the court to make an immediate referral to the U.S. Attorney’s Office for a criminal investigation of Szczesniak, who Brodsky alleged had committed the crime of “indirect criminal contempt.”

Declining to act as Brodsky’s bully, the court denied those motions. Brodsky then asked the court to impose sanctions upon Szczesniak and upon plaintiff’s attorney for retaining him. None of Brodsky’s motions made reference to Daubert standards or alleged any legally justifiable reason for barring Szczesniak’s testimony or sanctioning his alleged out-of-court conduct.

Szczesniak denied all the accusations of wrongdoing and the plaintiff’s lawyer presented evidence to refute them. Brodsky responded by calling Szczesniak a liar and perjurer. Brodsky even accused Szczesniak of submitting a fabricated declaration from a nonexistent son.

The judge decided that enough was enough. She required the parties to attend the next hearing in person and discovered that Brodsky’s client would have been happy to settle the case but that Brodsky had never conveyed the plaintiff’s settlement offer to him. When the judge announced that she was considering sanctions against Brodsky, he withdrew from his representation, retained counsel, and moved to withdraw certain documents that he had filed.

Sanctions for Unwarranted Attacks on Expert

Brodsky apologized during the sanctions hearing and acknowledged that he went “too far.” The court’s decision suggests that Brodsky (who was “preoccupied” with his cellphone and sighed audibly during the sanctions hearing) was not entirely sincere or remorseful.

The court noted that Brodsky had been warned several times not to level nasty and unsupported accusations against plaintiff’s counsel or his expert witness. The court credited Szczesniak’s testimony that he was distressed by Brodsky’s accusations and was concerned that damage to his reputation would harm his credibility as an expert witness in odometer tampering cases.

The court noted that the legal system “provides ample opportunities for litigants to vociferously challenge the testimony of expert witnesses.” Rather than filing a Daubert motion, however, Brodsky “resorted to inflammatory, unsubstantiated, and false allegations against Szczesniak.”

The court found that “Brodsky’s allegations against Szczesniak were made “in bad faith, in an attempt to improperly impugn Szczesniak’s reputation before the Court, to have the Court potentially disqualify him as an expert, or at least intimidate Szczesniak to the extent he would not testify.” That conduct went beyond aggressive advocacy because it was not based on a good faith understanding of the law and the facts.

While withdrawing some of the inflammatory documents may have shielded Brodsky from Rule 11 sanctions, the court concluded that it had inherent authority to sanction Brodsky without relying on Rule 11. The court decided that leaving Brodsky unpunished for his bad faith conduct would undermine the integrity of the court’s proceedings.

The court noted that Brodsky had behaved badly in state court multiple times without being sanctioned. To put a stop to similar misconduct in federal court, Brodsky was ordered to pay a fine of $50,000. The court ordered him to attend an ethics course and an anger management course, and referred Brodsky to the Executive Committee to determine whether Brodsky should be barred from practicing in the Northern District of Illinois.

The lesson to learn is that advocacy can be aggressive but never abusive. Unsupported accusations and personal attacks upon expert witnesses are counterproductive and may lead to sanctions against attorneys who resort to those tactics.

Water Treatment

Experts Testify in Flint Water Crisis Prosecutions

Twelve people died and at least 87 others were sickened by the outbreak of a disease in Flint, Michigan during 2014 and 2015. Many doctors diagnosed their patients with Legionnaire’s disease, a noncontagious condition with symptoms similar to pneumonia.

Legionnaire’s disease is caused by bacteria that live in water. Most people acquire the disease by inhaling water droplets that contain the bacteria. Some experts are attributing the disease outbreak in Flint to the city’s water supply. Other experts disagree.

Criminal prosecutions are underway against state officials responsible for municipal water quality. Prosecutors allege that the officials failed to alert the public about a Legionnaires’ outbreak in Flint and that they conducted a grossly negligent investigation of the outbreak.

Expert witnesses for both the prosecution and defense are playing a key role in preliminary examinations that are held to determine whether the evidence is sufficiently strong to justify a criminal trial. Additional experts may testify if the cases proceed to trial.

Legionnaire’s Disease in Flint

The outbreak began soon after Flint changed its water source from Lake Huron to the Flint River, a switch that produced discolored and foul-smelling tap water. Scientists concluded that the city’s water supply was contaminated by lead and other heavy metals, but that finding would not necessarily explain an outbreak of Legionnaire’s disease.

