Category Archives: Expert Opinions

Sexual Assault

Judge Allows Psychologist Testimony in Sexual Assault Case

A judge has denied a request to exclude the testimony of a psychologist who is expected to testify on behalf of a man who is scheduled to be tried for third-degree sexual assault in Thermopolis, Wyoming.

The Alleged Assault

In June 2017, a 20-year old woman claimed that she was assaulted at Tony Cercy’s home at Alcova Lake.  The woman claimed that she woke around 3AM on June 25, 2017 to find Cercy performing oral sex on her.  The woman testified that she immediately pushed him away and that Cercy told her that he had been trying to wake her by performing sexual acts on her.  The woman said that she fell asleep fully clothed but awoke with only a bra on and found Cercy naked from the waist down.  The woman told authorities that Cercy threatened to kill her if she told anyone about the incident.

Cercy denied having any sexual contact with the woman.  He claimed that he went to sleep at 2AM and did not wake until 8AM the next morning and the alleged victim had left his house at some point during the night.  However, data from a cell phone health app indicates that Cercy took 21 steps ending at 3:36AM and another 41 steps ending at 3:41AM.  Cercy’s phone also contains two videos and four photographs taken at 3:46AM on the morning of the alleged assault.

First Jury Trial

In February, Cercy went to trial for one count of first-degree sexual assault, one count of second-degree sexual assault, and one count of third-degree sexual assault. The jury acquitted Cercy of the first-degree and second-degree assault charges but could not reach a verdict on the one count of third-degree sexual assault, or sexual contact without penetration. Natrona County District Court Judge Daniel Forgey declared a mistrial.

Natrona County District Attorney Mike Blonigen filed a motion to retry that count. Judge Forgey granted that motion, but also Cercy’s motion to move the trial to Hot Springs County.

Second Trial

For Cercy’s second trial, his defense team retained Dr. William O’Donohue to testify in his defense.  Dr. O’Donohue is an expert on sexual assault and the director of a clinic for treating sexual abuse victims at the University of Nevada-Reno.

The defense team wanted Dr. O’Donohue to rebut Dr. Sherri Vanino’s testimony about the relationship between alcohol and sexual assault reporting, the effects of trauma on recounting experiences of sexual assault, and fabricating a serious allegation like rape.

District Attorney Blonigan objected to Dr. Donohue’s testimony, saying that his proposed testimony “during the upcoming trial would speak directly to and illegally to this specific case; that the proposed testimony would amount to profiling, that ‘certain people do certain things’; and that he would essentially determine the truth or falsehood of witnesses, which is the job of the jury.”

Judge Forgey decided to allow O’Donohue’s testimony.  He said that “O’Donohue is properly qualified to testify in response to Vanino’s previous testimony about issues such as consistent reporting of alleged sexual assault victims, the role of trauma and fear, and the effects of alcohol.”  The judge said that he would deny some of the testimony that O’Donohue and the defense team wanted to enter, including blaming victims, about whether wives of alleged sexual abusers support their husbands, and false allegations.

Woman legs walking on the beach sand

Expert Witness Opines in Toplessness Trial

In Ocean City, Maryland, a legal battle is being fought over a woman’s right to bare her breasts on the beach.

The controversy began when Chelsea Eline (formerly Covington) wrote to the Worcester County State’s Attorney for a legal opinion regarding female toplessness in public areas in the state.

Ocean City then passed an emergency ordinance prohibiting females from baring their breasts in public within city limits. Violators were subject to a fine up to $1,000.

Civil Rights Suit Filed

Civil rights attorney Devon Jacob filed a suit on behalf of Eline and four other plaintiffs in federal court, requesting a preliminary injunction to end the restriction pending the resolution of the lawsuit. The plaintiffs argued that they have “legal right to be bare-chested, in public, in the same places that men are permitted to be bare-chested, for purposes other than breastfeeding.”  The court denied the request for a preliminary injunction, but granted an extension to enable the plaintiffs to gather additional expert testimony.

