Category Archives: ExpertWitness

Ohio Court Dismisses Medical Expert Witness in Asbestos Cancer Lawsuit

Last week, the Ohio Supreme Court dismissed a medical expert witness in an asbestos illness lawsuit because the doctor failed to claim asbestos exposure was the substantial cause of the victim’s fatal cancer.  The plaintiff, filing the claim on behalf of her deceased husband, was granted permission to reinstate her case should she find reliable expert testimony that links asbestos exposure to her spouse’s death.

Plaintiff Alleges Asbestos Caused Cancer

Cleo J. Renfrow filed a lawsuit against Norfolk Southern Railway Company alleging that her late husband, Gerald, was exposed to asbestos while he worked for Norfolk Southern from 1968 to 1992.  Gerald, who died in 2011 from lung cancer, was a long term employee who, according to Cleo’s lawsuit, had worked close to toxic levels of asbestos without being properly protected by Norfolk Southern.  The defendant has argued that Mrs. Renfrow’s lawsuit fails because she was not able to connect asbestos to Gerald’s fatal lung cancer.

Complicating Mrs. Renfrow’s case was Gerald’s 50-year habit of smoking a pack-and-a-half of cigarettes every day.  With cigarette smoking a known cause of lung cancer, the lawsuit faced the difficult task of identifying asbestos exposure as a critical factor to the disease that caused Gerald’s death.  Although Renfrow did not have a written report from her husband’s physician, a lower court determined that she could pursue a claim if she provided Gerald’s hospital records, history of smoking, asbestos exposure, and an expert witness report from a competent medical authority that testified to asbestos’ effect on Gerald Renfrow’s cancer.

Asbestos Plaintiff Retains Medical Expert Witness

To satisfy the requirement of a competent medical authority who could establish that Gerald’s lung cancer was caused by asbestos exposure, Cleo Renfrow hired Dr. Laxminarayana C. Rao.  Dr. Rao argued that asbestos led to Gerald’s illness, but was challenged by Norfolk Southern for not sufficiently connecting the alleged cause with the fatal lung cancer.  In his report, Dr. Rao pointed to Gerald’s long-term asbestos exposure, but, according to Norfolk, his expert witness report fell short of the legal standard required to demonstrate cause.  After reviewing the case and Dr. Rao’s medical expert testimony, the Ohio Supreme Court agreed and dismissed the case.

Ohio Supreme Court Rules Expert Failed to Connect Asbestos to Lung Cancer

Although Dr. Rao opined that asbestos contributed to Gerald’s lung cancer, the Ohio Supreme Court found that he had not gone far enough.  In order for Dr. Rao to be a competent medical authority in an asbestos case, he needed to provide expert testimony that had it not been for the asbestos exposure, the victim would not have contracted cancer.  In a toxic tort case such as Mrs. Renfrow’s, a medical expert witness must argue that the chemical is the predominate and significant factor in causing the disease – a step that Dr. Rao had not fully taken.

Writing for the Ohio Supreme Court, Judge Terrence O’Donnell emphasized, “One of the statutory prerequisites necessary to establish a prima facie tort action alleging an asbestos claim based upon lung cancer requires a person who is a smoker to demonstrate a diagnosis by a competent medical authority that the exposure to asbestos is a substantial contributing factor.”  Without a medical expert witness testifying to asbestos being the primary factor, Mrs. Renfrow’s case fell short of meeting the legal requirements in Ohio.

When dismissing the case, the Ohio Court noted that Mrs. Renfrow still had the opportunity to reinstate her lawsuit if she could find a competent medical expert witness who could establish that asbestos exposure was the predominate cause of her husband’s death.  The Court suggested testimony from Gerald’s treating physician, who would have both credence as an expert witness and direct knowledge of the case.

Death Penalty Discrimination Expert Witness Receives $1.75 Million

The State of Connecticut has agreed to pay a death penalty expert witness $1.75 million to settle a fee dispute that arose after the unsuccessful lawsuit alleging racial discrimination in inmate executions.  The expert witness bill, originally $3.5 million, represented six years of services in investigating discriminatory processes during capital cases in Connecticut.

