After being diagnosed with a pelvic organ prolapse, Charlotte Salinero elected to have an abdominal sacrocolpopexy, a procedure that uses a graft to support the top of the vagina. The surgery was performed by Dr. Jaime Sepulveda in 2012.

While the patient’s own tissue can be used as a graft, it is common to perform the procedure using a synthetic mesh. In 2011, the FDA warned that “serious complications associated with surgical mesh for transvaginal repair of [pelvic organ prolapse] are not rare.”

The warning advised physicians that “it is not clear that transvaginal [pelvic organ prolapse] repair with mesh is more effective than traditional non-mesh repair . . . and it may expose patients to greater risk.” Complications typically arise when the mesh erodes, leading to pain, infection, bleeding, and other health concerns.

Dr. Sepulveda elected to implant Artisyn Y-Mesh, a product made by Ethicon, a subsidiary of Johnson & Johnson. Dr. Sepulveda discussed surgical risks with Salinero but did not disclose or discuss his decision to choose Artisyn Y-Mesh as the material he would use for the graft.

Surgical mesh materials can lead to adhesions that cause organs and tissues to stick together. A few years after her surgery, Salinero developed a rectovaginal vesical fistula, a condition that occurs when the rectum or bladder becomes connected to the vagina.

Dr. Sepulveda removed the implant and separated the adhesion of Salinero’s bladder and rectum. Dr. Sepulveda was able to remove the mesh in one piece, apart from two small segments that he subsequently removed. Salinero continued to experience debilitating complications after the surgery that she attributed to the Artisyn Y-Mesh.

Florida’s Learned Intermediary Defense

Salinero sued Ethicon, alleging that a polypropylene mesh is “biologically incompatible with human tissue and promotes an immune response in a large subset of the population.” Among her other claims, Salinero alleged that the Artisyn Y-Mesh “Instructions for Use” did not adequately warn of the risks associated with the implant.

The lawsuit was filed in a federal court in Florida. The court applied Florida law regarding the duty to warn patients of risks associated with a medical device. Under Florida law, a medical device manufacturer only has a duty to warn the physician who chooses the device, not the patient who receives it. The physician is regarded as a “learned intermediary” between the manufacturer and the patient.

As a learned intermediary, the physician weighs the risks and benefits of a particular medical device when deciding whether to recommend it for the patient’s needs. To bring a successful failure to warn claim against a manufacturer, the patient must prove that the physician would not have chosen the device if the physician had been adequately warned.

The court granted summary judgment in Ethicon’s favor because Dr. Sepulveda testified in a deposition that he was fully apprised of the risks associated with the Artisyn Y-Mesh, that he believed his decision to use the Artisyn Y-Mesh was appropriate even in hindsight, that his implantation of the Artisyn Y-Mesh was the best option, and that he would do it again. That deposition testimony made it impossible for Salerno to establish that Dr. Sepulveda would not have implanted Artisyn Y-Mesh if he had been given any additional information about the risks associated with the product.

Learned Intermediaries Who Act as Expert Witnesses

Salerno appealed. Salerno argued that the “learned intermediary” rule assumes that doctors are objective evaluators of medical evidence who put the interests of their patients ahead of the interests of medical device manufacturers. In their view, Dr. Sepulveda did not qualify as a learned intermediary.

For decades, Dr. Sepulveda has had a financial relationship with Johnson & Johnson, the parent company of Ethicon. In addition to being paid as a consultant on product evaluations and mesh trials, he has served as an expert witness for Johnson & Johnson in more than twenty cases. Over the years, Johnson & Johnson has paid Dr. Sepulveda more than $2 million.

Given that financial relationship, it would be reasonable to question whether Dr. Sepulveda would act as an objective intermediary when deciding whether to recommend a Johnson & Johnson product to a patient. Testifying that he would have recommended a different product if the warning had been adequate might have placed a lucrative income stream at risk.

Given his financial interest, a jury might question Dr. Sepulveda’s credibility when he testified that he received adequate warnings and that he would have performed the procedure using the same mesh if the warning had been more complete. A doctor who is paid millions of dollars by a company might be satisfied with inadequate warnings while a doctor with no financial incentive to support the company might testify differently.

