Category Archives: ExpertWitness

Marijuana

Cannabis Expert Witnesses Testify in Oklahoma Drug Trial

A City Councilman in Norman, Oklahoma has asked a cannabis expert witness to testify at his criminal trial where he faces charges of distributing drug paraphernalia. The expert has been called to testify that glass pipes sold in a shop where the defendant used to work can be used to smoke more than just marijuana, which supports the defense’s position that the merchandise should not be considered drug paraphernalia.

Oklahoma City Councilman Faces Drug Paraphernalia Charges

Stephen Tyler Holman, a City Councilman in Norman, Oklahoma, faces felony drug charges for his work as a manager of a shop known as the Friendly Market which sold, among other things, glass pipes which investigators concluded were for the express purpose of smoking marijuana. According to police and prosecutors, Holman violated Oklahoma law by selling paraphernalia used to ingest marijuana, which is illegal in the state. Despite a growing trend across the country which has seen eight states legalize recreational marijuana, more than half of the states legalize medicinal marijuana, and close to 60{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the public support legalization of the drug, Oklahoma law enforcement maintains a strong stance against pot.

Councilman Holman and other employees of the now-closed Friendly Market were arrested for dealing merchandise associated with marijuana after a 2015 police raid found more than 400 glass pipes. According to investigators, Holman convinced the owner of the Friendly Market to continue to sell glass pipes to customers who intended to use them for illegally smoking marijuana. Although police did not find any drugs either on the premises or on Holman, he and another employee face a single felony charge of acquiring proceeds from illegal drug activity and a misdemeanor charge of possession of drug paraphernalia.

Defense Points to Pot Experts in Criminal Trial

Central to Holman’s defense is his contention that the pipes, which were sold as “multipurpose tubes,” are not drug paraphernalia because they can be used for a variety of reasons — not just to smoke drugs. In preparation for trial, Holman’s defense team announced they would call two expert witnesses to inform jurors that the pipes sold at the Friendly Market could be used to smoke several different plants, and therefore could be sold for strictly legal purposes.

Emanuel Doshie bills himself as an expert witness in “glass work and glass art,” and is expected to tell jurors that the pipes sold by Holman are created and distributed for legal use. The prosecution’s only real evidence against the defendant is the pipes, and if the defense team can successfully demonstrate by use of a glassworks expert that the pipes are not inherently paraphernalia then the case against Holman is weakened significantly. To further this end, Holman has also tapped Howie Brounstein, who is the director of the Columbines School of Botanical Studies located in Eugene, Oregon. Brounstein is considered an expert witness in “different types of herbs, including smoking herbs,” and will tell jurors that other, legal, plants can be ingested using the pipes sold at the Friendly Market.

Cannabis Experts Highlight Diversity of Expert Testimony

As Holman’s trial continues, jurors are expected to hear testimony from the two cannabis expert witnesses during the proceedings, highlighting the expansive use of experts in the American criminal justice system. Although cannabis expert witnesses are not a common feature in criminal trials, their use  to dispute the purpose of glass pipes shows that any expert in any field can be called upon to help judges, attorneys, and jurors understand the circumstances of a case well enough to make an informed legal decision.

While Holman’s use of cannabis expert witnesses will surely provide some degree of courtroom theatrics, the judge has determined that both are qualified experts in their field who can contribute to the case without creating a distraction. The testimony has already been limited to exclude smoking demonstrations, with instructions to focus on informing jurors about the use of the glass pipes which are central to the prosecution’s case against Holman. The trial is expected to conclude in early May.

Colorado State Flag

Colorado District Court Allows Expert Testimony in Insurance Coverage Dispute

A federal district court in Colorado was asked to exclude two expert witnesses — a claims adjuster and an attorney — offered by the plaintiff in an insurance coverage dispute. After considering the insurer’s Daubert motion, the court decided that both experts should be allowed to testify.

Background

Donald O’Sullivan purchased auto insurance from Geico’s website. His policy had bodily injury liability limits of $100,000/$300,000 (per injured person/per accident), but only $25,000/$50,000 for uninsured or underinsured motorist (UM/UIM) coverage.

O’Sullivan was in an accident caused by a driver who was underinsured. O’Sullivan had more than $164,000 in medical bills. He asked Geico to pay $100,000 toward those bills. Geico tendered the $25,000 limits of his UM/UIM coverage. O’Sullivan then sued Geico for acting in bad faith, for breach of contract, and for delaying payment of his claim.

Colorado law requires auto insurers to offer the same coverage limits for UM/UIM coverage as the insured purchases for bodily injury coverage. Colorado court decisions require insurers not just to offer UM/UIM coverage in the same amount as bodily injury coverage, but to offer the coverage in a manner that will allow the insured to make an informed choice about whether or not to purchase the coverage.

O’Sullivan alleged in his lawsuit that he believed he had purchased, and intended to purchase, UM/UIM coverage with the same limits as his liability coverage. He contended that Geico failed to comply with Colorado law because it did not give him a chance to make an informed choice about his coverage limits.

Geico’s Website

Geico’s website included a table with rows listing types of coverage and columns listing coverage limits. Clicking limits for each type of coverage would adjust and display the total cost of the policy.

Hovering over the UM/UIM field produced a brief explanation of the coverage and made a longer explanation available by clicking “learn more.” The website, however, does not assure that users will hover over the UM/UIM field and does not require them to click “learn more.”

After O’Sullivan purchased his policy, Geico sent him a “Colorado Uninsured Motorist Options” form that explained his right to purchase UM/UIM coverage in an amount that did not exceed his bodily injury coverage. The form also explained that Colorado requires motorists to specifically reject UM/UIM coverage if they don’t want it. O’Sullivan did not recall receiving the form and did not read it.

Court Rejects Summary Judgment for Geico

The court decided that whether Geico gave O’Sullivan adequate notice of his right to purchase UM/UIM coverage with the same limits as his bodily injury coverage was a question for the jury to decide. Geico’s website gave O’Sullivan the option to purchase any limits up to the amount of his bodily injury coverage limits, but the court decided that a jury could find that Geico failed to provide notice in a way that was reasonably calculated to permit O’Sullivan to make an informed decision about the UM/UIM coverage limits he should purchase.

The court noted that the only specific notice Geico gave O’Sullivan of his right to purchase UM/UIM coverage that equaled his bodily injury coverage was buried in the middle of the Colorado Options form, one of 40 forms that Geico sent O’Sullivan after he had already purchased the policy. The court decided that a jury could find that the form was not reasonably calculated to inform O’Sullivan of his right to purchase higher coverage.

