Author Archives: T.C. Kelly

About T.C. Kelly

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

Expert Witness

Expert Accused of “Side Switching” Is Allowed to Testify

Thousands of patients sued C. R. Bard, Inc. and Bard Peripheral Vascular, Inc. after they sustained injuries from the implant of a Bard IVC filter. The inferior vena cava (IVC) is a vein in the lower half of the body. Surgeons implant IVC filters in patients who are at risk of developing blood clots in their legs, including patients who are diagnosed with deep vein thrombosis and are at risk of developing a pulmonary embolism.

The plaintiffs in the lawsuits allege that the Bard IVC filters either perforated their IVC or broke apart and caused damage to their organs. The plaintiffs argue that Bard IVC filters are more dangerous than other IVC filters and that they should have been warned of the dangers. Bard denies that its IVC filters create more risks than are common to all IVC filters. Bard asserts that doctors are familiar with those risks.

The lawsuits were consolidated in a federal district court in Arizona. The plaintiffs expect to use several expert witnesses to prove their claims. In addition to medical experts who will testify about the harm caused to each patient, the plaintiffs have identified regulatory experts and engineers who may testify.

Expert’s Alleged “Side Switching”

Bard filed a motion to exclude the testimony of Dr. Thomas Kinney, a mechanical engineer, physician, and interventional radiologist. The plaintiffs want Dr. Kinney to testify about design defects in the Bard IVC filters and about Bard’s failure to warn patients of those defects.

Dr. Kinney and two colleagues wrote an extensive report that addressed two of the seven IVC filters at issue in the litigation. The report concluded that “Bard was aware of design defects and high complication rates associated with its filters and failed to adequately warn physicians of those dangers.”

Beginning in 2005, Dr. Kinney served for four years as a consultant for Bard with regard to its IVC filter. In 2006 and 2007, Bard hired Dr. Kinney to serve as an expert witness in two lawsuits against Bard for injuries allegedly caused by IVC filters.

Bard asked the court to disqualify Dr. Kinney as an expert because he engaged in “side switching” by agreeing to testify for the plaintiffs. The plaintiffs opposed the motion because it would deprive them of the services of a highly qualified expert and would keep the jury from hearing strong evidence of Bard’s negligence.

“Side Switching” Concerns

Disqualification motions are rarely granted because courts are reluctant to prevent experts who have “useful specialized knowledge” from sharing that knowledge with a jury. The standard for disqualifying an expert is therefore difficult to meet — at least in the Ninth Circuit, where courts generally view experts in a positive light and trust juries to evaluate expert testimony.

As a general rule, experts are free to testify for plaintiffs in some cases and for defendants in others. Testifying for both plaintiffs and defendants does not constitute “side switching.” In fact, lawyers often prefer experts who have testified for both plaintiffs and defendants, because those experts cannot easily be accused as having a bias in favor of a particular side in litigation.

The “side switching” analysis becomes relevant when an expert is hired by a party and later testifies against that same party. In those circumstances, the concern is that the expert may be basing an opinion on information that the expert received in confidence.

“Side-Switching” Tests

The district court noted its inherent power “to protect the integrity of the adversary process, protect privileges that otherwise may be breached, and promote public confidence in the legal system.” It therefore analyzed the disqualification motion in light of those concerns.

Most courts have adopted two tests to decide whether to disqualify an expert for “side switching.” The first, known as the “bright-line test,” excludes an expert’s testimony when the expert clearly received confidential information while working for the adverse party in the same litigation.

When there is a dispute about the expert’s receipt of confidential information, courts often rely on a second test. The court asks whether it was reasonable for the adverse party to believe that it had a confidential relationship with the expert and whether it gave the expert confidential information that is relevant to the current litigation. An affirmative answer to both questions will usually result in disqualification.

When courts use a different test, they still focus on whether a confidential relationship existed and whether the expert received confidential information. Those courts tend to focus on policy considerations: giving parties a fair trial while protecting the integrity of, and public confidence in, the legal system.

Application of the Tests

There was no dispute that Bard once had a confidential relationship with Dr. Kinney. The question was whether Bard (or Bard’s attorneys) gave Dr. Kinney confidential information. Information is confidential if it falls within the realm of attorney-client privilege or attorney work product, or if the information is particularly significant.

Examples of confidential information include: an attorney’s assessment of the strengths and weaknesses of a party’s case; litigation strategy; the role of experts at trial; and the party’s anticipated defenses. Evidence that a business knew its product is defective should not usually be confidential because that is the kind of information that should be disclosed in discovery.

Bard contended that its attorneys in the earlier cases shared their “mental impressions” with Dr. Kinney, but they presented no evidence to substantiate that claim. Dr. Kinney testified that he reviewed medical records in the earlier cases but did not talk to counsel about defense strategy.

Since the parties disputed whether Bard gave confidential information to Dr. Kinney, the court did not apply the bright-line test. Instead, it examined the evidence in support of Bard’s contention that it gave confidential information to Dr. Kinney.

The court noted that Dr. Kinney was a Bard consultant for four years and that he executed agreements prohibiting the disclosure of confidential information. That evidence permitted an inference that Dr. Kinney received confidential information. However, the Ninth Circuit requires “specific and unambiguous” evidence that a party gave confidential information to an expert before the expert will be disqualified. Bard presented no such evidence. The existence of a confidentiality agreement does not prove that relevant confidential information was provided to an expert, and Bard offered no such evidence.

The court noted that Bard failed to provide declarations from Bard attorneys or Bard employees identifying confidential information they gave to Dr. Kinney. On the other hand, Dr. Kinney’s declaration stated that he received no such information. Since Dr. Kinney’s declaration was unrefuted, the court denied the motion to disqualify Dr. Kinney as an expert witness.

Class Action

Trial Court Erred by Disallowing Expert’s Opinion when It Refused to Certify Class in an Unpaid Wage Lawsuit

ABM Industries provides janitorial services to businesses across the United States. Thousands of ABM employees work at hundreds of job sites in California. Some of those employees filed a class action lawsuit against ABM in a California court, alleging that the company violated California wage laws by failing to:

  • keep required records of the time worked by employees,
  • follow laws regarding compensation for meal breaks,
  • pay split-shift premiums required by California law, and
  • reimburse employees for expenses incurred when traveling between job sites.

ABM’s contracts with clients generally provide for a fixed fee in exchanged for services provided, regardless of ABM’s cost of providing those services. Accordingly, if ABM employees earn extra wages, ABM must absorb that cost. The employees alleged that ABM deliberately underpaid its employees in order to enhance its profitability.

The employees requested certification of their lawsuit as a class action. The class consisted of about 35,000 employees, divided into several subclasses according to the specific wage violations that each employee suffered.

The certification request relied in part on expert testimony that the trial court refused to consider. The employees appealed, arguing that their expert testimony was admissible.

Class Certification

Class actions consolidate individual claims into a single lawsuit. Plaintiffs benefit from class actions when they can obtain a remedy for a legal violation that they would be unable to pursue in an individual lawsuit (usually because the cost of litigation would exceed the amount of compensation the individual could expect to receive). A class action is also a more efficient way to resolve claims than multiple lawsuits raising the same issues against the same defendant.

Courts must certify a lawsuit before it can proceed as a class action. A certification decision is based on evidence that legal and factual questions common to all the class members predominate over individual differences in the claims. Class actions are often used to address wage law violations when a large employer has generally applied the same unlawful policy or practice to wage payments for employees who hold the same or similar jobs.

The ABM employees supplied the court with evidence that ABM applied a uniform policy that paid employees based on their anticipated schedules of work, not on their actual hours worked — a practice that would violate California and federal law. They alleged, for example, that ABM’s payroll system automatically deducted a 30-minute meal break each day from the hours each employee worked, without determining whether employees actually took a lunch break and despite the fact that many employees skipped lunch to finish their work within the time they were given to complete it.