Scientists eventually focused on chlorine, which cities often add to water supplies to keep bacteria from reproducing. They discovered that Flint’s chlorine level dropped, and that Legionnaire’s disease increased, after the city changed its water supply.

Lead and heavy metals in the new water supply may have interacted with the chlorine that the city added to the river water, reducing the amount that was available to kill bacteria. The city was also faulted for failing to add corrosion-control chemicals to the water, which may have allowed lead to leach from older pipes. However, other experts contend that chlorine levels do not adequately explain the disease outbreak.

After Flint switched back to its original water source, new reports of Legionnaire’s disease returned to their normal levels. That outcome tended to confirm that the disease outbreak was caused by the new source of Flint’s water.

A report by the Michigan Department of Health and Human Services nevertheless suggests that most of the patients with the disease may have been exposed to it at McLaren Flint Hospital. The hospital responded by accusing the state of using a self-serving and unsound methodology to shift blame from state officials to the hospital.

Criminal Charges Filed

Notwithstanding the confusion about the exact cause of the Legionnaire’s disease in Flint, criminal charges were lodged against more than a dozen state officials, including the state’s Health Director and its chief Medical Officer.

The most significant charges are negligent manslaughter. Two manslaughter charges were filed against Nick Lyon, the director of the Michigan Department of Health and Human Services. Manslaughter charges were also filed against two officials of the Michigan Department of Environmental Quality (DEQ).

The manslaughter charges relate to men in Flint who allegedly died from Legionnaire’s disease. Those officials and others were also charged with willful neglect of duty and misconduct in public office.

Expert Testimony in Manslaughter Prosecution

Lyon sought dismissal of the manslaughter charges during preliminary proceedings. Expert witnesses for the prosecution and for Lyons presented competing opinions about the cause of the victims’ deaths.

Prosecutors used a number of experts to establish that the Legionnaires’ outbreak was caused by the change of Flint’s water supply to the Flint River. Prosecutors contended that the state (in a decision made by Lyon) required Flint to use the new water supply as a cost-saving measure.

The prosecution relied on the testimony of Dr. Joel Kahn, a nationally known cardiologist from Metro Detroit, to establish that the two alleged manslaughter victims died from Legionnaire’s disease. The defense challenged whether Dr. Kahn was qualified to give that testimony since his expertise is in cardiology rather than epidemiology or infectious diseases.

Dr. Jeffrey Band, an epidemiologist and infectious disease specialist at Beaumont Hospital in Royal Oak, testified that the two men did not die from Legionnaires’ disease. He acknowledged that one of the men acquired Legionnaire’s disease but maintained that the disease was treated promptly and effectively. He opined that the man died from an unrelated heart condition.

Dr. Kahn, however, testified that Legionnaire’s disease was the triggering cause of the man’s death. Dr. Kahn also opined that the other man died of Legionnaire’s disease and pneumonia “rather rapidly” after exposure to the disease. Dr. Kahn testified that Legionnaire’s disease was the only cause of that man’s death.

The judge presiding over the preliminary examination recently decided that the evidence was sufficient to permit the case to proceed to trial. Questions about the qualifications of experts are likely to arise again in pretrial Daubert motions. Additional medical experts may be needed to satisfy the prosecution’s burden of proving causation.

Expert Testimony in Misconduct Prosecutions

Proceedings are also underway in criminal charges of misconduct in public office filed against DEQ officials Stephen Busch, Michael Prysby, Patrick Cook, and Shekter Smith. Smith and Cook are also facing manslaughter charges.

The prosecution alleges that the officials neglected their responsibility to oversee Flint’s water source switch and to warn the public about water quality issues. The failure to implement anti-corrosion controls allegedly resulted in high levels of lead that were hidden from the public.

During a preliminary hearing, U.S. Environmental Protection Agency water expert Miguel Del Toral testified that the DEQ knew that Flint was not treating its water with anti-corrosion controls but took no action to assure the safety of the water supply. He also testified that Flint’s water treatment was not meeting federal standards and faulted the state for mandating the change of the city’s water supply without assuring that corrosion controls would be implemented.