Opinions of Claims Expert

After deciding that O’Sullivan was entitled to a trial, the court considered Geico’s motion to strike two of O’Sullivan’s expert witnesses. The first, David Torres, is an insurance claims consultant. Through his work, Torres has become familiar with the customs and practices of the insurance industry regarding claims adjustment.

In his expert report, Torres stated that claims adjusters have a greater duty to their own policyholders than to third parties. Unlike claims made by someone who was allegedly injured by the policyholder, a claims adjuster may not take an adversarial stance toward the policyholder. Torres opined that Geico took an adversarial stance toward O’Sullivan and failed to give a clear explanation for its refusal to pay him the full $100,000 he thought he purchased.

The court determined that Torres is qualified to testify as an expert. The court noted that Torres’ methodology (applying his knowledge of industry standard to the evidence he reviewed) was reliable.

While Geico challenged the level of factual detail in Torres’ expert report, the court noted that Geico could have taken his deposition to flesh out the factual basis for his opinions. The wholesale rejection of the expert’s testimony should not be based “merely on lack of specificity regarding some of his written opinions.” In any event, a Daubert analysis examines the admissibility of the expert’s testimony, not the expert’s report, and the bare-bones, generic nature of the report did not establish that the expert’s testimony would be unreliable.

The court did exclude certain opinions as speculative because Torres used speculative language to express them. The assertion, for example, that Geico “may be basing its denial” on certain facts was speculative because Torres did not know whether that was or was not the case. The court’s opinion should therefore act as a reminder to experts that they need to omit speculative opinions while using definitive language to describe opinions that are not speculative. Experts may also choose to use conditional language, such as “If X and Y are found to be true, then my opinion is Z.”

The court also ruled that Torres would not be allowed to provide opinions about Geico’s compliance with Colorado law. An insurance claims expert is an expert on insurance practices, not on insurance law. While the distinction is sometimes blurred when the issue for the jury to decide is whether an insurance company followed the law, the court confined Torres’ testimony to whether Geico followed industry standards, not whether Geico obeyed the law.

Opinions of Legal Expert

Geico designated an attorney as an expert witness. O’Sullivan designated Robert Baldwin as a rebuttal expert. Baldwin is also an attorney.

Geico’s expert planned to testify that Geico complied with its obligation to offer UM/UIM insurance limits equal to O’Sullivan’s bodily injury limits. He also planned to testify that Geico acted reasonably when it declined to pay more than the $25,000 limits that O’Sullivan purchased.

Baldwin proposed to testify that Geico failed to give O’Sullivan adequate notice of his right to purchase higher UM/UIM limits. He also proposed to testify that Geico should have known it could not assert a successful defense and should have paid the full $100,000 in light of O’Sullivan’s extensive injuries.

Unlike Torres, the lawyers designated by Geico and O’Sullivan were qualified to render legal opinions concerning the adequacy of the offer that Geico made to O’Sullivan. However, Geico argued that Baldwin’s proposed opinions went too far. A rebuttal expert must limit testimony to the same subject matter identified by the other party’s expert.

The court concluded that Geico opened the door to a legal analysis of the reasonableness of its coverage offer by designating a legal expert as a witness. By the same token, Baldwin was entitled to testify that Geico unreasonably failed to pay the $100,000 claim, because the opinion was supported by a reasoned analysis and directly rebutted the opinions of Geico’s expert.

a judge's chair

Can an Expert Witness Serve Two Masters: Thorny Expert Issue Reaches the US Supreme Court

It’s rare that cases involving expert witness testimony make it all the way to the United States Supreme Court, and rarer still that such cases raise fascinating issues of interest to the public as well as lawyers and experts.

James McWilliams was tried in Alabama in 1986 for the 1984 rape and murder of a convenience store clerk. His court appointed lawyer asked the trial court to appoint a mental health expert* to assist them because McWilliams appeared to have psychiatric problems that could impact issues of guilt and sentencing.

Court Appoints Single Expert for Prosecution and Defense

Despite the biblical warning that no one can serve two masters, the judge trying the case appointed a single psychiatrist to serve as the expert for the court, the prosecution, and the defense.

A jury found McWilliams guilty of the crimes after a trial. At the sentencing phase of the original trial, the prosecution argued that the judge should impose the death penalty, presenting three aggravating circumstances it argued warranted the death penalty. The defense tried to establish as a mitigating circumstance that McWilliams suffered from a psychiatric condition that the judge should take into account when imposing the sentence.

A report from the court appointed psychiatrist, presented to the defense just two days before the sentencing hearing, stated McWilliams suffered from organic brain disorder and had genuine neuropsychological problems. However, based on a report from prison mental health workers, the trial judge concluded McWilliams had been faking, was not suffering from a psychiatric condition sufficient to warrant a lesser sentence, and sentenced McWilliams to death.

Two Is More Expensive Than One

After a series of countless appeals and motions in numerous state and federal courts, the case was argued on April 24, 2017 in the United States Supreme Court. The central issue: Is a criminal defendant in a capital case entitled to have a mental health expert separate from one appointed by the court for the prosecution?

One factor lurking in the background is, of course, the issue of cost. At the oral argument, recently appointed Justice Neil M. Gorsuch said he was worried that a ruling in Mr. McWilliams’ favor would open the door to all kinds of court-appointed experts, saying “Where’s the stopping point?” “Is it just psychiatry? Would we also have to apply the same rule in other kinds of medicine, perhaps? Forensic science?”

Justice Gorsuch also noted “Experts widely disagree on everything,…. That’s why you hire them. And why they cost so very much.”

Hiring a separate psychiatrist likely would have been relatively expensive. Based on the most current data from ExpertPages 2016 Expert Witness Fees & Practices Survey, the average nationwide hourly rate charged by physicians (including psychiatrists) is $458 per hour, while non-physician mental health experts (such as psychologists) charge an average of $308 per hour. The average assignment for both categories currently costs a bit in excess of $6,400. As the state would have been paying the bill because McWilliams was indigent, clearly that is a factor that impacts the willingness of judges to appoint independent experts. Yet with the decades of post-conviction legal work and appeals that resulted because he did not allow the defendant to hire a separate expert, the trial court’s failure to provide one for McWilliams undoubtedly cost the state of Alabama many times more in legal bills than what an expert witness would have charged.

Expediency of Limiting Cost Should Not Outweigh Constitutional Requirements

Having served as an expert on both civil and criminal matters, I know from personal experience how vital it can be for each side to have its own independent expert provide input to enable the lawyers to develop a case as well as testify. Experts sometimes become a de facto member of the litigation team, and assist the lawyers in terms of strategy and tactics, even if they don’t testify. That’s not going to occur when there is a single expert appointed by the court.

