Category Archives: Expert Opinions

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 that he 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 by the trial court in a mass tort case alleging that the anti-acne drug Accutane causes severe gastrointestinal problems.  In doing so, New Jersey became the newest 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.”

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 biostatics 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 Daubertstandard 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.’”

Wooden Mallet and flag Of New Jersey

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 scientific 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 admitted 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.”

Police

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 would testify 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.

South Carolina

South Carolina Supreme Court Decides that a Surgeon Is Qualified to Testify About a Primary Care Physician’s Negligence

Like many states, South Carolina law requires the plaintiff in a medical malpractice case to obtain an affidavit from a qualified expert, before filing suit, explaining how the defendant physician breached the applicable standard of care. Many states so narrowly define the required qualifications of an expert that it has become difficult for plaintiffs to pursue legitimate malpractice claims.

The reluctance of physicians to testify against other physicians in the same practice area often dooms a plaintiff who can only proof negligence by using an eminently qualified expert who happens to practice in a related but different specialty — an outcome that may be exactly what insurance industry lobbyists who support these laws have hoped to achieve.

The question before the South Carolina Supreme Court in Eades v. Palmetto Cardiovascular and Thoracic was whether a vascular surgeon was qualified to testify that a primary care physician was negligent with regard to the diagnosis and treatment of a patient’s aneurysm. The state supreme court decided that question in favor of the patient.

Facts of the Case

Johnny Eades sought treatment for an aneurysm in his left iliac artery. About three years later, he filed a notice of intent to bring a medical malpractice claim against several healthcare providers. Eades named Dr. Paul Scudder as his expert witness and provided Dr. Scudder’s affidavit in compliance with South Carolina law.

Dr. Scudder is Board certified in surgery and surgical critical care. Dr. Scudder’s affidavit averred that Dr. Scudder is licensed to practice medicine in several states, that he currently practices and has been actively engaged in practice for more than five years.

Dr. Scudder’s practice includes the evaluation of patients with aneurysms and occluded arteries that are similar to the medical condition presented by Eades.

Dr. Scudder averred that he is familiar with the standard of care that applies to the evaluation and treatment of patients with occluded arteries and aneurysms.

Trial Court Dismissal

The trial court dismissed the lawsuit, finding that Dr. Scudder’s affidavit did not comply with South Carolina law. A pre-suit affidavit must demonstrate that the expert is:

  • board certified “in the area of practice or specialty about which the standard of care is offered,” or
  • has “actual professional knowledge or experience” in that area of practice or specialty, acquired in the active practice of, or teaching about, the area of specialty during three of the previous five years.

The statute also includes a third potential qualification: evidence that the expert “has scientific, technical, or other specialized knowledge which may assist the trier of fact in understanding the evidence and determining a fact or issue in the case, by reason of the individual’s study, experience or both.” The expert’s credentials must establish his or her expertise to render the proffered opinion.

The dismissal motion was based on the assertion that Dr. Scudder’s affidavit stated that he is certified and practices as a vascular and critical care surgeon, while the defendant physicians practice in the areas of emergency medicine and primary care. The defendants argued that they practiced in a different area of medicine than Dr. Scudder, so he could not testify about the standard of care they should have followed.

That distinction might seem meaningless to an ordinary observer, given that Dr. Scudder averred that he understands the standard of care that should apply to the evaluation and treatment of aneurysms. The fact that Dr. Scudder is a surgeon, while the defendant doctors are not, hardly seems relevant to Dr. Scudder’s ability to form an opinion that would help the jury understand what prudent doctors should do when examining a patient who might have an aneurysm.

In a sensible world, it would seem that Dr. Scudder was more qualified than he needed to be. The trial court nevertheless followed a disturbing trend by reading the statute in a hypertechnical way, without asking whether Dr. Scudder actually understood the applicable standard of care. The judge agreed with the defendants and dismissed the case.

Appellate Decision

The South Carolina Supreme Court reversed the trial court’s dismissal of the lawsuit. While the court disagreed with the trial court’s narrow interpretation of the statutory phrase “area of practice or specialty,” it focused on the statute’s third alternative: specialized knowledge and the credentials to offer an expert opinion. That alternative is much closer to the determination of expertise that applies in other areas of the law.

The court concluded that the final alternative in the statute “contemplates the production of an expert affidavit from a doctor who is not certified in and does not practice in the same area of medicine as the defendant doctor, but otherwise possesses specialized knowledge to assist the trier of fact.”

The court’s interpretation is entirely reasonable. The purpose of limiting expert opinions in malpractice cases is to assure that experts are qualified to give helpful testimony, not to protect negligent doctors by making qualified experts harder for injured patients to find.

