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 Fails to Establish Standard of Surgical Care for Jehovah’s Witness

A Jehovah’s witness who advised her surgeon that she would not accept a transfusion agreed to the use of a “cell saver” device that recycled her blood. She died from blood loss after a technician refused to use the device in the belief that it had been contaminated.

The issue before the Washington Court of Appeals was whether an anesthesiologist, who apparently had authority over the cell saver device, breached the appropriate standard of care in overseeing how the device was used. The court of appeals decided that the plaintiff’s expert witness failed to articulate a standard of care that established the anesthesiologist’s negligence.

The Cell Saver

Angela Baumgartner was a Jehovah’s Witness. As a matter of religious practice, she refused to accept blood transfusions, but was willing to allow her doctors to use a cell saver device that collects and recycles a patient’s own blood. She gave them explicit instructions not to violate her religious beliefs.

To comply with the beliefs of a surgical patient who is a Jehovah’s witness, any blood that leaves the patient’s body may not be replaced, even with the person’s own blood. According to the court, an exception is made when blood makes a “circuit” by leaving the body and returning to the body without being exposed to the external environment.

A cell saver suctions blood that has entered a body cavity, filters the blood, and stores it in a bag until it is reintroduced to the body through an IV. The IV must create a continuous connection between the patient’s body and the bag that stores the blood. If the IV connection is broken, the cell saver device can no longer be used to return blood to the patient’s body without violating the patient’s religious beliefs. There was evidence before the court, however, that it is acceptable for the suction tube to leave the patient’s body, even if that breaks the “circuit.”

Baumgartner’s Surgery

Baumgartner underwent surgery to remove a small mass from her kidney. The cell saver was attached when surgery commenced. Since laparoscopic surgery was regarded as “minimally invasive,” one question that arose during the litigation was whether it was necessary to attach the cell saver before significant bleeding began.

When the technician operating the cell saver left the operating room for a bathroom break, the surgeon removed the mass from Baumgartner’s kidney. The removal caused heavy bleeding. The cell saver was unable to keep up with the blood loss.

The surgeon had been conducting the surgery with robotic assistance. In light of the emergency, he removed the robotic arms, which caused the suction device to fall on the floor. When the technician entered the operating room, she announced that the suction device was contaminated, and since it had continued suctioning outside the sterile environment, it had likely contaminated the blood in the bag.

The surgeon insisted that the technician replace the contaminated tube and reattach the suction device. The technician refused because she had been trained that once the suction device was removed from the patient’s body, it could not be returned to the body without violating the patient’s religious beliefs. The anesthesiologist, who was behind a surgical curtain and could not see the device, did not overrule that decision.

Surgery proceeded and Baumgartner was rushed to intensive care, having lost about 40{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of her blood. She died from complications associated with blood loss a few hours later.

Medical Malpractice Allegations

Baumgartner’s daughter sued the anesthesiologist, Dr. Mark Morehart, claiming that his negligence caused her mother’s death. In particular, she claimed that Dr. Morehart was negligent in (1) failing to order the cell saver device to be placed on standby before the surgery began, and (2) failing to order the technician to replace the contaminated suction tube in compliance with the surgeon’s wish.

A trial court in Washington granted summary judgment in favor of Dr. Morehart. Baumgartner’s daughter appealed. The appeal turned on expert testimony regarding the standard of care.

Washington law, like the law of most states, requires the plaintiff in a medical malpractice case to prove medical negligence by having an expert testify about the applicable standard of care and the physician’s breach of that standard. Baumgartner’s daughter relied on opinions expressed by Dr. Bruce Spiess. The court described Dr. Spiess as “an anesthesiologist with experience in the beliefs of Jehovah’s Witnesses toward blood in surgery and the use of the cell saver machine.”

Failure to Keep the Cell Saver on Standby

In his deposition, Dr. Spiess testified that it made sense to keep the cell saver on standby because, when blood loss is expected to be minimal, there is no reason to use the cell saver device. Dr. Spiess contended that the cell saver should not be hooked up to the patient unless and until excessive bleeding occurred.

Dr. Spiess was familiar with the medical beliefs of Jehovah’s Witnesses. He testified that keeping the cell saver on standby was consistent with those beliefs, and that the technician who announced that the Jehovah’s Witness protocol required the cell saver machine to be connected to the patient before surgery could begin was mistaken. Dr. Spiess also testified that the standard of care required Dr. Morehart to understand that keeping the cell saver on standby was perfectly acceptable to Jehovah’s Witnesses.

The appellate court accepted Dr. Spiess’ opinions for the purpose of the appeal. The court faulted Dr. Spiess, however, because his “standard of care” testimony focused on what Dr. Morehart should have known, not on what he was required to do. Because Dr. Spiess did not opine that the standard of care required keeping the machine on standby (even if doing so was a good idea), his expert opinion did not establish that Dr. Morehart breached the standard of care.

Failure to Use the Cell Saver After Contamination

Dr. Spiess also opined that Dr. Morehart breached the standard of care by not knowing that Jehovah’s Witnesses would not object to using a replacement suction tube after the original tube was contaminated. Dr. Spiess believed that Dr. Morehart should have corrected the technician when the technician refused to replace the tube.

The court determined, however, that Dr. Spiess identified a standard of care that did not match the facts of the case. While the tube could have been replaced, the technician announced that the blood supply collected by the machine had been contaminated. The court held that “the standard of care when only one component of the cell saver machine is contaminated is immaterial under the facts here.”

Dr. Spiess disagreed that the blood supply was contaminated. He testified that the machine needs to be manually operated in order to suction, and it could not have suctioned after being dropped to the floor. The court disregarded that opinion because the technician announced that the blood supply was contaminated and Dr. Morehart, who was standing behind a surgical curtain and could not see the device, would have no way of knowing that the technician was wrong.

The court’s logic seems a bit fuzzy. If Dr. Morehart should have known how the cell saver works, it isn’t clear why he needed to see it to know that the blood supply would not have been contaminated when the suction device fell to the floor. Apparently (although it is not clear from the opinion), Dr. Spiess did not expressly state that the appropriate standard of care required Dr. Morehart to know how a cell saver works and when a blood supply might be contaminated.

Lessons Learned

The case teaches the lesson that lawyers and experts need to anticipate potential inadequacies in an expert’s opinion and, when the expert is able to do so, must articulate opinions that address the specific facts of the case.