While a court may be interested in what a presumably totally impartial expert would have to say, and such an expert might assist the judge to better understand the issues and sift through the parties’ experts’ reports and testimony, basic human nature suggests a joint expert is unlikely to help both sides present their own optimal case. Further, it’s wholly inconsistent with the adversarial system of justice.

Certainly a shared expert would be far less expensive than multiple experts. As a taxpayer, I appreciate how judges might be loathe to spend precious state resources on psychiatrists and other experts for criminal defendants who lack the financial resources to hire lawyers and experts on their own.

As a lawyer I would find it hard to imagine how the same person who was also working for the other side could adequately assist me in the “evaluation, preparation and presentation” of my case.

As a former prosecutor, I fully subscribe to the concept that no responsible prosecutor should ever bring charges or prosecute a person unless the prosecutor is personally convinced as to the defendant’s guilt and also is of the belief that the evidence is sufficient for a reasonable jury to convict.  Prosecutors are there not solely to obtain a conviction, but to see justice done.

Prosecutors bridle at delays, and many judges come from the ranks of former prosecutors. Yet to maintain our system of justice and assure basic fairness, we have to do far more than a character in Joseph Heller’s brilliant Catch 22, a satirical novel set during World War II, suggested: “I know what I’d like to do with him. I’d like to take him outside and shoot him. That’s what I’d like to do with him. That’s what General Dreedle would do with him.”

Fortunately for criminal defendants nationwide, the prosecutor’s wishes are not the last word. The United States Constitution – as interpreted by the United States Supreme Court – controls. Thus the Supreme Court’s decision in the McWilliams case is likely to have a major impact on both the criminal justice system and the availability and use of experts nationwide.

 

* The request for appointment of a mental health expert was pursuant to a 1985 decision of the United States Supreme Court that ruled that an indigent criminal defendant is entitled to meaningful expert assistance for the “evaluation, preparation and presentation of the defense.”

Florida Supreme Court

Randal Wagoner Freed on Bail After Experts Undermine Weak Prosecution Evidence

After spending 1,140 days in jail, Randal Wagoner was freed on bail, a week before he was scheduled to face trial on charges of murder and arson. The defense used expert opinions to convince the prosecutor that the state’s case, built largely on the opinions of its own experts, was weak.

The prosecutor asked the court for more time to investigate the evidence submitted by the defense. The Duval County, Florida judge who is presiding in the case decided that Wagoner has been jailed long enough on charges that the prosecutor conceded are based on weak evidence. The court granted the prosecution more time to continue its investigation, but released Wagoner on the condition that he abides by a curfew, avoids contact with the alleged victim’s family, and submits to random drug tests.

Expert Evidence Challenged

Wagoner was charged with killing Kathy Lorraine Johnson and burning down the building in which she lived. The suspicion that Johnson was murdered arose when a medical examiner concluded that Johnson’s death was a homicide caused by blunt-force trauma.

The defense hired its own expert, described in news stories as “one of the most prominent medical examiners in the country,” to review that opinion. The defense expert pointed to evidence that Johnson’s death probably was not a homicide. Confronted with that opinion, the state’s medical examiner conceded that he might have been wrong. In other words, a reasonable doubt exists that, in the view of the state’s expert, should preclude a homicide conviction.

State fire investigators based their opinion that the fire was started deliberately on a process of elimination, a technique known as the “negative corpus methodology.” The defense was able to undermine those opinions with expert evidence concerning the invalidity of negative corpus as a basis for arson analysis.

The National Association of Fire Investigators has concluded that negative corpus is “an invalid and unreliable method for purposes of determining the cause of a fire.” The NAFI alleges that “in some segments of the fire investigation community there is still deep-rooted use and reliance on this improper and unethical process.”

The defense also obtained an expert’s DNA analysis of material under Johnson’s fingernails. The defense analyst concluded that the material probably came from a man, but not from Wagoner.

Given the successful effort by the defense to undermine the prosecution’s scientific evidence, it isn’t surprising that the prosecutor admitted that her case is weak. At this point, it would be surprising if the case isn’t dismissed. That outcome is possible given a recent change of personnel in the State Attorney’s Office.

The Politics of Prosecution

Assistant State Attorney London Kite took over the prosecution in November. She inherited the case from former assistant state attorney Peter Overstreet, who was fired when Melissa Nelson beat former state attorney Angela Corey in last fall’s election. Both Overstreet and Corey had been criticized for taking an overzealous approach to prosecution that put winning ahead of justice.

The Florida Times-Union reports:

Overstreet also prosecuted the case of Jerome Maurice Hayes, who was accused of robbery and held in jail for 589 days even as police found substantial evidence that he may have been innocent — including the fact his workplace said he was “on the clock” when the fire occurred. At one point, a Jacksonville Sheriff’s Office detective asked why Hayes was still in jail.

Overstreet avoided ethics sanctions in that case by assuring the State Bar that he had implemented procedures “to avoid similar occurrences.” Yet he apparently allowed Wagoner to languish in jail for nearly three years without determining whether the expert evidence upon which he relied proved Wagoner’s guilt beyond a reasonable doubt.

The Wagoner case is a reminder to defense attorneys of the important role that expert witnesses play in casting doubt upon shaky accusations of criminal conduct. Without having expert witnesses on his side, Randal Wagoner would still be in jail.

Gavel and Stethoscope on Reflective Table

Virginia Supreme Court Rules Expert’s Opinion Regarding Cause of Death Was Improperly Admitted in Malpractice Case

The Virginia Supreme Court recently made two rulings about expert witness testimony in a medical malpractice appeal. The more significant ruling points to the need for an expert’s opinion to be grounded in facts rather than assumptions.

Facts of the Case

Dr. James Lee is an otolaryngologist. He treated Adam Traisch for sleep apnea. In the course of that treatment, Dr. Lee performed a tonsillectomy and an adenoidectomy. Adam was discharged from the outpatient procedure and went home.

That afternoon, Adam’s mother gave Adam his prescribed pain medication and Adam took a nap. Thirty minutes later, his mother was unable to rouse him. Adam was rushed to a hospital where he was pronounced dead.

The pathologist who conducted Adam’s autopsy attributed his death to cardiac arrhythmia. Adam’s heart appeared to be normal and the pathologist could not identify the cause of the arrhythmia. The autopsy report stated that a genetic disorder could not be ruled out, given that Adam’s parents were first cousins.