Ocean City argued that “[t]hey seek to disrupt the character and moral balance of a historically family-oriented tourist destination, visited and enjoyed by so many people whose expectations and sensibilities do not contemplate and likely will not tolerate nudity in such a densely-populated and wholesome tourist setting as Ocean City and its beaches.”

The plaintiffs retained Debby Herbenick as an expert witness to support their case. Herbenick is a professor and director of the Center for Sexual Health Promotion at Indiana University. Herbenick filed a seven-page report in support of the plaintiff’s cause.

Expert Report

Herbenick provided four reasons as to why Ocean City’s ordinance should be removed:

First, Herbenick said that “the ordinance fails to recognize important similarities between female and male breasts.” According to Herbenick, the ordinance does not consider age, puberty, medical procedures or conditions that impact the appearance of male and female breasts. Herbenick claims that the variety of shapes and sizes of breast shapes make men and women very similar and “it is simply not true that only female breasts are erogenous or erotic. Both female and male breasts/chests may be considered erotic or sexy.”

Second, Herbenick states that Ocean City’s ordinance overstates the sexualization differences between male and female breasts and chests. Herbenick claims that the primary difference between the two is that female breasts can produce milk for babies, but mentions that women spend only a short part of their lives breastfeeding.

Herbenick’s third point is that seeing women bare-chested in public is not “unpalatable” in modern America. She cited to peer-reviewed scientific research to argue that public sensibilities on this issue have changed in recent decades.

Herbenick’s fourth point is that not treating men and women equally in allowing both to appear bare chested in public may contribute to harmful secondary effects, such as the over-sexualization of girls and women.

Herbenick wrote, “In terms of what may be considered ‘unpalatable,’ it is my professional opinion that the public would generally find it unpalatable to ask police (who tend to be mostly male) to focus their attention on females’ breasts/chests in an effort to evenly enforce an ordinance that prohibits barechestedness.”


Appellate Court Concludes Cardiologist Was Qualified to Testify About General Practitioner’s Standard of Care

Dr. Melissa Sotillo is board certified in obstetrics/gynecology (OB/GYN). She prescribed Cytomel to a patient for weight loss management after the patient’s weight loss plateaued. Prior to taking Cytomel, the patient had been taking phendimetrazine that Dr. Sotillo also prescribed.

When she prescribed Cytomel, Dr. Sotillo followed the recommendations of a software program known as the Weight Loss and Wellness Program. The program was developed by Dr. G’s Franchising Companies, LLC.

Fifteen days after she began taking Cytomel, the patient died from a cardiac occlusion. An autopsy revealed that the occlusion caused a total closure of her left coronary artery.

The patient’s widower sued Dr. Sotillo and Dr. G’s. He alleged that prescribing and (in the case of Dr. G’s) recommending Cytomel to a patient who had been taking phendimetrazine was negligent.

Expert Opinions

Two experts prepared reports for the widower. Christine Stork, Pharm.D., explained that phendimetrazine decreases the diameter of the coronary artery and increases a patient’s heart rate. According to her report, an excess amount of Cytomel can also cause an increased heart rate. She also noted that a black box warning on Cytomel cautions that the drug should not be used for weight loss.

Bruce M. Decter, M.D., an internist and board-certified cardiologist, expressed opinions about Dr. Sotillo’s breach of the standard of care. Because weight loss was outside of Dr. Sotillo’s specialty, Dr. Decter expressed his opinion as to the standard of care that would apply to a general practitioner rather than an OB/GYN.

According to Dr. Decter, Dr. Sotillo breached the standard of care in three ways. First, she failed to take a full history and to perform a full physical examination of the patient. Second, she prescribed medication that went beyond the parameters of the informed consent that the patient signed.

Third, Dr. Sotillo prescribed Cytomel in combination with phendimetrazine. He opined that prescribing the drugs in combination was the proximate cause of the occlusion that was the direct cause of the patient’s death.

Dr. Decter also opined that the combined negative effects of Cytomel and phendimetrazine are well known, and that Dr. G deviated from the standard of care by recommending that they be taken in tandem.