With regard to the standby issue, the court faulted Dr. Spiess for testifying about what Dr. Morehart should have known but not what he should have done. With regard to the contamination issue, Dr. Spiess apparently failed to testify about what Dr. Morehart should have known. In both cases, if Dr. Spiess has expressed his opinions more completely (assuming he could truthfully do so), the outcome of the case might have been different.

Colorado State Flag

Colorado District Court Allows Expert Testimony in Insurance Coverage Dispute

A federal district court in Colorado was asked to exclude two expert witnesses — a claims adjuster and an attorney — offered by the plaintiff in an insurance coverage dispute. After considering the insurer’s Daubert motion, the court decided that both experts should be allowed to testify.

Background

Donald O’Sullivan purchased auto insurance from Geico’s website. His policy had bodily injury liability limits of $100,000/$300,000 (per injured person/per accident), but only $25,000/$50,000 for uninsured or underinsured motorist (UM/UIM) coverage.

O’Sullivan was in an accident caused by a driver who was underinsured. O’Sullivan had more than $164,000 in medical bills. He asked Geico to pay $100,000 toward those bills. Geico tendered the $25,000 limits of his UM/UIM coverage. O’Sullivan then sued Geico for acting in bad faith, for breach of contract, and for delaying payment of his claim.

Colorado law requires auto insurers to offer the same coverage limits for UM/UIM coverage as the insured purchases for bodily injury coverage. Colorado court decisions require insurers not just to offer UM/UIM coverage in the same amount as bodily injury coverage, but to offer the coverage in a manner that will allow the insured to make an informed choice about whether or not to purchase the coverage.

O’Sullivan alleged in his lawsuit that he believed he had purchased, and intended to purchase, UM/UIM coverage with the same limits as his liability coverage. He contended that Geico failed to comply with Colorado law because it did not give him a chance to make an informed choice about his coverage limits.

Geico’s Website

Geico’s website included a table with rows listing types of coverage and columns listing coverage limits. Clicking limits for each type of coverage would adjust and display the total cost of the policy.

Hovering over the UM/UIM field produced a brief explanation of the coverage and made a longer explanation available by clicking “learn more.” The website, however, does not assure that users will hover over the UM/UIM field and does not require them to click “learn more.”

After O’Sullivan purchased his policy, Geico sent him a “Colorado Uninsured Motorist Options” form that explained his right to purchase UM/UIM coverage in an amount that did not exceed his bodily injury coverage. The form also explained that Colorado requires motorists to specifically reject UM/UIM coverage if they don’t want it. O’Sullivan did not recall receiving the form and did not read it.

Court Rejects Summary Judgment for Geico

The court decided that whether Geico gave O’Sullivan adequate notice of his right to purchase UM/UIM coverage with the same limits as his bodily injury coverage was a question for the jury to decide. Geico’s website gave O’Sullivan the option to purchase any limits up to the amount of his bodily injury coverage limits, but the court decided that a jury could find that Geico failed to provide notice in a way that was reasonably calculated to permit O’Sullivan to make an informed decision about the UM/UIM coverage limits he should purchase.

The court noted that the only specific notice Geico gave O’Sullivan of his right to purchase UM/UIM coverage that equaled his bodily injury coverage was buried in the middle of the Colorado Options form, one of 40 forms that Geico sent O’Sullivan after he had already purchased the policy. The court decided that a jury could find that the form was not reasonably calculated to inform O’Sullivan of his right to purchase higher coverage.

Opinions of Claims Expert

After deciding that O’Sullivan was entitled to a trial, the court considered Geico’s motion to strike two of O’Sullivan’s expert witnesses. The first, David Torres, is an insurance claims consultant. Through his work, Torres has become familiar with the customs and practices of the insurance industry regarding claims adjustment.

In his expert report, Torres stated that claims adjusters have a greater duty to their own policyholders than to third parties. Unlike claims made by someone who was allegedly injured by the policyholder, a claims adjuster may not take an adversarial stance toward the policyholder. Torres opined that Geico took an adversarial stance toward O’Sullivan and failed to give a clear explanation for its refusal to pay him the full $100,000 he thought he purchased.

The court determined that Torres is qualified to testify as an expert. The court noted that Torres’ methodology (applying his knowledge of industry standard to the evidence he reviewed) was reliable.

While Geico challenged the level of factual detail in Torres’ expert report, the court noted that Geico could have taken his deposition to flesh out the factual basis for his opinions. The wholesale rejection of the expert’s testimony should not be based “merely on lack of specificity regarding some of his written opinions.” In any event, a Daubert analysis examines the admissibility of the expert’s testimony, not the expert’s report, and the bare-bones, generic nature of the report did not establish that the expert’s testimony would be unreliable.

The court did exclude certain opinions as speculative because Torres used speculative language to express them. The assertion, for example, that Geico “may be basing its denial” on certain facts was speculative because Torres did not know whether that was or was not the case. The court’s opinion should therefore act as a reminder to experts that they need to omit speculative opinions while using definitive language to describe opinions that are not speculative. Experts may also choose to use conditional language, such as “If X and Y are found to be true, then my opinion is Z.”

The court also ruled that Torres would not be allowed to provide opinions about Geico’s compliance with Colorado law. An insurance claims expert is an expert on insurance practices, not on insurance law. While the distinction is sometimes blurred when the issue for the jury to decide is whether an insurance company followed the law, the court confined Torres’ testimony to whether Geico followed industry standards, not whether Geico obeyed the law.

Opinions of Legal Expert

Geico designated an attorney as an expert witness. O’Sullivan designated Robert Baldwin as a rebuttal expert. Baldwin is also an attorney.

Geico’s expert planned to testify that Geico complied with its obligation to offer UM/UIM insurance limits equal to O’Sullivan’s bodily injury limits. He also planned to testify that Geico acted reasonably when it declined to pay more than the $25,000 limits that O’Sullivan purchased.

Baldwin proposed to testify that Geico failed to give O’Sullivan adequate notice of his right to purchase higher UM/UIM limits. He also proposed to testify that Geico should have known it could not assert a successful defense and should have paid the full $100,000 in light of O’Sullivan’s extensive injuries.

Unlike Torres, the lawyers designated by Geico and O’Sullivan were qualified to render legal opinions concerning the adequacy of the offer that Geico made to O’Sullivan. However, Geico argued that Baldwin’s proposed opinions went too far. A rebuttal expert must limit testimony to the same subject matter identified by the other party’s expert.