Adam’s mother sued Dr. Lee, alleging that Adam was at risk of respiratory failure after the operations in light of Adam’s severe obstructive sleep apnea. Adam’s mother contended that Dr. Lee violated the appropriate standard of care by failing to order that he be monitored overnight following the surgery.

A jury found in favor of Dr. Lee. Adam’s mother appealed to the Virginia Supreme Court, contending that neither Dr. Lee’s expert witness nor Dr. Lee should have been allowed to provide expert opinions.

Dr. Boyd’s Testimony

At trial, Dr. Lee contended that Adam died from Brugada syndrome, a rare hereditary condition that creates a high risk of death from sudden ventricular arrhythmia. He also contended that he had no reason to suspect that Adam had Brugada syndrome because he was not told about Adam’s genetic history, including the fact that his parents were first cousins or that two of Adam’s siblings had also died.

To establish that defense, Dr. Lee offered the testimony of Dr. Simeon Boyd, a pediatric geneticist. Dr. Boyd testified that he relied on a “differential diagnosis” to conclude that Brugada syndrome caused Adam’s death. A doctor makes a differential diagnosis by considering all possible causes of a medical event and then ruling out all but one.

Dr. Boyd also relied on Adam’s developmental delay and “dysmorphic facial features” as evidence that he suffered from a genetic disorder. In addition, he relied on a DNA analysis that revealed a variation in one of Adam’s genes to bolster his opinion that Adam died from cardiac arrest due to Brugada syndrome.

Basis for Dr. Boyd’s Opinions

The Virginia Supreme Court noted that Dr. Boyd was not a forensic pathologist, a toxicologist, a cardiologist, or an otolaryngologist. When he was asked on cross-examination whether postoperative respiratory compromise could have caused Adam’s death, Dr. Boyd said that he was not qualified to express an opinion. When asked how he could rule out a cause of death in his differential diagnosis that he was not qualified to diagnose, he explained that he relied on the expert opinions of others.

The plaintiff’s attorney argued that Dr. Boyd’s determination of the cause of death rested upon a differential diagnosis that he was not qualified to make. Dr. Lee’s attorney argued that Dr. Boyd was entitled to consider the opinions of others because Virginia follows the prevailing rule that permits experts to rely upon data that might otherwise be inadmissible as evidence if it is the kind of data upon which experts in a field normally rely.

Dr. Boyd testified that he relied on the autopsy report to rule out respiratory compromise as a cause of death. While acknowledging that autopsy reports are the kind of data that a doctor might rely upon in forming an expert opinion, the Virginia Supreme Court noted that the autopsy report concluded only that Adam died of cardiac arrhythmia of unknown origin. That opinion did not rule out respiratory compromise as a cause of the cardiac arrhythmia.

Given that the expert witness called by Adam’s mother testified that respiratory compromise can cause cardiac arrhythmia and that no expert relied upon by Dr. Boyd disagreed with that opinion, Dr. Boyd had no basis for his decision to rule out respiratory compromise as a cause of Adam’s death. His differential diagnosis was therefore based on inadequate data and should not have been admitted as evidence.

Dr. Casolaro’s Opinion

The jury also heard the testimony of Dr. Mario Casolaro, an expert in pulmonary medicine. Dr. Casolaro expressed the opinion that respiratory compromise did not cause Adam’s death.

While Dr. Lee argued that Dr. Casolaro’s opinion provided the missing link in Dr. Boyd’s differential diagnosis, the Virginia Supreme Court noted that Dr. Boyd made his differential diagnosis before Dr. Casolaro was deposed. Dr. Lee had no way of knowing about Dr. Casolaro’s opinion and did not mention Dr. Casolaro during his testimony. The court therefore rejected the argument that Dr. Lee had an adequate factual basis for his differential diagnosis.

Dr. Lee’s Opinion

Virginia follows the usual rule that a doctor who is sued for malpractice is permitted to testify as an expert in his own defense. However, Dr. Lee was not designated as an expert witness, and was therefore permitted to give only lay testimony.

Dr. Lee testified that he was not told that Adam’s parents were cousins or that Adam’s siblings had predeceased him. Dr. Lee said that he would not have recommended surgery if he had been aware of the possibility that Adam carried a genetic defect.

The plaintiff’s lawyer argued on appeal that Dr. Lee’s testimony was in the nature of expert testimony and was improperly admitted because he was not designated as an expert. The Virginia Supreme Court disagreed. Dr. Lee’s testimony about what he would have done if he been given more information did not require the expression of an expert opinion.

What the doctor would or would not have done was a fact, and lay witnesses are permitted to testify about facts that are within their own knowledge or experience. If Dr. Lee had explained why he would not have recommended surgery for someone with a genetic defect, he might have been offering expert testimony, but he did not cross that line.

New Trial Ordered

The trial court erred by admitting Dr. Boyd’s testimony, but not by allowing Dr. Lee to testify about what he would have done if he had known Adam might have a genetic defect. Since Dr. Boyd should not have been allowed to testify, the Virginia Supreme Court reversed the judgment and ordered a new trial.

Baby feet

California Appellate Court Disallows Expert Testimony in Medical Malpractice Case

The California Court of Appeals recently decided an appeal from a trial court ruling that excluded expert opinions in a medical malpractice case. The appellate court agreed that those opinions were not based on facts and therefore could not be considered as evidence of malpractice.

Facts of the Case

Baby Ngide was born at St. Agnes Medical Center in Fresno on September 27, 2011. The next day, a nurse noticed that the baby was not responsive. The baby was transferred to the Neonatal Intensive Care Unit (NICU) for resuscitation. The NICU is located in St. Agnes Medical Center but is operated by Children’s Hospital of Central California.

Dr. Patrick Nwajei, a neonatologist, did not see the baby girl until she arrived at Children’s Hospital. Dr. Nwajei was not the baby’s treating physician and was not authorized to treat St. Agnes patients unless he was asked to consult by a treating physician. Dr. Nwajei was, however, among the doctors who were responsible for providing patient care at the NICU.

When the baby arrived at NICU, staff members called for Dr. Nwajei. He treated the baby by providing ventilation using a bag mask and by intubating the baby. He then called for a transport team so that the baby could be taken to the Children’s Hospital NICU in Madera, where more specialists were available.

Transport started about one-and-a-half hours after Dr. Nwajei first saw the baby. After transport began, the receiving neonatologist was responsible for the baby’s care.

On June 18, 2012, the baby died from complications caused by a hypoxic brain injury. The brain injury occurred before Dr. Nwajei saw the baby.

