Category Archives: Business Development for Experts

Arkansas Allows Chiropractor to Provide Expert Opinion About the Need for Surgery

The insurance industry has long disparaged the testimony of chiropractors in personal injury cases. Courts nevertheless agree that chiropractors may give expert testimony about the cause of injuries for which they provide chiropractic treatment as well as the necessity of that treatment.

Courts are less likely to agree whether chiropractors are qualified to testify about the causation of injuries for which medical treatment is provided or the necessity of that treatment. A recent decision in Arkansas rejected a blanket rule and decided that the expert’s qualifications depend on the expert.

Facts of the Case

On a rainy day in 2010, Karen Elder visited a Dollar General store in Mt. Ida, Arkansas. She slipped on the wet sidewalk outside the store’s entrance. Elder reported her fall to an assistant manager.

Elder had preexisting back pain for which she had received chiropractic treatment since 2004. After her fall, Elder had neck, back, and shoulder surgery. In 2013, she sued Dollar General for negligence, alleging that Dollar General breached its duty to maintain its premises in a safe condition.

Elder intended to have her chiropractor, Eric Carson, testify about the cause of her injuries, the permanence of her disability, and the reasonableness of her medical bills. Dollar General moved to exclude much of Dr. Carson’s testimony. The motion was denied and the case went to trial.

Trial Evidence

Elder testified that the weather was misting and that she was jogging toward the entrance to avoid getting wet. She encountered a slick area on the sidewalk and fell. She testified that the slick area was not covered by a mat and that no signs warned her that parts of the concrete sidewalk were slippery.

One portion of the sidewalk has a rough surface and is presumably not as slippery, but another portion has a smooth surface. Elder relied on a safety expert to establish that the smooth portion of the sidewalk was unreasonably dangerous and that the danger was not obvious.

A former assistant manager testified that she had slipped on the sidewalk when it was wet and that she had seen at least four other people slip. She alerted her manager and the landlord about the unsafe condition and expressed concern that it might lead to a customer injury. She was told that it would be taken care of, but no action was taken.

Over objection, Dr. Carson testified that Elder’s injuries and the medical treatment Elder received for them, including her surgeries, were caused by her fall. Dollar General offered the testimony of an orthopedic surgeon that her surgeries were related to a degenerative medical condition and not to her fall.

The jury found in Elder’s favor and returned a verdict of $700,000. Dollar General appealed, arguing that Dr. Carson was not qualified to testify that Elder’s surgery was caused by injuries she sustained in her fall.

Competence of Chiropractor to Testify About Causation

Elder supplemented its discovery responses to disclose Dr. Carson’s anticipated causation testimony. Dollar General claimed to be surprised by those opinions and asked for a continuance during the trial so it could pursue additional discovery. The supreme court agreed with the trial court that the request for a continuance came too late, given that the opinions were disclosed almost three weeks before the trial.

A more troubling question was whether Dr. Carson was competent to testify about causation. There were two related issues of causation in Elder’s case. The first is whether her fall at Dollar General caused her to suffer an injury. The second is whether the medical (as opposed to chiropractic) treatment she received was caused by injuries she suffered in the fall.

Dollar General agreed that Dr. Carson was qualified to testify that injuries he actually treated were caused by the fall and that he provided necessary treatment for those injuries. Dollar General contended that Dr. Carson was not qualified to testify about the necessity of treatment provided by medical doctors.

The supreme court disagreed with the proposition that “a chiropractor may not testify as to the causal need for surgical procedures that a chiropractor may not perform.” The Arkansas precedent upon which that argument was based held that no foundation had been laid for the chiropractor’s testimony that a patient had a permanent disability. That precedent did not establish a blanket rule.

The court decided that the admissibility of a chiropractor’s opinion requires a case-by-case assessment of a chiropractor’s training and experience. Dr. Carson had extensive training in the fields of orthopedics and neurology. The trial court was satisfied that his training in those areas was similar to the training of a medical doctor.

Dr. Carson’s experience included the treatment of hundreds of patients who suffered from traumatic injuries. He acknowledged that he does not perform surgery, but he regularly diagnoses injuries and makes an informed judgment about whether the injury would respond to chiropractic care or would be better treated by a medical doctor.

The combination of Dr. Carson’s training and experience qualified him to opine that Elder’s injuries were caused by her fall, whether or not he treated them. That he was not trained as a medical doctor went to his credibility, not to the admissibility of his causation testimony.

Competence of Chiropractor to Testify About Necessity of Treatment

Dollar General next argued that Dr. Carson was not qualified to testify about the necessity of Elder’s medical treatment. Whether surgeries were related to the fall or to preexisting conditions was an issue in the case.

The supreme court noted that the reasonableness of treatment (which must generally be established to support the inclusion of medical expenses in a verdict) was not contested. Dr. Carson might not have been qualified to testify about the reasonableness of the medical treatment, but his training and experience qualified him to testify that the medical treatment was necessary. Since he was competent to testify that the fall caused the condition for which Elder was treated, he was also competent to testify that she needed the treatment she received.

