In an unpublished opinion, the Superior Court of New Jersey Appellate Division reaffirmed the New Jersey rule that a treating physician may testify about the diagnosis and treatment that he or she provided to a patient, but may not provide an expert opinion about whether a doctor who previously treated the patient committed malpractice.

Malpractice Allegations

Alexandra Granovsky sued Dr. Stephen Chagares for medical malpractice. The alleged malpractice occurred during a laparoscopic cholecystectomy to remove Granovsky’s gallbladder.

Two ducts descend from the liver to carry bile to the small intestine. They merge into a single duct, known as the common hepatic duct. The common hepatic duct, in turn, merges with the cystic duct that descends from the gallbladder. The part of the duct that joins the small intestine after the common hepatic duct and the cystic duct merge is called the common bile duct.

A gall bladder removal requires the surgeon to cut the cystic duct. Dr. Chagares instead cut the common bile duct, mistaking it for the cystic duct. All parties agreed that cutting the common bile duct is not part of the procedure to remove a gall bladder. It was also agreed that cutting the common bile duct can cause serious harm to a patient if left unrepaired.

A few days after the surgery, Granovsky was treated in an emergency room for vomiting and jaundice. A surgeon, Dr. Manuel Rodriquez-Davalos, discovered that Granovsky’s common bile duct had been severed. The surgeon repaired the injury by connecting the hepatic duct directly to the small intestine, bypassing the common bile duct.

There was no dispute that Dr. Chagares cut the wrong duct while removing Granovsky’s gallbladder. Nor was there any dispute that a severed common bile duct is a serious medical condition. The question at trial was whether cutting the wrong duct is a deviation from the appropriate standard of care that should govern a general surgeon who performs a gallbladder removal.

The jury found in favor of Dr. Chagares. Granovsky appealed.

Expert Witness Testimony

Granovsky’s liability expert, Dr. Michael Drew, testified that Dr. Chagares deviated from the appropriate standard of care “by failing to obtain a critical view of both the cystic duct and the cystic artery entering the gallbladder before clipping and cutting either structure.” He also testified that Dr. Chagares should have realized the error before closing the surgery.

Dr. Drew faulted Dr. Chagares for using an outmoded “infundibular” approach rather than obtaining a critical view before cutting a duct. He testified that the infundibular approach was abandoned in the 1990s and replaced with the critical view method because the infundibular technique resulted in too many common bile duct injuries during the first years of laparoscopic cholecystectomies.

Two defense experts testified that cutting the common bile duct is a “recognized complication” of gallbladder surgery and not a deviation from the accepted standard of care. They also testified that “misidentification is not malpractice.”

One of the defense experts, Dr. Josef Fischer, testified that misidentification occurs because ducts are small, are not in the same configuration in every patient’s body, and are often obstructed from the surgeon’s view. He also testified that while laparoscopic surgery has a reported rate of common bile duct injuries of .4 to .7 percent, newer research suggests the actual rate might be as high as 4 percent. Dr. Fischer agreed that Dr. Chagares made an error but contended that the error was not malpractice. Dr. Fischer believed that when surgeons make the same error in 4 percent of all surgeries, the error is a “known risk” and making it is not medical malpractice.

The appellate court noted that “known risks” of a surgical procedure can be relevant to the standard of care applicable to the surgeon performing the procedure. In essence, if the medical error will occur in a certain percentage of cases no matter how much caution the doctor exercises, the error is a “known risk” and is not necessarily the result of negligence. The question for juries to resolve is whether the particular error that the doctor committed was avoidable or unavoidable. Mistaking one body part for another may seem to most juries to be an obvious act of medical negligence, just as mistaking a red traffic light for a green one is an obvious act of driving negligence. For that reason, expert testimony that a medical error is a “known risk” does not always carry great weight with juries.

Dr. Fischer then went off on a tangent, explaining that he thought malpractice cases should not be in the court system at all and that some other mechanism should be found for compensating patients. In light of its decision to reverse the judgment for other reasons, the appellate court did not decide whether the trial court erred by limiting cross-examination of Dr. Fisher’s “political opinions” about the nature of malpractice litigation.