The “learned intermediary” doctrine may work to the disadvantage of patients who retain doctors who worked as expert witnesses for medical device manufacturers. Salerno accordingly argued that a physician who is paid for expert testimony by a company cannot stand as a learned intermediary between the company and an injured patient.

No “Financial Interest” Exception

The Court of Appeals for the Eleventh Circuit affirmed the summary judgment. The federal court noted that Florida courts have not been asked to recognize a “financial bias exception” to the learned intermediary rule. When a state court has not decided a controlling question of state law, federal courts usually try to decide how the state court would decide the issue.

Federal courts in other states have declined to apply the learned intermediary doctrine when there is evidence that the intermediary might be biased. Others require evidence of actual bias. The Eleventh Circuit declined to follow those decisions on the ground that the Florida Supreme Court would probably reject them. The evidence of how the Florida Supreme Court would decide the issue is nevertheless slim.

In a different context, the Florida Supreme Court decided that the learned intermediary defense does not apply when the manufacturer “provides an incentive to the intermediary to withhold the necessary information from the consumer.” In the Eleventh Circuit’s view, paying a doctor to act as an expert witness more than twenty time does not provide an incentive to the doctor to look the other way when warnings about a medical device might be inadequate. A jury might think otherwise.

Regardless of how a jury might view the credibility of a doctor who earsns significant income testifying as an expert for a medical device manufacturer, the court of appeals essentially held that all doctors can be trusted to do what’s right. Since the Florida Supreme Court has not decided the precise issue before the court, the Eleventh Circuit declined to adopt an exception to the learned intermediary doctrine that Florida courts have not adopted.

The Colorado Court of Appeals relied on a New Yorker cartoon to illustrate the issue it confronted in People v. Battigalli-Ansell. The cartoon features a dog at a keyboard telling another dog, “on the internet, no one knows you’re a dog.”

The internet site Omegle is essentially a chat room. The site connects users randomly and encourages them to engage in anonymous conversation. Users probably won’t chat with a dog, but they might be connected to someone who has created a false persona. The site encourages users to “have fun” and does not require them to disclose their true identity.

David Battigalli-Ansell began chatting with a user who identified herself as “Brooke.” Brooke claimed to be a fourteen-year-old girl. Omegle does not require users to be adults, so it was possible that the user was telling the truth. Battigalli-Ansell is an adult.

Battigalli-Asell and Brooke exchanged sexually suggestive messages. Brooke then sent Battigalli-Asell her telephone number. To confirm that the person to whom he was chatting was actually a female and not a male engaged in role playing, Battigalli-Ansell texted the number and asked Brooke to send him a picture. In response, he received a picture of an 18-year-old woman. Battigalli-Ansell then sent Brooke a picture of his penis.

A Colorado statute makes it illegal to invite, by means of a computer network, “a person whom the actor knows or believes to be under fifteen years of age and at least four years younger than the actor, to . . . observe the actor’s intimate parts.” Battigalli-Asell was charged with violating that law.

At trial, Battigalli-Ansell testified that he assumed Brooke was a role-playing adult. If he actually made that assumption, he was correct. “Brooke” was a part played by an adult male law enforcement officer. The picture that “Brooke” sent Battigalli-Ansell was a picture of an adult intern. At no time did Battigalli-Ansell communicate with a 14-year-old.

The statute, however, makes it unlawful to send an intimate picture by text or internet message if the sender “believes” the recipient to be under the age of 15. The prosecution contended, and the jury agreed, that Battigalli-Ansell believed Brooke was a 14-year-old girl based on the law enforcement officer’s false representations about his true identity.

Exclusion of Expert Testimony

The question of what Battigalli-Ansell believed is difficult to answer. Nobody can read minds. The jury knew that Battigalli-Ansell was told that Brooke was 14, but it also knew that Battigalli-Ansell received a photo of an 18-year-old that purported to be a photo of Brooke. It is not beyond the realm of possibility that Battigalli-Ansell believed he was talking to an adult female who was playing the role of a 14-year-old girl.