 

Expert Witness

Tennessee Requires Expert Witness in Malpractice Case to Be Licensed, Not Just Authorized to Practice

In response to lobbying by the insurance and medical industries, many states have adopted laws that make it more difficult to find expert witnesses who are permitted to testify in medical malpractice cases. Doctors who clearly have the expertise required to offer an informed opinion are precluded from testifying based on arbitrary criteria imposed by legislators who want to protect negligent doctors and their insurers from the consequences of malpractice.

Tennessee is one such state. Among other restrictions, Tennessee requires a liability expert in a medical malpractice case to have been licensed to practice and to have actually practiced medicine in Tennessee or a contiguous state during the year prior to the act that caused the patient’s injury.

Whether the licensing requirements applies to a doctor who is authorized to practice, and actually practicing, in Tennessee but exempt from licensing laws was the issue in Young v. Frist Cardiology. The Tennessee Supreme Court construed state law to require expert witnesses to be licensed even when they are authorized to practice without a license.

The Locality Rule in Malpractice Cases

In the nineteenth century, many states adopted the locality rule “to protect rural physicians from being held to the same standards as physicians working in urban areas or at academic institutions.” The locality rule requires juries to determine the standard of care in the locality where the defendant physician committed the allegedly negligent act.

Does the standard of care for treating a patient in Tennessee differs from the standard of care in Florida? There is no reason that it should, but parochial legislatures and courts are slow to recognize the need to bring the law into the current century.

The locality rule has no obvious value in the age of the internet. Rural doctors now have just as much access to modern medical techniques as urban doctors. Yet many states stubbornly cling to the antiquated rule. The Tennessee Code, for example, requires plaintiffs to prove the standard of care “in the community in which the defendant practices or in a similar community.”

The Tennessee Supreme Court has recognized the sensibility of using a national standard of care in the modern age. It has nevertheless deferred to the legislature’s 1975 adoption of the locality rule.

The locality rule restricts the range of expert witnesses who would otherwise be available to testify for the injured patient. A physician in Atlanta might be eminently qualified to testify about the appropriate standard of care for treating a health condition, but unfamiliarity with the standards followed by doctors in a small Tennessee town in which the defendant physician practiced might preclude the expert from testifying. Making it difficult to find expert witnesses is exactly the reason that laws like Tennessee’s are championed by the insurance industry.

The “Licensed to Practice” Rule

Randall Young had a procedure to correct an abnormal heart rhythm. He died from a stroke two days later. His estate sued the surgeon, alleging that the procedure should not have been performed on a patient in Young’s condition and that the surgeon failed to evaluate and monitor Young’s condition before and during surgery.

In compliance with a case management order, Young’s estate identified Dr. Jason A. Rytlewski as an expert witness who would testify about the surgeon’s deviation from the applicable standard of care. Dr. Rytlewski was an electrophysiology fellow with the Division of Cardiology at Vanderbilt University School of Medicine. There was no doubt that he had actual knowledge of the applicable standard of arrhythmia care in Nashville, where the surgery occurred.

Unfortunately, actual qualifications often give way to the artificial qualifications imposed by legislatures. The surgeon’s insurer argued that Dr. Rytlewski could not give admissible expert testimony because he was not licensed to practice in Tennessee or a contiguous state.

Young’s estate offered evidence that Dr. Rytlewski was licensed to practice in six states and had engaged in the practice of medicine in Tennessee during the year before Young’s death. The estate also noted that the Tennessee Board of Medical Examiners had granted Dr. Rytlewski the right to practice medicine in Tennessee during his appointment at Vanderbilt. The estate argued that the licensing requirement applies only to experts who must be licensed, not to experts who are exempt from the state’s licensing law.

Appellate Decision

Notwithstanding Dr. Rytlewsksi’s exemplary qualification to act as an expert witness, the Tennessee Supreme Court decided that the legislature meant for expert witnesses to be licensed to practice, not simply allowed to practice. Of course, a license to practice allows the licensee to practice, so the distinction between being “licensed” and “allowed” to practice has no practical bearing on the expert’s qualifications.

The relevant statute applies to a “person in a health care profession requiring licensure under the laws of this state.” Although Dr. Rytlewski did not require licensure to practice in Tennessee, the court concluded that the legislature meant the words “requiring licensure” to modify the term “profession” rather than “person.”

Nothing in the structure of the sentence or ordinary rules of grammar compels that conclusion. The court’s claim that “requiring licensure” modifies the three preceding words (“health care profession”) rather than the six preceding words (“person in a health care profession”) is unsupported by precedent, grammatical rules, or logic.

The legislature’s actual purpose in enacting the law might have been to shield the medical industry from liability for negligence, but its stated purpose was to assure that expert witnesses are qualified. Reading the statute to apply only to persons who require licensure would serve that purpose and avoid the injustice of disqualifying experts who do not require licensure but are authorized to practice medicine in Tennessee.

Finding a doctor who is willing to testify against another doctor is extraordinarily difficult. Finding a doctor who is willing to testify against another doctor who practices in the same geographical area can be impossible. Legislatures that want to shield negligent doctors from liability take advantage of that difficulty by excluding eminently qualified experts who are not locally licensed. The Tennessee legislature’s rules have nothing to do with justice. Unfortunately, the Tennessee Supreme Court perpetuated injustice by its doubtful reading of the Tennessee statute regarding the licensure of expert witnesses.