Challenge to Expert Opinions

The trial court granted Dr. Sotillo’s motion to exclude Dr. Decter’s opinion on the ground that he was not a general practitioner and therefore was not qualified to render an opinion as to the standard of care that applied to Dr. Sotillo when she acted as a general practitioner. The court also excluded Dr. Dector’s opinion as to Dr. G’s Weight Loss and Wellness Program because Dr. Decter was not a computer software expert.

Having excluded all of the relevant evidence against both defendants as to the issue of causation, the court granted summary judgment against the widower. He appealed to the Superior Court of New Jersey Appellate Division. In an unpublished opinion, the appellate court reversed the summary judgment.

Standard of Care Experts in New Jersey

New Jersey law requires plaintiffs asserting a medical malpractice case to file an affidavit from an expert witness explaining how the defendant deviated from the standard of care. The plaintiff’s expert must be “equivalently-qualified to the defendant physician.”

New Jersey law specifies that an “equivalently-qualified” specialist is one who practices in the same specialty as the defendant. If the defendant is a general practitioner, the plaintiff’s expert must have recently practiced as a general practitioner, or must have an “active clinical practice that encompasses the medical condition, or that includes performance of the procedure, that is the basis of the claim or action.”

Statutes like New Jersey’s have become common, and are commonly used to exclude well-qualified experts regardless of their knowledge or experience. The insurance and medical industry lobbyists who have encouraged passage of the statutes claim that they deter frivolous lawsuits by assuring that qualified experts can attest to the merits of the plaintiff’s claim.

In reality, state statutes artificially narrow the range of experts who are allowed to testify for injured patients without regard to their actual qualifications, and thus serve their intended purpose of making it more difficult to sue doctors. The statutes also undercut the critical role that juries play in evaluating the qualifications of expert witnesses.

Dr. Decter’s Qualifications to Testify About Dr. Sotillo

The trial court ruled that Dr. Decter was not qualified to define the standard of care that applies to general practitioners because his practice was primarily devoted to cardiology. The appellate court recognized that, as a cardiologist, Dr. Decter engaged in an “active clinical practice of medicine” that included prescribing medications to patients and assessing the risks and benefits associated with medications. His practice therefore encompassed the same procedures that Dr. Sotillo used when she treated her weight loss patient.

The appellate court rejected the argument that Dr. Decter was unqualified because he rarely prescribed Cytomel and never prescribed phendimetrazine. The precise medications prescribed do not affect the standard of care that applies to prescribing a medication. Dr. Decter’s inexperience with the drugs at issue went to his credibility, not his qualifications to testify about standard of care.

Nor did it matter that Dr. Decter’s practice does not encompass weight loss management. When a doctor opines about the standard of care a general practitioner must provide, the doctor is not necessarily required to have experience treating the precise condition at issue in the case. The issue here was the standard of care that applies to prescribing medications. The health condition for which medications are prescribed does not change the standard of care for prescribing drugs, which surely includes determining whether the interaction of two prescribed medications might be deadly.

Dr. Decter was well qualified to opine that a general practitioner should take a full history from a patient, should conduct a physical examination, should not prescribe medications under conditions not covered by the patient’s informed consent, and should be aware of black box warnings on drugs that the general practitioner prescribes. Since his practice encompassed taking histories, conducting examinations, reviewing informed consent forms, and prescribing medications, Dr. Decter rendered opinions that were permitted by New Jersey law.

Dr. Decter’s Qualifications to Testify About Dr. G

The trial court decided that Dr. Decter was not qualified to testify about Dr. G’s software program because he is not a software engineer. The court held that he could not determine whether the software was defective and could not express an opinion about its efficacy.

The trial court’s analysis was misguided. The program recommended the prescription of two medications that, taken together, have deadly consequences. A software engineer would not have been qualified to determine whether a recommendation to prescribe a combination of medications would be negligent, because software engineers do not understand the considerations that inform a decision to prescribe medication. It was the output of the program, not the mechanics of its operation, that was the basis for the negligence claim.

The New Jersey malpractice statute presumably does not apply to software companies, since software companies are not doctors. Accordingly, the only question is whether Dr. Decter was qualified to render opinions about the recommendations that Dr. G’s program made.