The court concluded that Geico opened the door to a legal analysis of the reasonableness of its coverage offer by designating a legal expert as a witness. By the same token, Baldwin was entitled to testify that Geico unreasonably failed to pay the $100,000 claim, because the opinion was supported by a reasoned analysis and directly rebutted the opinions of Geico’s expert.

Florida Supreme Court

Randal Wagoner Freed on Bail After Experts Undermine Weak Prosecution Evidence

After spending 1,140 days in jail, Randal Wagoner was freed on bail, a week before he was scheduled to face trial on charges of murder and arson. The defense used expert opinions to convince the prosecutor that the state’s case, built largely on the opinions of its own experts, was weak.

The prosecutor asked the court for more time to investigate the evidence submitted by the defense. The Duval County, Florida judge who is presiding in the case decided that Wagoner has been jailed long enough on charges that the prosecutor conceded are based on weak evidence. The court granted the prosecution more time to continue its investigation, but released Wagoner on the condition that he abides by a curfew, avoids contact with the alleged victim’s family, and submits to random drug tests.

Expert Evidence Challenged

Wagoner was charged with killing Kathy Lorraine Johnson and burning down the building in which she lived. The suspicion that Johnson was murdered arose when a medical examiner concluded that Johnson’s death was a homicide caused by blunt-force trauma.

The defense hired its own expert, described in news stories as “one of the most prominent medical examiners in the country,” to review that opinion. The defense expert pointed to evidence that Johnson’s death probably was not a homicide. Confronted with that opinion, the state’s medical examiner conceded that he might have been wrong. In other words, a reasonable doubt exists that, in the view of the state’s expert, should preclude a homicide conviction.

State fire investigators based their opinion that the fire was started deliberately on a process of elimination, a technique known as the “negative corpus methodology.” The defense was able to undermine those opinions with expert evidence concerning the invalidity of negative corpus as a basis for arson analysis.

The National Association of Fire Investigators has concluded that negative corpus is “an invalid and unreliable method for purposes of determining the cause of a fire.” The NAFI alleges that “in some segments of the fire investigation community there is still deep-rooted use and reliance on this improper and unethical process.”

The defense also obtained an expert’s DNA analysis of material under Johnson’s fingernails. The defense analyst concluded that the material probably came from a man, but not from Wagoner.

Given the successful effort by the defense to undermine the prosecution’s scientific evidence, it isn’t surprising that the prosecutor admitted that her case is weak. At this point, it would be surprising if the case isn’t dismissed. That outcome is possible given a recent change of personnel in the State Attorney’s Office.

The Politics of Prosecution

Assistant State Attorney London Kite took over the prosecution in November. She inherited the case from former assistant state attorney Peter Overstreet, who was fired when Melissa Nelson beat former state attorney Angela Corey in last fall’s election. Both Overstreet and Corey had been criticized for taking an overzealous approach to prosecution that put winning ahead of justice.

The Florida Times-Union reports:

Overstreet also prosecuted the case of Jerome Maurice Hayes, who was accused of robbery and held in jail for 589 days even as police found substantial evidence that he may have been innocent — including the fact his workplace said he was “on the clock” when the fire occurred. At one point, a Jacksonville Sheriff’s Office detective asked why Hayes was still in jail.

Overstreet avoided ethics sanctions in that case by assuring the State Bar that he had implemented procedures “to avoid similar occurrences.” Yet he apparently allowed Wagoner to languish in jail for nearly three years without determining whether the expert evidence upon which he relied proved Wagoner’s guilt beyond a reasonable doubt.

The Wagoner case is a reminder to defense attorneys of the important role that expert witnesses play in casting doubt upon shaky accusations of criminal conduct. Without having expert witnesses on his side, Randal Wagoner would still be in jail.

Gavel and Stethoscope on Reflective Table

Virginia Supreme Court Rules Expert’s Opinion Regarding Cause of Death Was Improperly Admitted in Malpractice Case

The Virginia Supreme Court recently made two rulings about expert witness testimony in a medical malpractice appeal. The more significant ruling points to the need for an expert’s opinion to be grounded in facts rather than assumptions.

Facts of the Case

Dr. James Lee is an otolaryngologist. He treated Adam Traisch for sleep apnea. In the course of that treatment, Dr. Lee performed a tonsillectomy and an adenoidectomy. Adam was discharged from the outpatient procedure and went home.

That afternoon, Adam’s mother gave Adam his prescribed pain medication and Adam took a nap. Thirty minutes later, his mother was unable to rouse him. Adam was rushed to a hospital where he was pronounced dead.

The pathologist who conducted Adam’s autopsy attributed his death to cardiac arrhythmia. Adam’s heart appeared to be normal and the pathologist could not identify the cause of the arrhythmia. The autopsy report stated that a genetic disorder could not be ruled out, given that Adam’s parents were first cousins.

Adam’s mother sued Dr. Lee, alleging that Adam was at risk of respiratory failure after the operations in light of Adam’s severe obstructive sleep apnea. Adam’s mother contended that Dr. Lee violated the appropriate standard of care by failing to order that he be monitored overnight following the surgery.

A jury found in favor of Dr. Lee. Adam’s mother appealed to the Virginia Supreme Court, contending that neither Dr. Lee’s expert witness nor Dr. Lee should have been allowed to provide expert opinions.

Dr. Boyd’s Testimony

At trial, Dr. Lee contended that Adam died from Brugada syndrome, a rare hereditary condition that creates a high risk of death from sudden ventricular arrhythmia. He also contended that he had no reason to suspect that Adam had Brugada syndrome because he was not told about Adam’s genetic history, including the fact that his parents were first cousins or that two of Adam’s siblings had also died.

To establish that defense, Dr. Lee offered the testimony of Dr. Simeon Boyd, a pediatric geneticist. Dr. Boyd testified that he relied on a “differential diagnosis” to conclude that Brugada syndrome caused Adam’s death. A doctor makes a differential diagnosis by considering all possible causes of a medical event and then ruling out all but one.

Dr. Boyd also relied on Adam’s developmental delay and “dysmorphic facial features” as evidence that he suffered from a genetic disorder. In addition, he relied on a DNA analysis that revealed a variation in one of Adam’s genes to bolster his opinion that Adam died from cardiac arrest due to Brugada syndrome.

Basis for Dr. Boyd’s Opinions

The Virginia Supreme Court noted that Dr. Boyd was not a forensic pathologist, a toxicologist, a cardiologist, or an otolaryngologist. When he was asked on cross-examination whether postoperative respiratory compromise could have caused Adam’s death, Dr. Boyd said that he was not qualified to express an opinion. When asked how he could rule out a cause of death in his differential diagnosis that he was not qualified to diagnose, he explained that he relied on the expert opinions of others.

