A Lapeer County Prosecutor has requested that he be allowed to admit evidence relating to an animal’s genetics into court without presenting an expert to testify about this evidence at trial.

The Incident

On July 7, a black husky and another dog owned by Geuorgui Shopov were running loose in Attica Township, Michigan. The two dogs killed four roosters, four fully-grown guineafowl, and two rabbits belonging to an Attica resident. The reported damages were $260.

On July 11, the Lapeer County Animal Control Dept. took custody of the black husky. Shopov was charged with violation of the Wolf-Dog Cross Act. In relevant part, the act prohibits owning, possessing, breeding, or offering a wolf or wolf-dog hybrid for sale.

CHAPTER 287. ANIMAL INDUSTRY. WOLF-DOG CROSS ACT.

Sec. 4. (1) A person shall not possess 1 or more wolf-dog crosses unless all of the following apply:

(a) The person owns the wolf-dog crosses or has temporarily been given possession of the wolf-dog crosses by the owner.

(b) The owner was in possession of those individual wolf-dog crosses on the effective date of this act.

(c) The owner applies for a permit for those wolf-dog crosses within 4 months after the effective date of this act, and obtains a permit for those wolf-dog crosses. The permit applies only to those individual wolf-dog crosses. The permit is not transferable to another person except through testate or intestate succession. The permit is valid in any local unit in which the possession of the wolf-dog cross is not prohibited by ordinance.

Violation of the Wolf-Dog Cross Act is a misdemeanor that is punishable by up to 93 days in prison, 500 hours of community service, the loss of the privilege to own any animal, and a $250-1000 fine.

Expert Testimony

The Lapeer County Animal Control sent a genetic sample from the animal to the Veterinary Genetics Laboratory at the University of California-Davis for forensic analysis. The lab determined that the animal is a wolf-dog hybrid. Introduction of this evidence normally requires an expert witness to substantiate it.

Assistant Prosecutor Tom Sparrow filed a motion with the court requesting that the court allow the introduction of this evidence without the need of an expert witness. The cost to secure the testimony of the Veterinary Genetics Laboratory Director, Dr. Christina Lindquist, as an expert witness at trial would be $2,000 per day of testimony, plus $50 per hour of travel, plus the costs of travel, meals, and lodging. However, Sparrow stressed that the Board should consider spending the money on the expert if the court does not allow the introduction of the testimony without an expert. The motion with the court is still pending,

Lapeer County Board of Commissioners would like to achieve the conviction without the use of an expert witness. County Commissioner Ian Kempf stated, “I think it’s clear we don’t want a wolf-dog hybrid in our community, but if we can achieve that with the information in front of us without spending taxpayer money (we should).”

A fair trial depends on the ability to cross-examine witnesses. A lab report cannot be cross-examined. If the county thinks the offense is worth prosecuting, it will probably be required to spend the money to give the defendant a fair trial.

Expert witnesses cannot agree about whether a man who pleaded guilty to murder is mentally fit to face the death penalty.

The Crime

In February 2010, a group of six men held 30-year-old Jennifer Daugherty captive for more than two days. Daugherty was beaten and tortured, bound with Christmas lights, and stabbed to death. Her body was then stuffed into a garbage bin and thrown in a snow-covered parking lot.

Melvin Knight pleaded guilty to first-degree murder for his role in Daugherty’s death. He was sentenced to die by lethal injection, but the sentence was overturned and a new trial was ordered to determine his fate.

Sentencing Testimony

Defense expert Christine Nezu, a clinical psychologist from Philadelphia, testified that Knight was not able to function in society and “profoundly adaptively impaired.” She said, “I believe Melvin has severe deficits and trouble adapting to the real world.” Nezu maintains that Knight did not have the capacity to appreciate his conduct, his emotional and mental ages ranged between 9 and 12, and he was very susceptible to domination by another person.

Knight’s defense team has argued that he was under the influence of his co-defendant Ricky Smyrnes when he participated in the beating, torture, and stabbing of Daugherty.

In preparation for the trial, the prosecutors hired New York mitigation specialist Jennifer Wynn to research Knight’s background in preparation for the trial. Wynn is an associate professor of criminal justice at City University in New York. Wynn was paid $7,117 for her work.