It was Dr. Decter’s expertise as a physician that made his testimony useful, while an engineer’s testimony would not have been. The appellate court easily concluded that “Dr. Decter is qualified to opine regarding the propriety of the medications recommended by Dr. G’s program,” and that he required no insight into the program’s functioning to render that opinion.

Net Opinion Rule

Finally, the appellate court concluded that Dr. Decter’s opinions did not violate New Jersey’s “net opinion rule.” That rule prohibits the admission of expert opinions that are not supported by facts or data and requires the expert to explain the causal connection between a negligent act and an injury. The explanation must state more than a conclusion; it must provide the “why and wherefore” that links negligent conduct to a resulting harm.

Dr. Decter testified that he relied on Dr. Stork’s explanation of how the interaction of phendimetrazine and Cytomel narrows the artery and increases heart rate. Dr. Decter concluded that the increased heart rate caused the occlusion that resulted in the patient’s death.

Dr. Decter was entitled to rely upon facts and data provided by Dr. Stork, and his reasoning supplied the “why and wherefore” that linked medical negligence (prescribing a contraindicated drug) to the resulting death. His opinion was therefore admissible under New Jersey’s net opinion rule.

Justice Scales

Plymouth State University Drops Professor After She Testifies as Expert Witness for Rape Defendant

A Plymouth State University Professor was not rehired after she testified as an expert witness for a rape defendant.

The Rape Case

In July 2018, 39-year-old Kristie Torbick of Lee, New Hampshire pleaded guilty to sexually assaulting a 14-year-old student while she was employed as a guidance counselor at Exeter High School. She was sentenced to serve 2.5 to 5 years in prison.

For Torbick’s sentencing hearing, her therapist Dr. Nancy Strapko testified and wrote a letter in support of Torbick. Dr. Strapko is a registered New Hampshire sexual offender treatment provider who had been seeing Torbick for over a year. Strapko was an associate professor emeritus and former graduate school health education coordinator at PSU.

Strapko attributed Torbick’s decision to engage in sexual acts with a minor to her upbringing by an abusive and alcoholic mother and being molested by one of her mother’s partners. Strapko insisted that Torbick was not a predator and wrote, “Kristie takes full responsibility for her actions with her ‘victim.’ I put this in (quotes) because I am aware that her ‘victim’ was truly the pursuer in this case.” Two other Plymouth State professors, Michael Fischler and Garry Goodnough, also wrote letters in support of Torbick.

Plymouth State University Reaction

Following the sentencing, Plymouth State University president Donald Birx and provost Robin Dorff released a statement saying that Strapko’s portrayal of the victim was “legally wrong and morally reprehensible.”

Birx stated, “I want to make the position of the University clear: Plymouth State University condemns in the strongest terms the actions of Ms. Torbick and supports the victim in this case. We take seriously the sacred trust between educators, students and families and, in the case of Ms. Torbick, that trust was broken. . . . What Ms. Torbick did as a former member of this community and a graduate of PSU is a violation of what Plymouth State University as an institution and as a community stands for and the values we teach to students every day. We all must work together to support this victim and anyone who suffers abuse in any form.”

Plymouth State University spokesperson Marlin Collingwood also stated that the writers did not represent PSU.

Plymouth State University decided not to rehire Strapko. Professors Fischler and Goodnough agreed to complete sexual assault training before returning to teach at the university.

Reaction to University’s Actions

Following Plymouth State University’s announcement that it would not rehire Strapko, the Foundation for Individual Rights in Education has spoken out against the decision. Zachary Greenberg, program officer in FIRE’s Individual Rights Defense Program, has called the university’s actions as unconstitutional.

Greenberg wrote, “By imposing penalties on these professors, PSU runs afoul of the First Amendment and its own academic freedom policies. Although adjunct professors are without the benefits of tenure, public universities may not refuse to rehire them over protected expression, as such an act is retaliatory in nature and violates their First Amendment rights.” Critics could also note that requiring professors to engage in Soviet-style reeducation programs is an affront to academic freedom.