Summary Judgment

The father sued St. Agnes Medical Center and Dr. Nwajei for medical malpractice. St. Agnes and Dr. Nwajei both moved for summary judgment, arguing that the undisputed facts established that they were not responsible for the baby’s death.

In opposing summary judgment, the father submitted the affidavit of an expert witness. Dr. Arie Alkalay opined that the nurses and staff at St. Agnes, as well as Dr. Nwajei, failed to provide an appropriate standard of care and that their respective failures contributed to the baby’s death.

Dr. Nwajai relied on an affidavit of his expert witness, Dr. Gilbert I. Martin, who concluded that Dr. Nwajei followed an appropriate standard of care and that none of his actions were a cause of the baby’s death.

St. Agnes submitted the expert affidavit of Dr. Philippe Friedlich, who opined that the actions of the nurses and staff at St. Agnes satisfied the appropriate standard of care.

The trial court concluded that Dr. Alkalay’s opinions were not based on facts established in the record. The court therefore ruled that his opinions were inadmissible. In the absence of expert testimony to establish malpractice, the court granted summary judgment in favor of the medical defendants. The baby’s father appealed.

Objections to Dr. Alkalay’s Opinions

Medical malpractice lawsuits must usually be based on an expert’s opinion that a healthcare provider failed to provide an appropriate standard of care for the patient and that the patient was harmed by that failure. By the same token, medical malpractice defendants must rely on expert witnesses to establish that they met the appropriate standard of care.

Based on his review of medical records and his experience as a neonatologist, Dr. Alkalay expressed the opinion that the mother presented a high-risk pregnancy, that the hospital should have consulted with Nr. Nwajei at the time of delivery, that failing to do so breached the standard of care that a hospital should provide, and that the failure contributed to the baby’s death.

Dr. Alkalay also faulted Dr. Nwajei for waiting until he was notified by St. Agnes of the baby’s need for a neonatologist. Dr. Alkalay opined that Dr. Nwajei had a duty “to ensure that he would be informed and included in the delivery diagnosis, care and treatment of high risk deliveries and high risk newborns.” Dr. Alkalay concluded that Dr. Nwajei failed to abide by an appropriate standard of care when he neglected to remedy the “systems failures” at St. Agnes.

The California Court of Appeals agreed with the trial court that Dr. Alkalay had no factual basis for his criticism of Dr. Nwajei. Dr. Alkalay assumed that it was Dr. Nwajei’s duty to correct “systems failures” at St. Agnes, but Dr. Nwajei was employed by Children’s Hospital, not by St. Agnes. Dr. Alkalay did not explain why Dr. Nwajei would have any responsibility or authority to correct problems at St. Agnes. The court therefore concluded that Dr. Alkalay’s opinion about the standard of care was based on speculation, not on facts.

The appellate court also agreed with the trial court that no factual basis supported Dr. Alkalay’s opinion that St. Agnes staff members should have notified a neonatologist of a high-risk pregnancy. The mother’s attending pediatrician did not do so, and the St. Agnes staff members merely carried out the pediatrician’s orders when he was not there. Since Dr. Alkalay did not explain why nurses would have the authority, much less the duty, to second-guess the pediatrician’s judgment, his opinion about St. Agnes’ alleged breach of the standard of care was again unsupported by the facts.

Since the trial court properly excluded Dr. Alkalay’s opinions, the appellate court concluded that it appropriately granted summary judgment in favor of the medical defendants.

spray polyurethane foam

Court Excludes Expert Testimony Linking Insulation to Disease

Richard and Monica Beyer sued Anchor Insulation after Anchor insulated their home with spray polyurethane foam (SPF). The Beyers alleged that the SPF was a defective product. A federal judge in the District of Connecticut agreed to admit expert testimony that the SPF was defective and improperly installed, but did not allow the Beyers’ expert witness to testify that the SPF harmed the Beyers’ health.

SPF Installation

The SPF that was used in the Beyers’ home begins as two liquids stored in two separate drums. The liquids are pumped through separate hoses that are joined in a single nozzle. The liquids mix as they are sprayed from the nozzle, forming a foam that expands and hardens into an insulating material.

Anchor used liquids manufactured by two different companies. Both companies train installers to make sure the liquids are mixed in equal proportions, and both caution installers not to mix their products with products manufactured by a different company. Anchor allegedly ignored that caution by mixing products from the two manufacturers rather than buying both products from the same manufacturer.

According to warnings that come with the product, each liquid can cause respiratory problems while being sprayed. The resulting foam is relatively safe, but it can also cause respiratory problems if it is chipped or ground into dust and its particles are inhaled.

The Beyers submitted evidence that Anchor’s installers failed to follow recommended procedures by mixing liquids from two different manufacturers, by spraying the foam in thicker layers than the manufacturers recommend, and by spraying new layers before the earlier layers have a chance to cure. A visual inspection revealed that the foam shrunk as it hardened, pulling away from the surfaces onto which it had been sprayed. One of the manufacturers examined the foam and concluded that it had been contaminated by mixing products.

Eleven months after the SPF installation, Anchor agreed to remove it. Anchor did so by grinding the insulation into fine particles. The home filled with dust from the foam as a result of Anchor’s efforts.

Beyers’ Alleged Illness

The Beyers complained that they began to experience a variety of symptoms soon after the SPF installation, including prolonged headaches, fatigue, difficulty breathing, heart palpitations, memory loss, and boils. Some of those symptoms are consistent with literature that addresses exposure to the chemicals used to create the SPF.

Richard Beyer’s treating physician diagnosed a respiratory disorder after his exposure to the SPF. Anchor’s physician confirmed that Richard Beyer had a pre-existing condition of asthma that worsened after his exposure to SPF. Neither of those physicians opined that SPF exposure exacerbated Richard Beyer’s asthma.

Expert Testimony Regarding Physical Harm

Anchor challenged each of the Beyers’ three experts. Anchor contended that their testimony was inadmissible and that without the testimony, the Beyers could not establish that their product was defective or that the product caused their physical injuries or damage to their property.

The Beyers relied on Dr. Yuh-Chin Tony Huang to establish that the Beyers’ physical ailments were caused by SPF exposure. Dr. Huang is a professor of medicine who specializes in pulmonology. Dr. Huang opined the Beyers likely developed chemical sensitivities to the SPF based on the fact that they were exposed to it and that their symptoms are consistent with symptoms caused by SPF chemical compounds.