Prosecution expert Bruce Wright testified that Knight knew right from wrong, could function adequately, and is not intellectually impaired. Wright testified that Knight has been working in the prison cafeteria, taking classes to learn skills, and regularly visiting the prison law library. His intelligence scores range between 77 and 97, which indicate that he is not disabled.

Wright testified that Knight was diagnosed with depression, psychosis, substance abuse, attention deficit disorder, and antisocial behavior. He said, “He had the capacity to appreciate his criminal conduct. He chose not to, but he had the capacity.”

District Attorney John Peck described Knight as a mean, vengeful, and vindictive man that deserved to die. He argued that Knight’s actions were to protect his own self-interest and hide the crimes that he had committed against Daugherty, including allegations that he raped her. Peck told the jurors, “The defendant crossed the line. He knew if he didn’t keep this darkness to himself, all his actions were motivated to prevent this rape from being discovered by anyone.”

Jurors also heard testimony from Knight’s mother, Yolanda Rue. Rue testified that her son had been dealing with mental health issues since the age of six. She said that she enrolled Knight in special education classes and special schools to deal with his special needs. Rue testified, “He couldn’t be without supervision because of poor choices he made. He could be talked into anything if he thought it was fun.”

After the sentencing hearing, a jury of six men and six women deliberated several hours before determining that Knight should be sentenced to death for his role in Daugherty’s killing.

A court has rejected the expert testimony of a Texas clinical psychologist who was brought in to testify on race-related trauma in the sentencing trial of a man who was convicted of first-degree murder.

The Shooting

On August 1, 2015, Marquis Wright stepped out of his relative’s house to smoke and noticed a relative’s car in front of the house parked in the wrong direction. A few minutes later, a Memphis police cruiser pulled up and shined a light on the car. Wright testified that his relative jumped out of the car, leaving the door open and ran away on foot. The police officer pulled Tremaine Wilbourn out of the passenger side of the car.

Wright would testify that Wilbourn and the police officer began to fight. Wright said, “He tried to push the officer off, pulled his gun out and started shooting.” The officer, Sean Bolton, died that night. An autopsy showed that he was shot eight times.

Wilbourn was charged with first-degree murder in connection with Officer Bolton’s death and the state sought the death penalty.

The Trial

A jury convicted Wilbourn on charges of first-degree murder, using a firearm in the commission of a dangerous felony, being a convicted felon in possession of a handgun and carjacking.

At Wilbourn’s sentencing hearing, a member of his legal team and a mitigation specialist, Laurie Hall, testified about Wilbourn’s traumatic childhood. Hall told the jurors about his mother who had multiple arrests for prostitution and drugs and about an incident where his mother dropped him off at a children’s hospital and never came back.

Hall also detailed Wilbourn’s mental health history. He asked for mental assistance, but didn’t receive an appointment until July 2015, when he was diagnosed with depression with psychotic features and post traumatic stress disorder.

Wilbourn’s defense team also presented a Texas clinical psychologist to testify about race-related trauma. Psychologist Erlanger Turner was questioned by Judge Lee Coffee when the jury was out of the courtroom. Under questioning, Turner acknowledged that race-related trauma is not recognized by the scientific community. Turner also said that his research focuses on police shootings, but admitted that he was not aware that this case did not involve a police shooting, that Officer Bolton never fired at Wilbourn, and that Bolton’s gun never left his holster.

Judge Coffee ruled that Turner’s testimony was inadmissible. He said that he would not create a new section of the law that says “if you are a black male, you have the right to shoot a police officer, kill a police officer and then say, ‘I did this because I am suffering from racial-induced trauma.’” Of course, that is a mischaracterization of the testimony that the expert would have given.

After hearing all of the mitigating evidence, the jury sentenced Wilbourn to life in prison without parole. Following the sentencing hearing, Officer Bolton’s brother released a statement saying, “ We would like to thank the men and women of the jury, Judge Coffee, officers of the court and the Shelby County District Attorney’s Office. We would also like to thank the men and women of law enforcement in Shelby County who work so diligently to serve and protect. We see the sacrifices you and your families make to keep our community safe. Nothing can bring Sean back to us, but we take comfort in the fact that his murderer can never cause harm to anyone else in our community.”