Del Toral testified that he found high lead levels in the water in one Flint home after Busch told the homeowner that the problem was caused by her lead pipes, not by the city’s water supply. Del Toral discovered that the home had plastic pipes and could not have contributed to lead contamination. According to Del Toral, Busch’s response was misleading and underplayed the significance of the problem.

The preliminary hearing against the four defendants is scheduled to resume in September.

Seal of State of Florida and Gavel

Florida Court Allows Multiple Experts to Express Similar Opinions in Malpractice Trial

How many experts should parties be entitled to use to prove or defend against liability in a medical malpractice case? “As many as they want,” “as many as they need,” or “as many as have relevant and non-cumulative opinions to offer” are possible answers, but judges like to keep cases moving and neither side wants to call fewer experts than the opposing side. To balance those concerns, judges sometimes limit each side to “one expert per medical specialty.”

A recent decision by the Florida Supreme Court addresses a case in which a trial judge permitted four pathologists to testify for the plaintiff. The District Court of Appeal concluded that their testimony was cumulative and improper. Relying on the distinction between treating physicians and retained experts, the Supreme Court disagreed.

Facts of the Case

Monica Gutierrez sued Dr. Jose Luis Vargas, contending that he negligently failed to diagnose her chronic kidney disease. Gutierrez alleged that she required a kidney transplant that could have been avoided if Dr. Vargas had made the diagnosis earlier.

While Gutierrez alleged that Dr. Vargas should have diagnosed her condition as Clq neuropathy, Dr. Vargas contended that Gutierrez suffered from a different kidney disease — membranoproliferative glomerulonephritis (MPGN) — a rapidly progressing condition that could not have been diagnosed sooner.

At trial, Gutierrez introduced the deposition testimony of Dr. Victor Pardo, a pathologist who examined Gutierrez’ kidney tissue prior to her transplant. Gutierrez also offered the testimony of Dr. Philip Ruiz, a pathologist who examined Gutierrez’ kidneys after they were removed. Dr. Pardo and Dr. Ruiz agreed that Gutierrez kidneys revealed evidence of Clq neuropathy.

Another pathologist, Dr. Arthur Cohen, testified for Gutierrez as a retained expert. He agreed that Gutierrez suffered from Clq nephropathy and gave an opinion about Dr. Vargas’ failure to diagnose the disease correctly. Dr. Cohen was not available to give rebuttal testimony, so Gutierrez called another retained pathologist, Dr. Byron Croker, to testify as a rebuttal expert.

After 14 days of testimony, the jury agreed that Dr. Vargas was negligent. It returned a verdict in Gutierrez’ favor of more than $3.8 million.

Lower Court Rulings

Prior to trial, the judge entered an order limiting each party to one retained expert per medical specialty. Dr. Vargas complained that the trial court failed to enforce that ruling when it allowed Gutierrez to call four pathologists as experts. The defense argued that the court’s failure to enforce the order was unfair since the defense presented the testimony of only one pathologist in accordance with the court’s order.

The trial court concluded that the testimony of Dr. Pardo and Dr. Ruiz did not violate the pretrial order because they were not retained experts. Rather, they were treating physicians who examined Gutierrez’ kidneys as part of their normal duties as pathologists. The trial court made an exception to the order for the testimony of Dr. Croker as a rebuttal expert since Dr. Cohen was unavailable.

The Florida District Court of Appeal granted Dr. Vargas a new trial. The appellate court agreed with Dr. Vargas that he was unfairly limited to one expert pathologist when Gutierrez was allowed to present similar testimony from four pathologists. Since the District Court of Appeal’s decision arguably conflicted with other Florida appellate decisions, the Florida Supreme Court agreed to resolve the conflict.

Treating Physicians as Expert Witnesses

The Florida Supreme Court began its analysis by noting the fuzzy distinction between treating physicians who testify as fact witnesses and physicians who testify as expert witnesses. Courts in most states draw that distinction, but their insistence that treating physicians testify as fact witnesses rather than expert witnesses is the kind of legal fiction that helps judges reach the correct decision for reasons that bring more confusion than coherence to the law of expert witnesses.

Treating physicians are plainly experts. When they testify about the treatment they rendered, they are testifying about facts. But treating physicians are generally allowed to testify about why they rendered that treatment, which includes giving a diagnosis. A diagnosis is opinion testimony.