The court noted that the Beyers must prove both general causation (SPF is capable of causing their injuries) and specific causation (SPF actually did cause their injuries). Epidemiological studies are usually used to prove general causation. Dr. Huang based his opinion as to general causation on a peer-reviewed article that he co-authored regarding the health effects associated with the faulty application of SPF in residential homes.

Dr. Huang candidly admitted that his research established a likely association between SPF and respiratory ailments, but that an association does not prove causation. Dr. Huang’s article reported symptoms of thirteen individuals exposed to SPF compounds, but it did not compare those individuals to a control group. Dr. Huang described the article as an expanded case report rather than a study. The trial court found that Dr. Huang’s article raised questions about the link between SPF and respiratory diseases but, given the small population and the absence of a control group, the report could not establish general causation.

Nor did the court believe that the causation evidence was bolstered by warnings that the chemical manufacturers provided. Those warnings caution people who use the chemicals to wear respirators because the chemicals might cause respiratory problems, but an abundance of caution in issuing product warnings cannot be taken as proof that a product is dangerous.

The court determined that Dr. Huang could not establish specific causation because he wrote his report before examining the Beyers. While he relied on other physicians’ reports as the basis for his conclusions, he admitted that a physician cannot determine the cause of symptoms without assessing whether those symptoms are real, which requires talking to the patient.

In addition, Dr. Huang did not explain how or whether he ruled out alternative explanations for the symptoms, including Richard Beyer’s preexisting asthma. For all those reasons, the court excluded Dr. Huang’s testimony on causation “as insufficiently reliable for a jury’s consideration.”

Expert Testimony Regarding Property Damage

The Beyers relied on two chemists to testify that Anchor sold a defective product because its SPF was made from two liquids that should not have been mixed, and that it applied the SPF improperly. Anchor did not challenge their qualifications to testify, but contended that one of the experts relied on a nontestifying (consulting) expert for his opinions without exercising independent judgment.

The court was critical of the testifying expert for adopting part of the consulting expert’s report verbatim. The court nevertheless allowed the expert to testify to the extent that he independently verified information in the consulting expert’s report. Subject to those limitations, the expert was permitted to testify that Anchor’s product was defective and was installed incorrectly.

The court did not admit the expert’s opinions about remediation of the home, because the testifying expert testified that the consulting expert was more knowledgeable about remediation and that he adopted the consulting expert’s report for that reason. In addition, while the expert was permitted to testify that improper installation contributed to product failure, he was not permitted to testify that the installation was contrary to industry standards, since he had no expertise with regard to those standards.

The second chemical engineer was qualified to testify about the dangers that arise from exposure to the chemicals used to create the SPF. The court did not allow the engineer to testify that Anchor failed to give the Beyers appropriate warnings because whether the Beyers were warned was a question of historical fact that was beyond the expert’s knowledge. He was permitted, however, to testify about possible sources of chemicals in air samples that the other engineering expert found.

Court’s Decision

In the end, the exclusion of expert testimony about the health consequences of SPF precluded the Beyers from bringing a personal injury claim. Their expert evidence did allow them to bring a claim that improper SPF installation damaged their property. The Beyers were therefore allowed to bring the property damage claim, but not the personal injury claim, to trial.

Colorado State Flag

Colorado Supreme Court Rejects Expert Testimony Given by Lay Witnesses

Two recent decisions of the Colorado Supreme Court addressed whether a witness should be allowed to testify about issues that require specialized knowledge when the witness has not been qualified as an expert. The cases discuss the difference between a lay opinion, which people with no special training or experience can reliably provide, and an expert opinion, which requires greater knowledge than a lay person will ordinarily have.

Venalonzo v. People

Venalonzo was charged with inappropriately touching two children in the hallway of the apartment building where they lived. The children were interviewed by a child forensic interviewer.

Both children initially gave consistent accounts of the alleged assaults, but their accounts were inconsistent with each other. Their stories varied as to what the man said to them, what he was wearing, how and from where he entered the building, and whether the children were in each other’s presence when the man touched them. Over time, one of the children changed her description of the man’s actions, including whether she was touched over or under her clothing.

Before trial, the prosecutor advised the defense that it would not be calling any expert witnesses. It therefore produced no expert reports and the court did not decide whether the interviewer was qualified to give reliable expert testimony.

At trial, the forensic interviewer testified about the techniques she uses to interview children. The defense objected that the interviewer was posturing herself as an expert in eliciting truthful accounts from children.

The court ruled that the interviewer would be allowed to testify as a lay witness. The court would not allow the witness to say whether she thought the children were telling the truth, but did allow her to testify whether the behavior she observed during the interview was common or uncommon as compared to other child victims of sexual abuse.

The defense objected to several other questions, including: whether children commonly tell other children about abuse before telling adults; whether children typically tell different stories to forensic interviewers than they tell to social workers or while testifying at trial; whether the details that differed in the children’s accounts were core or peripheral; and how children who have actually been sexually assaulted will “reproduce” the assault by demonstrating the touches on their own bodies.

The court permitted the interviewer to answer all those questions, although it did not allow her to explain why interviewers look for “reproduction,” because it felt that question called for expert testimony. Venalonzo was convicted.

The Venalonzo Ruling

On appeal, the Colorado Supreme Court decided that the forensic interviewer was testifying as an expert, not as a lay witness, at least in some respects. The court ruled that lay testimony is based on ordinary knowledge or experience. On the other hand, a witness who offers testimony that could not be offered without specialized knowledge, training, or experience is giving expert testimony.

As in this case, a forensic interviewer is often called upon to explain to juries why a sexually abused child might give inconsistent stories, might delay reporting the abuse, or might recant the allegation. Prosecutors elicit that testimony because they fear that juries might otherwise find it counterintuitive to believe that a child sexual assault victim would engage in those behaviors.

However, it is precisely because juries do not have that information that a witness who educates them is testifying as an expert. The Colorado Supreme Court ruled that forensic investigators are testifying as experts when they give jurors information that ordinary people do not usually have about the behavior of child sexual assault victims. Whether it is helpful for a jury to hear lay testimony about facts that it already knows is a separate question.

The court decided that the forensic interviewer did not testify as an expert when she described her training and experience. The court did not decide whether evidence about the interviewer’s training was relevant, given the prosecution’s contention that the interviewer was not testifying as an expert.

The court also decided that some of the forensic interviewer’s testimony about child behavior was common knowledge. According to the court, her testimony that children generalize, are not good with measurements, and tell secrets to other children before telling them to adults are all within the common knowledge of a lay person. Whether it is helpful for a jury to hear lay testimony about facts that it already knows is a separate question.