 

DNA

Infectious Disease Experts Will Be Critical to Lawsuits Alleging Negligent Spread of COVID 19 Infections

As the COVID-19 virus has swept the nation, lawyers are being asked whether individuals or businesses can be held liable for failing to prevent infections. Some businesses have denied employees an opportunity to work from home while asking them to sign a “voluntary” waiver of liability for infections they contract by coming to work. Since employees who fail to sign are laid off, conditioning a paycheck on the risk of acquiring an infection might be seen as coercive rather than voluntary.

Whether employers will be deemed negligent for denying work-at-home opportunities, and whether they can protect themselves from liability by conditioning future employment on a liability release, are open questions. Party-divided senators are debating whether federal legislation should protect employers from liability or whether states should be entitled to decide what has historically been a question of state law.

A clearer case of liability is posed by businesses that fail to protect patrons from infections. When outbreaks can be traced to infected servers at a restaurant, for example, the restaurant may be liable for allowing servers to handle food or interact with customers without wearing masks or gloves. How to assure the safety of patrons is a question that will grow in importance when the economy begins to reopen.

The most obvious cases of infectious disease negligence involve nursing homes and other care facilities that fail to protect patients from the spread of COVID-19. A nursing home in Hayward, California has been threatened with legal action after 25 staff members and 41 residents tested positive for a novel coronavirus infection. Nine residents died from the virus. Attorneys are investigating allegations that staff members were compelled to work despite having symptoms of a COVID-19 infection.

Nursing Home Negligence and COVID-19

There’s no doubt that nursing homes and similar healthcare facilities are in a tough position. USA TODAY reports that a minimum of “2,300 long-term care facilities in 37 states have reported positive cases of COVID-19” and that 3,000 residents have died. The actual numbers are likely higher, as some states (including Florida) did not answer USA TODAY’s request for data.

At least 127 of 163 elderly residents at a nursing home near Richmond, Virginia have fallen ill with COVID-19. At least 35 of its staff members have tested positive for the virus, leading to a staff shortage that may further endanger residents. The facility’s medical director says the nursing home was taken by surprise, although the risk of a global outbreak was widely reported by February.

Since infections spread rapidly and infected individuals are not always symptomatic, nursing homes that exercise reasonable care to protect their residents might still experience a coronavirus outbreak. Yet USA TODAY found that even before the pandemic, 75% of nursing homes had been “cited for failing to properly monitor and control infections in the past three years.”

Questions Experts Will Need to Answer

Elderly patients and individuals with compromised immune systems are particularly vulnerable to life-threatening conditions caused by the COVID-19 virus. Whether a nursing home is responsible for the spread of COVID-19 in a vulnerable population may require experts to answer difficult questions, including:

  • What are the costs and benefits of isolating vulnerable patients during a pandemic?
  • Would prudent management require staff members to wear masks and gloves during all interactions with patients?
  • Should nursing homes stop admitting new residents to reduce population density and further the goal of social distancing?
  • What precautions should management take to assure that nurses and other staff members are not infected?
  • Should management have recognized the symptoms of a potential infection and sent potentially infected staff members home until they received a negative test result?
  • Did the facility take all necessary steps to disinfect rooms and common areas where the virus might linger?

Similar questions arise with regard to other confined settings, including jails, cruise ships, and hospitals. While preventing the spread of an infectious disease can be extraordinarily difficult, expert witnesses can determine whether certain elementary precautions — such as preventing a person with a cough from working until the employee tests negative for COVID-19 — should have been taken.

Infectious Disease Experts Making a Difference

Expert witnesses are likely to testify about COVID-19 in a variety of contexts. Lawsuits in Wisconsin, for example, allege that the failure to move the April 11 election disenfranchised voters who did not visit a crowded polling place for fear that they would acquire the virus and expose vulnerable family members to it. Infectious disease specialists and public health experts will likely be called upon to testify that those fears were legitimate.

Expert witnesses also assisted the ACLU in bringing a lawsuit seeking the release of four migrants detained by ICE in a crowded facility. Expert evidence established that the migrants had “medical conditions that make them highly vulnerable to serious illness and death if infected with COVID-19.”

The lawsuit contended that twelve detainees and one staff member had been infected with COVID-19 and that staff did not regularly wear gloves or masks to prevent the transmission of the virus. The lawsuit prompted ICE to release the detainees.

Infectious disease experts will continue play a vital role in informing the public as the pandemic continues to threaten lives. In the foreseeable future, they are likely to play critical roles as expert witnesses in litigation that holds negligent parties responsible for the preventable spread of this deadly disease.

Expert Silenced for Giving Truthful Testimony

Sexual predator laws hold defendants convicted of sex crimes in detention after they have served their sentences. The laws are premised on the popular belief that sexual predators have an uncontrollable compulsion to commit sex crimes, and that an indefinite civil commitment is an appropriate means of protecting society from the crimes they might commit in the future.

State legislatures avoid double jeopardy concerns by claiming that sexual predators are not receiving more punishment after they finish their sentences. The laws generally require that defendants who are labeled as sexual predators receive treatment, although whether any treatment can defeat an actual compulsion to commit sex crimes is a hotly debated topic.