South Carolina’s statute, as interpreted by its highest court, puts the knowledge of the witness ahead of the artificial barriers imposed by the first two alternatives. The fact that a surgeon has more training and experience than a primary care physician should not disqualify the surgeon from acting as an expert witness.

Having interpreted the statute to permit qualified witnesses to testify even if they do not practice the same specialty as the defendant doctor, the court had no difficulty deciding that Dr. Scudder was a qualified expert. His affidavit explained why his training and experience enabled him to provide opinions that would be helpful to the jury, and his credentials qualified him to identify negligent acts concerning the identification and treatment of aneurysms. Eades’ lawsuit was therefore allowed to proceed.

Gun

Trial Delayed Because of Expert’s Padded Resumé

The trial of a man accused of killing a 17-year-old girl has been delayed because his defense attorney believes that one of his expert witnesses may have falsified his resumé.

Death of Kiera Quintana

On July 15, 2017, 17-year-old Kiera Quintana was shot to death while sitting inside of a car in a grocery store parking lot.  Twenty year-old Israel Jerome Massingill was charged with first and second-degree murder, attempted first and second-degree murder, sexual assault, patronizing a prostituted child, felony menacing, third-degree assault and domestic violence in connection with the incident.

According to an affidavit, the shooting happened because Massingill owed $100 to an unnamed teenage girl.  Quintana gave the girl a ride to Massingill’s home to collect the money.  Quintana waited in the car while the other girl went into Massingill’s home.  The teen claims that Massingill pointed a gun at her and the two had sex, first consensually and the second time forced.  Massingill then agreed to be driven to an ATM to get the cash that he owed her.  In the parking lot, Massingill allegedly shot Quintana in the back of the head and shot the other teen in the arm as she tried to run away.  Quintana was pronounced dead at the scene.

Massingill’s Defense

Massingill pleaded not guilty to all charges and waived his right to a speedy trial. He was set for a trial date of August 27, 2018.  Defense attorney Steve Laiche noted that it might be difficult for him to arrange for testimony by his witnesses, who were from out of the area, by that date.  District Judge Gretchen Larson said that Laiche could seek a later trial date if he was unable to arrange for testimony by the date of the trail.

In a motion filed on July 12, defense attorney Steve Laiche asked for the trial to be postponed due to irregularities with one of the defense expert witnesses.  Laiche wrote, “Counsel recently discovered that a purported expert working for Mr. Massingill may not have the training and experience as he represented to counsel…This witness conducted examinations of evidence, photographing the scene and other items. All of his work may need to be repeated.”

At a hearing on the the matter before Judge Larson, Laiche shared that the man whose resumé was in question was expected to be “central” to Massingill’s defense at trial. Mesa County District Attorney Dan Rubinstein did not object to the request to postpone the trial and Judge Larson rescheduled the trial for February 2019.

After the hearing, Rubinstein said that the allegations against the defense expert were “concerning if true.”  Rubinstein said that his office is looking into whether the prosecutors have ever called this man to testify at trial because of the potential impact that it would have on those criminal cases.  Rubinstein stated, “I don’t have any personal information, and my office is not in possession of any information at this point that would show that the allegations are true.”

Tennessee

Expert Testifies That Lethal Injection Causes Suffering

An expert pathologist has testified that executed inmates in Tennessee suffered symptoms similar to those who died by drowning, which may constitute unconstitutional torture under the Eighth Amendment.

The Eighth Amendment to the United States Constitution

The Eighth Amendment (Amendment VIII) of the United States Constitution was adopted as part of the Bill of Rights in 1791.  It states that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  The United States Supreme Court has ruled that the Eighth Amendment also applies to the states through the Fourteenth Amendment.

In Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan wrote, “There are, then, four principles by which we may determine whether a particular punishment is ‘cruel and unusual’.”  First, the “essential predicate” is “that a punishment must not by its severity be degrading to human dignity,” especially torture. Second, “a severe punishment that is obviously inflicted in wholly arbitrary fashion.”  Third, “a severe punishment that is clearly and totally rejected throughout society.”  Fourth, “a severe punishment that is patently unnecessary.”

Because of the Eighth Amendment, the Supreme Court has ruled that certain punishments are forbidden regardless of the crime, some punishments are forbidden for certain crimes, and special procedures must be followed in death penalty cases.

Planned Execution of Billy Ray Irick

Billy Ray Irick is a 59-year-old man from Knox County, Tennessee who has been convicted of the 1985 rape and murder of a 7-year-old girl.  Irick is the next person who is scheduled to be executed by the state of Tennessee.  Irick’s scheduled execution was on August 9, 2018.

Irick’s attorneys hired expert pathologist Dr. Mark Edgar to explain why they believe that certain lethal injection drugs constitute unconstitutional torture.  Dr. Edgar is a pathologist at Emory University. Dr. Edgar analyzed 27 autopsies of inmates who were executed using a drug called midazolam.  Tennessee plans to use midazolam as part of the three-drug cocktail that will be used to execute Irick.