Connecticut Inmates Allege Death Penalty Discrimination

Five of Connecticut’s eleven death row inmates filed a discrimination lawsuit alleging that black defendants were more likely to receive a death sentence than whites, particularly if the crime featured a black defendant and a white victim.  Although the death penalty was outlawed in Connecticut in 2012, the eleven inmates already receiving a death sentence were unaffected, and the five plaintiffs sought to have their punishment commuted to life in prison without possibility of parole.

The Connecticut Public Defender’s office took on the task of representing the inmates – which is common practice in prisoner civil rights lawsuits – meaning that all expenses incurred as a result of the trial would be billed to the State. As part of the lawsuit, the Public Defender’s office reached out to Stanford law professor John Donohue III with a request to conduct a study of Connecticut’s death penalty sentencing and sit as an expert witness during the discrimination trial.

Death Penalty Expert Witness Study Suggests Discrimination

Donohue’s work as an expert witness for death row inmates involved a comprehensive study of all 205 death-penalty-eligible cases from 1973 to 2007 and found a difference in charge for black defendants, particularly ones who committed a crime against a white victim.  Donohue’s work seemed to confirm the allegations that black defendants were more likely to receive death penalty sentencing than whites, suggesting that discrimination existed in Connecticut’s capital punishment system.

Donohue was challenged by the State’s Attorney’s expert witness, Stephan Michelson, who works for a research firm, and has expertise in conducting studies and analyzing data.  Over the course of six years, Michelson offered a variety of critiques to Donohue’s work, forcing the plaintiffs’ expert to continually refine his research and data analysis before the case finally went to trial last October.

Judge Dismisses Connecticut Inmates Death Penalty Discrimination Challenge

Last October, Judge Samuel J. Sferrazza issued an opinion in the case that dismissed the plaintiffs’ allegations of racial discrimination in Connecticut death penalty cases.  As part of the ruling, Judge Sferrazza found Dr. Donohue’s work as a plaintiff expert witness ultimately unconvincing to the issue of racial bias influencing death penalty outcomes.  Writing that, “Doctor Donohue’s testimony was a relevant starting point, but a far cry from the proof necessary to establish the invalidity of the death sentence imposed upon the individual petitioners,” Judge Sferrazza determined that Donohue’s analysis fell short of the necessary proof for racial discrimination.

Although the case will continue to the Connecticut Supreme Court, Dr. Donohue submitted the invoices he compiled during his six year service as an expert witness, leaving the Public Defender’s office with a $3.5 million bill that the State was unwilling to pay.

Expert Witness Settles Fee Dispute for $1.75 Million

When Dr. Donohue’s expert witness invoice was first submitted to the Connecticut Public Defender Services Commission, officials refused to remit the full payment of $3.5 million.  After negotiations with Donohue, the commission agreed to pay half the sum, $1.75 million, and requested the state legislature and governor to approve emergency funding to accommodate.  Although the Connecticut Public Defender was unhappy with the process Donohue used in his billing, at no point did anyone allege that he had not done substantial work that was deserving of significant compensation – an opinion that resulted in the $1.75 million settlement.

Police Use-of-Force Experts Used in Officer Assault Trial

A police officer in California was convicted of misdemeanor battery for kicking a suspect in the groin during an arrest after a home invasion last year. During the trial, expert witnesses for both sides debated the appropriate use of police force during an arrest, with prosecutors succeeding in showing that Officer Christopher Melton had crossed a line while performing his duty.

Police Officer Assaults Suspect During Arrest

On April 13, 2013 Officer Melton pursued Daniel Reagan, who was spotted fleeing a residence.  Melton, and fellow officer Ross Bays caught up with Reagan who, according to Officer Bays, laid down to surrender while saying “I’m done” to the two arresting officers. As Reagan lay on the ground, Officer Melton approached and kicked him hard in the groin, causing him to curl into a fetal position in pain. Officer Melton testified during his trial that he saw Reagan look over his shoulder, leading him to believe that the suspect was going to make a threatening move, and necessitating the use of force during the arrest.

Prosecutors argued that Melton purposefully and maliciously assaulted Reagan without cause, and included Officer Bay’s testimony as well as testimony from Officer Joshua Klinge who testified that Melton bragged about the incident later that night. In addition to witnesses to the assault and Melton’s reaction, prosecutors called police expert witnesses to explain proper arresting procedure and contrast reasonable use of force with Melton’s actions.