Expert Evidence

The employees based their class certification motion in part on expert evidence from Aaron Woolfson, “a provider of database services who analyzed certain timekeeping and payroll data maintained by ABM with respect to its employees.” Woolfson analyzed more than a million shifts that employees worked for more than five hours (when a meal break must be provided). ABM’s records concerning those shifts failed to show evidence of the time an employee “clocked in” and “clocked out.”

In 94{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the shifts Woolfson examined, a meal break was automatically deducted from hours worked, and there was no evidence that ABM ever gave employees the required premium pay they were owed for working through lunch. His analysis also showed that few employees were reimbursed for their cost of traveling from one job site to another during a workday.

The trial court declined to consider Woolfson’s evidence. The court concluded that Woolfson was not shown to be “an expert on anything material to the class certification motion.” Because Woolfson was not an expert, he could not give opinions based on hearsay. Finally, the court decided that his opinions were inadmissible because they didn’t “prove anything” relevant to the certification issue.

The trial court rejected Woolfson as an expert because he had no “formal training or degrees that would qualify him as an expert to review the timekeeping and payroll data at issue.” The court also rejected Woolfson’s assertion that he had “provided payroll and timekeeping database analysis for attorneys in numerous wage-hour cases” because Woolfson did not provide “specific facts of the type that is usually relied upon to qualify an expert” (such as, presumably, identification of the cases in which he rendered opinions and the lawyers who hired him).

The court concluded that Woolfson’s assertion that he had “extensive experience in creating, managing, and analyzing large databases” was too general because the court did not know what Woolfson meant by “extensive” (despite Woolfson’s list of databases he had created, managed, and analyzed), and because Woolfson did not specify “how many years, how many assignments, what the nature of the assignments were, what the nature of his tasks were or anything of the like.”

The employees asked the court to reconsider, offering additional evidence of Woolfson’s expertise, including evidence that he had been accepted as an expert by other courts. The court denied the motion, ruling that Woolfson’s opinions were not relevant to the certification issue even if he was qualified to give them.

Appellate Opinion

As an initial matter, the California Court of Appeals noted that the gatekeeping role played by trial courts when they determine the admissibility of expert evidence is not a grant of unlimited discretion. Trial courts must be “cautious in excluding expert testimony” as their narrow goal is simply to exclude “clearly invalid and unreliable” expert opinions.

The trial court ruled that Woolfson’s testimony was inadmissible because he was not qualified as an expert and because his opinions, even if he was qualified to render them, were not relevant. The court of appeals disagreed with both rulings.

Woolfson’s Expertise

The appellate court noted that expertise depends on the subject of the proposed testimony. An expert’s qualifications are therefore “not subject to rigid classification according to formal education or certification.” Knowledge of, and familiarity with, the subject matter of testimony can be acquired by sufficient experience. “Once this threshold has been met, questions regarding the degree of an expert’s knowledge go more to the weight of the evidence presented than to its admissibility.”

Woolfson founded a company that develops database systems so that telecommunications companies can manage their billing. He also manages a company that provides billing and database mechanisms that allow banks to keep track of paperwork concerning mortgage loans. He has provided “extensive database management services to both government and private industries” and has extensive experience in creating, managing, and analyzing large timekeeping databases.

The court noted that “additional information regarding the specifics of Woolfson’s expertise in matters relevant to this case would clearly have been preferable,” including details about his clients, the number of years he had worked with databases, and his professional certifications — information that he later provided in the supplemental declaration that the trial court rejected. The court of appeals nevertheless concluded that the information in his initial declaration was sufficient to qualify him as an expert in database analysis.

The trial court also erred by focusing on Woolfson’s lack of a formal degree, given Woolfson’s “clear familiarity with numerous, highly complex transactions in that subject matter.” A formal education may be a prerequisite for expertise in some fields, but database analysis is not one of them.

“More is better” is the lesson to be learned by lawyers who seek to qualify a witness as an expert. Although the employees’ lawyers may have been lulled into complacency by ABM’s failure to make more than a cursory challenge to Woolfson’s expertise, this decision serves as a reminder that detailed facts establishing an expert’s qualifications should always be provided to the trial court in response to a motion asking the court to reject the admission of the expert’s opinions.

Relevance of Woolfson’s Opinion

The appellate court also rejected the trial court’s conclusion that Woolfson’s opinions were not relevant. Without parsing each separate opinion, the appellate court noted that at least some of Woolfson’s opinions, “based on his manipulation of ABM’s database,” were “clearly admissible as matters beyond the common knowledge or experience of an ordinary witness.” The court also noted that “as evidence of ABM’s common wage and timekeeping practices, Woolfson’s results would unquestionably aid a jury in its search for the truth regarding any alleged classwide wage or hour violations in this case.”

The appellate court was “mystified” by the trial court’s “wholesale rejection” of Woolfson’s opinions. The court expressed concern that “the trial court’s conclusions regarding the admissibility of the Woolfson materials were impermissibly tainted by its strong views with respect to the underlying merits of plaintiffs’ class certification motion,” a determination that was based “on the mistaken notion that database analysis of timekeeping and payroll records cannot be used as a means to show common practices for purposes of class certification.”

The trial court should instead have accepted Woolfson’s opinions as evidence of ABM’s payroll practices that were common to all similarly situated employees, and then weighed those opinions against evidence of the need for individualized determinations that might preclude class certification. The trial court therefore erred in failure to consider Woolfson’s expert opinions.

Court Dismisses Expert Witness Lawsuit Against Professional Association

Execution Challenged Because Expert Known as “Dr. Death” Allegedly Gave False Testimony

Death sentences are usually reserved for particularly heinous killers. Jeff Wood is an exception. He didn’t kill anyone, but a Texas jury sentenced him to death in 1998. The death sentence may have been influenced by the testimony of an expert witness, known to lawyers and in the media as “Dr. Death,” who allegedly gave false and unethical testimony during Wood’s sentencing trial.

Jeff Wood’s Felony Murder Conviction

Wood was sitting in a truck outside a Kerrville convenience store while Daniel Reneau committed a robbery. Reneau shot and killed a store clerk. Under the felony murder law in Texas, a person who commits a felony is held responsible for a murder caused by any dangerous act committed in the course of the felony.

Under the Texas law of parties, when two people conspire to commit a felony and, while attempting to commit the felony, one of the conspirators commits another felony, the conspirator who did not commit that felony is responsible for it, despite having no intent to commit it, if the commission of that felony should have been anticipated. Wood maintained that he didn’t know Reneau was armed and had no reason to expect that a murder would be committed during the robbery. The prosecutor, however, claimed that “Wood knew Reneau would kill Keeran if he didn’t cooperate.”

The jury agreed with the prosecutor and found Wood guilty of felony murder because he conspired to commit the robbery that led to the murder. The prosecutor asked for a death sentence. The jury authorized a death sentence and the judge imposed it. Wood lost a number of appeals and post-conviction proceedings. He was scheduled to be executed in 2016.

Wood’s pending execution prompted a national outcry. Whether or not Wood was aware that the robbery might end in murder, Wood did not pull the trigger. Even some supporters of the death penalty consider it morally wrong to execute a defendant who did not personally cause the victim’s death. Some Texas legislators are trying to change Texas law so that death sentences are not imposed under the law of parties, but their efforts to date have been unsuccessful.

Dr. Death’s Role at Sentencing

While Wood’s challenges to his conviction have been unsuccessful, he recently persuaded an appellate court to stay his execution so that a new challenge to his death sentence could be considered. His primary challenge is based on sentencing testimony of Dr. James Grigson.

An appellate court in 1989 recognized that Dr. Grigson had earned the nickname “Dr. Death” because of the number of criminal trials in which he had testified in support of the death penalty. Without ever having met or interviewed the defendant, Dr. Grigson consistently testified in capital cases that the defendant “certainly” or “absolutely” would commit future acts of violence.