The Fourth Circuit has dismissed a lawsuit filed by the families of coal miners who were denied benefits for black lung disease after a doctor insisted that X-rays did not show the disease.

The Johns Hopkins Black Lung Program

Miners who were diagnosed with black lung disease were eligible for benefits through a federal program. Black lung is an incurable and potentially fatal disease that is triggered by breathing coal dust.

The Johns Hopkins Black Lung Program was headed by Dr. Paul Wheeler. In the over 1,500 cases where he offered an opinion, Dr. Wheeler did not find a single case of black lung. In 2013, the Center for Public Integrity and ABC News published an investigation that reported hundreds of cases where Dr. Wheeler or staff said a miner did not have black lung after other doctors confirmed a diagnosis.

Johns Hopkins has since terminated its program.

The Class-Action Lawsuit

In 2016, the family members of coal miners who were denied benefits for black lung disease filed suit against Johns Hopkins Health System, Johns Hopkins Hospital, Johns Hopkins Imaging, Johns Hopkins University, and Dr. Paul Wheeler. Dr. Wheeler is a radiologist and agent of Johns Hopkins who acted as an expert witness in administrative hearings for the Federal Black Lung Program.

The lawsuit included a federal claim under the Racketeer Influenced and Corrupt Organizations Act (RICO) as well as state law claims for fraud, tortious interference with economic interests, negligent misrepresentation, and unjust enrichment.

The families’ attorney argued that Wheeler and the black lung unit at John Hopkins believed that they were “above the law” when Wheeler disregarded regulations on how to interpret X-rays to diagnose black lung disease.

The district court dismissed each of the claims on the basis of the Witness Litigation Privilege, which protects witnesses who testify in judicial and quasi-judicial proceedings from later civil liability.

The Appeal

The appeal went before a three-judge panel of the 4th Circuit Court of Appeals. In a 2-1 decision, the panel upheld the ruling of the trial court, finding that expert witnesses are shielded from civil liability under Maryland and federal law.

The panel noted that “Immunity for witnesses ― commonly known as the Witness Litigation Privilege ― is a longstanding and necessary part of the common law’s approach to adversarial adjudication. In fact, ‘the immunity of parties and witnesses from subsequent damages liability for their testimony in judicial proceedings was well established in English common law.’”

The panel stated that, “When a witness takes the oath, submitting his own testimony to cross-examination, the common law does not allow his participation to be deterred or undermined by subsequent collateral actions for damages. The vital protection afforded all participants in litigation is unwavering. It is a bedrock of our law today just as it was centuries ago.”

The panel then ruled that the allegations against Dr. Wheeler and his team fell squarely within the scope of the Witness Litigation Privilege because the hearings were quasi-judicial in nature and the allegations related to Dr. Wheeler’s testimony and opinions that he offered in the BLBA proceedings.

The North Carolina Court of Appeals ruled that a trial court did not err by admitting expert testimony from a drug recognition expert (DRE) in an impaired driving trial. Usually, a DRE provides probable cause to justify an arrest, while a subsequent blood test establishes that the defendant had consumed a controlled substance.

In most cases, a jury infers impairment from drug consumption, bad driving, and other indicia of intoxication. Whether a DRE should be allowed to offer an expert opinion as to impairment is, at best, a controversial issue. When a court allows a DRE to testify, defense attorneys should be prepared to counter the testimony with experts of their own.

Facts of the Case

Stacie Fincher uses prescription medications to control her bipolar disorder. During the early morning hours of February 10, 2015, she took another prescription medication, Xanax, to help her sleep.

Stacie drove to her doctor’s office for a follow-up examination related to her ankle surgery. She then drove to a pharmacy to pick up a prescription. She was in a fast food drive-thru lane when her foot slipped off the brake and she rear-ended another car.

Two Asheville police officers who responded to the scene testified (as officers invariably do when they make an impaired driving arrest) that Stacie had glassy eyes and slurred speech. Stacie admitted that she had taken Xanax several hours earlier.

One of the officers administered field sobriety tests to Stacie, including the Horizontal Gaze Nystagmus (HGN) test. He determined that Stacie had the maximum number of points on that test, which is supposedly a sign that the test subject has a prohibited blood alcohol concentration.