To bolster his defense, Battigalli-Ansell retained an expert witness. Marty Klein, a licensed marriage and family therapist and certified sex therapist, proposed to testify that:

• scientific studies establish that fantasy role playing is a normal part of human sexual interaction;
• millions of adults play erotic games centered around age play;
• fantasy age play does not necessarily indicate a desire to have sex with actual minors or to repeat role-playing behaviors outside the realm of fantasy;
• transcripts of the chats in which Battigalli-Ansell engaged with “Brooke” are consistent with fantasy age play by an individual who has no desire to move the fantasy behaviors to reality; and
• “the normalcy of sexual fantasies is not well understood in the general population and . . . often intimate partners fail to recognize and accept, without therapeutic help, the benign nature and normalcy of such fantasies in their partners.”

The trial court agreed that Klein could explain the nature of fantasy role playing in the context of a chat room. The court also allowed Klein to give “brief testimony that sexual fantasies about adult and adolescent sex partners are common and are not abnormal,” but did not permit more extensive testimony on the ground that it would be “a needless waste of time, might create confusion and would not be helpful to the jury.”

In particular, the judge excluded the testimony summarized in the bullet points above. However, when the prosecutor asked Klein on cross-examination whether people “fantasize about having sex with children,” the question opened the door to additional testimony. The court allowed Klein to testify on redirect that people fantasize about sex with “teenagers” and that “fantasies about having sex with minors [do] not predict . . . sexual behavior with minors.”

Battigalli-Ansell was convicted. He based his appeal, in part, on the exclusion of Klein’s full opinions.

Appellate Opinion

Battigalli-Ansell argued on appeal that Klein offered additional opinions in his expert report that were improperly excluded. However, the trial judge expressly asked whether Klein would be offering opinions other than those summarized in the bullet points above. Battigalli-Ansell’s counsel said that he would not. That statement waived the right to challenge the exclusion of other opinions.

The appellate court agreed that the opinions described in the bullet points were inadmissible. The question before the jury was whether Battigalli-Ansell believed he was sending an intimate photo to a person who was 14 years old. According to the court, whether fantasy role playing is a normal part of sexual interaction, whether millions of Americans engage in age play, and whether age play is a predictor of pedophilia are not opinions that shed light on Battigalli-Ansell’s beliefs.

It is true that pedophilia was not an issue in the case. Pedophilia is, by definition, a condition that describes an attraction to prepubescent children, not to 14-year-olds.

In any event, it is unlawful in Colorado to send an intimate picture to a 14-year-old, whether or not the sender is a pedophile. Whether Battigalli-Ansell actually wanted to have sex with the recipient of the photo was not relevant. Sending the photo to someone whom the sender believes to be a minor (even if the belief is mistaken) is unlawful regardless of the sender’s desire to have contact with the recipient.

On the other hand, the normalcy of age play does tend to make Battigalli-Ansell’s position easier to understand. A jury that does not know that age play is widespread might conclude that “nobody would do that.” Evidence that millions of people do, in fact, play fantasy games is relevant because it would tend to make the jury understand that Battigalli-Ansell might be part of that very large group.

Improper Comment Upon Credibility

Klein’s key opinion was that transcripts of the chat were “consistent” with fantasy age-play. The appellate court noted that prosecution experts in child sexual assault cases often testify that an allegedly abused child’s behavior (such as failing to report abuse) is consistent with the behavior of child abuse victims. Klein’s opinion that the chat was consistent with behavior observed by fantasy role players was arguably admissible on the theory that experts are generally allowed to educate jurors about common behaviors of individuals that are outside the ordinary experience of most jurors.

The court nevertheless observed that prosecution experts cannot give opinions about perceived behaviors of child abuse victims that tend to bolster the alleged victim’s credibility. Courts generally prohibit testimony when an expert’s testimony would suggest that the expert believes a child is telling the truth. The veracity of a witness is not a proper subject of expert testimony. The court saw no reason not to apply the same rule outside the context of sexual assault cases.

The issue that the court confronted is tricky. Testimony that a person’s behavior was consistent with behavior that is common to a particular group does not invariably suggest that the expert believes a witness is telling the truth. Police officers routinely testify that a driver’s behavior was consistent with the behavior of drunk drivers. Courts routinely admit that testimony on the theory that it assists the jury, even if it might suggest that the officer disbelieved the driver’s claim to be sober. There is no obvious reason to disallow expert testimony that signals a belief that a witness is telling the truth while allowing testimony that signals a belief that a witness is not telling the truth.