Police Force Expert Witnesses Testify in Officer Assault Trial

Prosecutors called Jeff Martin, a police use-of-force expert, to testify that it would be unjustified for a police officer to kick a suspect in the groin in a situation in which the suspect appears to be compliant. Martin is an instructor in California’s Peace Officer Standards and Training program, and he told the jurors that Melton did not appear justified in kicking Reagan during the arrest. Martin analyzed the facts, and told the jury that in this case, “We have compliance, there shouldn’t be use of force.”

Countering the testimony of Martin, Officer Melton’s defense team called Don Cameron, an instructor at the Sacramento Public Safety Training Center who is also a use-of-force expert witness. Cameron told jurors that he trains officers to use full force when hitting or kicking a suspect who poses a threat or might attempt to escape because doing so is the most efficient way to stop the threat immediately.  Cameron also testified that when Reagan turned his head to look over his shoulder, it was reasonable for Melton to perceive a threat. Calling the head turn “target seeking,” Cameron told the jury that a suspect moves his head “to see how he’s going to attack you, to see how he’s going to shoot you.” He said that a head turn is a sign of escalation, and warned jurors that reaching for and firing a gun takes only 2.5 seconds. Cameron assessed the situation, which occurred in the dark of early morning, and testified that Melton was justified in taking his action.

Jury Convicts Officer of Excessive Force Assault

Despite testimony from Mr. Cameron, jurors determined that Officer Melton was not justified in kicking Reagan, and was thus guilty of battery. Jurors decided that the lawful necessity to use violent force did not exist in the Reagan case, and Melton had violated his duty by kicking the suspect in the groin during the arrest. Judge Linda McFadden sentenced Melton to five days in jail, 100 hours of community service, and three years of informal probation saying, “We rely on police officers to keep us safe, not harm citizens, even someone believed to have committed an egregious crime.”

Starbucks Coffee Relies on Expert Witnesses to Dispute Cancer Lawsuit

The Starbucks Empire is facing a legal challenge from a group of activists in California who claim that the company’s coffee has sufficient carcinogens to cause cancer in consumers. The trial has become a battle of expert witnesses, and both sides will present an array of experts whose testimony will ultimately determine if Starbucks will need to add a warning label for its California consumers.

Starbucks Sued in California

The Council for Education and Research on Toxics (CERT) is a non-profit activist group comprised of attorneys and consultants which has earned a reputation challenging large companies over levels of alleged carcinogens in food or beverage. CERT’s primary focus is the compound acrylamide, which is on the radar of health officials as a potential carcinogen, particularly prevalent in fried potato products. Although no study has directly linked acrylamide present in foods to increased cancer rates, companies selling products in California have been forced to reduce the amount of acrylamide in order to avoid issuing a warning label to consumers.

CERT has immersed itself in the acrylamide litigation, most notably when the organization initiated a 6-year legal campaign against McDonalds and Burger King in 2002, which resulted in a change in food preparation and warnings issued to consumers. The primary legal vehicle for CERT is California’s Proposition 65, a 1986 law that prevents any from company from knowingly exposing consumers to certain quantities of carcinogens without providing clear and reasonable warning.  Just as it did in its lawsuit against McDonalds and Burger King, CERT used the provisions of Proposition 65 to file a lawsuit against Starbucks by alleging the company’s coffee contains harmful levels of toxic acrylamide.

CERT has requested LA Superior Court Judge Elihu M. Berle to force Starbucks to either implement coffee preparation procedures to reduce the amount of acrylamide present, or provide warning labels that alert consumers of the compound’s presence. Starbucks has responded to the lawsuit by arguing that forcing the company to add a warning label is unconstitutional forced speech, that CERT’s Prop 65 claim is invalid because the issue is controlled by federal law, and, that the levels of acrylamide present in the coffee do not pose a significant risk to consumers. It is the latter point regarding the potential harm to consumers that expert witnesses will debate as the trial unfolds.