Diagnostic opinions are about facts, but all expert opinions are opinions about facts. Experts offer opinions about facts so that juries can resolve factual disputes. The particular disease that damaged a kidney is a fact, but two physicians may well have different opinions about that fact. The standard of care that applies to treatment is a fact, but doctors often disagree about the appropriate standard of care. It is up to a jury to decide the facts after listing to the evidence, which may include expert opinions about the facts.

Experts and lay witnesses both testify about facts. Experts, however, testify about facts that are beyond the ordinary knowledge of lay witnesses. Since a lay person would not be able to examine a kidney and determine the disease process that damaged it, an informed opinion about the disease process is necessarily an expert opinion, even if it is rendered by a treating physician. Since a lay person would not know the standard of care that should be followed when diagnosing kidney disease, an informed opinion about the correct standard of care is an expert opinion.

The Distinction Between Treating Physicians and Retained Experts

While recognizing that treating physicians give expert testimony, the Florida Supreme Court maintained the fiction that treating physicians are fact witnesses. The court held that physicians who opine about another doctor’s performance are testifying as experts while physicians who opine about a condition they diagnosed or treated are testifying about facts. That isn’t really true, but the distinction is important for a different reason.

Treating physicians are not hired to give opinions. They are hired to treat patients. The rules that typically constrain expert testimony are meant to assure that retained experts give helpful information to the jury, given the perceived risk that retained experts will be tempted to say whatever they are paid to say. Those perceived risks do not usually apply to treating physicians, who typically form expert opinions long before litigation is contemplated.

The court recognized and relied on that distinction, despite muddying the water by maintaining the illusion that treating physicians testify about facts when they are actually giving expert opinions. All of the pathologists who testified offered opinions about Gutierrez’ kidney disease. Some of those opinions differed, as expert opinions often do. But the retained experts formed their opinions for litigation while the two pathologists who examined Gutierrez’ kidneys before a lawsuit was commenced formed their opinions in the course of performing their ordinary medical duties.

As the Florida Supreme Court recognized, it may be improper for a treating physician to testify about certain facts (such as another physician’s breach of the standard of care) without being designated as an expert, but the impropriety does not rest on a fictitious distinction between fact testimony and expert testimony. Rather, treating physicians who are not designated as experts are properly limited to opinions about facts they discerned while rendering treatment, as opposed to facts (such as another physician’s breach of a standard of care) that were not part of the diagnosis and treatment they rendered as part of their job duties.

The District Court of Appeal thought that Dr. Pardo and Dr. Ruiz did not testify as treating physicians because they did not treat Gutierrez and because they expressed opinions that they did not articulate in their pathology reports. Yet both Dr. Pardo and Dr. Ruiz formed those opinions (whether articulated or not) while they were performing their ordinary duties as pathologists. The Florida Supreme Court correctly decided that the trial court acted properly by admitting their testimony.

Cumulative Testimony

The Florida Rules of Civil Procedure allow a judge to limit the number of expert witnesses a party may call to avoid cumulative testimony. That rule serves the useful purpose of assuring that a party with deep pockets cannot call multiple experts who all say the same thing, while a party with limited resources is forced to rely on a single expert.

The rule against cumulative testimony only applies to testimony that is so needlessly cumulative that its prejudicial impact outweighs its probative value. The Florida Supreme Court noted the distinction between cumulative testimony and confirmatory testimony. Like many legal distinctions, this one is difficult to define; judges presumably know the difference when they see it.

Fortunately, the distinction is reasonably clear in this case. Dr. Pardo examined tissue taken from Gutierrez’ kidney before her transplant. Dr. Ruiz examined Gutierrez’ kidneys after they were removed. Each doctor prepared his own slides and examined different tissues before arriving at the same opinion. Since the pathologists performed separate tests of separate specimens, Dr. Ruiz’ testimony was not cumulative to Dr. Pardo’s.

Nor was Dr. Cohen’s testimony cumulative, since he based his testimony on a variety of evidence, not just on the work done by Dr. Pardo and Dr. Ruiz. That all of the pathologists reached the same opinion for different reasons tended to make their opinions confirmatory rather than cumulative.

Rebuttal Testimony

The District Court of Appeal concluded that it was improper to admit the testimony of Dr. Croker as a rebuttal witness, in part because the testimony was “totally cumulative” and in part because he was the fourth pathologist to testify for the plaintiff.