Testimony of Treating Physician

Granovsky took the deposition of Dr. Rodriquez-Davalos, who performed the surgery to repair the harm caused by the severed common bile duct. The parties stipulated that Dr. Rodriquez-Davalos was testifying as a treating physician, not as Granovsky’s expert witness on the issue of malpractice liability.

Dr. Rodriquez-Davalos testified that Dr. Chagares did not deviate from the appropriate standard of care. In particular, he testified that it is easy to confuse the common bile duct, the hepatic duct, and the cystic duct since they are small and near each other. He also testified that the mistake is not uncommon and that it can happen to any surgeon in the country. Granovsky moved to strike that testimony because it was not responsive to the questions that Dr. Rodriguez-Davalos was asked. The court granted that motion.

The defense then asked to take its own deposition of Dr. Rodriguez-Davalos. The court allowed the deposition but ruled that no testimony should be elicited about whether Dr. Chagares deviated from an appropriate standard of care. The defense elicited exactly that testimony and, at trial, a different judge allowed the deposition to be read to the jury in its entirety.

On appeal, the trial judge’s ruling was deemed to be in error. Like most states, New Jersey classifies a treating physician as a fact witness, not as an expert witness, when the physician testifies about the diagnosis and treatment that the physician rendered. When a treating physician testifies whether another doctor committed malpractice, however, the treating physician is testifying as an expert witness, not as a fact witness.

While Dr. Rodriguez-Davalos was entitled to testify that he treated Granovsky for a severed bile duct, he should not have been allowed to testify about why the bile duct might have been severed or the ease with which surgeons might make that mistake. The court adhered to the New Jersey rule that “medical malpractice defendants may not use the plaintiff’s treating doctors to provide expert testimony relating to deviation from the standard of care.” The appellate court concluded that the trial court’s error may have affected the outcome of the trial since juries might find a treating physician to be more credible than doctors who have been retained as expert witnesses. The court therefore reversed the judgment and remanded the case for a new trial.

Alabama’s version of the Daubert standard applies only to scientific testimony. In a case alleging that a car fire was caused by a defective automobile design, the Supreme Court of Alabama held that an expert based his testimony on years of technical experience in automotive design, not on science. The admissibility of his testimony therefore did not require a Daubert analysis.

Facts of the Case

At about 3:00 a.m. on a November night in 2008, a 16-year-old boy named Sydney was driving a 2008 Mazda3 in Jefferson County, Alabama. A 15-year-old girl named Natalie was sitting in the passenger seat. Sydney was driving at 55 to 60 mph when he lost control of the vehicle.

Sydney hit a curb and overcorrected, sending the vehicle into a spin. He then hit a light pole. Natalie and Sydney both survived the collision, but the vehicle burst into flames. Sydney managed to escape from the car, but he sustained serious burns. Natalie died in the fire that consumed the car.

Sydney and Natalie’s parents sued Mazda. They alleged that the Mazda3 was not crashworthy and that its defective design, including the positioning of a plastic fuel tank one-half inch from a steel muffler that had sharp protruding edges, contributed to Sydney’s injuries and Natalie’s death. The plaintiffs contended that the muffler’s sharp edges cut into the fuel tank during the collision, and that gasoline vapors ignited as they were released, causing the fire.

The case went to trial against Mazda under product liability theories allowed by Alabama law, including a claim under the Alabama Extended Manufacturer’s Liability Doctrine. The jury found in favor of Sydney and Natalie’s parents. The jury awarded $3 million in compensatory damages and $3 million in punitive damages to Sydney. The jury awarded $4 million in wrongful death damages to Natalie’s parents. Mazda appealed.

Plaintiffs’ Evidence

The case against Mazda was based largely on the testimony of experts. In addition to medical experts who confirmed that Natalie survived the crash and died in the fire, the jury heard testimony from an accident reconstruction expert, a fire causation expert, and a causation-and-design-defect expert.

