Category Archives: Expert Opinions

Black Lungs

Fourth Circuit Rules Expert Has Immunity

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.


Appellate Court Upholds Admission of DRE Testimony

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%. 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% 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.


Shark Expert Testifies in Animal Cruelty Case

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.”

Sexual Assault

Judge Allows Psychologist Testimony in Sexual Assault Case

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

The Alleged Assault

In June 2017, a 20-year old woman claimed that she was assaulted at Tony Cercy’s home at Alcova Lake. The woman claimed that she woke around 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.

Woman legs walking on the beach sand

Expert Witness Opines in Toplessness Trial

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

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

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

Civil Rights Suit Filed

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

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

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

Expert Report

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

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

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

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

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

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


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

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

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

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

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

Expert Opinions

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

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

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

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

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

Challenge to Expert Opinions

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

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

Standard of Care Experts in New Jersey

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Net Opinion Rule

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

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

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

Justice Scales

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

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

The Rape Case

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

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

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

Plymouth State University Reaction

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

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

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

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

Reaction to University’s Actions

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

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

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

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


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

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

Property Damage

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

The Lawsuit

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

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

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

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

The Appeal

The Woodrums appealed.

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

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

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

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

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

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

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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.

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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.