Whether or not they receive treatment, individuals who are labeled as sexual predators are confined to institutions that in many respects are indistinguishable from prisons. The deprivation of freedom has a punishing impact even if punishment is not the law’s stated purpose.

Release from Confinement

Sexual predator laws typically allow a confined individual to petition the court for release, based on evidence that the need for confinement no longer exists. After all, if the laws are justified by the rationale that offenders have a mental disorder for which they need treatment, individuals who respond to treatment and are no longer a likely threat should not continue to be confined.

The government typically resists release by calling experts who testify that the risk persists. Offenders respond with experts who testify that there is little reason to believe the offender will commit a new sex crime.

But do the experts have the data they need to form reliable opinions? As a recent article in Reason explains, the State of California took extraordinary steps to suppress a study that would have helped expert witnesses make better judgments about the risk to society that follows the release of an offender who has been defined as a sexual predator.

Sexual Predator Laws

Before an individual can be deprived of freedom, perhaps for the rest of that person’s life, sexual predator laws require two conditions to exist. First, the alleged predator must have been convicted of a sex crime. Each state defines the specific offenses and the number of convictions that are required before sexual predator proceedings can be commenced.

Second, a court must determine that the person poses a high risk to society. While the definition of a sexual predator who should be civilly committed varies from state to state, it generally has two components: (1) the alleged predator suffers from a mental abnormality or personality disorder that seriously impairs the ability to control sexually violent behavior, and (2) because of that disorder, the alleged predator will probably engage in acts of sexual violence if not confined.

Expert witnesses play a key role in sexual predator proceedings. Psychologists with experience evaluating sexual predators make predictions about the risk of future violence. In a typical case, separate experts testify for the government and for the alleged predator. A judge or jury then decides whether the government has met its burden of proving that the alleged predator must be confined for the safety of society.

Like too many laws, sexual predator legislation is based on fear, not on a neutral assessment of data. While offenders who commit other crimes are released after serving a sentence, public sentiment (or at least the sentiment of people whose voices are heard by legislatures) favors continuing the confinement of sex offenders on the unsupported theory that sex offenders are more likely than other criminals to commit new offenses after they are released. In fact, the data shows that most convicted sex offenders are never charged with another sex offense after they are released from prison.

Expert’s Study Undermines Premise of Sexual Predator Laws

Arguably, empirical data concerning sex offender recidivism does not capture the subset of offenders who are selected for additional confinement as sexual predators. Jesus Padilla decided to answer that question by gathering data that addressed the relevant population.

Jesus Padilla was a psychologist employed at Atascadero State Hospital in California. Padilla tracked individuals who had been confined as sexual predators and who were released without treatment after the State dropped the ball in pursuing recommitment (a process that California required at the time). Since the legal system identified those individuals as sexual predators but failed to give them treatment, Padilla expected that they would have a high rate of recidivism.

Padilla was surprised to find that five years after their release, only 6.5% of the offenders had been arrested for a new sex offense. That recidivism rate is remarkably low, considering that 49% of offenders convicted of other crimes are rearrested for a similar offense within 5 years of release.

Padilla’s Expert Testimony

In 2006, an individual confined as a sexual predator in California petitioned for release. His lawyer learned of Padilla’s study. The lawyer subpoenaed Padilla to testify as an expert witness.

The state objected that Padilla’s publicly funded research was confidential, a silly claim that the judge rejected. To protect the privacy of individuals who were studied, the judge limited Padilla to giving a summary of his findings.

Padilla’s research called into question the rationale for sexual predator confinements. Because he is honest, however, Padilla gave honest testimony about his research results. It turned out that honest expert testimony did not sit well with the State of California.

Expert Silenced for Telling the Truth

Like the prison industry, the sexual predator industry is a substantial employer. California spends more than $300 million a year on its sexual predator program. State employees depend on courts filling institutions with sexual predators so that they will continue to draw state paychecks. Perhaps it isn’t surprising that, with their jobs on the line, employees of the department responsible for confining sexual predators resisted Padilla’s conclusions.

It is surprising, however, that California chose to silence Padilla rather than criticizing his study or funding larger studies to determine whether his results could be replicated. According to a law review article that examined Padilla’s research, Padilla’s study was “halted in midcourse” after he testified. Reason explains that Padilla’s “records were confiscated, his hard copies were shredded, and he was forbidden to talk about his work.” His boss accused him of illegally accessing conviction data, a bogus charge that was dismissed after an independent investigation concluded that it was groundless. Padilla’s efforts to restart the research were consistently rejected.

The law professors who investigated Padilla’s case made a Freedom of Information Act request for the research data. The state responded with a shocking claim that it could not verify that Padilla had ever conducted a study. The law professors then confronted the state with documents proving that the study had been approved and funded. At that point, the state was forced to turn over the data. However, when Padilla inspected the data, he discovered that someone had tampered with the Excel files by carving up spreadsheets and rendering them useless. He also discovered that the data was incomplete.

Censoring an expert and suppressing an expert’s research because the expert’s findings are unwelcome is a shameful response to honest research. As Reason notes, authorities in California apparently prefer to adhere to their “unexamined assumptions” rather than considering evidence that might contradict the foundations of their work.