The plaintiffs’ evidence included pictures of similar vehicles that placed the muffler behind the rear axle, while the fuel tank was located in front of the rear axle. The evidence also established that Mazda sold a version of the Mazda3 in California that had a muffler with rounded edges. That version of the vehicle, as well as the Ford Focus (which was based on the Mazda3 design), eliminated the flange that had sharp protruding edges. The plaintiffs contend that the Mazda3 that Sydney was driving should have followed those design standards.

Testimony of Fire Experts

The fire experts who testified for the plaintiffs and for Mazda disagreed about the origin of the fire. Based on fire patterns, the plaintiffs’ expert testified that the fire started on the inboard side of the muffler, which was next to the fuel tank. He could not inspect the fuel tank because it was destroyed in the fire. He attributed the fire’s origin either to the sharp edges on the muffler’s flange puncturing the fuel tank, or to a failure of the inlet pipe where the exhaust pipe joins the muffler, or to a combination of those factors.

Mazda’s expert testified that the fire originated in the fuel lines. The plaintiffs’ expert rejected that possibility because it was inconsistent with the fire patterns he observed.

Defective Design Expert Testimony

The design-and-defect-causation expert, Jerry Wallingford, is a forensic engineer with 40 years of experience in the automotive industry. Wallingford based his opinions on his examination of the car, on his examination of an undamaged Mazda3, on photographs of the accident scene, and on the opinions of the plaintiff’s fire expert. He concluded that the muffler moved inward during the collision and pierced the fuel tank, releasing vapors that started the fire. He also testified about the ways in which the car’s designers could have anticipated and avoided that problem.

On cross-examination, Wallingford admitted that he did not crash test a car to support his theory of causation. He testified that he instead based his opinions of a process of deduction. He also testified that it would be impossible to replicate the accident exactly because the angles at which the muffler and other components moved were unknown.

Wallingford’s testimony about the defective design was based on his knowledge of industry standards, including documents written by a fuel-systems specialist for Ford regarding design safety. Wallingford testified that the documents reflected industry-wide knowledge and design standards, and that they were available to Mazda, which at the time was in partnership with Ford.

The documents cautioned against placing components with sharp edges near a fuel tank and that any shield separating the fuel tank from other components should be harder than those components. Wallingford testified that a heat shield separating the muffler from the fuel tank on the Mazda3 was made from aluminum, and was thus softer than the steel muffler.

Mazda’s design expert generally agreed that the Ford documents reflected industry standards, but testified that they were pre-collision standards, and that no standards can prevent injuries in a violent collision.

Admissibility of Wallingford’s Testimony

Prior to trial, Mazda asked the court to exclude Wallingford’s testimony because it did not satisfy Alabama’s version of the Daubert rule. The court ruled that Daubert did not apply because Wallingford’s testimony was not “scientific.”

Alabama’s rules of evidence require certain expert opinions to be based on sufficient data, to be the product of reliable principles or methods, and to be based on a reliable application of those principles or methods to the data. However, that rule only applies to “expert testimony based on a scientific theory, principle, methodology, or procedure.”

According to Mazda, it did not matter whether Wallingford’s opinions were actually based on science, because he portrayed his opinions to be scientific in nature. The appellate court rejected that argument, in part because Wallingford did not testify that his opinions were based on scientific principles or theories and the jury was never told that Wallingford was an expert in any field of science. The court also rejected Mazda’s position (as characterized by the court) that whenever an expert’s testimony mentions the word “science,” the testimony must be evaluated under the Daubert standard for scientific evidence.

Drawing a distinction between testimony based on science and testimony based on technical or specialized knowledge, the court decided that Wallingford’s testimony was based on the latter. Accordingly, the Alabama rules of evidence did not require Wallingford’s testimony to satisfy the Daubert standard.

The subset of federal judges who aggressively use summary judgment to prevent plaintiffs from bringing their cases to trial has created a rule that prevents witnesses from contradicting their prior deposition testimony with an affidavit in order to avoid summary judgment. The fairness of the “sham affidavit” rule can be questioned, given that defendants are free to contradict themselves and do not automatically lose the case by doing so. Critics of the rule also argue that contradictions in testimony should be resolved by juries, not by judges.