He continued, “Furthermore, state university professors generally may not be punished for their speech as private citizens, so long as the expression consists of matters of public concern and does not disrupt the educational environment. Both Fischler and Strapko were speaking as private citizens because they were not employed by PSU for purposes of providing analysis to the trial court judge, and a reasonable recipient of their communications would not believe they were made on behalf the university, especially one that explicitly disavowed the opinions of these professors in this matter.”

The University’s shameful breach of academic freedom may have a chilling effect on expert witnesses. That can only hurt the court system, which depends on experts to offer honest opinions, even if academic employers do not regard those opinions to be consistent with their political values.


Georgia Court of Appeal Rules Contractor Does Not Qualify at Expert But May Still Testify About Property Value

The Court of Appeals of Georgia has ruled that a contractor did not qualify as an expert witness, but may still offer testimony about the value of a property.

Property Damage

The Woodrums are an insured couple who suffered property damage when a large tree fell onto their roof during a thunderstorm. They went through the appraisal process with their insurer, Georgia Farm Bureau Mutual Insurance Company. After a disagreement over the appropriate value of the insurance claim, the Woodrums filed a lawsuit against their insurance carrier seeking payment for diminution in value.

The Lawsuit

The Woodrums claimed breach of contract and breach of the implied covenant of good faith and fair dealing.

The couple argued that the tree fall caused cracks in the foundation of their home, which diminished the value of their property. The couple argued that the diminished value was a covered loss under their policy that was not included in their appraisal award.

During the lawsuit, the insured couple presented their contractor who had repaired their home to testify about the diminution in their property value. The contractor opined that the value of the house had decreased by 25 percent because of the cracked foundation. The insurance company filed a motion to exclude the testimony of the contractor.

The trial court granted the motion to exclude the contractor’s testimony as both an expert and a lay witness. The trial court also granted the insurer’s motion for summary judgment on both claims because neither claim could stand without the excluded testimony.

The Appeal

The Woodrums appealed.

On appeal, the Georgia Court of Appeals held that the court did not err in excluding the contractor’s testimony as an expert witness because “[his] estimation of the diminution in value of the subject property ‘was not based on any market comparisons or related methodology’” and that the insureds “failed to establish that the methodology by which [the contractor] reached his conclusions was sufficiently reliable” to qualify him as an expert witness.

The appellate court reversed the order as to the contractor giving lay witness testimony as to value because the trial court record demonstrated that the contractor had the opportunity to form a reasoned opinion about the value of the house. The court also reversed the order of summary judgment.

The appellate court noted several facts contained within the contractor’s affidavit and deposition testimony that showed that he was qualified to give an opinion about the amount the foundation damage diminished the value of the property as a lay witness.

The court noted that the contractor was licensed; was experienced in home building and remodeling; was familiar with the costs of construction and valuation of homes; had experience inspecting homes for structural integrity and giving opinions as to value; had performed repairs to the home; and had helped build an addition to the Woodrum’s home. The court noted that the contractor’s opinion as to the diminished value of the property was based upon his experience.

As a general rule, courts allow property owners to express lay opinions about the value of their own property. It is not unreasonable to extend that rule to contractors, although doing so blurs the distinction between a lay opinion and an expert opinion. The court cited the contractor’s expertise to justify the admission of his opinion.

The appellate court’s opinion seems like an end run around the Daubert standard’s requirement that experts use a “reasonable methodology.” Questions arise about the rigid application of Daubert in cases like this one, where the expert is not a scientist. The traditional rule allows expert opinions to be based on knowledge and experience. Recognizing a contractor’s expertise in estimating the reduction in property value caused by damaged would be consistent with the traditional rule, and would not inconsistent with the flexible application that courts give to Daubert when testimony is not based on science.

Florida Computer Expert Arrested for Lying About Credentials Under Oath

Florida Supreme Court Rejects Expert Witness Challenge in Medical Malpractice Case

The Florida Supreme Court has allowed a medical malpractice case to move forward, overruling the decision by the court of appeal that a case should be dismissed because an expert witness was not qualified.