The law professors concluded that after Padilla testified, the state “may have realized the study had to be stopped because it threatened the legitimacy of the entire [sexual predator] program.” Nothing could be more antithetical to the honest research and expert analysis upon which the legal system depends than suppressing knowledge that undermines the basis for depriving individuals of their freedom.

 

Memories

Are You Thinking About Becoming an Expert Witness?

In this time of economic uncertainty, a part-time gig as an expert witness might provide helpful supplementary income. Almost anyone who has knowledge or training in a specialized field that exceeds the knowledge of most people has the potential to be an expert witness. At the same time, some people are more suited for the role of expert witness than others.

Individuals with degrees in engineering, accounting, psychology, and a variety of scientific disciplines regularly appear as expert witnesses. They explain or refute the economic and emotional losses claimed by plaintiffs. They analyze the likelihood that a defendant’s conduct did or didn’t harm a plaintiff. Medical experts testify about the nature and degree of injuries or disabilities.

In intellectual property cases, experts explain how a new invention or song is similar to or different from a patented invention or a copyrighted song. Experts in real estate valuation offer opinions about the value of real property. Experts in all kinds of personal property, from classic cars to comic book collections, offer opinions about the value of property that has been lost or damaged.

In criminal cases, expert witnesses who are employed by the government offer forensic or “criminalistics” testimony. The criminal defense bar hires experts to refute that testimony, often by pointing out the uncertain foundations upon which it is built.

Would You Be a Good Expert?

Not every field of expertise requires a degree. An auto mechanic who has serviced cars for many years might be well qualified to explain that a brake failure was the likely cause of an accident. An experienced roofer is well positioned to explain the cause of a leaky roof in a newly purchased home.

On the other hand, people often consider themselves to be experts despite having little more knowledge in a field than the average person. When experts in a field typically have specialized training, a court is unlikely to regard an expert as qualified in that field unless the expert can prove that he or she has the same training or experience that other members of the field commonly possess. Things do not go well for purported experts who try to fool a court by falsifying their credentials.

While specialized knowledge is essential, an expert witness must also be able to express that knowledge, both in writing and in testimony. In federal cases and in many state courts, a retained expert must prepare a written report. A witness who cannot prepare a report that states and supports opinions in clear language will have difficulty finding work.

Expert witnesses are often called upon to testify in depositions. Since most cases settle, they less frequently testify in court, but experts are sometimes called upon to give trial testimony. People who are nervous about speaking in front of a small group of people might not be good trial witnesses. People who are short-tempered or impatient will not respond well to cross-examination. Good expert witnesses have the ability to think on their feet, to answer complex questions in language that juries can understand, and to earn the respect of lawyers, judges, and juries by giving honest answers to difficult questions.

Expert Witnesses Are Not Hired Guns

Advocacy organizations that complain about “judicial hellholes” have tried to undermine the credibility of retained experts. To make it harder for plaintiffs to prevail in lawsuits against insurance companies and corporations, they have tried to spread the message that experts are “hired guns” who will say anything in exchange for a paycheck.

The truth is that most expert witnesses give honest opinions, whether they have been hired by a plaintiff or a defendant. They analyze the facts and arrive at conclusions that are supported by the evidence. While they are conscious of the goals a client hopes to achieve, they do not bend the truth to help a client win a case.

Experts who are “hired guns” in the sense that they offer unsupported or irrational opinions quickly lose credibility in the legal community. They become vulnerable to cross-examination. They risk having a judge reject their reports and bar their testimony because they offer opinions that no jury could regard as reasonable.

While expert witnesses can and should earn income by providing services to lawyers and their clients, the best motivation to become an expert witness is a desire to help jurors understand the facts of a case. Honest and ethical experts can enjoy a long and fruitful career as expert witnesses.

Only an Expert Can Testify that a Patented Invention Was Obvious

One defense to a patent infringement lawsuit is that the patent should not have been granted because the patented invention is based on an obvious modification of existing ideas. The issue in HVLPO2, LLC v. Oxygen Frog, LLC was whether a lay witness could testify about the obviousness of an invention. The Court of Appeals for the Federal Circuit ruled that expert testimony is often required to establish obviousness.

Facts of the Case

The two patents at issue involved a device that manages the flow of oxygen gas mixtures to torches used by glass artists. There was no question that Oxygen Frog infringed two patents held by HVLP02. The only question at trial was whether the device used a method for controlling the flow of oxygen that would have been obvious to a person with ordinary skill in the field in light of existing ideas and technology.

To establish that the technology underlying the patents was a matter of public knowledge before the patents were issued, Oxygen Frog pointed to a blog post on a glass blowing internet forum that described an oxygen system. That system was similar to the patented device, but it involved a single circuit while the patented device used two circuits, one to provide power to oxygen generators and the second to provide power to an air compressor.

Oxygen Frog also pointed to a video that was posted online by Tyler Piedbes, a glass blowing artist. Oxygen Frog deposed Piedbes and played most of the deposition for the jury. Oxygen Frog did not offer Piedbes as an expert witness.

Piedbes was asked whether he thought adding a second circuit to the oxygen system described online was an obvious modification. HVLPO2 objected that Piedbes was not offering admissible lay testimony because an opinion about obviousness could only be provided by an expert witness. The trial judge overruled the objection and Piedbes answered “yes.”