Whatever perspective one might have on the rule’s fairness, it has typically been applied to plaintiffs who are seen as “changing their story” in order to avoid summary judgment. A recent decision from the Court of Appeals for the Eighth Circuit expanded the sham affidavit rule by applying it to an expert witness.

Hip Replacement Failure

Judith Redd had a total hip replacement. The artificial hip was manufactured by DePuy Orthopaedics, Inc. The implant failed about four years later when a component known as a hip stem fractured.

When the fractured hip stem was removed, doctors observed that it had not properly grown into the bone at the top of Redd’s hip. Redd’s doctors were aware that Redd was at risk of that complication, given her obesity and her history of taking immunosuppressant drugs.

The broken hip stem was replaced. Two years later, the new hip stem also fractured.

Expert Testimony

Redd sued DePuy for marketing a defective product and for failing to warn patients about the risk of failure. Her expert witness was Shankar Sastry, a metallurgist. Sastry had done research into metal failure caused by fatigue, but his research did not specifically address the failure of metals implanted into the human body.

Prior to his deposition, Sastry did not review any records relating to the manufacturing process. Nor did he consider the failure of the hip stem to grow into the hip bone as a potential cause of failure.

Sastry provided a technical explanation for the failure that considered the coarse grain size of the metal alloy from which the stem was manufactured, as well as the kind of lattice (hexagonal close-packed rather than face-centered cubic) used to achieve that density. He testified in his deposition that environmental factors could have contributed to the failure, but that they were probably secondary to the stem’s structure, which he regarded as the primary cause of its failure.

Summary Judgment

According to the district court, Sastry provided a sham affidavit in response to a summary judgment motion that “directly contradicted things he said in his deposition.” The court therefore struck the affidavit. It then granted summary judgment to DuPrey because, in the absence of the affidavit, evidence of causation was inadequate to support the claim.

Sham Affidavit Ruling

On appeal, Redd argued that Sastry merely clarified or supplemented his deposition testimony. The court of appeals concluded that the affidavit “arguably crossed the line between clarifying prior testimony and changing prior testimony.” The court decided that “arguably” crossing the line was a sufficient basis for affirming the district court’s discretionary decision to strike the affidavit.

Sastry had not reviewed DePuy’s manufacturing standards at the time of his deposition. In his affidavit, however, he said that the standards called for a face-centered cubic lattice and that the stems therefore violated DePuy’s standard. On its face, that seems like an opinion based on new information rather than a contradiction. Affidavits based on new information are not typically regarded as sham affidavits.

In addition, Sastry’s affidavit stated that the materials used to make the hip stem were defective and that any environmental stresses on the stem were secondary causes of its failure. In his earlier deposition, Sastry testified that environmental factors would have been secondary causes if they created small biomechanical forces, and said that he was unfamiliar with the biomechanical forces that were actually generated. That may be closer to a contradiction, although depriving a party of a jury trial on the basis of a minor difference in testimony that, at worst, impeaches the expert’s credibility is arguably an abridgement of the federal constitutional right to have a jury resolve factual disputes in civil lawsuits.

In the end, the court of appeals upheld the summary judgment dismissing the case. The court’s decision is unpublished, perhaps with good reason, since the conclusion that the expert executed a sham affidavit is based on a cursory analysis and supported by questionable reasoning.

Lessons Learned

The lesson for expert witnesses to learn from the Redd decision is that it is very difficult to revise an opinion after a deposition. Since a clarifying affidavit may be viewed as a sham affidavit, it is important for experts to prepare for depositions diligently, and to state their opinions in language that they will not later need to change.

Most medical malpractice cases depend on expert testimony to establish three elements: the appropriate standard of care, the breach of that standard, and the injury caused by that breach. In Shackleford v. Lewis, the Kentucky Supreme Court considered whether expert testimony was needed to prove that a brain injury was caused by delayed treatment of a stroke when an expert testified that the standard of care was breached by a failure to diagnose the stroke shortly after it occurred.