The court acknowledged that the “line between opinion testimony that improperly bolsters a witness’s credibility and admissible testimony that may only collaterally enhance the witness’s credibility is sometimes a difficult one to draw.” Experts who testify about the prevalence of delayed reporting by child sexual assault victims might be seen as bolstering the credibility of a child who delays reporting an alleged assault, but that testimony is routinely permitted. Doctors often diagnose health conditions by determining that a patient’s symptoms and behaviors are consistent with those of other patients who suffer from a particular condition. When doctors testify about a diagnosis that is based on symptoms disclosed by the patient and on consistency with other patients who have the same condition, the doctor signals a belief that the witness is telling the truth about her symptoms.

The court nevertheless concluded that Klein was bolstering Battigalli-Ansel’s testimony by stating that Battigalli-Ansel acted in conformity with the behavior of people who engage in age play. According to the court, Klein was signaling his belief that Battigalli-Ansel was telling the truth, at least in part because “Klein was not acting as a ‘cold’ expert —one who ‘knows little or nothing about the facts of the particular case, often has not even met the victim, and has not performed any forensic or psychological examination of the victim,’ and who educates the jury regarding certain general characteristics.” Klein’s testimony was accordingly inadmissible.

Lessons Learned

Courts are notoriously inconsistent in deciding whether an expert can opine that a person’s behavior was consistent with behaviors seen in members of particular groups. Battigalli-Ansel might have been better served by an expert opinion that simply avoided using the words “consistent with.” It isn’t clear whether Klein ever met Battigalli-Ansel, but establishing that he was a “cold” expert might have improved the chance of making his opinions admissible.

The court suggested that the outcome might have been different if Klein had confined his testimony to explaining “what characteristics of a dialogue generally inform his determination that the dialogue is ‘consistent with’ role-playing, as opposed to opining on the nature of the specific communications between Battigalli-Ansell and ‘Brooke’.” Unfortunately, the opinion does not make clear whether the trial judge gave Battigalli-Ansell the option to introduce more limited testimony. Had the trial judge parsed the testimony as carefully as the appellate court, Klein might have been able to give the limited testimony that the appellate court thought would be proper.

It is always perilous for experts to testify that the behavior of one person is “consistent with” the behavior of a group of persons. Unless precedent clearly establishes that such testimony is not an inadmissible comment upon credibility, experts might want to couch their opinions in terms that avoid making such comparisons.

Medical experts can play a significant role in diagnosing child abuse. As medical science has evolved, however, the judicial system has come to realize that expert testimony about whether an injury or death was caused by abuse can be problematic.

Medical experts are not present when an injury occurred and have no firsthand knowledge of its cause. To decide whether an injury was caused accidentally or intentionally, experts must engage in deduction. The line between deduction and speculation can be exceedingly thin.

Until recently, a pediatrician in Tacoma was regarded as one of Washington’s leading child abuse experts. Authorities believed she had an uncanny ability to detect “subtle” signs of child abuse. Unfortunately, “subtle” evidence is usually synonymous with “ambiguous” evidence. The pediatrician’s opinions have been called into question, in part because she provided untrue information about her expertise.

Dr. Elizabeth Woods

Government authorities in Washington routinely relied on Dr. Elizabeth Woods to provide expert opinions about child abuse. Those opinions provided the foundation for criminal proceedings and for civil actions to remove children from their parents.

Until recently, Dr. Woods was the director of the child abuse intervention program at Mary Bridge Children’s Hospital in Tacoma. On several occasions, Dr. Woods’ professional opinions were controversial.

In one case, Dr. Woods opined that a mother had abused her 5-year-old daughter by seeking excessive and harmful medical treatments. Authorities responded by removing the 5-year-old and the mother’s 8-year-old (who was never alleged to be a victim) from the mother’s custody.

In another case, Dr. Woods concluded that a 2-year-old child’s bruise was caused by abuse. Although her opinion contradicted a pediatrician’s opinion that the bruise was consistent with the parent’s explanation that the child accidentally fell on a heating grate, authorities who regarded Dr. Woods as a child abuse expert removed the child from the parent’s home.