Wood’s habeas petition alleges:

  • Grigson grossly exaggerated the number of capital murder defendants he had examined when he testified in Wood’s trial
  • Grigson falsified the percentage of cases in which he claimed to have found the defendant to be “not dangerous” in order to enhance his credibility
  • Grigson unethically told juries that he could predict with “100{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} certainty” that a defendant would be dangerous in the future, when no witness has the ability to predict the future with certainty (in fact, Grigson was expelled from professional organizations for giving that unethical testimony)
  • Grigson falsely testified that he could make an accurate prediction of future dangerousness without examining the defendant, based on facts posed in a prosecutor’s hypothetical question, after he had been expelled from a professional organization for doing just that
  • When he told Wood’s jury about his credentials, he failed to disclose that he had been expelled from professional organizations for giving testimony similar to the testimony he planned to give in Wood’s trial

Wood’s habeas petition also quotes jurors who were angered to learn that the prosecution called Grigson as a witness without disclosing his expulsion from professional organizations. Those jurors no longer believe the death penalty is an appropriate punishment for Wood.

Jeff Wood’s Future

As a result of the appellate court’s decision, Wood’s case will be returned to the trial court for a hearing to determine whether Grigson’s expert testimony was false or misleading, and if so, whether it affected the death sentence. If Wood loses that hearing, he will be entitled to appeal. His execution, once days away, will not occur any time soon. There is good reason to believe that it will never occur, given public opposition to imposing the ultimate penalty upon a defendant who played a minor role in the robbery that led to the victim’s death.

In the meantime, Wood’s mental health, which wasn’t good at the time of his trial, has continued to deteriorate. Wood was delusional at the time of his sentencing hearing and instructed his lawyers not to defend him, a fact that gave the Texas judicial system no pause in its zeal to execute defendants.

Wood’s lawyers have petitioned the governor for clemency. Gov. Greg Abbott has never changed a death sentence, but Wood’s case is unusual. His request to commute his death sentence to a life sentence has the support of the district attorney who prosecuted his case, the district judge who is hearing his case now, and the Kerrville chief of police.

In a letter to the governor, District Attorney Lucy Wilke stated she would not have used Grigson as an expert witness if she had known about his expulsion from professional organizations. She also cited Wood’s low intelligence, his history of nonviolence in and out of prison, and the fact that he didn’t shoot anyone. Wilke knew that Wood wasn’t the shooter when she asked the jury to sentence him to death, but she has apparently had a change of heart in the intervening twenty years.

Regardless of the outcome, Wood’s case is another reminder that defense lawyers need to pay particular attention to the credentials of prosecution experts. Wood’s lawyers may have been hampered by the instruction not to defend their client, but if they had attempted to verify Grigson’s credentials, they could have notified the prosecutor of his expulsions, which would probably have convinced the prosecutor not to call Grigson as a witness against Wood.

Court Dismisses Expert Witness Lawsuit Against Professional Association

Texas Appellate Court Affirms Exclusion of Standard-of-Care Expert in Medical Malpractice Lawsuit

The Texas Court of Appeals recently affirmed a trial court decision that excluded an expert’s “standard of care” testimony in a medical malpractice case. In what has become a disturbing trend, the expert was not allowed to testify despite his eminent qualifications and obvious knowledge. A jury will therefore never decide whether a patient who may have been injured by negligent care is entitled to compensation.

Wigley’s Lawsuit

After being seriously injured in a car accident, Stanley Wigley was taken to Shannon West Texas Memorial Hospital. His life was saved by surgeons, but spinal injuries in the accident rendered him a quadriplegic. Wigley was transferred to the Intensive Care Unit (ICU), where he was placed on a ventilator. He could not eat or move for an extended time.

Wigley’s primary physician was Dr. Emmette Flynn. During his time in the hospital, Wigley developed pressure ulcers, commonly known as bedsores. After his release, Wigley sued the hospital and Dr. Flynn, alleging that the ICU nurses and Dr. Flynn negligently failed to prevent the pressure ulcers from developing.

Wigley designated Dr. Lige Rushing, Jr. as his expert witness. After reviewing Dr. Rushing’s report and taking his deposition, the defense moved to exclude Dr. Rushing as an expert witness. The defense also filed for summary judgment, contending that without Dr. Rushing’s testimony, there was no evidence of negligence. The trial court agreed and dismissed the case.

Medical Malpractice Expert Standard in Texas

As have many other states, the Texas legislature has narrowed the range of experts who can provide admissible testimony about the standard of care that physicians and hospitals should provide. Under Texas law, an expert in a medical malpractice case cannot express an admissible opinion about whether a healthcare provided departed from the accepted standard of medical care unless:

  • the expert was practicing medicine when the claim arose or when the expert testifies;
  • the expert’s field of practice during either of those times involved the “same kind of care or treatment” delivered by the defendant;
  • the expert has knowledge of the accepted standard of care; and
  • the expert is qualified by training or experience to render an opinion.

The last two standards are traditional, uncontroversial, and adequate safeguards to assure that expert witnesses really are experts. The question here was whether Dr. Rushing satisfied the first two standards.

Dr. Rushing’s Qualifications

Dr. Rushing was board certified in the practice of internal medicine, rheumatology, and geriatrics. Under traditional principles governing the admissibility of expert witnesses, that training and experience would be sufficient to permit an expert to testify about how bedsores should be prevented, particularly if the expert had experience treating patients who are at risk of developing pressure ulcers.

Dr. Rushing’s report indicated that he had provided primary care to ten thousand hospital, nursing home, and assisted-living facility patients. His report indicated that he had treated patients in substantially the same condition as Wigley who were at high risk for the development of pressure ulcers. Under traditional principles governing the admissibility of expert witnesses, that background would certainly qualify Dr. Rushing to give expert testimony about the standard of care that should be followed to prevent the formation of pressure ulcers.

Dr. Rushing opined that an appropriate standard of care should assure that a patient does not develop pressure ulcers unless they are unavoidable, and should require immediate treatment of unavoidable pressure ulcers. Dr. Rushing concluded that Wigley’s condition did not make pressure ulcers unavoidable. He opined that the defendants breached the appropriate standard of care by failing to prevent his pressure ulcers, by failing to have an effective pressure ulcer prevention program, and by failing to keep appropriate documentation.

Appellate Court Ruling

The appellate court noted that Dr. Rushing is “generally familiar with pressure ulcers,” which appears to be a vast understatement. However, the court found no evidence that Dr. Rushing was “familiar with the prevention or treatment of pressure ulcers in a treatment or ICU context.” The court also noted that Dr. Rushing testified that he does not “hold himself out as an expert in critical care.”

The appellate court ruled that the trial court “was not required to infer from Dr. Rushing’s general familiarity with pressure ulcers in other contexts that he is qualified to address pressure ulcers that develop in a trauma and ICU context.” But pressure ulcers develop because a patient isn’t moved. The court used “context” to mean “location of the patient’s bed within a hospital,” but whether the patient is in an ICU bed or any other hospital bed would not change the reason pressure ulcers develop.

The court suggested no reason for believing that the means of preventing a pressure ulcer in an ICU differs from the means of preventing a pressure ulcer in any other hospital or nursing home setting. The court’s reasoning seems to be based on a distinction without a difference.

Nor did the court identify any way in which Dr. Rushing failed to satisfy the Texas statutes that determine the admissibility of expert opinions rendered in medical malpractice cases. Dr. Rushing was practicing medicine, he had knowledge of the standard of care for assuring that bedridden patients do not develop pressure ulcers, and he was qualified by training and experience to render an opinion.

The court may have concluded (but did not expressly hold) that Dr. Rushing’s practice did not involve the “same kind of care or treatment” delivered by the defendants. However, the relevant care was the treatment of bedridden patients to prevent bedsores, and Dr. Rushing clearly rendered that kind of care to his patients. The fact that he did not do so in an ICU has no obvious relevance to the “kind of care or treatment” he rendered.