The plaintiff’s attorney argued that Dr. Boyd’s determination of the cause of death rested upon a differential diagnosis that he was not qualified to make. Dr. Lee’s attorney argued that Dr. Boyd was entitled to consider the opinions of others because Virginia follows the prevailing rule that permits experts to rely upon data that might otherwise be inadmissible as evidence if it is the kind of data upon which experts in a field normally rely.

Dr. Boyd testified that he relied on the autopsy report to rule out respiratory compromise as a cause of death. While acknowledging that autopsy reports are the kind of data that a doctor might rely upon in forming an expert opinion, the Virginia Supreme Court noted that the autopsy report concluded only that Adam died of cardiac arrhythmia of unknown origin. That opinion did not rule out respiratory compromise as a cause of the cardiac arrhythmia.

Given that the expert witness called by Adam’s mother testified that respiratory compromise can cause cardiac arrhythmia and that no expert relied upon by Dr. Boyd disagreed with that opinion, Dr. Boyd had no basis for his decision to rule out respiratory compromise as a cause of Adam’s death. His differential diagnosis was therefore based on inadequate data and should not have been admitted as evidence.

Dr. Casolaro’s Opinion

The jury also heard the testimony of Dr. Mario Casolaro, an expert in pulmonary medicine. Dr. Casolaro expressed the opinion that respiratory compromise did not cause Adam’s death.

While Dr. Lee argued that Dr. Casolaro’s opinion provided the missing link in Dr. Boyd’s differential diagnosis, the Virginia Supreme Court noted that Dr. Boyd made his differential diagnosis before Dr. Casolaro was deposed. Dr. Lee had no way of knowing about Dr. Casolaro’s opinion and did not mention Dr. Casolaro during his testimony. The court therefore rejected the argument that Dr. Lee had an adequate factual basis for his differential diagnosis.

Dr. Lee’s Opinion

Virginia follows the usual rule that a doctor who is sued for malpractice is permitted to testify as an expert in his own defense. However, Dr. Lee was not designated as an expert witness, and was therefore permitted to give only lay testimony.

Dr. Lee testified that he was not told that Adam’s parents were cousins or that Adam’s siblings had predeceased him. Dr. Lee said that he would not have recommended surgery if he had been aware of the possibility that Adam carried a genetic defect.

The plaintiff’s lawyer argued on appeal that Dr. Lee’s testimony was in the nature of expert testimony and was improperly admitted because he was not designated as an expert. The Virginia Supreme Court disagreed. Dr. Lee’s testimony about what he would have done if he been given more information did not require the expression of an expert opinion.

What the doctor would or would not have done was a fact, and lay witnesses are permitted to testify about facts that are within their own knowledge or experience. If Dr. Lee had explained why he would not have recommended surgery for someone with a genetic defect, he might have been offering expert testimony, but he did not cross that line.

New Trial Ordered

The trial court erred by admitting Dr. Boyd’s testimony, but not by allowing Dr. Lee to testify about what he would have done if he had known Adam might have a genetic defect. Since Dr. Boyd should not have been allowed to testify, the Virginia Supreme Court reversed the judgment and ordered a new trial.

Expert Witness Testimony

Perils of Hiring the Wrong Expert

Finding the right expert to testify on a party’s behalf is often the key to success in bringing or defending against a legal claim. That’s particularly true when the law requires expert testimony to prove the claim. Medical malpractice, for example, can usually be established only when an expert testifies that a health care provider failed to provide the appropriate standard of care.

Some states have narrowed the range of experts who are allowed to testify in medical malpractice cases, regardless of their qualifications. Those laws make it all the more essential to be certain that an expert has the credentials that state law requires. Here are two recent examples.

Rutyna v. Schweers

Rutyna v. Schweers is a non-precedential decision of a three-judge panel of the Pennsylvania Superior Court. Aldis Rutyna and his wife sued William Schweers, an attorney, for legal malpractice. They alleged that Schweers was negligent in bringing a medical malpractice claim against a physician who allegedly injured Rutyna during back surgery. The medical malpractice case was dismissed after Schweers failed to file a certificate of merit in accordance with Pennsylvania law.

Pennsylvania law required the Rutynas to prove that they would have prevailed in the medical malpractice lawsuit in the absence of Schweers’ negligence. Schweers contended that he had an expert review the case, that the expert concluded the surgeon was not negligent, and that Schweers accordingly decided he would be unable to obtain a certificate of merit. The Rutynas countered with the expert opinion of an attorney who concluded that contacting only one expert in a medical malpractice case is insufficient to meet the standard of care required of medical malpractice attorneys.

Schweers then took the position that the Rutynas could not prove the surgeon committed malpractice because no expert could credibly testify that the surgeon failed to adhere to the appropriate standard of care during surgery. The Rutynas offered the expert opinion of Dr. Mark Foster to prove the surgeon’s medical negligence.

Unfortunately for the Rutynas, Pennsylvania law prohibits an expert witness from testifying against a physician in a malpractice case unless the expert practices in the same sub-specialty as the physician who is alleged to be negligent. Dr. Foster no longer practices as an orthopedic surgeon and thus was not qualified under Pennsylvania law to testify as an expert in the Rutynas’ medical malpractice case.

After the trial court ruled that Dr. Foster was not qualified to testify, Rutyna asked for a continuance so he could find another expert witness. The trial court denied that motion and dismissed the case.

On appeal, the Superior Court concluded that sufficient evidence supported the trial court’s view that Dr. Foster no longer practiced as an orthopedic surgeon and thus was not qualified under Pennsylvania law to testify about the standard of care an orthopedic surgeon should follow.

The Superior Court also concluded that the trial court did not abuse its discretion in denying a continuance. The fact that Dr. Foster did not practice in the same sub-specialty was a fact that the Rutynas’ attorney should have known, and it was not unreasonable for the judge to decide that a very old case should not be further delayed under those circumstances.

Mendoza v. Inspira Medical Center

In a similar case, a federal judge in New Jersey recently granted summary judgment in favor of medical malpractice defendants because the plaintiff’s expert witness was deemed to be unqualified. Gladys Mendoza alleged that the death of her husband in February 2015 was caused by negligent kidney treatment in March 2014. Mendoza sued Dr. Naeem Amin, Kidney and Hypertension Specialists PA, and Inspira Medical Centers Inc.