The court instructed the jury that Piedbes could offer an opinion as to whether the modification “would occur to him from his perspective” and whether the modification was obvious. The court also instructed the jury that it was to make its own determination of obviousness.

The jury decided the obviousness question in favor of Oxygen Frog. HVLPO2 appealed. It contended on appeal that Piedbes’ testimony was inadmissible because he did not testify as an expert.

Appellate Opinion

Obviousness is not analyzed from the perspective of an ordinary person. Rather, the question is whether the patented invention modified an existing invention or technology in a way that would have been obvious to a person of ordinary skill in the relevant field (“a person of skill in the art,” in the language of patent law).

The Court of Appeals noted that it “is often helpful to have a technical expert explain, for example, the scope of the prior art or motivations for combining various components.” That explanation cannot typically be provided by a lay witness, because explanations of facts that are beyond the knowledge of ordinary jurors can only be made by expert witnesses. A person who is not an expert in the relevant “art” cannot usually assist the jury’s determination of obviousness.

Priebes might have been an expert, but he did not testify as an expert. He was not disclosed as an expert witness and did not prepare an expert report. The appellate court rejected the argument that Priebes was entitled to provide lay testimony about obvious modifications of oxygen system that had been described online. That testimony was “the province of qualified experts, not lay witnesses.”

Oxygen Frog argued that Priebes’ testimony, even if inadmissible, did not harm HVLPO2. Of course, Oxygen Frog only called Priebes as a witness because it hoped his testimony would influence the outcome. The Court of Appeals noted that the jury may have relied entirely on Priebes’ testimony when it decided the question of obviousness.

The trial court’s limiting instruction did not cure the error because it expressly allowed the jury to consider Priebes’ inadmissible opinion. In addition, HVLPO2 could not make a Daubert challenge to test the reliability of Priebes’ testimony since Priebes was not designated as an expert. Under those circumstances, the failure to designate Priebes as an expert could not be dismissed as harmless error. HVLP02 was therefore entitled to a new trial.

 

Failure to Produce Expert Medical Witness Dooms Lawsuit Alleging Harm from Mislabeled Pills

David Sutton alleged in a lawsuit that he took acetaminophen that had been manufactured by Advance Pharmaceutical. He claimed that the product had been mislabeled as baby aspirin. He intended to take baby aspirin and contended that he experienced severe health problems as the result of taking acetaminophen.

Advance Pharmaceutical packages over-the-counter medications for distribution to wholesalers. It contended that the medications are intended for sale to hospitals, nursing homes, and pharmacies, and are not packaged for sale to the public. Advance Pharmaceutical admitted that it recalled baby aspirin in 2013 after a pharmacist noticed that a bottle of baby aspirin actually contained acetaminophen.

Sutton represented himself in the lawsuit. He appealed an order that dismissed the suit after he failed to pay a monetary sanction. The Michigan Court of Appeals concluded that the sanction was improper and ordered the trial court to reinstate the lawsuit.

The trial court again dismissed the lawsuit, this time because Sutton refused to sign forms authorizing the release of medical records so that Advance Pharmaceutical could determine whether he was taking other medications that might have caused his symptoms. Sutton again appealed and the court of appeals again reversed the dismissal.

Since Sutton had not produced a treating physician as a witness, the court of appeals concluded that he did not waive physician-patient privilege. The trial court therefore erred in holding that Advance Pharmaceutical had the right to view his medical records.

On remand, the trial court granted summary judgment to Advance Pharmaceutical, effectively dismissing the lawsuit a third time. Sutton brought a third appeal. A key issue on appeal was whether Sutton could prevail in his lawsuit without using an expert witness. The court of appeals agreed with the trial court that he could not.

Proof of Causation

Sutton alleged that he experienced a variety of symptoms from taking acetaminophen when he believed he was taking baby aspirin. His proof that Advance Pharmaceutical caused his harm was hampered by his inability to produce the allegedly mislabeled bottle.

Sutton testified that he destroyed the bottles that contained the pills as well as the pills he did not take. The appellate opinion does not explain how Sutton hoped to prove that the pills he took were manufactured by Advance Pharmaceutical or that the pill bottle (assuming it came from Advance Pharmaceutical) was mislabeled.

The trial court determined that Sutton’s documentary evidence was unverified by a records custodian. The appellate opinion does not make the nature of the records clear, but the court agreed that the records failed to prove he suffered harm caused by the ingestion of acetaminophen.

Lack of Expert Evidence

Sutton admitted that he never saw a doctor for treatment of the symptoms that he attributed to taking mislabeled acetaminophen. Failing to see a doctor allowed him to invoke physician-patient privilege as to his medical records, but it doomed his efforts to prove causation.

Sutton could rely on his own testimony to establish that he took pills he believed to be baby aspirin. He could also rely on his own testimony about the symptoms he experienced after taking the pills. But his own testimony was insufficient to prove that the pills caused those symptoms.

The court of appeals determined that neither Sutton nor his roommate, who would have confirmed that Sutton took the pills, could prove causation. Expert evidence was therefore needed to prove that acetaminophen caused the symptoms Sutton experienced.