Medical Treatment

David Shackelford sued a hospital and Dr. Paul Wesley Lewis, an interventional radiologist, for medical malpractice in Boyd County, Kentucky. Shackelford saw Dr. Lewis after being referred by another physician to confirm a provisional diagnosis of systemic vasculitis.

Dr. Lewis performed a cerebral angiogram after informing Shackelford that strokes are a known risk of the procedure. While he was in recovery, Shackelford noticed white spots in his field of vision. After 30 minutes, the white spots disappeared and Shackelford developed a headache.

Shackelford advised nurses about his symptoms and was told that they are common aftereffects of an angiogram. The nurses gave Shackelford pain medication. After monitoring his condition for eight hours, the hospital discharged him.

As he was leaving the hospital with his wife, Shackelford became disoriented. He returned to the hospital the next morning. An MRI revealed evidence of a stroke. Expert testimony suggested that Shackelford’s brain had “aged” about 40 years after his discharge.

Plaintiff’s Expert Testimony

Shackelford retained Dr. Michael Khoury, a vascular surgeon, as an expert witness. In his deposition, Dr. Khoury testified that he found no fault with the decision to perform an angiogram or with the technique used to perform it.

Dr. Khoury’s criticism focused on the lack of response to Shackelford’s complaint of white “floaters” in his field of vision and of a headache, both of which he regarded as symptoms of a stroke. He testified that Dr. Lewis and the hospital should have performed an immediate MRI and, after discovering evidence of a stroke, should have commenced oxygenation and blood pressure management to contain its effects.

When asked if the results would have been different if Shackelford had been treated immediately rather than discharged, Dr. Khoury testified that it was impossible to know.

Defendants’ Expert Testimony

The hospital and Dr. Lewis relied on the expert testimony of two neuroradiologists, Dr. Peter Pema and Dr. Gregory Postal. They both testified in depositions that the delay in treating Shackelford was not a substantial factor in causing his injury.

On cross-examination, Dr. Pema agreed that the brain ages 3.6 years per hour after a stroke, that “time lost is brain lost,” that the most effective treatments need to start quickly, that patients who are treated within the first 90 minutes of having a stroke show the most improvement, that a 12-hour delay before treatment is provided is a relatively long delay, and that if failure to recognize the symptoms of a stroke causes a delay in treatment, the delay will likely be detrimental to the patient.

Summary Judgment

The trial court ruled that Shackelford had no proof that his injury was caused by the negligence of Dr. Lewis or the hospital. Dr. Khoury’s testimony was sufficient evidence that the failure to diagnose Shackelford’s stroke soon after the angiogram constituted a breach of the appropriate standard of care. The court was not satisfied, however, that the expert evidence would have allowed a jury to conclude that the breach caused Shackelford’s injury.

Shackelford pointed to the testimony of Dr. Pema to satisfy the element of causation. Shackelford argued that it is reasonable to infer from Dr. Pema’s testimony about the need for prompt treatment that the delayed diagnosis caused Shackelford’s brain to age more than it would have aged if the diagnosis had been made promptly.

The trial court, however, concluded that no expert testified that the delay caused an injury to a reasonable degree of medical probability. Since that is the Kentucky standard for expert medical opinions, the court granted summary judgment in favor of the defendants and dismissed Shackelford’s case.

Appellate Decision

The Kentucky Supreme Court reversed the summary judgment. It noted that Kentucky law does not treat the phrase “reasonable medical probability” as “magic words” that must be uttered before a jury is allowed to consider an expert’s opinion.

In any event, the court resolved the appeal by concluding that, given the expert testimony establishing a standard of care and a breach of that standard, no expert opinion was necessary to establish that the breach caused Shackelford’s brain injury. While expert testimony of causation is necessary in most medical malpractice cases, it is common knowledge that after a stroke, “time lost is brain lost.” A jury would not need the guidance of an expert to understand that delayed treatment of a stroke harms the stroke victim.