New Jersey’s Affidavit of Merit Statute requires an expert witness who testifies as to the applicable standard of care in a medical malpractice case to “have specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, as the party against whom or on whose behalf the testimony is offered.”

Mendoza offered the testimony of Dr. Bruce D. Charash who, like Dr. Amin, was board certified in internal medicine. However, Dr. Amin was certified in the subspecialty of nephrology while Dr. Charash was certified in the subspecialty of cardiology.

It may well be that Dr. Charash had sufficient training and experience to offer meaningful testimony about the standard of care that a nephrologist should provide. The court ruling makes clear that under New Jersey law, actual expertise does not matter if the expert witness is not certified in the same subspecialty as the defendant. The judge ruled:

Allowing a cardiologist to testify that delaying or denying the decedent’s dialysis treatment departed from the standard of care expected of nephrologists would effectively undo the kind-for-kind requirement in contravention of the Affidavit of Merit statute and the New Jersey Supreme Court’s interpretation of it.

The court noted that the New Jersey statute does not apply when claims are within the common knowledge of the jury, but disagreed with Mendoza’s argument that alleged understaffing at Inspira was an issue about which the jury could draw conclusions without the guidance of an expert.

Since Mendoza did not provide an affidavit of merit from a physician who practiced in the same subspecialty as the physician she sued, the court dismissed her claim.

Lessons Learned

Health care providers and their insurers argue that laws like those in Pennsylvania and New Jersey are necessary to protect doctors from lawsuits that are supported by the opinions of experts who are not qualified to assert those opinions. Lawyers who represent injury victims argue that the statutes shield health care providers from the consequences of their negligence by barring experts who may be well qualified to offer an opinion about the standard of care, even if they were not practicing (or not practicing in the defendant’s subspecialty) at the time the alleged malpractice occurred.

The lesson to be learned is that medical malpractice attorneys in states that limit the range of qualified experts who can give admissible testimony must undertake a diligent search for an expert who has the necessary qualifications.

Malpractice attorneys should also be aware that, under a statute like New Jersey’s, they can ask the court to waive the statutory requirement if they make a “good faith effort … to identify an expert in the same specialty or subspecialty” and, having failed to find one, are offering an expert who “possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine.” Of course, whether a court will be satisfied with the attorney’s “good faith effort” is difficult to predict, so locating an expert who has the statutory qualifications is always a better option.

A judge

Mistrial Declared After Expert Witness Assists Stricken Juror

Too often, expert witnesses are unfairly disparaged as “hired guns” or (in the words of Missouri’s Gov. Eric Greitens) “shady witnesses that act as experts while peddling junk science” — particularly when they testify on behalf of victims of corporate wrongdoing. But most experts are good people who do their best to help the legal system by offering their knowledge for the benefit of jurors who are searching for the truth.

Dr. Mark Solomon demonstrated that he is more than a hired gun by coming to the aid of a stricken jury during a Risperdal trial in Philadelphia. The trial will need to begin again with a new jury, but Dr. Solomon did the right thing by putting the juror’s health ahead of his role as an expert witness.

Risperdal Trials

Risperdal is an antipsychotic medication that is sometimes prescribed to treat schizophrenia and bipolar disorder. Some doctors also administer Risperdal to autistic children to combat symptoms of irritability.

Some experts, including Dr. Solomon, have linked Risperdal to breast growth in males who take the drug. Thousands of lawsuits are pending across the country which allege that the manufacturer of Risperdal failed to warn consumers about the risk of breast growth.

When thousands of men who take the same drug suddenly grow breasts, the link between the drug and the medical condition (gynecomastia) might seem obvious, but causation in pharmaceutical liability cases is notoriously difficult to prove. Experts like Dr. Solomon, a plastic surgeon, try to help jurors understand why the obvious cause is the actual cause, while experts for the pharmaceutical company explain to jurors why there might be alternative explanations for the propensity of males to grow breasts after taking Risperdal.

Several trials have ended in favorable verdicts for plaintiffs, including a $70 million verdict in 2016. Johnson & Johnson, the company that owns the drug manufacturer, has settled other cases. Johnson & Johnson also “paid more than $2.2 billion to resolve civil and criminal investigations by the U.S. Department of Justice into its marketing of Risperdal and several other drugs.”

Five trials have proceeded to verdict (all in favor of the plaintiff) in Philadelphia, where a mass tort program was developed to deal with Risperdal cases. A judge unexpectedly dismissed the sixth trial, however, after finding that Dr. Solomon’s testimony was insufficient to prove causation. The plaintiff was a boy from Texas and the judge applied Texas law in reaching that decision. The dismissal has been appealed.

Judge Declares Mistrial After Dr. Solomon Helps Juror

In the latest Philadelphia trial, Dr. Solomon was called as an expert witness at the beginning of the second week of trial. As he was testifying, one of the jurors was “suddenly stricken by a medical emergency.”

Dr. Solomon left the witness stand and walked to the jury box, where he examined the woman while court personnel called for emergency assistance. Dr. Solomon attended to the woman until paramedics arrived to transport her to a hospital.

Dr. Solomon did what any good physician would have done. Unfortunately, the circumstances forced the judge to grant a mistrial. The judge was concerned that the jury would consider Dr. Solomon’s actions when weighing his credibility as a witness. “Dr. Solomon is now a hero to this jury,” the judge said.

A lawyer representing the plaintiff said, “Dr. Solomon did a great thing by helping to rescue the ailing juror.” He described the mistrial as a “hiccup” in light of the 13,000 plaintiffs his firm represents in Risperdal cases.

The trial began again the following week. A new jury was selected that presumably will not be tainted by perceptions of Dr. Solomon’s heroism.

Missouri

Missouri Adopts Daubert

To large corporations, insurance companies, and their lobbyists, Missouri is a “judicial hellhole.” To consumers and injury victims, Missouri is a state where business lobbyists have not made it impossible for them to win fair compensation when they are harmed by corporate wrongdoing. Both perspectives are poised to change.

Corporate lobbyists have been fierce advocates for the Daubert rule, which (from their perspective, at least) restricts the admissibility of expert testimony, potentially making it more difficult for plaintiffs to win cases. They realized their dream with the election of Eric Greitens as governor. One of the legislature’s first agenda items was to pass a Daubert bill. Gov. Grietens signed the bill into law in March.