The Florida Supreme Court ruled that Dr. Croker testified only about evidence that Dr. Cohen did not address in his testimony. Dr. Croker discussed slides that Dr. Cohen had taken but did not mention in his testimony. Since the defense pathologist testified about those slides, Dr. Croker’s testimony was appropriate rebuttal evidence.

Finally, the state supreme court concluded that the trial court did not abuse its discretion by allowing Dr. Croker to testify, despite its pretrial order limiting each party to one retained expert per specialty. Dr. Cohen was not available to testify as a rebuttal expert, and the defense was well aware of that fact in advance of trial. The trial court did not allow the defense to take advantage of his absence by introducing new and unrebutted evidence that Dr. Cohen did not address in his testimony. Allowing Dr. Croker to testify served the interest of justice and was not an abuse of the judge’s discretion.

South Carolina

South Carolina Supreme Court Decides that a Surgeon Is Qualified to Testify About a Primary Care Physician’s Negligence

Like many states, South Carolina law requires the plaintiff in a medical malpractice case to obtain an affidavit from a qualified expert, before filing suit, explaining how the defendant physician breached the applicable standard of care. Many states so narrowly define the required qualifications of an expert that it has become difficult for plaintiffs to pursue legitimate malpractice claims.

The reluctance of physicians to testify against other physicians in the same practice area often dooms a plaintiff who can only prove negligence by using an eminently qualified expert who happens to practice in a related but different specialty — an outcome that may be exactly what insurance industry lobbyists who support these laws have hoped to achieve.

The question before the South Carolina Supreme Court in Eades v. Palmetto Cardiovascular and Thoracic was whether a vascular surgeon was qualified to testify that a primary care physician was negligent with regard to the diagnosis and treatment of a patient’s aneurysm. The state supreme court decided that question in favor of the patient.

Facts of the Case

Johnny Eades sought treatment for an aneurysm in his left iliac artery. About three years later, he filed a notice of intent to bring a medical malpractice claim against several healthcare providers. Eades named Dr. Paul Scudder as his expert witness and provided Dr. Scudder’s affidavit in compliance with South Carolina law.

Dr. Scudder is Board certified in surgery and surgical critical care. Dr. Scudder’s affidavit averred that Dr. Scudder is licensed to practice medicine in several states, that he currently practices, and that he has been actively engaged in practice for more than five years.

Dr. Scudder’s practice includes the evaluation of patients with aneurysms and occluded arteries that are similar to the medical condition presented by Eades.

Dr. Scudder averred that he is familiar with the standard of care that applies to the evaluation and treatment of patients with occluded arteries and aneurysms.

Trial Court Dismissal

The trial court dismissed the lawsuit, finding that Dr. Scudder’s affidavit did not comply with South Carolina law. A pre-suit affidavit must demonstrate that the expert is:

  • board certified “in the area of practice or specialty about which the standard of care is offered,” or
  • has “actual professional knowledge or experience” in that area of practice or specialty, acquired in the active practice of, or teaching about, the area of specialty during three of the previous five years.

The statute also includes a third potential qualification: evidence that the expert “has scientific, technical, or other specialized knowledge which may assist the trier of fact in understanding the evidence and determining a fact or issue in the case, by reason of the individual’s study, experience or both.” The expert’s credentials must establish his or her expertise to render the proffered opinion.

The dismissal motion was based on the assertion that Dr. Scudder’s affidavit stated that he is certified and practices as a vascular and critical care surgeon, while the defendant physicians practice in the areas of emergency medicine and primary care. The defendants argued that they practiced in a different area of medicine than Dr. Scudder, so he could not testify about the standard of care they should have followed.

That distinction might seem meaningless to an ordinary observer, given that Dr. Scudder averred that he understands the standard of care that should apply to the evaluation and treatment of aneurysms. The fact that Dr. Scudder is a surgeon, while the defendant doctors are not, hardly seems relevant to Dr. Scudder’s ability to form an opinion that would help the jury understand what prudent doctors should do when examining a patient who might have an aneurysm.

In a sensible world, it would seem that Dr. Scudder was more qualified than he needed to be. The trial court nevertheless followed a disturbing trend by reading the statute in a hypertechnical way, without asking whether Dr. Scudder actually understood, and was qualified to help the jury understand, the applicable standard of care. The judge agreed with the defendants and dismissed the case.