In a footnote, the court noted that “time lost is brain lost” has been used in public service advertising by the American Heart Association and the American Stroke Association. This may be a unique case in that medical advertising supplanted the need for expert medical testimony.

Moreover, the court concluded that even if expert testimony was necessary to establish causation, Dr. Pema’s testimony did so. Since Dr. Pema reaffirmed the common understanding that delayed treatment of a stroke is harmful, the court regarded that testimony as corroborative of causation.

The Kentucky Supreme Court reversed the summary judgment and remanded the case for trial. If the case does not settle, Shackelford will have the opportunity to let a jury decide whether his stroke diagnosis was negligently delayed and, if so, whether that delay caused or worsened an injury to his brain.

A Florida trial court recently dismissed a medical malpractice lawsuit filed in 2009 after finding that the plaintiff did not obtain an opinion from a qualified medical expert that the claim had merit before filing suit, as Florida law requires. The plaintiff relied on Dr. Richard Dellerson to provide that opinion, but the trial court decided that Dr. Dellerson was not qualified to render it, despite his decades of experience in the field of emergency medicine.

Now age 78, Dr. Dellerson was once regarded as one of South Florida’s foremost experts in emergency medicine. He served as chief of emergency medicine at a regional hospital and helped establish Broward County’s trauma network in the 1990s. Dr. Dellerson was often called upon to provide expert testimony in that field.

The Miami Herald reported that Dr. Dellerson’s story “highlights flaws in Florida’s regulation of expert witnesses for medical malpractice cases.”

Disciplinary Proceedings

Dr. Dellerson was board certified in Emergency Medicine until 2009, when his certification expired. In 2010, Dr. Dellerson authored two expert reports in which he stated that he was board certified.

The Florida Department of Health filed a complaint with the Board of Medicine seeking the revocation of Dr. Dellerson’s license based on his allegedly “misleading, deceptive, or fraudulent” statements related to the practice of medicine. The complaint was eventually settled. The settlement agreement provided that Dr. Dellerson would receive a reprimand and would not act as an expert witness as long as he holds a license to practice medicine in Florida.

Malpractice Lawsuit

On June 3 2009, the husband of a deceased patient sued Dr. Scott Plantz, an emergency room physician, based on the claim that Dr. Plantz misread an x-ray. Dr. Plantz denied that he was negligent.

Florida law requires a medical malpractice victim to obtain a medical expert’s written and sworn opinion that the defendant in the lawsuit breached a duty of care and that the breach injured the patient. The written opinion must then be served as part of a pretrial notice of the plaintiff’s intent to file suit.

To comply with Florida law, the expert opinion must be prepared by a healthcare provider who has practiced in the same specialty or field as the provider who is accused of malpractice. The law sets different requirements for suits against different kinds of healthcare providers. In the case of doctors who are accused of malpractice when providing emergency medical services in a hospital emergency room, the expert must be a licensed physician with “substantial professional experience within the preceding 5 years while assigned to provide emergency medical services in a hospital emergency department.”

The judge in the lawsuit against Dr. Plantz was asked to decide whether the “preceding 5 years” referred to 5 years before the date of the expert’s opinion or 5 years before the date of the alleged malpractice. The statute is ambiguous in that regard, since a part of the statute referring to testimony given by healthcare providers in other fields requires those providers to have relevant experience within a specified number of years prior to the occurrence giving rise to the lawsuit.

The language governing opinions of experts in the field of emergency medicine is a recent addition to Florida law. The same language governs experts who testify in court. The judge decided that the legislature wanted experts in emergency medicine to have specialized experience within 5 years of the date their expert opinion is provided.

Since experts testify about the standard of care that existed at the time of the alleged malpractice, it isn’t clear why knowledge or experience acquired after that date should have any bearing on the expert’s opinion. The court’s decision is also problematic because a retired expert might be qualified to render the required presuit opinion, but might no longer be qualified to render the same opinion at trial if the trial occurs more than 5 years after the expert last practiced. The judge’s interpretation of the law gives defendants an incentive to drag out the proceedings in order to cause plaintiffs to lose their experts.

