Category Archives: Expert Opinions

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

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.

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 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.

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 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.

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 prove 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 that he 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, and was qualified to help the jury understand, 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 purported 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 in 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 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.”