Appellate Decision

The South Carolina Supreme Court reversed the trial court’s dismissal of the lawsuit. While the court disagreed with the trial court’s narrow interpretation of the statutory phrase “area of practice or specialty,” it focused on the statute’s third alternative: specialized knowledge and the credentials to offer an expert opinion. That alternative is much closer to the determination of expertise that applies in other areas of the law.

The court concluded that the final alternative in the statute “contemplates the production of an expert affidavit from a doctor who is not certified in and does not practice in the same area of medicine as the defendant doctor, but otherwise possesses specialized knowledge to assist the trier of fact.”

The court’s interpretation is entirely reasonable. The purported purpose of limiting expert opinions in malpractice cases is to assure that experts are qualified to give helpful testimony, not to protect negligent doctors by making qualified experts harder for injured patients to find.

South Carolina’s statute, as interpreted by its highest court, puts the knowledge of the witness ahead of the artificial barriers imposed by the first two alternatives. The fact that a surgeon has more training and experience than a primary care physician should not disqualify the surgeon from acting as an expert witness.

Having interpreted the statute to permit qualified witnesses to testify even if they do not practice in the same specialty as the defendant doctor, the court had no difficulty deciding that Dr. Scudder was a qualified expert. His affidavit explained why his training and experience enabled him to provide opinions that would be helpful to the jury, and his credentials qualified him to identify negligent acts concerning the identification and treatment of aneurysms. Eades’ lawsuit was therefore allowed to proceed.

Locker Room

Court Limits Expert’s Testimony About Gender Equity in Student Athletic Programs

Several members of women’s tennis and skiing teams at Minnesota’s St. Cloud State University began a class action lawsuit, alleging that the University’s decision to eliminate those sports violated Title IX’s prohibition against sex discrimination in educational institutions. The University moved to exclude the expert testimony from Dr. Donna Lopiano on behalf of the plaintiffs. The court’s ruling limited Dr. Lopiano’s testimony on legal issues while permitting her to express non-legal expert opinions.

Background

St. Cloud State University’s enrollment declined significantly between its 2011 peak and 2016. The University’s administration asked the Athletic Department to devise a cost containment strategy. The proposed strategy eliminated six sports: men’s tennis, women’s tennis, men’s cross country, men’s indoor track, men’s outdoor track, and women’s Nordic skiing.

The plaintiffs contend that the plan ignored Title IX’s demand that male and female students be given equal athletic opportunities. They contend that the plan worsens an existing disparity between opportunities offered to male and female student athletes. To achieve equality, the plaintiffs contend that the University has two choices: it can further reduce the availability of athletic participation to male students or increase athletic opportunities for female students.

The University argues that it would lose its Division I NCAA membership if it equalized athletic opportunities by reducing opportunities for male students. The University’s male and female ice hockey teams compete at a Division I level. The University also argues that it lacks the funds to equalize opportunities by increasing the number of athletic programs available to women.

The court entered a preliminary injunction enjoining the University from eliminating its women’s tennis team. In granting that injunction, the court determined that the lawsuit had substantial merit and that the plaintiffs are likely to prevail.

Expert Testimony Regarding Legal Standards

The plaintiffs seek to support their claims with the expert testimony of Dr. Donna Lopiano. Dr. Lopiano has a Ph.D. in physical education, operates a company that helps educational institutions solve challenges in their athletic programs, and has served as a gender equity consultant for the Office of Civil Rights in the former Department of Health, Education, and Welfare. The University objected to her proposed testimony.

The court agreed that Dr. Lopiano cannot testify about the legal requirements imposed by Title IX and cannot opine whether the University met those requirements. The court held that “Dr. Lopiano may not testify regarding the requirements of law because it would give the jury the appearance that the Court is shifting to Dr. Lopiano the responsibility to decide the case.” Explaining the law is the judge’s job, not the expert’s.

Notwithstanding the federal rule that an expert opinion “is not objectionable just because it embraces an ultimate issue,” the court followed the Eighth Circuit’s holding that an expert cannot opine “whether federal law was contravened.” Dr. Lopiano was accordingly prohibited from testifying about the requirements of Title IX or whether SCSU has complied with those requirements.