Dr. Dellerson had substantial Emergency Room experience within 5 years prior to the time the malpractice occurred, but not within the 5 years prior to the date of his written opinion. Accordingly, the judge decided Dr. Dellerson was not qualified to render his presuit opinion and dismissed the case for failure to comply with that requirement.

Flaws in the System

As the Miami Herald reports, many doctors have complained “about  fellow physicians who give false testimony against their peers.” Those complaints are self-serving to the extent that they are made by doctors who want to be shielded from accountability if they commit acts of malpractice. Yet it is those complaints, echoed by insurance companies, that drove the expert witness legislation in Florida and many other states.

The doctors and insurance companies that urge expert witness “reform” rarely acknowledge the landmark Harvard Medical Practice Study, which concluded that a “disturbing” number of adverse patient events are caused by medical negligence. Based on a random sample of hospital records in New York, the study found that more than 27,000 hospitalized patients in New York were injured by medical negligence in 1984, “including 6895 deaths and 877 cases of permanent and total disability.” The actual number of injury victims was probably higher, however, since physicians do not always document their negligent acts in medical records.

Statistics suggest that 25,000 to 120,000 hospital patients die every year due to medical negligence. Only about 3{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of malpractice victims ever file claims. Only about 0.10{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of malpractice victims receive a verdict in their favor at trial. Yet instead of focusing on ways to combat the problem of medical negligence and uncompensated victims, the legislative focus has been on making it more difficult for the 3{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} who pursue claims to recover compensation.

There is little reason to believe, as the physicians quoted by the Miami Herald assert, that expert witnesses for plaintiffs in medical malpractice cases routinely commit perjury. Risking a medical license and a prison sentence by lying under oath isn’t something that most private expert witnesses would consider. It isn’t surprising that doctors who are accused of malpractice disagree with their accusers, but disagreement is not a basis for accusing experts of giving false opinions.

As the Miami Herald points out, Dr. Dellerson practiced emergency medicine for more than 40 years. He was eminently qualified to offer an expert opinion about the standard of care that should govern emergency medicine practitioners, yet Florida law (as interpreted by the trial judge) required the exclusion of his testimony. Rules of expert opinion admissibility that exclude qualified experts make it more difficult for injury victims to receive the compensation they deserve. Those rules might serve the interests of doctors and insurance companies, but they do not serve the interests of justice.

In 1992, Daniel and Frances Keller were convicted of sexually abusing a 3-year-old child in Travis County, Texas. The prosecution’s wild claims that the Kellers were Satanists, coming in an era when “Satanic Panic” had gripped the nation, were fueled by expert testimony.

The Kellers were granted a new trial in 2013 after spending 21 years in prison. In June 2017, the prosecution finally admitted that its case against the Kellers was too weak to pursue. Without directly acknowledging that the Kellers were innocent, the district attorney noted that “the current state of law on actual innocence and the evidence remaining in this case” made dismissal of the charges a just outcome.

Satanic Panic

During the 1980s and 1990s, it was widely believed that Satanists were “running clandestine, national child sex abuse rings.” The national hysteria that has since become known as Satanic Panic led to false criminal charges against hundreds of people, many of whom were daycare and childcare providers.

The most notorious cases were the McMartin preschool trial and the Margaret Kelly Michaels trial. In the McMartin case, the operators of a daycare center were charged with sexually molesting dozens of children based on fanciful stories that teachers “sacrificed a baby in a church and made the children drink the blood” and engaged in other acts of ritual abuse. Even though children claimed that teachers “dressed up as witches and flew in the air,” prosecutors chose to believe their claims of having been abused and assured jurors that the children were reliable witnesses.

The McMartin accusations did not lead to any convictions, but Margaret Kelly Michaels spent six years in prison after being convicted of child abuse at Wee Care Day Nursery. Michaels was prosecuted and convicted despite the absence of any physical evidence suggesting that any child had ever been abused. Her conviction was overturned after “a three-judge appellate division panel ruled that her trial was full of egregious prosecutorial abuses, including questioning of the children that planted suggestions, tainting their testimony.”