Those cases and others were the subject of an extensive investigation by NBC News and one of its affiliates. NBC discovered that Dr. Woods “lacks key medical training for assessing potential abuse cases.”

Lack of Credentials

In some cases, the results of child abuse are so obvious that most pediatricians can readily determine that injuries could only have been inflicted with the intent to harm the child. In other cases, the evidence is less clear.

Pediatricians who specialize in child abuse now receive extensive training that helps them identify abuse. In addition to general training in pediatrics, a child abuse pediatrician completes a 3-year child abuse pediatrics fellowship. The physician must then pass an examination to become board certified in child abuse pediatrics.

In the case of the 5-year-old who was allegedly subjected to unnecessary treatment, Dr. Woods admitted on cross-examination that she did not complete the medical fellowship that is required to specialize as a child abuse pediatrician and was not board certified in the field. She claimed that the training is unnecessary.

While the necessity of specialized training might be a matter of opinion, Dr. Woods also testified about facts that are simply untrue. Dr. Woods testified that there “are approximately 250 of us nationwide that function as child abuse consultants” and “a very small minority of those have received training.” She also claimed that she had not completed the training because it was first offered three years before she testified.

NBC reported that the child abuse subspecialty was created in 2009, while Dr. Woods was still in medical school. NBC also reported there are 375 certified child abuse pediatricians in the United States, all of whom either completed the training or were allowed to take the board exam based on years of experience prior to the 2009 creation of the subspecialty.

The pediatrician who determined that a child’s bruise was consistent with accidentally falling on a grate was astonished that child welfare authorities accepted Dr. Woods’ claim that the bruise was caused by abuse. The authorities claimed they believed Dr. Woods because of her “extensive training,” prompting the pediatrician to ask, “Where’s the extensive training?”

How Training Shapes Opinions

Certified child abuse pediatricians have been trained not to give opinions that exceed the bounds of medical knowledge. For example, Dr. Woods prepared a report that claimed two young parents probably abused their child because, in her opinion, they didn’t display an appropriate emotional reaction when they learned that their baby had suffered several fractures. Medical knowledge does not allow a doctor to identify abusers by their emotional reactions. In any event, certified child abuse pediatricians are trained to understand that their role is to identify abuse, not to identify the abusers.

In another case, Dr. Woods reported that twin babies who suffered multiple fractures must have been the victim of abuse because “a motor vehicle collision” would be the only possible alternative cause of those injuries. Dr. Woods identified no medical basis for that opinion, but child welfare authorities accepted it without question and removed custody of the children from their parents.

Three medical experts later concluded that the fractures were probably caused by a mineral deficiency that weakens bones, a potential cause that Dr. Woods failed to identify. A well-trained specialist would have ruled out all potential alternative causes of the injuries rather than jumping to the conclusion that they resulted from abuse.

Having appropriate training is important because child welfare authorities generally defer to medical experts. If an expert claims that an injury was likely caused by abuse, child welfare authorities tend to err on the side of protecting the child. That often means removing children from their parents, even if the parents are entirely innocent. Authorities who base decisions on suspicions rather than solid evidence often harm, rather than help, the children they are charged with protecting.

Slow Response

Hospital leaders were slow to recognize that Dr. Woods held herself out to be an expert in the absence of credentials possessed by actual experts. A spokesperson for Mary Bridge Children’s Hospital claimed that Dr. Woods “has treated thousands of children over her many years of dedication to this field.” There is a difference, however, between treating an injured child and determining the cause of the injury. The fact that Dr. Woods has years of experience doesn’t mean she has a history of correctly identifying child abuse when the medical evidence is ambiguous.

The spokesperson also praised Dr. Woods for being “an ally to the vulnerable children in our community.” Unfortunately, experts who regard themselves as an ally for a cause often slant their opinions to serve that cause. An expert who regards herself as an advocate for children will tend to find abuse when the evidence is ambiguous. An expert witness should be an advocate for the truth, not for a cause, even if the cause is as worthy as preventing child abuse.

For a time, officials at Mary Bridge and Seattle Children’s Hospital, which manages the state’s child abuse medical consultation network, simply ducked questions about Dr. Woods’ misstatements under oath. They apparently did not consider whether Dr. Woods should be trusted to form reliable opinions about child abuse if she could not give reliable answers about her credentials.