Dr. Edgar testified that his analysis of the autopsies showed that inmates were able to feel immense pain throughout their executions.  Dr. Edgar said that 23 of the 27 autopsies that he reviewed showed signs of pulmonary edema.  Someone who suffers from pulmonary edema will show signs of bubbles, froth, or foam in the lungs or airways.

Dr. Edgar said that “I was struck by the abnormalities in the lung…In addition to that, the majority of them — over 85 percent of them — showed pulmonary edema…It’s a medical emergency, and it’s a state of extreme discomfort.”

The Tennessee Department of Correction disagrees with Dr. Edgar’s finding.  The state argues that midazolam renders an inmate unconscious and unable to feel pain.  The state plans to call a different medical expert who will testify that Tennessee’s proposed three-drug protocol does not constitute unconstitutional torture.  In the state’s brief, they cited a 2015 United States Supreme Court ruling arguing that, “Inmates challenging a state’s method of execution must meet a ‘heavy burden’ … so much so that the Supreme Court has never invalidated a state’s chosen method of execution as cruel and unusual punishment.”

Dog

Forensic Experts Testify About Timeline of Dogs’ Death

A forensic pathologist and forensic entomologist offered important timeline testimony in the trial of a man who is charged with killing two dogs.

The Dogs’ Death

On November 22, 2014, a landscaper found a black trash bag on top of a pile of leaves that he had collected.  The landscaper was curious about the contents, so he opened the bag.  Inside, he found the bodies of two 20-week-old dogs. The landscaper immediately called the police, who began an investigation.

The police investigated the death of the dogs by sharing photos on Facebook.  A series of tips led the police to Jason Gentry, who ran an unlicensed North Shore kennel and Dominick Donovan, who had created the mixed breed of guard dog that the dogs belonged to.

Criminal Charges

Gentry and Donovan were arrested and charged with two counts of cruelty to animals and two counts of malicious killing of animals.  Gentry was also charged with five additional counts of animal cruelty and one count of operating an unlicensed kennel.  Both men initially pleaded not guilty and blamed the other for the death of the dogs.  Gentry later pleaded guilty to animal cruelty and other charges under a cooperation agreement.  Donovan’s case went to trial.

Trial Testimony

At Donovan’s trial, Gentry testified that during Donovan’s trip to Salem on November 1 and November 2, 2014, he watched Donovan kill the two dogs by hanging them from a garage door railing.  Gentry said that he watched Donovan drive away with the dogs’ bodies in a trash bag in the trunk of his car.  The bodies of the dogs were not found for almost three weeks.

The landscaper who found the dogs and other witnesses testified that the dogs showed no signs of decomposition.  A veterinarian who testified for the prosecution suggested that it was possible that the dogs had not started to decompose.  The temperature during November had been cool and had dipped below freezing several times.

Donovan’s defense team presented its own witnesses who testified that it was unlikely that the dogs could have been dead for 20 days without showing some signs of decomposition.

Forensic Expert Testimony

Dr. Priya Banerjee, a forensic pathologist and assistant medical examiner for the state of Rhode Island testified as a defense witness.  Dr. Banerjee said that it would be unusual for any body to not show signs of decomposition such as an odor or bloating within a day or two of death. Dr. Banerjee acknowledged that the decomposition process could have been slowed by cold temperature, but said decomposition still should have occurred.  The temperature at the time had averaged 48 degrees.  Dr. Banerjee testified that the fact that the bodies did not have an odor suggested that the bodies had been found “much closer to the time of death” than the three week time period that had passed from when Donovan had allegedly killed the dogs.

The defense team also called Maria Gemmellaro, a forensic entomologist from Rutgers University to testify.  Gemmellaro has previously done training and consulting for the FBI.  Gemmellaro testified that it would take just minutes for flies to find and lay eggs on a body once exposed.  The necropsy that was performed on the dogs showed no evidence of flies, fly eggs, maggots, or beetles.

Glyphosate

Judge Limits Cancer Expert Testimony in Monsanto Trial

A state judge will not allow a cancer-risk expert to testify about the amount of exposure to glyphosate that California has determined causes cancer in the trial over whether Monsanto’s weed killer is carcinogenic.

The Lawsuit

In 2016, DeWayne Johnson sued Monsanto after he developed non-Hodgkin lymphoma. Johnson, 46, is the father of three and a former school groundskeeper. Johnson began developing lesions and rashes on his skin after he was regularly exposed to Monsanto’s weed killer Roundup. Johnson claims that Monsanto has known for decades that Roundup causes cancer, but that it has hidden this from the public.