The Patient’s Death

In October 2008, 20-year-old Shunteria McIntyre of Jackson County, Florida began seeking prenatal care at Marianna OB/GYN Associates with Dr. Orlando Muniz. During her pregnancy, McIntyre visited Muniz numerous times for nausea, vomiting, dizziness, and other symptoms. She had lost 36 pounds in a period of a little more than two months.

In January 2009, McIntyre gave birth to a stillborn child. After delivery, McIntyre underwent a surgical dilation and curettage and was later discharged. Three days later, McIntyre collapsed and died.

McIntyre’s estate filed a medical malpractice against her doctors, the hospitals, and the medical practice that treated her.

Expert Witness Challenge

The McIntyre estate retained Texas obstetrician and gynecologist, Margaret M. Thompson, as its expert witness. Attorneys for the defendants challenged whether Thompson was qualified to testify as an expert.

Dr. Thompson’s affidavit and curriculum vitae stated that she was a board-certified obstetrician/gynecologist for thirty years and engaged in full-time patient care prior to her retirement in March 2008. Thompson’s retirement occurred nine months before McIntyre’s death.

Defense counsel challenged her credentials based on the fact that Thompson had been attending law school and graduate school during the years prior to McIntyre’s death. That Thompson had been in school raised the question of whether she met the requirement to be “duly and regularly engaged in the practice” of her profession. Defense counsel also challenged whether they had been improperly denied additional information about Thompson’s background.

The circuit court dismissed the case, ruling that Thompson was not legally qualified to provide and expert opinion and the McIntyre estate had not properly complied with the discovery process. The First District Court of Appeal affirmed. McIntyre’s estate appealed to the Florida Supreme Court.

Supreme Court Ruling

In a majority opinion by Justice Barbara Pariente, the Florida Supreme Court rejected the circuit court’s opinions. The court wrote, “Her long career included serving as chief of the OB-GYN department at a large medical center and chief of staff at a small women’s hospital. . . . In short, Dr. Thompson is just the type of expert that the Legislature would consider is qualified.” Pariente was joined by justices R. Fred Lewis, Peggy Quince, and Jorge Labarga.

Chief Justice Charles Canady filed a dissenting opinion, voicing his concern that Thompson had not been “duly and regularly engaged” in practicing obstetrics and gynecology when she had provided her affidavit in 2011. Canady wrote, “The record reveals that at the time Dr. Thompson executed the affidavit, she had been retired from her OB/GYN practice for more than three years and by all indications had transitioned (or was transitioning) into a new career. . . . The fact that Dr. Thompson had a lengthy career as an OB/GYN before retiring in March 2008 does not defeat the plain language of the relevant statutes.” Chief Justice Canady was joined in his dissent by justices Ricky Polston and Alan Lawson.

Florida Computer Expert Arrested for Lying About Credentials Under Oath

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

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

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

Facts of the Case

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

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

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

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

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

Lower Court Rulings

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

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

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

Treating Physicians as Expert Witnesses

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

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

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

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

The Distinction Between Treating Physicians and Retained Experts

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

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

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

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

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

Cumulative Testimony

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

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

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

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

Rebuttal Testimony

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

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

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

Wooden Mallet and flag Of New Jersey

New Jersey Adopts Daubert Standard in Accutane Appeal

The New Jersey Supreme Court has ruled that plaintiff expert testimony was properly excluded  in a mass tort case alleging that the anti-acne drug Accutane causes severe gastrointestinal problems.  In doing so, New Jersey became the most recent state to have adopted the federal government’s Daubert standard as the law governing when to admit expert testimony into evidence.

The Accutane Lawsuits

Over 2,100 New Jersey plaintiffs sued Hoffman-La Roche Inc., alleging that its prescription anti-acne drug Accutane caused them to develop severe gastrointestinal problems. Accutane was introduced to the market in the1980s and taken off the market in 2009. Hoffman-La Roche denied that Accutane is dangerous and said that it stopped selling Accutane for “business reasons.” Litigation surrounding the marketing of a dangerous drug is the kind of “business reason” that generally results in a decision to stop marketing the drug.