Expert Testimony About Practices that Avoid Discrimination

On the other hand, the court permitted Dr. Lopiano to testify about the history and purposes of Title IX and about the steps other educational institutions have taken to comply with its mandates. While Dr. Lopiano must walk a fine line by explaining how institutions comply with the law without explaining the law, the court concluded that her testimony about educational practices, which is largely statistical in nature, represents a non-legal (and therefore admissible) expert opinion.

The court also agreed that Dr. Lopiano can testify about the University’s history of responding, or failing to respond, to the interests and abilities of female student-athletes (for example, by failing to add women’s sports that students had informally requested). She can also testify about the underrepresentation of female student athletes and the University’s longstanding failure to address underrepresentation by expanding athletic opportunities for women.

Expert Testimony About Financial Aid

Title IX regulations prohibit sex discrimination in financial aid awards, including those that are athletic-based. The regulations require universities to make a mathematical calculation about the financial aid awarded to male and female students and to eliminate disparities that are not explained by legitimate, nondiscriminatory factors.

The University moved to exclude Dr. Lopiano’s testimony about the mathematical calculation because she is not a mathematician. Alternatively, the University asked for her testimony to be excluded because the calculation is so simple that it requires no expert testimony.

The court, however, determined that Dr. Lopiano’s proposed testimony goes beyond the calculation by discussing the legitimate, nondiscriminatory factors that may or may not explain disparities in the allocation of athletic-based financial aid. As part of that testimony, she can discuss an admittedly simple calculation because all experts are entitled to testify about “basic math” that involves “simple deductive reasoning,” particularly when they have experience making such calculations.

Expert Testimony About Gender Equity in Athletic Benefits

To decide whether an educational institution is providing equal benefits and opportunities to student athletes of both sexes, the Office of Civil Rights examines a laundry list of factors that might differentiate the treatment of male and female students. Dr. Lopiano proposed to undertake that examination to demonstrate that the University failed to provide equal benefits to student-athletes of different sexes.

Dr. Lopiano based her opinions on interviews with a former Director of Athletics and a former Associate Director of Athletics, both of whom recently retired. For example, she asked them to rate facilities as “Superior, Adequate, or Inadequate.” She then compared the number of male students to the number of female students who were given Superior facilities, and so on. She did not independently verify those ratings.

The University objected that Dr. Lopiano based her opinions on hearsay, but experts are entitled to base opinions on inadmissible hearsay of a type reasonably relied upon by experts in a particular field. Dr. Lopiano was following a method she derived from the Athletic Director’s Desk Reference and that she routinely used in her private consulting practice. The court was satisfied that she relied on the kind of data that experts in her field would routinely use to form opinions about gender equity in athletic programs.

The hearsay opinions of the former employees, however, did not address current conditions at the University. The court therefore barred Dr. Lopiano from presenting those opinions to the jury, while allowing her to testify about her conclusion that the University did not provide equal benefits to student-athletes of different sexes under the “laundry list.”

UFC, fighting ring

Experts Challenged in UFC Antitrust Lawsuit

The phrase “junk science” is so often wielded as an attack phrase against expert witnesses that it has all but lost its meaning. An antitrust lawsuit involving the Ultimate Fighting Championship (UFC) has resulted in predictable accusations of “junk science” in Daubert motions seeking to exclude expert opinions upon which the fighters rely. The phrase is hyperbolic, but it remains to be seen whether the trial judge will regard the experts’ methodologies as sufficiently sound to make their opinions admissible.

Class Action Lawsuit

The UFC is operated by Zuffa, LLC, a company founded by Frank and Lorenzo Fertitta to promote professional mixed martial arts (MMA) competitions. Zuffa acquired the UFC in 2001 for $2 million. At that time, MMA was banned in 36 states and had been condemned by Senator John McCain as “human cockfighting.” Zuffa worked to rebrand the sport and to persuade state regulators to legalize it. By 2016, MMA competitions were legal in every state. Even Senator McCain became a fan.

The former fighters who are suing Zuffa contend that the UFC engaged in an anticompetitive scheme to suppress their wages. They allege that the scheme included signing fighters to exclusive long-term contracts and coercing them to renew those contracts, a tactic that prevents competing promoters from signing the best fighters. The lawsuit also accuses the UFC of acquiring other promoters of MMA, only to shut them down. The result, the fighters say, is a labor market monopoly in professional MMA competitions by the UFC.