Belated Removal from Role as Child Abuse Expert

While reluctant to accept an uncomfortable truth, Washington authorities and hospital administrators belatedly acknowledged that Dr. Woods’ credibility is open to challenge. Dr. Woods is no longer the director of the child abuse intervention program at Mary Bridge. Internal documents obtained by NBC imply that hospital officials initiated the change in response to a review of the program that the hospital asked an outside expert to conduct.

Last month, Dr. Woods was removed from the roster of doctors who provide expert medical reports to Washington’s child welfare agency. Dr. Woods’ removal was celebrated by parents whose children were taken away based on Dr. Woods’ expert opinion. Some of those parents have told their stories in a Facebook group devoted to wrongly accused families.

At least two Washington prosecutors have taken the honorable step of reviewing cases in which Dr. Woods testified. One prosecutor is notifying defense attorneys in those cases that grounds exist for challenging Dr. Woods’ credibility. Prosecutors in two counties added Dr. Woods to their list of potentially discredited expert witnesses, and the prosecutor in Kitsap County is considering whether it should add Mary Bridge Children’s Hospital to that list.

Lessons Learned

Expert witnesses for both the prosecution and the defense provide critical testimony in criminal cases. Expert reports in civil cases can persuade child welfare authorities to take the drastic but common step of separating children from their parents out of an abundance of caution, an action that may inflict more harm on children than it prevents.

Given the importance of expert opinions, it is vital that child abuse experts have appropriate training. It is just as vital for experts to have integrity. Experts should base opinions on their best assessment of medical evidence, not on a well-intentioned desire to protect children. Any bias that grows out of an expert’s desire to advance a cause necessarily compromises the expert’s objectivity and impairs the expert’s value to prosecutors and child welfare agencies.

After a case is removed from state court to federal court, the federal rules of evidence apply. A federal appellate decision regarding a lawsuit that was filed in Massachusetts makes clear that lawyers cannot expect to be rescued by reliance on state rules when they fail to make the expert witness disclosure required by federal rules. Nor can lawyers gain back door admissibility of expert opinions by filtering them through a disclosed expert who lacks the qualifications to render those opinions.

Facts of the Case

A doctor in Massachusetts prescribed Levaquin to Kevin Carrozza. Levaquin is a quinolone antibiotic. Carrozza took the prescription to a CVS pharmacy to be filled. Neither Carrozza nor the prescribing doctor knew that Carrozza had an allergy to quinolones.

The CVS computer system alerted the pharmacist on duty, Richard Wokoske, of Carrozza’s allergy to quinolones. Wokoske checked Carrozza’s patient profile, which indicated that Carrozza had been prescribed Levaquin in the past and had denied knowledge of a quinolone allergy.

Pursuant to CVS policy, Wokoske used his own judgment in deciding how to resolve the conflicting information. He chose to dispense the prescription.

Carrozza took the Levaquin and suffered an allergic reaction. He alleged that the reaction caused permanent damage to his eyes. Carrozza sued CVS for dispensing the medication after being alerted to his allergy.

Carrozza’s lawsuit was removed to federal court. CVS filed a motion to preclude the testimony of Carrozza’s expert witness, Dr. Kenneth Backman. Carrozza filed a motion to take a deposition of a second expert witness, Dr. Stephen Foster. The trial court denied the motion to take Dr. Foster’s deposition because the discovery deadline had passed. The court then granted summary judgment in favor of CVS.

Dr. Foster’s Opinion

Carrozza initially based his case on information provided by Dr. Foster, an ophthalmologist. Dr. Foster executed an affidavit in which he opined that Carrozza’s ingestion of Levaquin caused his eye injuries.

The affidavit was arguably admissible evidence under Massachusetts law, which makes an exception to its hearsay rule for certain sworn statements from physicians, including “the opinion of such physician or dentist as to proximate cause of the condition so diagnosed.”

Federal law has no corresponding exception. When the case was removed to federal court, Carrozza could no longer rely on Dr. Foster’s affidavit as trial evidence. Carrozza nevertheless filed a motion, relatively early in the case, to admit the affidavit as evidence. The district court ruled that the affidavit was essentially an expert report. The court advised Carrozza that if he wanted to rely on Dr. Foster’s affidavit, he needed to designate Dr. Foster as an expert witness and to comply with federal rules governing the disclosure of expert opinions.