The court of appeals concluded that Sutton could testify as a lay witness about his own actions, but his opinion about the cause of the cause of his injuries was speculative. Only a medical expert could give admissible testimony to connect the symptoms Sutton experienced to the acetaminophen he allegedly swallowed.

The decision stands as a reminder that in most cases alleging a physical injury caused by ingestion of a drug, expert medical testimony is needed to prove that the drug caused the injury. Ordinary jurors do not typically understand the potential side effects of taking a common over-the-counter medication. Without an expert witness to educate them, the jury has no basis to determine causation. Plaintiffs who proceed without an expert witness face the risk of a judgment that dismisses their case without a trial.

Court Dismisses Product Case Based on Failure to Offer Expert Testimony

Johnson & Johnson has won and lost cases alleging that it markets talc-based products, including baby powder, that cause cancer. The lawsuits typically rely on expert evidence that the talc used to manufacture those products is contaminated with asbestos, a known carcinogen.

The company insists that nothing in its products is carcinogenic, a claim that was undermined by the FDA’s recent confirmation of asbestos in a bottle of J&J baby powder purchased online. That testing prompted J&J to recall a single lot of its baby powder. The testing also triggered a vigorous effort by J&J to discredit the FDA’s findings. The FDA stands behind its test results.

Relying largely on documents produced by J&J, Ann Gibbons contended that she was exposed to asbestos when she used Shower-to-Shower and Johnson’s Baby Powder. Gibbons developed mesothelioma. Asbestos exposure is the only known cause of that disease. J&J contends that her husband worked in construction and that he may have exposed her to asbestos fibers as a result of his employment.

Gibbons sued J&J for causing her mesothelioma. The California Court of Appeals affirmed a trial court decision to grant summary judgment in J&J’s favor. The question on appeal was whether Gibbons’ failure to present expert evidence was fatal to her claim.

J&J Documents

The company’s credibility has been damaged by stunning evidence that it knew for decades about the risks posed by talc contamination, but hid that information from regulators and the public. Reuters also uncovered evidence that J&J funded research that was designed to discount the risk of asbestos contamination in its products, while carefully avoiding research that might have documented asbestos contamination.

Nobody claims that every bottle of talc-based products is contaminated by asbestos, but tests showing some bottles from a particular lot to be uncontaminated do not mean that other bottles are free of asbestos contamination. Unfortunately, only a small fraction of marketed products containing talc are ever tested for asbestos contamination.

J&J’s Expert

Ann Gibbons used Shower-to-Shower and Johnson’s Baby Powder for two decades. She sued Johnson & Johnson on the theory that those products caused her mesothelioma.

J&J moved for summary judgment. It submitted an expert opinion that its products were free from asbestos contamination and for that reason could not have caused her disease.

J&J’s expert, Matthew Sanchez, is a geologist. His declaration described his expertise in testing talc and identifying asbestos. He suggested that some minerals are easily misidentified as asbestos. Based on his review of J&J’s testing and various other research, he concluded that the talc sourced from the Vermont mines that produced the products used by Gibbons were asbestos-free. He also concluded that the geology of the mines was “not favorable for the formation of asbestos.”

Gibbons’ Opposition to Summary Judgment

Gibbons presented no expert testimony to counter Sanchez. Since experts have testified in successful lawsuits that allege contamination of J&J products by asbestos, the failure to use expert testimony in Gibbons’ case is surprising.

Gibbons instead relied solely on the declaration of her lawyer, who attached hundreds of pages of exhibits. Most of the exhibits were documents created by J&J. Some of the documents addressed asbestos in different mines or were created before Gibbons began using J&J talc products.

Gibbons made no challenge to Sanchez’ qualifications. Nor, for the most part, did she challenge the methodology that supported his opinions.

Trial Court Ruling

Sanchez’ opinion that the talc products used by Gibbons were not contaminated by asbestos created a defense to Gibbons’ lawsuit. The trial court concluded that Gibbons could not overcome that defense because she failed to challenge Sanchez’ opinion with expert testimony.

The trial court concluded that documents alone would not allow a jury to draw an inference that Gibbons used J&J products that were contaminated by asbestos. At the very least, an expert was needed to interpret the documents and to explain why they supported her claim and refuted Sanchez’ opinion.

Gibbons moved for reconsideration. In support of that motion, she offered new evidence of a geologist who reviewed recently acquired data from the U.S. Geological Survey. The geologist concluded that asbestos was likely present in the Vermont mines. The trial court denied the motion and granted summary judgment to J&J.

Appellate Court Ruling

The California Court of Appeals rejected Gibbons’ argument that Sanchez relied on inadmissible hearsay. While a party cannot rely on hearsay to prove its case, an expert can identify the source of the expert’s opinion, even if that source is hearsay. A party cannot have an expert quote hearsay documents in order to defeat the hearsay rule, but Sanchez merely identified the documents that provided a basis for his opinion.

Under California law, when a party makes a prima facie showing that no facts supporting a judgment are in dispute, the burden shifts to the opposing party to present evidence showing that material facts are disputed. The Sanchez declaration was sufficient to shift the burden, since his opinion that J&J’s products were asbestos-free would, if uncontradicted by other evidence, entitle J&J to summary judgment.