Relying on shaky science, the National Highway Traffic Safety Administration (NHTSA) “validated” the HGN as a means of determining probable cause that a driver’s blood alcohol concentration exceeds 0.08{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4}. A notable fact overlooked by the court of appeals is that the NHTSA developed the HGN to detect a prohibited blood alcohol concentration, not to detect impairment from drug use.

Since Stacie was wearing an ankle boot, the officer did not have her perform the other standardized field sobriety tests, which are only valid if an individual has the ability to walk normally regardless of alcohol or drug ingestion. The officer administered a preliminary breath test and found that Stacie had consumed no alcohol.

The officer arrested Stacie for driving under the influence of drugs based on her glassy eyes, slurred speech, the HGN test, her admission to taking Xanax, and the fact that she had been in an accident. She agreed to have her blood drawn.

DRE Evidence

The arresting officer then had Officer Scott Fry, a certified DRE, perform a twelve-step evaluation of Stacie. A DRE is trained and certified by the police. A DRE completes a course that teaches the officer to administer a twelve-step drug evaluation and classification protocol that theoretically determines whether a suspect is impaired by the consumption of a drug, and to classify the drug that caused the impairment.

At Stacie’s trial, Fry testified that Stacie’s blood contained “measurable amounts” of Xanax. The fact that a “measurable amount” of a drug is present in blood, however, does not establish that a sufficient quantity of the drug was consumed to impair safe driving.

Fry also testified about his conclusions as a DRE. The defense apparently offered no expert testimony to challenge the scientific validity of drug recognition evidence.

The court instructed the jury that Xanax is an “impairing substance,” although whether an “impairing substance” has actually caused an impairment is a different question. The jury found Stacie guilty of DWI.

Appellate Opinion

In a cursory opinion, the court of appeals concluded that the DRE’s testimony was admissible, and that the evidence was sufficient to prove that Stacie was impaired by her consumption of Xanax. The opinion is not a model of judicial reasoning.

The court noted that Stacie’s eyes were red and glassy and that her speech was slurred, but pointed to no evidence that Xanax causes those side effects. The court cited Stacie’s performance on the HGN test but failed to acknowledge that no peer-reviewed scientific literature validates the HGN as evidence of impairment resulting from the consumption of Xanax.

The court also noted that Stacie rear-ended another car, but hundreds of people are involved in rear-end accidents every day, most of whom are not impaired. That leaves the DRE’s testimony as the critical evidence of Stacie’s guilt.

North Carolina law generally follows the Daubert standard, but in an apparent effort to make it easier for prosecutors to obtain DWI convictions, North Carolina does not require the same standard of reliability for DRE evidence. The state legislature apparently concluded that protecting corporations from money damages was more important than protecting individuals accused of crime from imprisonment.

A North Carolina statute allows a “witness who has received training and holds a current certification as a Drug Recognition Expert” to offer an opinion “whether the person was under the influence of one or more impairing substances, and the category of such impairing substance or substances.” The “category” into which Xanax falls is “central nervous system (CNS) depressant.”

A study shows that DRE-trained officers are able to correctly identify a test subject as being under the influence of a CNS depressant only 42{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the time. It is startling that the North Carolina legislature concluded that being right less than half the time is good enough for North Carolina criminal cases.

Since the DRE who examined Stacie had a certificate, the court determined that his testimony was properly admitted. Whether his methodology was reliable, the court decided, was a question that the North Carolina legislature had already determined.

A DRE will always be a police officer testifying for the prosecution. North Carolina’s DRE law is plainly intended to allows officers who pass a class to help prosecutors obtain convictions by posing as experts, whether or not their testimony has any scientific validity.

The Importance of Defense Experts

Courts that apply more rigorous standards to DRE opinions often come to a different conclusion. For example, a Maryland trial court determined that DRE evidence is inadmissible under Maryland’s Frye standard because the methodology employed by drug recognition experts is “not generally accepted in the fields of medicine including specifically pharmacology, neurology, ophthalmology and psychiatry.”