Medical Experts Dispute Carcinogen Levels in Starbucks Coffee

CERT’s complaint, which includes claims against 7-Eleven Inc. and Seattle Coffee Co., alleges that Starbucks and other companies sell coffee that violates Prop 65 by containing from 4 – 100 times more acrylamide than the “no significant risk level” set by California’s Office of Environmental Health Hazard Assessment. Last July, CERT’s request to receive a judgment without trial was dismissed with Judge Berle saying the matter would come down to expert witness testimony regarding the threat of cancer posed by Starbucks coffee.

Starbucks presented expert witness toxicologist Dr. F. Jay Murray to testify that the levels of acrylamide in its coffee is not a threat, and that the other compounds within the drink neutralize the presence of acrylamide to the point that no warning label is required. Dr. Murray opined that the best way to evaluate the risk of acrylamide in Starbucks coffee was to consider the impact of the coffee itself on the compound.  Saying that CERT’s focus on acrylamide was too narrow, Dr. Murray argued that there are over 1,000 chemicals in coffee that could influence the compound’s impact.

Starbucks also called Dr. Paolo Boffetta, former head of the International Agency for Research on Cancer’s (IARC) genetic epidemiology group and a Harvard professor, to testify that several scientific studies demonstrate no link between coffee consumption and cancer. Dr. Boffetta dismissed the notion that the presence of acrylamide, or another other chemical, in coffee posed a cancer risk to consumers, and supported his opinion by referencing several studies from across the medical research community.

CERT attorney Raphael Metzger challenged both experts on cross examination with pointed questions about the impact of acrylamide specifically, which he hoped would bring the focus of the lawsuit back to the compound he and CERT have targeted throughout. Judge Berle will continue to hear arguments on the matter, and will likely issue a ruling in the coming weeks.

Texas Anti-Abortion Expert Witnesses Dismissed by Federal Judge

Four anti-abortion expert witnesses in Texas were dismissed by a federal judge for improperly allowing a state employed consultant to have significant editorial and creative liberty over their opinions. In a decision that struck down portions of the state’s anti-abortion provision, Federal District Court Judge Lee Yeakel issued a strong reproach over the manner in which the Texas attempted to influence its expert testimony during the trial.

Texas Anti-Abortion Statute Limited

Late in August, Judge Yeakel issued an opinion that struck down provisions of Texas’ anti-abortion law that required rigorous accreditation for all abortion clinics in the state. Under the Texas law, abortion clinics would need to meet the same medical standards as ambulatory surgical centers, which would have required significant structural changes to room and door size along with installation of anesthesia pipelines. All but a few of the abortion clinics in the state would have been forced to close had the new provisions been upheld, but Judge Yeakel determined that the regulation was an unconstitutional burden on the right of women to choose abortion.

The focus of his decision was, as Judge Yeakel wrote, the fact that the law’s requirement “burdens Texas women in a way incompatible with the principles of personal freedom and privacy protected by the United States Constitution for the 40 years since Roe v Wade,” but the judge included a footnote that fired a direct criticism at the State’s use of an anti-abortion expert witness.

Federal Judge Condemns Texas Evidence in Anti-Abortion Case

In dismissing Texas’ abortion clinic requirements, Judge Yeakel cited a “dearth of credible evidence” that the law would make abortion clinic’s safer for women – a key component of conservative lawmakers’ justification for the enhanced medical standards. As part of its failed argument, Texas presented four expert witnesses to testify about medical conditions of abortion clinics and psychological effects of abortion, all of whom attempted to convince the court that strict abortion restrictions were justifiable.

Judge Yeakel was not only unconvinced by the testimony from Texas’ experts, but found troubling evidence that all four of the State’s expert witnesses were strongly influenced by Vincent Rue, an influential anti-abortion consultant who has a checkered relationship with the American legal system.

Texas Conceals Involvement of Discredited Expert Witness

Rue, who helped legislators write the new anti-abortion bill, is a marriage therapist with a doctorate in family relations who has built a long career of passionate anti-abortion advocacy across the country. His professional reputation was built largely on his coinage of the term post-abortion stress syndrome, which is a condition unrecognized by any professional psychological association and roundly rejected by many clinicians, including former US Surgeon General, C. Everett Koop.