With the ball in her court, Gibbons was required to introduce evidence that her use of J&J products exposed her to asbestos and that the exposure caused her mesothelioma. The fact that she has mesothelioma is strong evidence that she was exposed to asbestos, and her testimony was sufficient to establish her use of J&J products containing talc.

Whether J&J’s products were contaminated with asbestos, on the other hand, could not be proved without expert testimony. Unlike products that are intentionally manufactured with asbestos, J&J’s products are not formulated to include asbestos. While talc and asbestos deposits are often found in proximity, talc is not inevitably contaminated with asbestos whenever it is mined.

The court cited an appellate decision that reversed summary judgment for a cosmetic company because the plaintiff presented expert evidence that its talcum powder contained asbestos. While the company offered expert evidence that its product was asbestos-free, an expert geologist confirmed the presence of asbestos in the mines that produced the company’s talc and in the products themselves. Gibbons relied on no comparable expert testimony

While Gibbons relied on documents produced by J&J that arguably support her position, the appellate court determined that those documents are “highly technical.” Without expert assistance, a jury could not be expected to understand the significance of findings that might support her case or to place those findings in context. Accordingly, in the absence of expert evidence to dispute Sanchez’ expert opinions, Gibbons could not meet her burden of proving that she used J&J products that were contaminated with asbestos. Summary judgment for J&J was therefore affirmed.

 

Employment Damages: Sometimes Plaintiff Loses

Sometimes, the facts support an opinion of no damages, as I recently testified in a state court which largely agreed with me. What happened?

This was a dispute between an employee and former employer with multiple causes of action. Having left the company after working 6 years, the plaintiff ended up suing the company for past and future wages.

I considered two issues:

  1. How long it would take such a person to find a job and, once found
  2. How that job would compare with their past job as per pay.

These questions were addressed with pooled Displaced Worker Survey data from 2008, 2010, and 2012 and appropriate econometric methods controlling for economic conditions, age, education, location, industry and occupation of plaintiff.

I also considered extent of wage loss due to skill erosion associated with plaintiff voluntarily being out of the labor force for 2.3 years, an application of human capital model with Current Population Survey data. Because defendant kept open the plaintiff’s prior position at a wage 25% above that which plaintiff could find after 50 weeks of searching, my opinion was no damages.

Litigation is risky. In this instance I was retained by defense counsel, but my opinion would have been the same if I’d worked for the other side.

Prudent Corporate Governance: A Board’s Dilemma

This article discusses the roles and duties regarding the effective and steady stewardship of a board of directors, including management of workflow information.

The following questions should be asked (or demanded) by each board member from their organization:

  1. Ask for a written meeting agenda
  2. Study the agenda
  3. Ask for accurate and timely financial information
  4. Ask questions and request timely answers
  5. Strive for perfect attendance from all directors
  6. Dissent where warranted
  7. Call for recorded votes
  8. Demand accurate and timely minutes for all board and committee meetings
  9. Demand independent investigations when needed
  10. Blow whistles when warranted.

As everyone knows, managing an organization is not an easy undertaking. Successful companies employ a continuous process that addresses and acknowledges a constant flow of information. The primary focus of both the board and corporate management is to identify problems before they seriously constrict and assault the overall condition of their company. A recent case illustrates this. The company had been in business for over 35 years and for most of those years it operated in a prudent manner and was successful from a financial perspective. However, in recent years the company started experiencing liquidity problems,  causing operational problems. These issues had a damaging impact on the company’s relationship with its consortium of banks.

The management team and board of directors chalked up little credibility with its bankers as evidenced by a placement of a series of forbearance agreements. These agreements placed certain restrictions on the company’s operations, including oversight by an independent advisor. Instead of working with the banks in an attempt to deal with the swirling financial issues, the company’s management and shareholder resisted efforts to resolve the company’s financial (liquidity) problems. Rather than working on the development of a strategy on the company’s long term survival, the board and management served as impediments to resolving the problems.

Any constructive efforts made by the management team to resolve the company’s problems were  stonewalled by the following issues:

  • The shareholder had complete control of the board – three members of the board were insiders that worked for the company and three of the four outside directors were family members of the shareholder.
  • As a result of this structure, the shareholder had total control which resulted in a lack of independence on the part of the board.
  • The lack of adequate financial controls resulted in a forensic audit that revealed the owner had several million dollars of personal expenses that could not be substantiated as legitimate business expenses.
  • The lack of prudent oversight and financial controls  resulted in the following :

    • Resignation of all the inside directors
    • Resignation of the company’s CFO due to potential liability regarding the quality of the company’s financial information
    • Resignation of the company’s independent auditors based on a question regarding the “going concern” concept.

Conclusion: Effective and serious stewardship  as a director requires the board to have the courage to exercise savvy judgment independent of management. These types of issues will remain in the spotlight of public accountability with corporate governance failings and oversight issues leading to litigation and often will serve as a subject for a Wall Street Journal page-one article or Bloomberg online analysis.

With the threat of harm to reputation, costs of remedial action(s) required along with possible significant fines,  an astute board cannot afford to make bonehead decisions. As new risks emerge and  breed, success increasingly relies on the board to see the crises coming, to demand and evaluate the information needed to make critical business decisions and then, armed with that information, have the courage to carry through.