These lawsuits were consolidated in 2003. The plaintiffs introduced experts and studies to show that Accutane caused IBD, which becomes Crohn’s disease or ulcerative colitis. The trial court excluded the testimony of two of the plaintiffs’ experts, Dr. Asher Kornbluth and Dr. David Madigan.  Dr. Kornbluth is a board-certified gastroenterologist and professor of medicine at Mount Sinai who opined that the Bradford Hill criteria supported the conclusion that Accutane causes Crohn’s disease.  Dr. Madigan is a statistician with experience in biostatistics who opined that taking Accutane was associated with an increased risk of developing Crohn’s disease.

The Appellate Division ruled that the trial court had improperly excluded the testimony of Dr. Kornbluth and Dr. Madigan. In reversing the trial court, the panel of judges said that the trial court had been wrong to conclude that the experts had ignored epidemiological studies in favor of less reliable evidence. The panel stated that it was the judge’s duty “to weed out ‘junk science,’ not to shield jurors from hearing expert testimony that is scientifically-based but unpersuasive to the trial judge.”

Hoffman-La Roche appealed the ruling to the New Jersey Supreme Court and urged the court to adopt the Daubert standard set by the U.S. Supreme Court’s 1993 decision, Daubert v. Merrell Dow Pharmaceuticals.

The Daubert Standard

The Daubert Standard is a standard used by trial court judges to determine whether a proposed expert’s testimony is based on reasoning or methodology that is scientifically valid and can be properly applied to the facts at issue. Under the Daubert standard, a judge will consider the following factors to determine whether a methodology is valid: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.

The Supreme Court’s Ruling

A unanimous New Jersey Supreme Court said that the trial court did not abuse its discretion in excluding the plaintiffs’ experts. In doing so, the court adopted the federal Daubert standard. The Daubert standard sets a high standard for the use of experts in product liability cases.

General counsel for Hoffman-La Roche, Dr. Gottlieb Keller, said, “Today’s decision is a victory for patient health and for good science. As the American Medical Associate aptly said in this case, ‘Patients, physicians, and our system justice all suffer when courts permit outlier experts to confuse juries with disproven theories based on scientifically unsound methodologies that contradict peer-reviewed medical studies.’” On the other hand, the court’s ruling raises the question whether justice suffers when judges substitute their own view of the evidence for a view that a jury might reasonably take.

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NJ Will Not Allow Experts to Testify About How Children Act After Sexual Abuse

The New Jersey Supreme Court will no longer allow experts to testify about a theory that describes how some children act after sexual abuse.

The Child Sexual Abuse Accommodation Syndrome Theory

The Child Sexual Abuse Accommodation Syndrome theory, or CSAAS, was proposed by Dr. Roland Summit in 1983. Dr. Summit proposed the theory to describe how he believed that sexually abused children responded to sexual abuse. Dr. Summit suggested that there were five stages: secrecy, helplessness, entrapment and accommodation, delayed disclosure, and retraction.

At least 40 states and Washington, D.C. allow testimony on CSAAS. New Jersey courts began allowing testimony on CSAAS in 1993.

State v. J.L.G.

In the case of State v. J.L.G., the Hudson County prosecutor’s office charged a man with aggravated sexual assault of his teenage stepdaughter over an 18-month period. The stepdaughter originally denied that any abuse had happened, supposedly because her mother had threatened to kill J.L.G. “if he’s doing something.” The girl later stated that abuse had occurred and used her phone to record one of the incidents. A jury convicted J.L.G. of first-degree aggravated sexual assault; third-degree aggravated criminal sexual contact; second-degree endangering the welfare of a child; and third-degree witness tampering.

J.L.G. appealed his conviction, arguing that expert testimony on CSAAS should have been excluded from his trial. The New Jersey Supreme Court accepted the case, but sent it to the trial court for an evidentiary hearing. At the hearing, the State presented two experts who testified about the use of CSAAS in child sex abuse matters. J.L.G. presented two experts who disagreed with the use of CSAAS.