Dr. Backman’s Opinions

Carrozza did not designate Dr. Foster as an expert. He instead designated Dr. Backman. Carrozza supplied an affidavit from Dr. Backman opining that Wokoske’s decision to dispense Levaquin despite the warning was a breach of the standard of care. Dr. Backman also opined that Carrozza’s ingestion of Levaquin was the likely cause of his injuries.

Dr. Backman’s medical background includes a specialization in allergies and immunology. During his deposition, Dr. Backman admitted that he did not know the standard of care applicable to pharmacists. Dr. Backman also testified that he based his opinion about Carrozza’s eye injuries on Dr. Foster’s affidavit.

Denial of Motion to Depose Dr. Foster

CVS moved to exclude Dr. Backman’s testimony on the ground that he had no relevant knowledge of Carrozza’s injuries but was merely channeling the information in Dr. Foster’s affidavit. In response to that motion, Carrozza asked the court for permission to take Dr. Foster’s deposition so that he would have an admissible expert opinion.

The district court denied the motion. The court noted that Carrozza had never disclosed Dr. Foster as an expert witness despite having ample time do so. The court had warned Carrozza that Dr. Foster’s affidavit would be inadmissible hearsay at trial. Dr. Foster’s opinions might have been admissible as the opinions of an expert witness, but Dr. Foster was never designated as an expert. Taking his deposition would not result in admissible evidence because expert opinions can only be offered by witnesses who have been identified as experts.

The court of appeals determined that the district court reasonably exercised its discretion in denying the motion. Carrozza did not explain why he failed to designate Dr. Foster as an expert witness despite having sufficient time to do so after his motion to admit Dr. Foster’s affidavit was denied. In the absence of that designation, Carrozza had no grounds to reopen discovery so that he could take Dr. Foster’s deposition.

Exclusion of Dr. Backman’s Testimony

There isn’t much doubt that a party who fails to disclose an expert can’t use the expert. The more meaningful question in Carrozza’s case was whether he was entitled to use Dr. Backman as an expert. There was no dispute that Carrozza made a timely disclosure of Dr. Backman.

Dr. Backman testified that he had no personal knowledge of the standard of care that applied to pharmacists. Carrozza argued that as an allergist, Dr. Backman understood whether a pharmacist should dispense Levaquin to a patient after being alerted of the patient’s allergy to quinolones.

The appellate court disagreed. While Dr. Backman is qualified to discuss the standard of care an allergist would follow, the question here is how a pharmacist should react when the pharmacist has inconsistent information about a customer’s possible allergy to a particular drug. Dr. Backman’s admission that he did not know the standard of care that applies to pharmacists made him unqualified to render an expert opinion.

Nor did Dr. Backman’s testimony establish his familiarity with the cause of Carrozza’s eye injury. Dr. Backman relied on Dr. Foster’s affidavit in forming the opinion that Levaquin caused the injury.

Experts are entitled to rely on the opinions of other experts to the extent that experts in the field would generally do so, but that rule does not permit experts to serve as a back door conduit to admit an expert opinion that is otherwise inadmissible. Since Dr. Backman had no expertise of his own in ophthalmology and was not familiar with the causes of an eye condition like Carrozza’s, he was not qualified to render an expert opinion as to the cause of Carrozza’s injury.

Lessons Learned

A standard of care expert is nearly always needed to prove a professional negligence claim. Lawyers risk exclusion of expert testimony if their expert does not have experience in the same field as the negligent professional. An allergist is unlikely to have significant knowledge about the standards that are routinely followed by pharmacists when they determine whether it is safe to dispense medications. A pharmacist would have been an appropriate expert on standard of care in Carrozza’s case.

Dr. Foster might have been an appropriate expert to prove that Levaquin caused Carrozza’s eye injury. However, Dr. Foster was not identified as an expert. Lawyers who are accustomed to filing cases in state court and following state rules of evidence should take note of the Carrozza case. When a lawsuit is removed to federal court, the federal rules of evidence apply, including rules governing the disclose of expert witnesses and their reports. The failure to follow those rules will doom a party’s ability to rely on an expert witness.