Part of the scheme, according to the plaintiffs, involved scheduling fewer bouts than fighters wanted while keeping more fighters under contract than they could use. The UFC allegedly kept fighters under contract, even though they had few fights to offer them, to keep the fighters from being signed by competing promoters.

The UFC has denied the allegations and is opposing certification of the lawsuit as a class action. The UFC has also filed Daubert motions challenging the admissibility of the expert opinions upon which the plaintiffs rely.

Andrew Zimbalist

Everyone agrees that the wages paid to UFC fighters has grown as the sport has grown. To prove that wages would have grown more in the absence of anticompetitive activity, the plaintiffs are relying in part on the expert analysis of economist Andrew Zimbalist.

Zimbalist calculated wage loss by applying the “yardstick method.” The yardstick method is often used to calculate lost profits that result from antitrust violations. The method compares profits earned in similar but competitive markets to profits earned by the plaintiff. The assumption is that profits in similar markets will be similar, and that the comparison thus approximates the profits that were lost due to the antitrust violation. The yardstick method is also used to calculate overcharges by comparing prices charged in comparable competitive markets to prices charged by a company that is allegedly violating antitrust laws.

Zimbalist compared UFC fighters’ wages as a percentage of event revenues to the percentage of revenues earned by athletes in the NBA, NFL, MLB, NHL, and boxing. Although the versions of the expert reports that have been made available to the public are heavily redacted, one source reports Zimbalist’s conclusion that UFC fighters would have made an additional $981 million over the 6 year period if they had been paid the same share of revenue as athletes in the other five sports.

Courts have generally accepted the yardstick method as satisfying the Daubert standard of reliability, but the UFC has branded Zimbalist’s methodology as “junk science.” The UFC argues the players in the four major sports leagues are unionized, and that those markets are therefore not comparable to the UFC. Zimbalist counters that players’ unions have created competitive labor markets by, for example, allowing athletes to become free agents. According to Zimbalist, it is the competitive labor market in league sports that increases player compensation, not simply the fact that players are unionized.

Boxing may be the most comparable industry to the UFC, but the UFC complains that Zimbalist took his figures about boxing wage percentages from a different expert’s analysis of a single promoter (Golden Boy) without verifying the data used by that expert. It isn’t unusual for experts to rely on work done by other experts, and if it is the kind of data that experts routinely rely upon, courts do not expect them to reinvent the wheel. The UFC’s stronger argument might be that using data from one boxing promoter is not an adequate sample, given that there are about twenty fight promoters of nationally televised events.

Hal Singer

A court cannot certify a class unless it concludes that questions of law and fact are common to all class members. The plaintiffs are relying on the expert opinion of Hal Singer to prove that the compensation of all proposed class members is adversely affected by the UFC’s anticompetitive practices. Using regression analysis, Singer opined that 78{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of UFC compensation is determined by common variables, including card placement, rank, and weight class. Any anticompetitive practice that reduced compensation in general would arguably affect all fighters if fighter salaries are all influenced by the same factors.

More importantly, Singer offered an expert opinion that fighter salaries were affected by UFC’s alleged practice of putting competing promoters out of business while locking key fighters into long-term contracts. Singer contends that foreclosing competition leads to a lower share of revenues being devoted to fighter compensation. By his calculation, fighters lost $811.2 million to $1.6 billion in compensation due to anticompetitive practices.

Singer agreed that wages paid to UFC fighters have grown, but not in proportion to UFC’s revenues. Whether it makes sense to compare “wage level” (actual wages, which have risen) or “wage share” (wages as a percentage of revenues earned, which have fallen) is a key question that the UFC raises in its Daubert motion. The UFC argues that “an analysis of wage share does not provide a reliable means of inferring anticompetitive effect, antitrust injury or damages because it cannot distinguish between a decrease in wage share as a result of the challenged conduct and a decrease as a result of legal and procompetitive business developments that increase overall revenues.”

Judges are trained as lawyers, not as economists or statisticians. Whether a judge is any more capable than a jury of determining whether the plaintiffs’ experts used “reliable methodologies” in this case is unclear. What is clear is Daubert’s requirement that judges must not expose juries to expert opinions that, in the judge’s view, lack a reliable foundation.  In the coming months, the judge presiding over the antitrust lawsuit against the UFC will need to perform that daunting task.