Judge Peter F. Bariso, Jr. presided over the hearing. Judge Bariso determined that the State “failed to provide sufficient evidence to prove a general acceptance of CSAAS among clinical and research psychologists” and concluded that “CSAAS did not meet the Frye standards for admissibility and should no longer be used in child sexual abuse cases.”

Following the evidentiary hearing, the New Jersey Supreme Court ruled that “Based on what is known today, it is no longer possible to conclude that CSAAS has a sufficiently reliable basis in science to be the subject of expert testimony…. We therefore hold that expert testimony about CSAAS in general, and its component behaviors other than delayed disclosure, may no longer be admitted at criminal trials.”

Response to the Ruling

J.L.G.’s attorney, Joe Russo with the Office of the Public Defender, commented that “Pseudo-science, junk science, unreliable science has no place in the courtroom.”

Dr. Lynn Taska, a psychologist who gave expert testimony on CSAAS in State v. J.L.G. stated that CSAAS testimony is an important tool that prosecutors use to remind adult juries that children may act differently than adults for no apparent reason. She said, “It’s really important that jurors understand that when they see that kind of behavior, that doesn’t mean it’s fake… I worry that kids won’t be believed if the disclosure doesn’t look like a perfect statement.”

It is, however, common knowledge that children do not act like adults. Expert testimony is not admissible to tell jurors what they already know. And while prosecutors may regard CSAAS as “important,” the justice system should never allow convictions to be based on unreliable expert evidence that increases the likelihood of a wrongful conviction.


Expert Pathologist Implicates Police Officer in Shooting

An expert pathologist has implicated a police officer in the 2014 shooting death of a 22-year-old Ohio man.

The Shooting

On August 5, 2014, Officer Sean Williams and Sergeant David Darkow responded to a 911 caller who reported that a man in Walmart had a rifle. Williams testified that the 911 dispatchers told him that the man had loaded the rifle and was pointing it at people.

John Crawford III was holding a replica-style BB/pellet rifle that he had picked up from an opened box on a store shelf. Surveillance video showed Crawford walking around the store talking on the phone with the gun in hand.

When police arrived on site, they found Crawford still holding the gun. Officer Williams shot Crawford two times in his left side. Williams testified that he shot Crawford because he “was about to” point a weapon at him. Crawford died in the hospital shortly after the shooting.

In September 2017, a Greene County special grand jury cleared Officer Williams of any criminal wrongdoing in relation to the shooting.

Wrongful Death Suit

The family of John Crawford filed a wrongful death suit against the city of Beavercreek, Walmart, Beavercreek Police Chief Dennis Evers, Officer Sean Williams, and his partner David Darkow. The lawsuit claims that Walmart was negligent for leaving the pellet rifle unpackaged and on the shelf for two days before Crawford picked it up. The suit also claims that the officers did not follow their training to determine whether the information provided by 911 was accurate before opening fire.

The city of Beavercreek retained experts to support their defense. One of the city’s experts, James Scanlon, testified that the shooting of Crawford was justified because he had turned toward the officers with an item that looked like a rifle.

When Scanlon was asked whether lethal force would have been justified if Crawford had not rotated his body and gun toward Williams, he responded that the shooting would not have been justified because there would have been no imminent threat of serious bodily harm. However, the city’s other expert testified that Crawford had never turned toward the officers.

The city also retained Dr. George Nichols II, the former chief medical examiner of Kentucky. Dr. Nichols observed the surveillance video and analyzed the bullet entry wounds.  Dr. Nichols concluded that Crawford did not turn toward Officer Williams and Sergeant Darkow before being shot.

In response to Dr. Nichols’ testimony, the Crawford family filed a motion for summary judgment. Attorneys for the Crawfords, Dennis Mulvihill and Michael Wright stated, “In a remarkable and unprecedented twist, those hand-picked experts seem to have taken the side of the Crawford family in this litigation and concluded John’s shooting never should have happened… Plaintiffs are unaware of any other case involving a police shooting where the experts hired by the officers to exonerate the officers actually implicate the officers instead.”  The motion for summary judgment is currently pending before Judge Walter Rice in  U.S. District Court for the Southern District of Ohio.