The court concluded that acceptance of DRE evidence by NHTSA and the International Association of Chiefs of Police (IACP) should not be conflated with acceptance by a scientific community. The court noted that “NHTSA and the IACP are long-time proponents of the DRE program and have a vested interest in its acceptance and use.” The court probably realized that NHTSA has a long history of developing field tests that purport to be scientific without validating them using peer-reviewed, independent (not funded by NHTSA) scientific analysis under the conditions in which the field tests are actually employed.

The court examined four independent, double-blind studies that “conclusively show” that a DRE’s predictions of impairment based on the DRE protocol are “no better than chance.” Since no peer-reviewed studies accepted the legitimacy of the DRE protocol, and since it is so obviously biased to favor the police in making arrests, the court declined to admit DRE testimony as evidence of guilt.

Even when courts allow a police officer to testify as a DRE, defense attorneys have the opportunity to challenge that testimony. Medical experts can explain why no medical professional would make a judgment of impairment based on the DRE protocol. Experts in scientific methodology can explain why the DRE protocol should not be accepted as valid. A vigorous cross-examination of the DRE may be sufficient, but when a defendant can afford to hire an expert, the opportunity to raise a reasonable doubt about the DRE testimony increases exponentially.

Junk science has no place in a criminal trial. Whenever a police officer purports to give scientific testimony, it is critical for the defense to retain experts who can educate the jury about the difference between scientific methods that have been independently validated and result-oriented junk science that NHTSA or police agencies have developed to make it easier for the police to make arrests.

A world-renowned expert has testified in an animal cruelty case that the blacktip shark that was dragged behind a boat in a viral video was dead before it was dragged.

The Viral Video

In late July 2017, a viral video of three Florida boaters dragging a shark at high speed went viral on social media. The video showed a shark tied to a rope being violently dragged behind a boat at a high rate of speed. The video caused public outcry by animal activists and prompted an investigation by the Florida Fish and Wildlife Conservation Commission. In the video, one of the men appears to say “look it’s almost dead,” as he points to the shark that is flopping behind their speeding boat.

Following an investigation, Michael Wenzel, 21, Robert Lee Benac, 28, and Spencer Heintz, 23, were each charged with two felony counts of aggravated animal cruelty. Wenzel and Benac also face a misdemeanor charge of illegal method of taking a shark. A separate video taken earlier that day showed Wenzel shooting a black-tip shark in the left side of the head near the gills with a .38 caliber handgun while Benac pulled it close to the boat, according to court documents. The charges carry penalties of up to five years in prison and $10,000 in fines if convicted.

After reviewing the case, the Office of the State Attorney for the 13th Judicial Circuit decided to dismiss the charges against Heintz. Sammecia Bagley, spokeswomen for the state attorney’s office said, “Based on additional case files that were presented, they didn’t have sufficient evidence to proceed with charges.”

Expert Witness Testimony

During the investigation, investigators showed the video to three shark experts, who all concluded the shark was still alive during the incident. The experts told investigators that they saw the shark making voluntary movements, which indicated that it was alive while being dragged, but they couldn’t say with a reasonable degree of scientific certainty.

However, two defense attorneys have reported that one of the state’s experts has now testified that the shark was dead at the time of the incident.

Stephen Kajiura of Florida Atlantic University is a world-renowned shark expert who testified on behalf of the state. Kajiura holds a Ph.D from the University of Hawaii and is a professor of biological sciences at FAU.

Kajiura watched four or five videos of the trip and testified that the blacktip shark was dead before it was dragged behind a boat. When Kajiura had given his first deposition, he had only seen one video of the incident.

Attorney Charles Britt III, who represents Michael Wenzel, said, “The plain language of the statute is that it has to be alive.” The relevant animal abuse statute reads in part, “A person who intentionally commits an act to any animal … which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, commits aggravated animal cruelty.”

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 3 a.m. 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 2 a.m. and did not wake until 8 a.m. 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 3:36 a.m. and another 41 steps ending at 3:41 a.m.  Cercy’s phone also contains two videos and four photographs taken at 3:46 a.m. 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 granted 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.” The prosecutor’s argument might just as easily apply to the testimony of its own expert witness.

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.

Update: After nine hours of deliberation, the jury found Cercy guilty of third-degree sexual assault.

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.”

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.

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.