Disturbing Trend

This case follows a disturbing trend that prevents juries from deciding whether a health care provider should be held responsible for injuries that patients clearly suffered. ExpertPages recently discussed a similar Arizona case that decided a registered nurse who was certified in wound care and who worked as a wound care coordinator was not qualified under Arizona law to testify about the standard of wound care that ICU nurses should have provided to a patient with a pressure wound.

The Arizona court prevented a jury from considering a claim in which negligence seemed obvious, but the decision was arguably based on Arizona statutes. In Wigley’s case, the expert appears to have satisfied all statutory criteria for admissibility.

The trend that holds medical malpractice plaintiffs to impossible standards when they search for expert witnesses is unfortunate. Excluding helpful testimony from qualified witnesses weakens the jury system by preventing juries from deciding whether patients have been injured by allegedly negligent healthcare providers. That harms the civil justice system as well as injured patients.

Connecticut

New Expert Evidence Points to Wrongful Convictions in Connecticut

Many factors can contribute to a wrongful conviction, including mistaken eyewitness identifications, false confessions, and flawed forensic science. Expert testimony often helps innocent defendants uncover those errors. Unfortunately, mistaken expert testimony can also contribute to wrongful convictions.

A number of those factors may have combined to cause the wrongful convictions of Shawn Henning and Ralph Birch for the 1985 murder of Everett Carr in New Milford, Connecticut. Their latest lawyers pin much of the blame for the conviction on erroneous testimony by a criminalist who achieved fame during the O.J. Simpson trial.

Crime Scene Evidence

Carr was severely beaten and repeatedly stabbed. His daughter claims that he was already dead when she found his body in a hallway of their home at 4:00 a.m.

Police theorized that the killing was part of a burglary gone bad, although why burglars would commit such a gruesome act of violence is a question that the theory did not resolve. The daughter’s statement during a 911 call that “he’s got a knife in his hand” and her delay in calling the police are difficult to reconcile with the theory that the police settled upon.

Armed with a shaky theory, the police searched for local burglars. The search led them to Henning and Birch, who had been accused of committing burglaries to fund drug purchases. Henning was age 17; Birch was 18.

Henning and Birch told the police a false story about their location on the night of the murder. The police viewed that lie as evidence of their guilt. Henning and Birch say they were trying to conceal their theft of a car and their participation in four daytime burglaries to which they later confessed.

In their attempt to coax confessions, the police told Henning and Birch that they had substantial forensic evidence of their participation in the murder. In fact, the police had nothing. No fingerprints, blood, hair, or fiber samples linked either man to the scene. They steadfastly maintained their innocence.

The only evidence that circumstantially linked Henning and Birch to the crime came from witnesses who reported hearing a car with a loud muffler near the victim’s residence on the night of the murder. The car that Henning and Birch had stolen had a loud muffler, as do many cars. But one witness heard the loud muffler while watching a show that wasn’t broadcast on the night of the murder, and another witness saw taillights that didn’t match the taillights of the car that Henning and Birch had stolen.

Questionable Testimony

Two years later, frustrated with their inability to find any evidence to support their theory, the police decided to manufacture evidence. They made deals with two jailhouse snitches to incriminate Henning and Birch. Informant testimony is inherently unreliable — criminals have a strong incentive to fabricate stories to reduce their own sentences — but the police nevertheless turned to dishonest snitches when they couldn’t find honest evidence.

Defense attorneys also accuse the police of coercing two other witnesses to provide incriminating testimony. Those witnesses have since recanted, but Henning and Birch were convicted on the strength of evidence that was far from compelling.

About ten years ago, the Connecticut Innocence Project ordered forensic testing of objects found at the crime scene as well as the clothing worn by Henning and Birch. None of the victims’ blood was found on their clothing. None of Henning’s or Birch’s blood was found at the crime scene, although an unidentified person’s blood was found in places that the assailant might have touched.

Expert Testimony Challenged

The case was taken over by new lawyers who filed a habeas corpus proceeding, seeking a new trial for Henning and Birch. The trial judge rejected the request, and the decision is now on appeal.

In addition to the new DNA evidence, the lawyers relied on contradictions in witness statements that the original trial lawyers never presented to the juries. They also presented new evidence to impeach the jailhouse snitches (one of whom admitted to four witnesses that he lied in exchange for early parole), as well as the recantations of the other witnesses.

The motion also challenged the expert testimony of Dr. Henry Lee, who at the time was in charge of the State Police Forensic Laboratory and who later testified in the O.J. Simpson trial. At the trial, Dr. Lee was charged with explaining how Henning and Birch could have committed such a remarkably bloody murder when there was not a drop of blood on either man. He speculated that they wiped themselves off with a towel found in the bathroom. The towel had a brown stain that Dr. Lee testified he determined through testing to be “consistent with blood.”

A new expert analysis confirmed that the stain was not, in fact, caused by blood. Other witnesses testified that the towel was never tested before the criminal trials. Yet the prosecution relied on Dr. Lee’s testimony that the towel tested positive for blood when it asked the jury to convict Henning and Birch. Dr. Lee told the media that he was talking about a “field test” at the crime scene, not a lab test. However, his testimony made no reference to a field test, and field tests are not ordinarily admissible as evidence in Connecticut.

Another expert from the O.J. Simpson trial, William Bodziak, testified that footprints left in the blood next to the dead body were made by shoes that were not larger than size 9 and possibly as small as 7 1/2. Birch’s shoe size is 10 1/2 or 11, while Henning’s is 11 1/2.

Relief Denied

The judge who decided the habeas petition ruled that Dr. Lee was probably mistaken but did not deliberately lie. How he came to that conclusion when Dr. Lee did not testify at the habeas hearing is something of a mystery. Nor does the question of whether Birch and Henning received a fair trial hinge on why Dr. Lee gave erroneous testimony. The fact remains that erroneous evidence may have played a role in causing two wrongful convictions.

The judge who presided over the habeas hearing nevertheless concluded that the new evidence wasn’t sufficiently convincing to prove that Henning and Birch were innocent or to undermine the fairness of their trial. The case is now on appeal. Whether another court will eventually view the evidence differently may not be known for years.

Gynecomastia

Improper Admission of Physician Assistant’s Opinion Causes Reversal of Defense Verdict in Risperdal Trial

Many young males have sued Janssen Pharmaceuticals, claiming that their use of Risperdal caused them to develop gynecomastia, a condition involving excessive breast development. The plaintiffs were under the age of 18 when the drug was prescribed. Their cases have been consolidated in the Philadelphia Court of Common Pleas.

The claim of a plaintiff with the initials W.C. went to trial in 2015. The jury returned a verdict in favor of Janssen. On appeal, W.C. argued that the trial judge erred by admitting certain testimony of expert witness. The Superior Court of Pennsylvania agreed with part of W.C.’s argument. The court reversed the judgment and ordered a new trial.

Facts of the Case

Janssen Pharmaceuticals developed risperdone as an antipsychotic medication. The FDA approved its use to treat schizophrenia in adults, and Janssen marketed the drug as Risperdal. The drug was later approved to treat schizophrenia in adolescents, and to treat certain symptoms of autism and bipolar disorder in both adults and children.

When Janssen was testing risperdone for use in an adolescent population, it discovered a potential link between the drug and gynecomastia. When Risperdal was first approved for a juvenile population, Janssen added a warning to its product label concerning that link.

Long before the warning was added, and before Risperdal was approved for use by children, W.C.’s doctor prescribed the drug to W.C. to treat his attention deficit disorder and related conditions. At the time, W.C. was six years old. Doctors have authority to prescribe drugs for “off label” uses, but drug companies may not market drugs for any use that has not been approved by the FDA.

W.C. began using Risperdal in 2002 and discontinued its use in 2007. At some point between 2006 and 2008, W.C.’s mother noticed his abnormal breast development.