According to Gov. Grietens, Missouri’s adherence to the Frye standard allowed “trial lawyers to come to Missouri, pick our pockets, and hurt our businesses.” The governor cited no example of a verdict against a business that was undeserved. He also failed to identify any “crooked trial lawyers” or “shady witnesses” who affected the outcome of a Missouri trial, although he derided them at the signing ceremony. While the governor’s incendiary language reflects the view of insurance industry lobbyists, it detracts from even the appearance of fair-minded lawmaking.

Again citing no evidence, the governor suggested that the Frye standard “makes us less competitive than other states — at a time when we are fighting for every single job.” Signing the bill, the governor said, sent “a signal to the rest of the country that Missouri is open for business.” Opponents of the bill argued that it sent a message that businesses will no longer be held accountable when their negligent conduct harms consumers.

Daubert in the States

The Daubert standard is named after a United States Supreme Court decision that changed the federal standard for admitting expert testimony. The Daubert standard requires trial judges to act as a gatekeeper to prevent juries from hearing expert testimony unless the expert has applied a reliable methodology in a reliable way to facts that are sufficient to support the expert’s conclusion.

The Missouri legislature’s last attempt to enact a Daubert bill was vetoed by Gov. Jay Nixon, a Democrat. The Florida legislature recently passed a Daubert bill, but the Florida Supreme Court declined to adopt it. A large majority of states have adopted at least part of the Daubert standard, but making a state-by-state comparison is difficult because courts that implement some version of the Daubert rule do not always agree upon its meaning.

Does Daubert Matter?

In a routine case, the standard for expert witness admissibility makes no difference. A treating physician who testifies about the injuries a patient suffered in a car accident will be allowed to give the same testimony regardless of the standard. Daubert hearings in routine cases, however, might drive up the cost of litigation and place an unnecessary burden on overworked judges.

Some lawyers, including some legal scholars, see the Daubert standard as restricting expert testimony by keeping “junk science” out of the courtroom. While Daubert advocates tend to view “junk science” in the context of toxic tort and product liability claims that can only be proved with expert evidence, the Daubert standard has also been used in criminal cases to restrict questionable expert testimony about cellphone location data and the ability to match a bitemark to a suspect.

Other lawyers, including some legal scholars, view Daubert as liberalizing the admissibility of expert testimony. They point out that expert opinions based on new or novel scientific techniques were excluded under the Frye standard because they were not “generally accepted” by the scientific community, but are admissible under Daubert if the new methodology is reliable.

Both of those views have some merit. Daubert both restricts the admissibility of expert evidence by keeping juries from hearing unreliable opinions while opening the door to reliable opinions that are based on new views of science. But in any particular case, how Daubert should be applied is up to the judge, and judges have widely varying views about their gatekeeping role.

Some judges seem to expect experts to express opinions with certainty, which is contrary both to the probabilistic nature of science and to the burden of proof in civil cases. Some judges distrust experts, particularly in civil cases (such as pharmaceutical injury claims) where causation is particularly difficult to prove. Those judges are inclined to resist admitting expert testimony.

Other judges believe it is for the jury, not the judge, to decide whether an expert opinion is trustworthy. Those judges, who tend to recognize that judges are trained in law, not science, are more inclined to admit expert testimony.

Different judges may therefore apply the same Daubert standard to similar facts and arrive at different results. One scholarly analysis concluded that court decisions applying Daubert have been “nonuniform, inconsistent, and irreconcilable.” In the end, notwithstanding the state’s rancorous Daubert debate, how Missouri judges feel about expert evidence may be more important than the standard they apply.

Doctor

Disagreement Among Experts Does Not Prove Fraud in Medical Billings

A federal judge in Kentucky recently took the unusual step of vacating a criminal conviction based on the court’s belief that the evidence was insufficient to prove guilt. The primary evidence in the case consisted of expert testimony. The court held that mere disagreement among experts cannot support a criminal conviction for health care fraud.

Facts of the Case

Dr. Richard Paulus was charged in federal court with submitting fraudulent billings to Medicare. Federal prosecutors alleged that, while Dr. Paulus was working at a medical center in Ashland, Kentucky, he performed unnecessary cardiac surgery so that he could collect fees from government benefit programs.

Dr. Paulus treated patients for coronary artery disease (CAD), a condition that occurs when plaque builds up along an artery wall, restricting blood flow to the heart. The condition can be diagnosed in a variety of ways. One diagnostic procedure is to insert a catheter into the patient’s blood vessel in order to inject material into the artery that will allow an angiogram to be performed.

The government contended that Dr. Paulus performed unnecessary catheterizations and stent placements. The defense argued that, at worst, Dr. Paulus was guilty of being more aggressive than other cardiologists.

The government’s proof relied largely on expert testimony. At the conclusion of the trial, the jury found Dr. Paulus guilty of heath care fraud and of several counts of making false statements to the government. He was acquitted of other false statement charges.

Dr. Paulus asked the trial judge to overturn the jury verdict and to dismiss the case. He based that request on his contention that the government’s case was based solely on the fact that medical experts disagreed with each other.

Expert Testimony

The charge of health care fraud required the government to prove that Dr. Paulus intended to defraud a health care benefit program with regard to the payment of benefits. The benefits in this case were Dr. Paulus’ fees.

In some health care fraud schemes, a doctor bills for services that were never performed. In this case, there was no dispute that Dr. Paulus performed the procedures for which he billed. The government, however, contended that the procedures were unnecessary because Dr. Paulus inserted cardiac stents in blood vessels that did not have at least 70{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} blockage.

The government’s primary proof of fraud came from four expert witnesses who reviewed the medical records of Dr. Paulus’ patients. The medical experts testified that Dr. Paulus’ “angiogram assessments were incorrect and that the stent procedures were unnecessary.”

The government also relied on six cardiologists and one neurologist who agreed that Dr. Paulus performed unnecessary procedures. The experts generally relied on the American College of Cardiology standard for stenting coronary blockages. In addition, the government presented evidence that Dr. Paulus performed significantly more procedures than is common.

False Statements

To convict Dr. Paulus of making false statements, the government was required to prove that he made statements of fact to the government that he knew to be false. The government argued that he did so by submitting medical records to benefits programs that misrepresented angiogram results.

The government argued that the degree of blockage shown by an angiogram is a fact and that its medical experts established that Dr. Paulus misrepresented the facts by claiming that patients experienced greater blockage than the angiograms revealed. The court disagreed.