On the other hand, the court decided that the forensic interviewer gave expert testimony when she testified about the significance of using gestures to “reproduce” an assault. She was also testifying as an expert when she claimed that children are more likely to be accurate when describing core details than peripheral details.

Because the trial court allowed the forensic interviewer to give expert testimony without determining whether she was qualified to do so, the Supreme Court decided that the trial court erred.

On a related issue, the Court held that the interviewer should not have been allowed to bolster the credibility of the child witnesses by comparing their behavior to that of other child sexual abuse victims. Since any or all of the inadmissible testimony may have influenced the jury, the court decided that Venalonzo was entitled to a new trial.

The Ramos Ruling

The issue in People v. Ramos was “whether an ordinary person would be able to differentiate reliably between blood cast-off (i.e., blood droplets from waving a hand around) and blood transfer (i.e., blood transferred by physical contact).”

Ramos was accused of assaulting a backseat passenger in a car that his girlfriend was driving. The passenger claimed that Ramos, who was sitting in the front, reached into the back seat and punched her.

Ramos’ hand was bleeding from an unrelated injury. His blood was found on the passenger’s jacket and cap. Ramos denied hitting the passenger and contended that his blood was flying through the car when he waved his hand.

A police detective, testifying as a lay witness, opined that blood on the cap and jacket must have been transferred when Ramos touched those objects and could not have been “cast-off” blood that was splattered when he waved his hand around.

Applying the Venalonzo rule, the Colorado Supreme Court decided that an ordinary person would not be able to determine whether blood on an object was directly transferred to the object by touching it or was cast-off blood. Whether or not the police officer was qualified to give expert testimony about blood transfers based on nineteen years of experience investigating crimes, his testimony was of a technical nature that goes beyond lay knowledge.

The Colorado rule may help solve the problem of police officers giving slanted testimony that favors the prosecution when they have no basis for that testimony beyond their self-proclaimed “training and experience.” Since testimony that depends on training and experience will generally be expert testimony, police officers in Colorado will need to satisfy the state’s standard for expert opinion admissibility before they are allowed to provide those opinions.

Oregon State

Oregon Court of Appeals Decides Expert Testimony Was Wrongly Excluded in Medical Malpractice Trial

A frequently asserted claim in birth injury cases is that medical malpractice is responsible when shoulder dystocia occurs during birth. In normal deliveries, the baby’s shoulders follow soon after the head is delivered. In some cases of obstructed labor, the head delivers but the baby’s shoulder becomes stuck behind the pubic bone.

When shoulder dystocia occurs, the doctor must manipulate the baby in order to complete the delivery. If the manipulation is not undertaken with care, a bundle of nerves running through the neck, shoulder, and arm can be damaged, leading to impaired function of the baby’s arm and hand. Sometimes the impairment resolves over time, but in some cases the injury is permanent.

Proving medical negligence nearly always requires expert testimony. In a recent Oregon decision, the Oregon Court of Appeals concluded that an expert was improperly prevented from testifying that shoulder dystocia was caused by a physician’s malpractice. The case hinged on whether the expert was asked to testify about a theory of negligence that was not alleged in the complaint.

Facts of the Case

Lydia Bergstrom sued the clinic where her son, Garin, was delivered. Garin was macrosomic (unusually large) at the time of birth and his size led to complications during his delivery, including shoulder dystocia. Lydia contended that the shoulder dystocia caused Garin to sustain a brachial plexus injury during birth and to suffer from Erb’s palsy in his right arm.

Lydia alleged that her obstetrician should have known that she was carrying a macrosomic baby. She also alleged that they were negligent for failing to prepare for and perform a caesarean section rather than taking the risk that shoulder dystocia would occur during a normal delivery.

Lydia further alleged that her obstetrician negligently used a vacuum extractor to assist delivery, which contributed to the shoulder dystocia. Finally, she contended that she should have been notified that she was carrying a macrosomic baby and that her baby was at significant risk of developing shoulder dystocia if she had a normal delivery.

The jury returned a verdict in favor of the clinic. On appeal, Bergstrom argued that the trial court erred by excluding her expert testimony.

Expert Testimony

Medical experts on both sides of the case testified about the importance of using an ultrasound, among other tools, to estimate the birth weight of a baby before delivery. An estimate of birth weight is important to help doctors understand whether a mother is carrying a macrosomic baby.

The obstetrician who provided prenatal care and delivered the baby did perform ultrasounds. Lydia’s expert, Dr. Rice, would have testified that the obstetrician failed to obtain clear ultrasound images that were needed to accurately measure head circumference and to make other estimates of size. Dr. Rice also proposed to testify that the obstetrician did not properly measure the images he had.

According to Dr. Rice, the obstetrician mistakenly concluded that Garin was in the sixty-fourth percentile at the time of the ultrasound, or slightly larger than average. Dr. Rice concluded that a proper measurement would have compelled the conclusion that Garin was in the ninety-third percentile and was therefore macrosomic. Dr. Rice would have testified that the obstetrician’s mismeasurements fell below the acceptable standard of care that reasonable obstetricians would provide.

The trial judge concluded that Dr. Rice’s proposed testimony went beyond the facts that were alleged in the complaint. While the complaint alleged that the clinic was negligent in performing a vaginal delivery when it should have known that Garin was at risk of being macrosomic, the court concluded that the allegation of negligence did not give the clinic notice that the negligent performance or interpretation of ultrasounds would be an issue in the case. The court therefore excluded Dr. Rice’s testimony on the ground that it was irrelevant to the facts alleged in the complaint.

Appellate Ruling

The Oregon Court of Appeals disagreed that Dr. Rice’s testimony was not relevant to the theory of negligence alleged in the complaint. One issue raised in the complaint was whether the clinic was negligent in performing a vaginal delivery when it “knew or should have known” of the significant risk that the baby was macrosomic.

Dr. Rice’s testimony about the negligent performance and interpretation of the ultrasounds was relevant because it would have supported the allegation that the clinic “should have known” of the risk of a macrosomic baby. The appellate court decided that the allegations in the complaint were sufficiently broad to encompass Dr. Rice’s testimony about ultrasounds, even though the complaint did not specifically mention ultrasounds.

The appellate court also determined that the exclusion of Dr. Rice’s expert testimony was prejudicial. The clinic conceded at trial that ultrasounds are important in estimating fetal weight and predicting whether a baby would be macrosomic. In the absence of Dr. Rice’s testimony, Lydia was unable to prove that the obstetrician failed to provide an appropriate standard of care in performing and interpreting the prenatal ultrasounds.