Expert Testimony After Satanic Panic

The McMartin and Michaels trials, among others, motivated psychologists to study the phenomenon of false accusations of child sexual abuse. Their studies revealed that young children are extremely susceptible to suggestion. Leading or suggestive questions posed by parents, police officers, or social workers cause young children to give answers they believe adult authority figures want to hear.

Even worse, such questioning, however well-intentioned it might be, can implant false memories in children, who come to believe that they were abused even when no abuse occurred. In fact, many experts now agree that improper questioning of children is itself a form of child abuse since it causes children to live with memories of trauma that they did not actually experience.

The research led to the development of standards and training in methods of questioning children that guard against influencing their answers. Many professionals record their questioning so that judges and juries can determine whether the questions tainted the answers.

When child abuse prosecutions are based on stories told by young children, particularly when the abuse is not supported by clear physical evidence, it is now common for defense attorneys to retain an expert witness who will review reports, transcripts, and videos to determine whether the questioning may have influenced the child’s accusations. Experts can also explain how a parent’s unrecorded interaction with a child may have caused a child to form false memories even before the child was questioned by a trained professional.

Experts in the Keller Case

Unfortunately, when the Satanic abuse accusations against the Kellers were taken to trial, most people did not understand that the testimony of children is easily influenced. Rather, police officers, social workers, judges, and juries all tended to hold the false belief that children don’t lie about being sexually abused.

The accusations against the Kellers originated with a troubled girl named Christy, who was seeing a therapist as the result of behavioral problems that began during her parents’ acrimonious divorce. Unfortunately for the Kellers, Christy’s therapist was a firm believer that ritual abuse actually existed. James Wood, a psychology professor at the University of Texas at El Paso who specializes in child forensic interviews, believes “that the way Christy was questioned by a Travis County social worker led her to accuse the Kellers of abuse.”

Now that Satanic Panic is known to have been based on hysteria rather than fact, it is easy to dismiss some of the wild accusations made against the Kellers, including the claim that children were told to cut up other children with chain saws. At the time, however, prosecutors unabashedly asked jurors to believe those stories, and relied on expert witnesses to demonize the Kellers.

The prosecution based much of its case on the expert testimony of Randy Noblitt, “a psychologist from California who acknowledged under oath he had never interviewed Christy himself, but nonetheless was certain she had been subjected to Satanic ritual abuse.” Using modern standards of expert witness admissibility, a court might well hold that a psychologist who diagnoses a subject without interviewing her has not based his expert opinions on a reliable methodology.

Dr. Noblitt, portraying himself as an expert in cults, also told the jury about the widespread “existence of cults using ritual abuse and of organized satanic networks engaged in wide-ranging criminal enterprises including child abuse.” He claimed that “cults typically engage in torture and murder of both adults and children.” One would hope that a judge today would rule that expert testimony is inadmissible when it is grounded on the expert’s alleged knowledge of “facts” that have no basis in reality.

Finally, the Kellers’ convictions were based on the expert testimony of Michael Mouw, a physician who testified that he observed physical evidence of sexual abuse. By the time the Kellers were released, Dr. Mouw had recanted, admitting that his testimony was mistaken. It was that belated recantation that caused an appellate court to reverse the Kellers’ convictions, and that contributed to the current district attorney’s decision to dismiss the charges.

Lessons Learned

Expert witnesses should always be neutral advocates for the truth. When experts become advocates for an agenda, they too often base their testimony on unsupportable theories, such as “children never lie about sexual abuse” or “Satanic cults are causing widespread harm to children.”

Standards for admitting or excluding expert testimony are often a source of controversy. At least in a criminal case, where the freedom of the accused is at stake and the Constitution guarantees a fair trial, no evidentiary standard should allow a judge to admit an expert’s agenda-driven testimony that isn’t grounded in objective, real-world facts. When judges fail to apply that standard, innocent people like the Kellers are sent to prison.