For the purpose of proving health care fraud, a false statement must be an assertion of fact that is capable of being proved or disproved. The trial judge noted that the government’s experts testified that cardiologists commonly disagree with each other. It is not unusual for one doctor’s interpretation of an angiogram to differ from another doctor’s interpretation. Noting that “the statutes targeting health care fraud do not criminalize subjective medical opinions where there is room for disagreement between doctors,” the court concluded that Dr. Paulus’ interpretation of the degree of blockage shown in the angiograms was a subjective opinion, not a statement of objective fact.

It did not help the government’s case that its leading expert has written textbooks that discussed the difficulty of interpreting angiograms. The textbooks explained that the wide degree of diagnostic disagreement among doctors view the same angiogram is “well known.” That writing undercut the government’s argument that expert disagreement about angiograms is so minimal that the interpretation of an angiogram can be regarded as factual, rather than the statement of an opinion.

Health Care Fraud

The health care fraud charge depending on proof that Dr. Paulus made false statements. Since the government’s expert testimony established only that doctors disagree with each other, the government pointed to circumstantial evidence of fraudulent billings. However, that evidence — primarily statements that Dr. Paulus made to his patients — was too ambiguous to support a criminal conviction.

Nor was evidence that Dr. Paulus performed a larger-than-average number of procedures convincing proof of fraud. Dr. Paulus’ salary had little relationship to the number of procedures he performed, so he had little financial incentive to defraud the government.

Judges rarely second guess juries that convict defendants based on expert evidence. When proof comes down to expert witnesses disagreeing with medical judgments made a doctor who is being prosecuted for fraud, however, expert evidence alone may not be sufficient to support a conviction, no matter how convincing the jury finds it to be.

Baby feet

California Appellate Court Disallows Expert Testimony in Medical Malpractice Case

The California Court of Appeals recently decided an appeal from a trial court ruling that excluded expert opinions in a medical malpractice case. The appellate court agreed that those opinions were not based on facts and therefore could not be considered as evidence of malpractice.

Facts of the Case

Baby Ngide was born at St. Agnes Medical Center in Fresno on September 27, 2011. The next day, a nurse noticed that the baby was not responsive. The baby was transferred to the Neonatal Intensive Care Unit (NICU) for resuscitation. The NICU is located in St. Agnes Medical Center but is operated by Children’s Hospital of Central California.

Dr. Patrick Nwajei, a neonatologist, did not see the baby girl until she arrived at Children’s Hospital. Dr. Nwajei was not the baby’s treating physician and was not authorized to treat St. Agnes patients unless he was asked to consult by a treating physician. Dr. Nwajei was, however, among the doctors who were responsible for providing patient care at the NICU.

When the baby arrived at NICU, staff members called for Dr. Nwajei. He treated the baby by providing ventilation using a bag mask and by intubating the baby. He then called for a transport team so that the baby could be taken to the Children’s Hospital NICU in Madera, where more specialists were available.

Transport started about one-and-a-half hours after Dr. Nwajei first saw the baby. After transport began, the receiving neonatologist was responsible for the baby’s care.

On June 18, 2012, the baby died from complications caused by a hypoxic brain injury. The brain injury occurred before Dr. Nwajei saw the baby.

Summary Judgment

The father sued St. Agnes Medical Center and Dr. Nwajei for medical malpractice. St. Agnes and Dr. Nwajei both moved for summary judgment, arguing that the undisputed facts established that they were not responsible for the baby’s death.

In opposing summary judgment, the father submitted the affidavit of an expert witness. Dr. Arie Alkalay opined that the nurses and staff at St. Agnes, as well as Dr. Nwajei, failed to provide an appropriate standard of care and that their respective failures contributed to the baby’s death.

Dr. Nwajai relied on an affidavit of his expert witness, Dr. Gilbert I. Martin, who concluded that Dr. Nwajei followed an appropriate standard of care and that none of his actions were a cause of the baby’s death.

St. Agnes submitted the expert affidavit of Dr. Philippe Friedlich, who opined that the actions of the nurses and staff at St. Agnes satisfied the appropriate standard of care.

The trial court concluded that Dr. Alkalay’s opinions were not based on facts established in the record. The court therefore ruled that his opinions were inadmissible. In the absence of expert testimony to establish malpractice, the court granted summary judgment in favor of the medical defendants. The baby’s father appealed.

Objections to Dr. Alkalay’s Opinions

Medical malpractice lawsuits must usually be based on an expert’s opinion that a healthcare provider failed to provide an appropriate standard of care for the patient and that the patient was harmed by that failure. By the same token, medical malpractice defendants must rely on expert witnesses to establish that they met the appropriate standard of care.

Based on his review of medical records and his experience as a neonatologist, Dr. Alkalay expressed the opinion that the mother presented a high-risk pregnancy, that the hospital should have consulted with Nr. Nwajei at the time of delivery, that failing to do so breached the standard of care that a hospital should provide, and that the failure contributed to the baby’s death.

Dr. Alkalay also faulted Dr. Nwajei for waiting until he was notified by St. Agnes of the baby’s need for a neonatologist. Dr. Alkalay opined that Dr. Nwajei had a duty “to ensure that he would be informed and included in the delivery diagnosis, care and treatment of high risk deliveries and high risk newborns.” Dr. Alkalay concluded that Dr. Nwajei failed to abide by an appropriate standard of care when he neglected to remedy the “systems failures” at St. Agnes.

The California Court of Appeals agreed with the trial court that Dr. Alkalay had no factual basis for his criticism of Dr. Nwajei. Dr. Alkalay assumed that it was Dr. Nwajei’s duty to correct “systems failures” at St. Agnes, but Dr. Nwajei was employed by Children’s Hospital, not by St. Agnes. Dr. Alkalay did not explain why Dr. Nwajei would have any responsibility or authority to correct problems at St. Agnes. The court therefore concluded that Dr. Alkalay’s opinion about the standard of care was based on speculation, not on facts.

The appellate court also agreed with the trial court that no factual basis supported Dr. Alkalay’s opinion that St. Agnes staff members should have notified a neonatologist of a high-risk pregnancy. The mother’s attending pediatrician did not do so, and the St. Agnes staff members merely carried out the pediatrician’s orders when he was not there. Since Dr. Alkalay did not explain why nurses would have the authority, much less the duty, to second-guess the pediatrician’s judgment, his opinion about St. Agnes’ alleged breach of the standard of care was again unsupported by the facts.

Since the trial court properly excluded Dr. Alkalay’s opinions, the appellate court concluded that it appropriately granted summary judgment in favor of the medical defendants.