W.C. sued Janssen. The trial court dismissed some of his claims but allowed the case to proceed to trial on his negligence claim. W.C. contended that Janssen was aware of the risk that Risperdal could cause gynecomastia in per-pubescent male patients but negligently failed to notify doctors or the FDA of that risk.

The jury found that Janssen was negligent for failing to warn prescribing physicians that gynecomastia is associated with Risperdal use. However, the jury found that Janssen’s negligence did not cause gynecomastia in W.C. The trial court therefore entered judgment for Janssen.

Medical Testimony

Janssen argued that W.C. developed breasts because he was obese. Janssen attributed W.C.’s breast development to his rapid weight gain after 2013.

To prove that his breast development was caused by Risperdal, W.C. offered the expert testimony of Dr. Mark Solomon. Dr. Solomon demonstrated his physical examination of W.C. to the jury and explained why the amount of breast tissue he discovered was associated with Risperdal use. He characterized W.C.’s breast tissue as being the size of tennis balls. He opined that Risperdal caused the breast growth well before 2013.

W.C. visited an emergency room for chest pain in 2013. Medical records of that visit made no mention of gynecomastia. Dr. Solomon testified that a chest pain examination would not necessarily have discovered that W.C.’s breast tissue had grown to the size of tennis balls.

Janssen offered a number of defenses, including a denial that Risperdal is associated with gynecomastia despite placing a warning to that effect on its product label. Relevant to this appeal, however, was Janssen’s evidence that W.C. did not suffer from gynecomastia.

Janssen presented the testimony of Michele Baker, a physician’s assistant who treated W.C. between 2005 and 2013. She opined that W.C.’s breast development was caused by his rapid weight gain.

Janssen also presented the expert testimony of Dr. Adelaide Robb and Dr. Mark Moltich. Both doctors testified that breast tissue the size of tennis balls should have been noticed during the 2013 emergency room examination for chest pain, yet medical records did not make note of “tennis ball size breasts” during that examination. Dr. Moltich also testified that Risperdal could not have caused gynecomastia in W.C.

Admissibility of Doctors’ Expert Testimony

On appeal, W.C. challenged the testimony of Dr. Robb and Dr. Moltich that Risperdal could not have caused his breast development because he did not have “tennis ball size breasts” in 2013 when he was examined for chest pain. W.C. argued that there was no factual basis for that testimony and that the testimony went beyond the contents of the witness’ expert reports.

The appellate court noted that experts must base their opinions on facts. Dr. Robb testified that breasts the size of tennis balls “would have been impossible to miss” during an examination for chest pain, given the four areas on the chest where a doctor would listen to the heart. Dr. Moltich agreed that if a patient had tennis ball size breast tissue, an examiner would have noticed it and recorded it.

The appellate court noted that neither Dr. Robb nor Dr. Moltich testified that W.C. did not have breasts the size of tennis balls during his 2013 examination. Instead, they responded to hypothetical questions about whether an emergency room doctor would have noticed breast tissue of that size during an examination for chest pain. The hypothetical had a factual basis because Dr. Solomon had testified that an emergency room examination for chest pain would not necessarily discover breast tissue the size of tennis balls.

W.C. also complained that neither doctor mentioned in their expert report that breast tissue the size of tennis balls would have been discovered during the emergency room examination. The appellate court rejected that argument since the defense experts gave that testimony in response to Dr. Solomon’s testimony. Pennsylvania law does not require an expert’s opinion offered in response to another expert’s opinion to be disclosed in an expert report.

Admissibility of Physician’s Assistant’s Testimony

W.C. also argued that the trial court improperly admitted Baker’s opinion that Risperdal did not cause W.C.’s breasts to grow. She attributed the breast growth to rapid weight gain and testified that Risperdal could not have caused it because he stopped taking it in 2007 and any prolactin in his body should have returned to normal by 2013. Prolactin is a protein that enables breasts to make milk.

W.C. objected that Baker, a physician’s assistant, was not qualified to give expert testimony about whether Risperdal caused W.C.’s breast growth. W.C. also objected that Baker was not designated as an expert and should not have been allowed to give expert testimony.

The trial court ruled that Baker was providing a lay opinion, not an expert opinion. The appellate court disagreed. In Pennsylvania, a fact witness (as opposed to an expert witness) is permitted to testify about opinions based on the witness’ perception, provided that they do not require specialized knowledge. The relationship between Risperdal and breast growth, and whether prolactin would “return to normal” after a patient stops taking Risperdal, are opinions based on specialized knowledge. Lay witnesses will rarely understand protein levels in a body or how Risperdal might increase those levels.

The appellate court also rejected the argument that even if Baker rendered an expert opinion, she was qualified as a physician’s assistant to give that opinion. Baker was not designated as an expert and the trial court made no finding that she was qualified to testify as an expert. The trial court therefore erred by admitting her opinion testimony as to the cause of W.C.’s breast growth.

Finally, the appellate court rejected Janssen’s argument that Baker’s testimony had no impact on the verdict, in light of the expert testimony. Juries give special attention to opinions rendered by treating professionals. While retained experts might be viewed as “hired guns,” a treating professional is more likely to be seen as unbiased. Baker was the only treating professional to offer an opinion that Risperdal did not cause W.C.’s breast development. Since her inadmissible opinion may have influenced the verdict, W.C. was entitled to a new trial.

Insurance Fraud

Criticism of Government’s Expert Witness Leads to Dismissal of Lawsuit Against HCR ManorCare

Three former employees of HCR ManorCare (or businesses that it owns) brought qui tam lawsuits against their former employer pursuant to the federal False Claims Act. In most lawsuits, the plaintiff must demonstrate that he or she was personally harmed by the entity that is sued. That doctrine, known as “standing,” prevents individuals from using the courts to correct perceived injustices in which they have no personal stake.

Qui tam lawsuits are an exception to the usual rule that a plaintiff must have standing to sue. The False Claims Act authorizes individuals who allege fraud against the government to bring a qui tam lawsuit on the government’s behalf to recover the government’s loss. If they are successful, they receive a share of the proceeds. The government has the option of taking over the litigation if it concludes that the allegations have merit.

The government took control of the lawsuit against ManorCare. Its primary evidence was an expert report prepared by a nurse examiner with the help of a team that works to uncover healthcare billing fraud. ManorCare asked the court to strike the report and to impose sanctions after the expert produced notes after the close of discovery. The expert had earlier testified that no such notes existed.

Allegations against HCR ManorCare

HCR ManorCare is a nationwide provider of short-term and long-term care facilities, including nursing homes, rehabilitation facilities, memory care centers, and assisted-living facilities. The three occupational therapists who began the qui tam lawsuit alleged that their former employer had participated in a scheme to defraud the Medicare and TRICARE programs by submitting false claims for payment. The government eventually added itself as a plaintiff and the lawsuits were consolidated.

The plaintiffs alleged that ManorCare billed for services that were not “medically necessary.” Their primary allegation was that ManorCare provided more skilled rehabilitation therapy than patients needed. The lawsuits claimed that delivering an unnecessarily high level of care allowed ManorCare to receive higher reimbursement rates from the government.

False Claims Act lawsuits against healthcare providers are relatively common. The most successful lawsuits typically allege that a provider billed for services that were never rendered. For example, TeamHealth Holdings (formerly IPC Healthcare) recently agreed to pay $60 million to resolve claims that it billed the government for more expensive services than it actually provided.

Allegations involving false claims are more difficult to prove when they admit that the services were provided but allege that they were not necessary. Whether a service is medically necessary is often a matter of opinion. When a healthcare provider says “We delivered a high level of care because the patient deserved it,” juries tend to think that the government shouldn’t object to paying for quality care. In those cases, proof depends on the quality of the expert witness testimony that the plaintiffs can offer.

Failure to Produce Expert’s Notes

The government relied on the expert testimony of Dr. Rebecca Clearwater. Dr. Clearwater was under contract to provide “program integrity reviews” for the Center for Medicare and Medicaid Services, the federal agency that administers Medicare.