Johnson’s suit is one of thousands of plaintiffs who have filed suit against Monsanto, alleging that exposure to Roundup caused them or their loved ones to develop non-Hodgkin lymphoma. These suits challenge Monsanto’s claim that its herbicides are safe. The lawsuits argue that Monsanto has known about the dangers of their products, but have hidden them from the public. Johnson’s case will be the first to go to trial and is considered the bellwether for other cancer cases that have been filed against Monsanto.

Expert Testimony

Johnson’s attorney Brent Wisner hired Christopher Portier, a highly regarded expert in cancer-risk assessment to testify at trial. Judge Suzanne Ramos Bolanos ruled that Portier will be restricted from testifying about the amount of exposure to the active ingredient in Roundup that California has determined causes cancer. Judge Bolanos agreed with Monsanto’s lawyers who argued that Johnson’s attorneys were trying to sneak the topic into evidence, despite a pretrial ruling that barred testimony about California’s Proposition 65.

Proposition 65 requires manufacturers to put warning labels on products that contain chemicals that the state believes cause cancer. California added glyphosate to its Proposition 65 list last year based on the World Health Organization’s International Agency for Research on Cancer finding that glyphosate is a probable carcinogen.

Judge Bolanos said that “Monsanto was never put on notice for that…To introduce this now is highly prejudicial, because they didn’t have the opportunity to cross-examine him [the expert] and they didn’t have the opportunity to call their own expert to discuss the significance or the lack of significance of the NSRL listing, which can be misleading to the jury unless it is completely explained to them.”

The NSRL (or No Significant Risk Level) is the daily intake level that California regulators have determined will result in no more than one excess case of cancer in a population of 100,000 exposed people. The NSRL for glyphosate is 1,100 micrograms per day.

Portier was permitted to testify about 13 rodent studies that led him to conclude that glyphosate causes non-Hodgkin lymphoma in humans. Portier described one study where mice developed kidney adenomas, carcinomas, malignant lymphomas, and malignant tumors. Portier noted that some studies found tumors in tissue in which they didn’t belong. Portier said that the occurrence of this is so rare that “the causation argument — ‘did this chemical cause this tumor’ — is very high.”

Update

Jury awards $289M to former school groundskeeper who blames weed killer Roundup for cancer

Texas Paid Experts $500,000 in Abortion Law Challenges

The Texas Attorney General’s Office has spent over $500,000 on experts to defend the state’s abortion restrictions.

Texas Abortion Restrictions

In 2013, the state of Texas began enacting a series of abortion laws and restrictions. Texas banned abortions after 20 weeks, limited the use of an abortion drug, required doctors who perform abortions to have admitting privileges at a nearby hospital, and required abortion clinics to meet the standards of ambulatory surgical centers. The 2013 laws caused about half of the state’s 41 abortion clinics to close. In 2017, Texas enacted additional restrictions, mandating that health care facilities bury or cremate fetal remains from abortions.

Planned Parenthood and Whole Woman’s Health, the largest abortion providers in Texas, have sued the state five times challenging these restrictions. In four cases, the laws were temporarily blocked and the rulings are on appeal. The fifth case ended up in the United States Supreme Court, where the Court struck down the laws as unconstitutional.

Writing for the majority, Justice Stephen Breyer wrote that the regulations which required abortion providers to obtain hospital admitting privileges and comply with the standards of surgical centers, were medically unnecessary and placed an unnecessary burden on the right to obtain an abortion. Justice Breyer wrote:

We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes…. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution.

Attorney General’s Experts

The Houston Chronicle reported that the Texas Attorney General’s Office has paid 21 expert witnesses to testify in these abortion cases since 2013. According to the court records, six of these experts were disregarded by the judges who were presiding over the cases. The judges dismissed some of the state’s experts for lack of medical or scientific credentials, unfamiliarity with the laws at issue, or for expressing personal opinions rather than expert opinions.

In the case regarding the state’s attempt to require the burial of fetal remains, the attorney general’s office hired Jeffrey Bishop, a philosophy professor at Saint Louis University, to testify in its support.  Bishop testified that, “The state has the responsibility to uphold the dignity of human beings… It seems to me that grinding and washing tissue down the drain that was at one time part of human life is not a dignified way of disposing of those materials.”  Bishop said that he had not read the rule because it was “very complicated to read.” U.S. District Judge Sam Sparks disregarded Bishop’s opinion, saying “He has no credibility with me whatsoever. He didn’t have any substantive knowledge at all about this case…. He’s just giving an opinion.” And an uninformed opinion, at that.

A spokesperson for Attorney General Ken Paxton defended the office’s choice of experts. Paxton said that the office chooses “an array of highly qualified and esteemed experts — some with pro-choice views — with multiple Ivy League degrees, numerous published articles, and years of hands-on practice in clinical and academic settings.”