Expert Witness Testimony

Expert Testimony in the Curtis Lovelace Murder Trial

Curtis Lovelace was arrested in August 2014 for the murder of Cory Lovelace on Valentine’s Day in 2006. His first trial ended in a hung jury. After hearing testimony from 24 prosecution witnesses and 8 defense witnesses, the jury in his second trial returned a not guilty verdict in Lovelace’s favor. Expert witnesses played a crucial role for both sides in the trial.

Facts of the Case

Curtis Lovelace was something of a celebrity in Quincey, Illinois. He was a star football player at the University of Illinois. He returned to Quincey after earning his law degree and became a prosecutor. He was also a member of the local school board.

Media accounts describe Corey Lovelace, Curtis’ first wife, as a “gregarious former cheerleader and honors student from a prominent family.” Eight years after Curtis reported finding his 38-year-old wife dead in their bedroom, he was arrested for murdering her.

Curtis told the police that he took the children to school, returned home, took a shower, and worked on the computer. When he went into the bedroom to check on his wife, he discovered that she was dead.

The paramedics who arrived on the scene noted that Cory’s body was still warm but that rigor mortis was setting in. Curtis told the paramedics that Cory had been sick in bed with the flu. Other witnesses confirmed her illness.

Neighbors testified that they often heard “yelling and screaming” coming from the Lovelace residence. One neighbor testified about the Lovelace’s daughter pounding on the door after they locked her out. Another neighbor complained that Curtis confronted him angrily after he made a noise complaint to the police. A neighbor who confirmed that loud arguments were common in the Lovelace household testified that the loudest voice was Cory’s.

A police detective testified that Cory’s mother told him that Cory had a drinking problem and suffered from bulimia. Cory’s mother denied speaking to the detective. Other witnesses confirmed Cory’s alcohol abuse.

The accusations of murder were based largely on the work of a newly promoted Quincey police detective who was reviewing old cases and became intrigued by the possibility that Cory was murdered. The defense argued that Cory died of natural causes and that the detective was trying to make a name for himself.

Lovelace’s first trial ended in a hung jury in 2016. His second trial began with a new defense team and the assistance of the University of Chicago Exoneration Project.

Prosecution Experts

A number of lay witnesses testified that Cory’s arms were “drawn up by her chest” or that her hands were “near her shoulders” when authorities responded to a 911 call. Because Cory’s hands were elevated a few inches above her body, the prosecution speculated that her hands were laying on a pillow when rigor mortis set in, and that the pillow had been used to suffocate her.

That speculative theory was undermined by prosecution witnesses who disagreed about the degree to which rigor mortis had taken hold of the body. The original investigating detective, for instance, testified that it was still possible to move Cory’s arms, which was consistent with a recent death.

Dr. Jessica Bowman, a pathologist who was not called to testify, performed an autopsy and identified the cause of death as “undetermined.” The coroner then asked Dr. Scott Denton, a forensic pathologist, to review the autopsy report. Dr. Denton expressed the opinion that Cory died of suffocation but said he could not rule out poisoning. The two potential causes of death are so wildly different from each other that the jury may have discounted Dr. Denton’s opinion entirely.

The detective who reopened the case admitted that he tried to get Dr. Bowman to change her autopsy report to reflect that the cause of death was “homicide” rather than “undetermined.” When she refused to do so, he sent emails saying he was “done with Bowman” and began to search for a pathologist who would support his homicide theory. Six pathologists told him that there was no basis for pursuing homicide charges until he found Dr. Jane Turner.

Dr. Turner, a forensic pathologist, testified that she had no doubt that Cory was suffocated with a pillow. She attributed a cut inside Cory’s upper lip to a pillow being pushed against her mouth. She also testified that Cory’s arms would have been at her sides if she had died a natural death. Dr. Turner thought the death may have occurred twelve hours before it was reported to the police.

Cory’s children, however, told the police that they saw Cory standing at the top of the stairs before they left for school. Their statements, made long before any suspicion fell on their father, refuted the theory that Cory died twelve hours before paramedics arrived at the home. Dr. Turner testified that the children “might not be remembering things correctly” when they told the police that they saw their mother alive before they left for school.

A more likely possibility was that Dr. Turner’s opinion about the time of death was mistaken. Presumably, the children would have “correctly” remembered whether their mother was alive or dead when they last saw her. In addition, Dr. Denton reported that the cut inside Cory’s lip was already healing and could not have occurred on the day of her death. The inconsistency between Dr. Turner’s theory and the testimony of the children, as well as Dr. Denton’s report, may have caused the jury to view Dr. Turner as an advocate for the police rather than a neutral witness.

Another forensic pathologist, Dr. Werner Spitz, testified that Cory had eight “fingernail marks” on her neck. He said the position of her arms when she was found dead was “unnatural for a sleeping person.” Dr. Spitz opined that Cory died of suffocation, although he acknowledged that her death didn’t match the “textbook definition” of homicidal smothering.

New York forensic pathologist Dr. Michael Baden testified for the prosecution in the first trial, but the prosecutor decided not to have him testify in the retrial.

Defense Experts

Dr. Shaku Teas, a forensic pathologist, testified that Cory died from natural causes brought on by a fatty liver that resulted from chronic alcoholism. She told the jury that suffocation by a pillow causes blood vessels to hemorrhage and there was no evidence of that on Cory’s face. She said the “fingernail marks” that Dr. Spitz identified were actually moles. She believed that Cory died shortly before the death was reported to the police. She did not view the position of Cory’s arms to be significant because they were not “defying gravity.”

Forensic pathologist Dr. William Oliver testified that Cory died from complications of alcohol withdrawal and fatty liver disease. He said the cut inside Cory’s mouth could not have come from being smothered with a pillow because no blood was found in the mouth. He also suggested that the position of Cory’s arms could have been caused by resting on a comforter that was removed by paramedics.

Not Guilty

In the end, the defense witnesses carried the day. After only two hours of deliberation, the jury found Curtis not guilty.

The defense attributes the verdict in part to Curtis Lovelace’s decision to testify. While many defendants wisely conclude that it is better not to face a cross-examination that might elicit harmful testimony, Curtis gave convincing testimony about his innocence.

Given the quick verdict, it seems likely that the jury attached little importance to the testimony of the prosecution’s forensic experts. The jury probably considered the defense experts to be more credible because they did not need to stretch the factual evidence to fit their testimony. In any event, it seems likely that the defense experts helped establish the reasonable doubt that resulted in Curtis Lovelace’s acquittal.