Since Dr. Rice’s expert testimony, if admitted, could have changed the verdict, the court ruled that the exclusion of that testimony substantially affected Lydia’s right to a fair trial. Accordingly, the court of appeals reversed the judgment and ordered a new trial.

Gavel and Stethoscope on Reflective Table

Wisconsin Supreme Court Rejects Challenge to Expert Testimony in Medical Malpractice Case

A judgment of $885,000 in favor of a child who sustained a permanent injury during delivery was affirmed over a challenge to the expert testimony upon which the verdict was based. The Wisconsin Supreme Court rejected a claim that the opinion of a medical expert regarding the appropriate standard of care cannot be based on the expert’s personal experience.

Facts of the Case

Dr. Kim Balick provided prenatal care to Braylon Siefert’s mother and then delivered Braylon. During the delivery, Braylon’s shoulder became stuck, a condition known as shoulder dystocia. Dr. Balick eventually delivered Braylon, but Braylon sustained a brachial plexus nerve injury during the delivery. The injury will limit the growth and function of Braylon’s left arm, even after ameliorative surgery.

Braylon’s mother weighed 269 pounds before her pregnancy and gained another 36 pounds during her pregnancy. Dr. Balick estimated that Braylon would have a birth weight of 8 pounds, 8 ounces. Dr. Balick did not perform an ultrasound to confirm that estimate. Braylon’s actual birth weight was 9 pounds, 12 ounces.

Dr. Balick used a one-hour glucose screening test to determine whether Braylon’s mother had gestational diabetes. The test result was 131 mg/dL. Medical literature suggests that a three-hour glucose screening test should be administered when the results of the one-hour test are 140 mg/dL, although the same literature suggests that the second test might be appropriate when the one-hour test result is 130 mg/dL. Dr. Balick did not administer the three-hour test.

At some point during the delivery, Dr. Balick decided to use a vacuum device. The device is essentially a suction cup that attaches to the baby’s head. Dr. Balick succeeded in delivering the baby’s head, but it quickly retracted. That complication alerted Dr. Balick to the occurrence of shoulder dystocia.

Dr. Balick used a series of obstetric maneuvers to resolve the shoulder dystocia. Braylon was delivered about three minutes later.

The jury was asked whether Dr. Balick provided the standard of care that reasonable family practice physicians who practice obstetrics would provide under the same circumstances. Wisconsin law required Braylon’s attorneys to present expert evidence to establish the particulars of that standard of care and to explain how Dr. Balick failed to meet that standard.

Expert Testimony

Braylon’s lawyers relied on the expert testimony of Dr. Jeffrey Wener to meet that burden. The defendants did not challenge Dr. Wener’s qualifications to testify as an expert.

Dr. Wener testified that a reasonable family practice doctor who delivers babies should have recognized several risk factors in Braylon’s delivery, including the mother’s obesity, gestational diabetes, and a macrosomic (significantly larger than average) baby. He also testified that excessive traction during a delivery can cause a brachial plexus injury and that using a vacuum device to assist delivery increases that risk. None of that testimony was disputed.

Rather, the dispute concerned Dr. Wener’s testimony about the standard of care and Dr. Balick’s failure to follow it. Dr. Wener testified that the mother’s weight before pregnancy, her weight gain during pregnancy, the risk of gestational diabetes in light of the mother’s obesity, and the likelihood that the mother was carrying a macrosomic baby should have alerted Dr. Balick to the enhanced risk of shoulder dystocia.

Dr. Wener opined that Dr. Balick should have administered a three-hour glucose test to obtain a reliable indication of gestational diabetes, given the result of the less reliable one-hour test and the mother’s obesity. He also testified that Dr. Balick breached the standard of care by failing to perform an ultrasound to make a more accurate assessment of the baby’s weight, by using excessive traction during delivery, and (given the elevated risk of shoulder dystocia) by using vacuum assistance during delivery.

Challenge to Admissibility

For years, the Wisconsin Supreme Court firmly resisted adopting the Daubert rule of expert opinion admissibility. In 2011, the state legislature amended the rules of evidence by adopting the Daubert standard. The Wisconsin rule now tracks the language of the federal rule.

As the Court explained, the Daubert rule requires expert opinions to be based on sufficient facts, to be the product of reliable methods, and to be based on the reliable application of those methods to the facts. The defense challenged the admissibility of Dr. Wener’s testimony on the ground that he based his opinions on his personal experience as an obstetrician rather than published studies. The defense complained that Dr. Wener’s methodology was unreliable.

Supreme Court’s Ruling

The trial judge and the Wisconsin Court of Appeals both rejected the Daubert challenge to Dr. Wener’s testimony. The Wisconsin Supreme Court, reviewing those rulings, agreed that the testimony was admissible.

Emphasizing that Daubert makes the court “a gatekeeper, not a fact finder” and that the reliability determination focuses on the expert’s methodology rather than the expert’s conclusions, the Court took care to preserve the jury’s role in deciding whether the expert’s conclusions should be believed. The Court also noted that a gatekeeper is not an armed guard.

The Court rejected the argument that experience-based testimony is always the product of an unreliable methodology. Expert medical opinions may be based on experience if the expert’s relevant experience is sufficiently extensive. Medicine is a learned profession rather than a science, and unlike expert opinions offered by engineers or chemists, a doctor’s opinion about standards of care is often grounded in judgments based on personal experience rather than studies that establish statistical proof.

Medical knowledge is often less certain than scientific knowledge, but the court reasoned that the absence of perfect knowledge does not make the opinion of a medical expert inadmissible if the opinion has a reliable basis in the knowledge and experience of the medical profession. The basis for an expert medical opinion need not be subjected to peer review when the doctor’s own experience is sufficient to establish its reliability.

Nor do doctors need to cite specific studies or medical literature to support opinions that are grounded in their own professional experience. Literature may be helpful in some cases, but it will rarely address the specific facts that are unique to each patient.

The Court emphasized that Daubert is meant to exclude “junk science” from evidence. The Court noted that an expert medical opinion, when grounded in the expert’s extensive professional experience, will rarely be the kind of “junk science” that should be kept from the jury.

Having established the appropriate rule, the Court asked whether the trial court understood and applied the rule correctly. The Court concluded that the trial court reasonably determined that Dr. Wener’s expert opinion was relevant and was grounded in extensive relevant experience. Dr. Wener’s opinion about the appropriate standard of care was not, as the defense argued, merely a personal preference, but was based on medical knowledge that every family practice doctor who provides obstetric care should have. His expert opinion was therefore reliable and admissible.