After ManorCare took Dr. Clearwater’s deposition, it filed a motion to exclude her testimony. The government also asked for sanctions because the government did not produce Dr. Clearwater’s notes about patients whose records she reviewed until more than a month after her deposition ended. The motion was assigned to U.S. Magistrate Judge Theresa Carroll Buchanan.

The government explained that it did not produce the notes before the deposition because Dr. Clearwater had denied that the nurses who conducted the beneficiary reviews under her guidance made any notes.

The notes were made using the “comment” feature on Word. The nurse reviewers used that feature to comment on items in early drafts of what would become Dr. Clearwater’s expert report. They also communicated with each other using the comment feature. During her deposition, Dr. Clearwater denied that any “comments” were made on the Word documents.

The Justice Department lawyer handling the case conceded that government lawyers never asked the nurses whether they made notes. The lawyer contended that she relied on counsel for AdvanceMed, Dr. Clearwater’s employer, to obtain discovery documents related to Dr. Clearwater’s review.

The court was skeptical of the government’s explanation for delaying production of the notes once it became aware of them. The government contended that it needed to review the notes to make sure they related to ManorCare patients, even though Dr.  Clearwater said they did. Why that review took several weeks was something the government’s lawyer could not satisfactorily explain.

The government argued that the notes were not discoverable because they related to early drafts of an expert report. That argument fizzled after the judge forced the government lawyer to concede that the notes were communications from the nurse reviewers to Dr. Clearwater before Dr. Clearwater turned the report over to the government. That timing made the notes discoverable.

ManorCare argued that the notes were critical to its defense because they demonstrated that the nurse reviewers disagreed with each other about the care level that patients needed. ManorCare claimed that Dr. Clearwater did not reflect those differences of opinion in her report. In fairness, Dr. Clearwater’s final judgment was the one that mattered, but her failure to disclose disagreements with her opinion deprived ManorCare’s lawyers of ammunition it could have used to attack Dr. Clearwater’s conclusions.

The lesson to be learned here is that a lawyer working with experts has an obligation to comply with discovery requests. That certainly includes asking the expert about discoverable documents, but it may also include interviewing the people who worked on the expert’s team. The judge was unimpressed with the government’s efforts to learn about the documents that it belatedly produced.

Dr. Clearwater’s Credibility

The judge wondered how Dr. Clearwater could deny that notes existed when, in fact, she had a notebook filled with 131 pages of handwritten notes that the government belatedly produced. Those notes were in addition to 5,000 pages that included electronic comments generated in Word files. The judge also noted that during her deposition, Dr. Clearwater agreed to contact nurse reviewers to ask about notes, and later in the deposition claimed to have emailed the nurse reviewers with that request. A nurse reviewer, however, testified that Dr. Clearwater never asked her whether she made any notes.

The magistrate judge asked: “How can I find that she was credible at all in her testimony when she has now, we know at least three times, said untruthful statements in her deposition and to government lawyers?” The government suggested that there was “some confusion” on Dr. Clearwater’s part, but the magistrate judge didn’t buy it.

Court’s Ruling

The government argued that Dr. Clearwater’s credibility went to the weight that should be given to her testimony, not to its admissibility. Viewing the record as a whole, however, the judge noted that Dr. Clearwater’s repeated misstatements of fact had prejudiced ManorCare’s ability to defend against the government’s accusations.

Had ManorCare known of the notes, it would have used them when it deposed Dr. Clearwater. ManorCare’s own expert witness would have used those notes to prepare a rebuttal expert report. The failure to disclose important information therefore prejudiced ManorCare’s defense of the lawsuit. Under those circumstances, Dr. Clearwater’s credibility did not go to the admissibility of her opinions, but to the fairness of the trial process.

The court rejected as “ridiculous” the government’s suggestion that the problem could be resolved by allowing additional discovery and setting new deadlines for expert report disclosure and summary judgment deadlines. The court saw no reason to give the government a “do over.”

Instead, the court decided that “Clearwater’s entire report must be stricken and that she must not be allowed to testify because of her utter lack of credibility.” The court described the government’s case as a “house of cards” that rested on Clearwater’s report. The magistrate judge called the government’s case “a huge waste of money” and said he didn’t think it “should ever have been brought.” The magistrate judge said “I’m appalled, I’m embarrassed, I’m ashamed that the Department of Justice would rely on this kind of nonsense by a nurse reviewer to get involved in a qui tam case and cost these defendants millions of dollars in legal fees.”

Whether the magistrate judge went too far in that last assessment might be debatable, but the government apparently agreed that the damaged caused by its expert’s nondisclosure of crucial information was irreparable. Rather than appealing the magistrate judge’s ruling to the district court, the government agreed to dismiss the case against Manorcare.

The lawyer for the whistleblowers disagreed with that decision, but reasonably suggested that the government “realized that the trial was going to be more difficult with the exclusion of the expert.” Without an expert witness, in fact, a win would have been miraculous. The dismissal was apparently conditioned on ManorCare’s agreement not to seek fees and expenses related to its sanctions motion.

Gun and bullets

Expert Witnesses Played Key Role in Garcia Zarate Acquittal

The acquittal of Jose Ines Garcia Zarate, who was charged with murdering Kate Steinle, has made national headlines, in part because President Trump tweeted his dissatisfaction with the “disgraceful”  outcome. The jurors, unlike the president, decided the case after considering the competing expert witnesses who advanced and undermined the prosecution’s theory of guilt.

The Murder Charges

Kate Steinle was shot while walking with her father on San Francisco pier. The bullet that struck her ricocheted after being fired into the concrete walkway. The question for the jury was whether Garcia Zarate caused the gun to fire accidentally or whether he deliberately or recklessly caused Steinle’s death.

Given that the bullet was fired into a concrete pier 12 feet from where Garcia Zarate was seated, then traveled about 78 feet before striking Steinle in the back after it ricocheted, it is difficult to understand how the prosecution believed it could prove that Garcia Zarate intended to kill Steinle. California law requires proof of a deliberate, premeditated, and intentional killing to support a first-degree murder conviction. Killers who target a specific victim for death don’t count on making a bank shot.

The more serious question was whether Garcia Zarate intended to shoot the gun on a crowded walkway. Second-degree murder under California law does not require proof of an intent to kill, but it does require proof of an intent to commit the act that caused the victim’s death. The prosecution must also prove that the defendant knew that the act was dangerous and consciously disregarded the risk to human life.

The third charge, involuntary manslaughter, required the prosecution to prove that Garcia Zarate engaged in reckless conduct that created a high risk of death or serious injury. Causing an accidental death by careless action that does not rise to the level of recklessness is not a crime under California law. The last charge, assault with a firearm, also required proof of a purposeful shooting.

Facts at Trial

Several key facts were undisputed. The gun had been stolen from the vehicle of a Bureau of Land Management ranger days earlier. The prosecutor did not claim, and no evidence suggests, that Garcia Zarate stole the gun.

Steinle was struck with a single bullet; she was not shot five times, as Donald Trump claimed during his presidential campaign. No evidence suggested that Garcia Zarate knew Steinle or that he had a motive to kill her or to harm anyone on the pier.

Other facts were less clear. Although the gun was clearly pointed at the ground when it discharged, prosecutors claimed Garcia Zarate deliberately pointed it at Steinle, or at least in her direction. The defense contended that Garcia Zarate found an object wrapped in a rag or T-shirt on the pier. Garcia Zarate said he didn’t know the object was a gun until it went off as he was unwrapping it.

The police interrogated Garcia Zarate for four hours after his arrest, and his statements contradicted each other as well as the physical evidence. At one point he said he was shooting at a sea animal. He also said the gun went off when he stepped on it.

Whether Garcia Zarate admitted to pulling the trigger, or merely admitted that he fired the gun, is also unclear. The accuracy of the police translation of the interrogator’s English-language questions into Spanish and of Garcia Zarate’s Spanish-language questions into English was disputed at trial.

John Evans’ Testimony

John Evans, a San Francisco Police Department crime scene investigator, testified as an expert witness for the prosecution. He asserted that “A human being held the firearm, pointed it in the direction of Ms. Steinle, pulled the trigger and fired the weapon, killing Ms. Steinle. This is the only way it could have happened.”

That kind of certainty, when coming from an expert witness who wasn’t at the scene and didn’t see what happened, will often backfire. Juries perceive expert witnesses as arrogant when they suggest that they have an exclusive window on the truth. When that expert is impeached, juries more readily discount the expert’s testimony as being result-oriented rather than objective.

Evans also testified that inexperienced shooters often jerk the trigger of a gun, causing it to fire before the barrel is pointed directly at the target. Evans theorized that the bullet was meant for Steinle but hit the concrete pier for that reason. He also testified that guns don’t fire accidentally.

Evans based his conclusion that Garcia Zarate pointed the gun at Steinle on a “vector” analysis, essentially using a laser pointer to show that the place where the gun was fired, the place where the bullet hit the pier, and the place where Steinle was standing all fell within straight line. Evans was allowed to give that testimony over a defense objection that it was based on “junk science.” Evans admitted on cross-examination that the CSI team could not determine where Garcia Zarate was when the gun was fired, and only knew approximately where Steinle was standing based on blood stains.

Evans also admitted that the bullet may have changed direction after it hit the pier. When asked how he could be certain that the bullet followed a straight path if it might have changed direction, Evans changed the direction of his testimony, explaining that bullets spin and tumble after they strike an object, but still travel in a direction that is “essentially straight.”

Finally, the defense asked Evans whether he knew that the shooting was an accident or not. “I cannot say” was his honest answer, and it established a reasonable doubt that probably helped the jury vote “not guilty.”

Evans’ Result-Oriented Testimony

Evans played a crucial role in the 2010 trial of Jamal Trulove, a former reality-show contestant who was convicted of murder. Although the placement of shell casings that had been ejected from the murder weapon cast doubt on eyewitness testimony that implicated Trulove, Evans claimed that casings fall “randomly” after they are ejected and can end up in front of the shooter’s position. That testimony, which Evans claimed to base on his own experience firing guns and on a report prepared by a police inspector, was later discredited by experts who explained that casings ejected from the kind of handgun used in the murder are always ejected to the right and backward.

Truelove’s conviction was reversed on appeal and he was acquitted after a second trial. In a post-conviction deposition, Evans admitted that he never read the report about patterns made by ejected casings that another police inspector prepared, even though he testified about that report at Truelove’s trial. Evans claimed to have discussed the report with its author, but the author denied any recollection of discussing it with Evans. The inspector also said that Evans’ trial testimony misrepresented the contents of his report.

The prosecution probably should have known better than to rely on Evans, given his performance in the Trulove trial. Before charging first-degree murder in a case where the lethal bullet ricocheted, it is surprising that the prosecution did not confirm Evans’ theories with independent experts.

Defense Experts

The defense countered Evans’ testimony with the expert opinion of James Norris, a former San Francisco criminalist and director of the Police Department’s forensics division. Norris testified that a ricocheting bullet can change direction, and that the bullet’s path after the ricochet is impossible to predict.

Norris also testified that the gun was probably “1½ to 2 feet off the ground” when it was fired, a position that would have been below Garcia Zarate’s knees. “In that position, it would be extremely difficult to aim,” Norris testified.

The defense also relied on the expert opinion of Alan Voth, a firearms forensic expert who spent 35 years with the Royal Canadian Mounted Police. Voth testified that accidental discharges of firearms are common.

After explaining why guns fire accidentally, Voth pointed to the evidence that Garcia Zarate did not intend to fire the gun. He emphasized that only one shot was fired, that the bullet struck the ground, and that Garcia Zarate had no motive to shoot a stranger.

Politics and the Verdict

There is no question that Garcia Zarate received a fair trial and that the jury deliberated carefully and based its verdict on the evidence, including the testimony of experts. While the president and others have suggested that the verdict should make people angry, there is no cause for anger when a jury follows the law and rejects speculative theories of guilt.

Politics has no role in the criminal justice process. Verdicts must be based on evidence, not political opinions. The Garcia Zarate trial demonstrates the valuable role that experts play in assuring that defendants receive a fair trial by helping juries evaluate the evidence that will determine their verdict.

Wooden Mallet and flag Of New Jersey

Negative Comments About Expert Witness Did Not Deprive New Jersey Driver of Fair Trial

Amy Campanelli was in a car accident at a New Jersey intersection. She sued the other driver, Kusum Patel, for negligence. The case went to trial.

There was little dispute that Patel caused the accident. The key issue was whether Campanelli suffered from a permanent injury. Her expert witnesses said she did; the defense expert said she did not.

During closing arguments, Campanelli’s attorney made some disparaging remarks about the defense expert’s credibility because the expert testified almost exclusively for defendants. Patel argued on appeal that those remarks deprived him of a fair trial. The issue before the Appellate Division of the New Jersey Superior Court was how far an attorney can go in attacking an expert witness during a closing argument.

Expert Testimony

Two expert witnesses supported Campanelli’s claim that she suffered from permanent neck and back injuries. A radiologist, Dr. Natalio Damien, testified that MRIs showed bulging discs in Campanelli’s neck and lower back. An orthopedic physician, Dr. Patrick Collalto, testified that the bulging discs were caused by the accident and that they constituted a permanent injury. His opinion was based in part on EMG results.

The defense called Dr. Robert Bercik, an orthopedic surgeon, as its expert witness. Dr. Bercik testified that the MRIs showed disc desiccation, not bulges, and attributed the condition to a degenerative disease. Dr. Bercik testified that he spent about 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of his time preparing examination reports for litigation, virtually always for the defense.

Closing Arguments

Jury trials end with closing arguments, as each lawyer tries to persuade the jury to accept a view of the evidence that is favorable to their side of the case. Both lawyers in Campanelli’s trial devoted a portion of their closing arguments to a discussion of the expert testimony.

Patel’s lawyer acknowledged that Dr. Bercik generally testifies for the defense, but told the jury that it had a chance to assess Dr. Bercik’s credibility based on the testimony he gave. He suggested that Dr. Bercik was not “up here lying to you in order to keep that work.”

Campanelli’s lawyer was less charitable. He asked the jury to conclude that a witness who relies on the “defense industry” for 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of his income is going to “bend over backwards” to support defendants. He also told the jury that Dr. Bercik is:

  • “smooth as silk”
  • “a professional testifier”
  • “a smoothie”
  • “a defense doctor”
  • “too smooth”
  • “too smart”

Campanelli’s lawyer said Dr. Bercik played “a shell game” and a “show game” and that he was testifying “for the sole purpose of protecting his industry.” The lawyer asked the jury not to “fall into the trap.”

Patel’s lawyer objected. The judge then gave a curative instruction, telling the jury that lawyers are entitled to comment on the evidence and upon the credibility of witnesses, but that Campanelli’s lawyer had “gone far beyond what is acceptable.” The judge instructed the jury to disregard the inappropriate assertion that Dr. Bercik testified to protect the defense industry.

The jury returned a verdict for Campanelli for $336,000. The trial court denied a motion for a new trial, concluding that the lawyer’s remarks probably had no impact on the verdict. Patel appealed to the Appellate Division of the New Jersey Superior Court.

Disparaging Remarks About Expert Witness

Echoing the law as it exists in most jurisdictions, the New Jersey appellate court noted that lawyers are given “broad latitude” in making closing arguments, and may ask the jury to draw conclusions that might be considered illogical or even absurd. Lawyers may not, however, use “disparaging language tending to discredit” a witness. Unless a lawyer’s remarks are outrageous, that rule is honored in its breach more often than it is enforced.

In particular, the court noted that lawyers should not accuse the opposing lawyer of “trying to deceive the jury, or of deliberately distorting the evidence.” But Campanelli directed his comments at the expert witness, not at the defense attorney, and it is not unusual for lawyers to suggest that witnesses are not being truthful. When defense witnesses provide an alibi for a defendant in a criminal case, for example, prosecutors routinely brand them as liars during closing arguments.

The appellate court decided that the fundamental question was whether Patel received a fair trial. The court noted that the trial court instructed the jury to disregard the suggestion that Dr. Bercik was “protecting the defense industry.” It makes life easier for appellate courts to presume that juries follow instructions, despite studies suggesting that they probably don’t. However, it does seem fair to believe that the jurors would have discounted Dr. Bercik’s opinion based on the evidence that he always testifies for the defense, regardless of what Campanelli’s lawyer said about him during closing arguments.

Insurance Coverage

Patel also complained that the comments implied that he had insurance coverage. Patel did have insurance coverage, but a New Jersey law prohibits introducing evidence of insurance coverage in a personal injury trial.

Campanelli’s lawyer referred to Dr. Bercik’s efforts to protect “the defense industry,” not the insurance industry. While the appellate court suggested that the jury might consider “the defense industry” to be a reference to the insurance industry, the court decided that the curative instruction was sufficient to protect Dr. Bercik’s rights.

In the real world, the jury might have disregarded the curative instruction, but in the real world, juries know that drivers have insurance. Trying to keep jurors from knowing that a defendant is insured is futile and even a little silly. In some states, plaintiffs can sue the defendant’s insurance company directly, and nobody outside of the insurance industry believes that adding an insurance company as a defendant affects an insured driver’s ability to receive a fair trial.

The bottom line is that juries usually base verdicts on the evidence, not on what lawyers say during closing arguments. The jury heard that Dr. Bercik routinely testifies for the defense and the jury therefore had reason to discount his testimony. The lesson to be learned is that insurance companies should be cautious about hiring expert witnesses who always testify for insurance companies if they don’t want plaintiffs’ lawyers to challenge their expert witnesses in closing arguments.

Arizona Legal System Concept

Arizona Decides Nurse Was Not Qualified to Testify About Standard of Nursing Care in ICU

The Arizona Supreme Court recently decided that a registered nurse who was certified in wound care and who worked as a wound care coordinator was not qualified under Arizona law to testify about the standard of wound care that ICU nurses should have provided to a patient with a pressure wound. The decision illustrates the unfairness of legislation that prevents experts from testifying in medical malpractice cases who have sufficient knowledge and experience to provide credible opinions.

Facts of the Case

Karyn Rasor was placed in a medically induced coma after surgery. She was transferred to the Intensive Care Unit (ICU) at Northwest Medical Center (NWMC). During her stay in the ICU, she developed a pressure ulcer over her tailbone. She has had 31 procedures to remove dead tissue and was prepared to prove that she suffers from a permanent injury.

Rasor sued NWMC, alleging that hospital staff engaged in professional malpractice by failing to reposition her properly, thus allowing the pressure ulcer to develop. Following Arizona law, Rasor filed a “preliminary expert affidavit” to show that she could produce expert evidence to substantiate the merit of her claim.

Rasor’s expert was Julie Ho, a registered nurse who was certified in wound care. Ho had significant experience doing wound assessments and care planning in a long-term acute care facility during the year prior to her execution of the affidavit.

The trial court determined that Ho was an expert on the standard of care for wounds but lacked the necessary expertise to testify about the cause of the patient’s injury. The court denied Rasor’s motion to designate a causation expert because the deadline for disclosing experts had passed. The court then granted summary judgment in NWMC’s favor and dismissed Rasor’s case.

Court of Appeals’ Decision

Rasor appealed. The Arizona Court of Appeals disagreed with the trial court’s determination that Ho was an expert on the standard of care that applies in an ICU. The Court of Appeals decided that only a certified ICU specialist could testify about the standard of care that an ICU should follow, and that Ho was a generalist, not a specialist.

The Court of Appeals concluded, however, that the trial court should have allowed Rasor to designate a new expert. Both parties asked the Arizona Supreme Court to review the Court of Appeals’ rulings.

Supreme Court’s Decision

Like most states, Arizona law requires an expert opinion to establish the appropriate standard of medical care unless malpractice is “grossly apparent.” Failing to position a bedridden patient so that bedsores and pressure wounds will not develop might be regarded as a grossly apparent breach of the duty to provide reasonable care, but the Arizona Supreme Court did not address that question.

When expert testimony is needed to establish that a medical provider failed to follow the appropriate standard of care, Arizona law requires the expert’s opinion to be stated in a preliminary affidavit that is filed shortly after the lawsuit is commenced. The affidavit must demonstrate that the expert is qualified to render an opinion. To be qualified under Arizona law, the expert must:

  • practice in the same specialty as the defendant;
  • be board certified in the specialty if the defendant is board certified; and
  • have practiced in the same health profession and specialty as the defendant during the majority of the witness’ professional time during the year prior to the commission of the alleged malpractice.

The question before the Supreme Court was whether Ho was qualified to testify about the standard of care that Rasor should have received. The parties disagreed whether the ICU nurses who alleged caused Rasor’s injuries practiced a nursing specialty. Rasor argued that they had the same education as Ho and that Ho’s training as a registered nurse who was certified in wound care qualified her to render an expert opinion. According to NWNC, however, the nurses who treated Rasor were ICU specialists, apparently because they were trained to work in the ICU.

The Supreme Court did not decide whether Ho worked in the same specialty as the ICU nurses because it concluded that Ho did spend the majority of her professional time during the year before Rasor’s injury working in the “active clinical practice of the same health profession as the defendant” nurses. Rather, she worked at a long-term acute care facility as a wound care coordinator and picked up extra shifts as an ICU wound care supervisor, but did work as an ICU nurse.

The result might be consistent with a narrow reading of the Arizona statute (assuming that “active clinical practice” refers to something more than the practice of nursing), but if so, the decision points to the harm caused by statutes that restrict the availability of expert witnesses in medical malpractice cases. Ho was clearly qualified by training and experience to testify about wound care. Unless there is some reason to believe that wounds should receive different care in an ICU than they receive in an acute care facility, the place where Ho worked has no bearing on her expertise. And the fact that she worked as a wound care coordinator rather than an ICU nurse suggests that she had more expertise in wound care than the ICU nurses who allegedly harmed Rasor.

Statutes like Arizona’s are the result of intense lobbying efforts by the insurance and medical industries to restrict the availability of experts who can testify in medical malpractice cases, regardless of their expertise. It is difficult to find a healthcare professional in active practice in an identical field who is willing to testify as a plaintiff’s expert, because healthcare practitioners are reluctant to testify against each other, even when they know their colleague has committed malpractice. Legislation like Arizona’s takes advantage of that reluctance to skew the playing field in favor of medical malpractice defendants by depriving injury victims of experts who, like Ho, have more than enough expertise to render an opinion about the standard of care that a patient should receive.

Substitution of New Expert

Resolving a conflict among Arizona’s lower appellate courts, the Supreme Court decided that defendants are not required to challenge an expert’s qualifications before basing a summary judgment motion on the expert’s failure to meet the qualifications listed above. While Arizona law includes a procedure to challenge the preliminary affidavit, following that procedure is not a prerequisite to bringing a summary judgment motion. The Supreme Court ruled that the Court of Appeals should not have reversed the summary judgment because there is no automatic right to substitute a new expert after the judge bases summary judgment on the expert’s lack of qualifications.

As a result of that decision, defendants have an incentive to lay in the weeds and challenge an expert only after the expert disclosure deadline has passed, preventing the plaintiff from salvaging the case by designating a new expert. While a plaintiff can file a motion to substitute a new expert in response to a summary judgment motion, the plaintiff may do so only before summary judgment is granted, and therefore will not have the benefit of the court’s ruling whether the expert who prepared the preliminary affidavit is qualified.