The legal system, too, has discredited Rue, most notably in the significant case Planned Parenthood v Casey in which his expert testimony was described as “devoid of analytical force and scientific rigor [and his] personal opposition to abortion suggests a possible personal bias.” Rue has been recognized by courts and abortion proponents as a biased source of anti-abortion information, severely diminishing his involvement as an expert witness. Texas officials, who paid Rue over $42,000, seemed to understand the risks of involving him at trial, and kept his involvement largely behind the scenes during the proceedings.

Plaintiff’s attorneys, however, were able to demonstrate via emails and testimony that Rue had a strong guiding hand in crafting the arguments and compiling the factual content that informed each of Texas’ four expert witnesses’ opinions.

Judge Dismisses Four Anti-Abortion Expert Witnesses

As the details of Rue’s involvement became clear, Judge Yeakel did not hesitate to dismiss the expert’s contributions to the trial. Yeakel condemned the State’s tactics, writing, “The credibility and weight the court affords the expert testimony of the State’s witnesses Drs. Thompson, Anderson, Kitz, and Uhlenberg is informed by ample evidence that, at a very minimum, Vincent Rue, Ph.D, a non-physician consultant for the State, had considerable editorial and discretionary control over the contents of the experts’ report and declarations. The court finds that, although the experts each testified that they personally held the opinions presented to the court, the level of input exerted by Rue undermines the appearance of objectivity and reliability of the experts’ opinions. Further, the court is dismayed by the considerable efforts the State took to obscure Rue’s level of involvement with the experts’ contributions.”

Rules of evidence require that expert witnesses be open and honest about how all opinions that comprise testimony are formed. This enables opposing parties to directly challenge an expert, and allows judges and juries to determine how much weight to give expert testimony.  By allowing four experts to build their testimony, either in whole or in part, on the opinions and ideas of Vincent Rue, Texas misused its expert witnesses and received a stern reprimand from the federal court.

Forensic Experts Duel in Plane Crash Wrongful Death Suit

A wrongful death lawsuit filed by family of a man killed when Continental Airlines Connection Flight 3407 crashed into his home began last week, and will feature important expert witness testimony regarding how much the deceased suffered between the accident and his death. Flight 3407 crashed on February 12, 2009 into a house in Clarence Center, New York killing all 49 passengers and Douglas C. Wielinksi, who occupied the Clarence Center residence. Five years after the accident, only Mr. Wielinski’s case remains unsettled, and family members will turn to medical expert witnesses in an effort to prove they are due substantial damages for the victim’s pain and suffering after the crash.

Plaintiffs Allege Victim Was Alive After Plane Crash

Family of Mr. Wielinski filed a wrongful death lawsuit against Continental Airlines and Colgan Air, which owned and operated the plane, seeking compensatory damages for the 61-year-old’s wrongful death and pain and suffering. The timing of Mr. Wielinski’s death is important to the lawsuit because if family members can prove that he was alive between the time that Flight 3407 crashed and the time the resulting fire would have proven fatal, then they are entitled to significantly more damages for pain and suffering. The legal system has long recognized that even fleeting moments between an accident and death can warrant pain and suffering damages to wrongful death plaintiffs if the victim likely suffered pain or fear before succumbing to injuries.

In the case of Mr. Wielinksi, plaintiffs from his surviving family prepared three forensic expert witnesses to argue that the condition of the deceased’s body indicated he was not killed immediately as the airlines allege. The three doctors are all experts in forensic pathology:

  • Dr. Jonrika Malone:  Dr. Malone, who conducted Wielinksi’s autopsy when she was with the Erie County Medical Examiner’s Office in 2009, noted that he had suffered multiple blunt force trauma to his chest and ribs, which led to his death. However, Dr. Malone, now a forensic pathology consultant in Alabama, agreed to testify on behalf of the Wielinski’s that the noted trauma did not kill Douglas or render him unconscious. Based on skull fragmentation, Dr. Malone argues that Wielinski was alive after the crash and burned to death by the resulting fire – causing him to suffer significant pain.
  • Dr. William R. Anderson: Dr. Anderson is a forensic pathologist and former medical examiner with over 6,000 autopsies under his belt, and he was hired by the Wielinski’s to conduct a medical review in order to testify that in his expert opinion Douglas was alive after 3407 crashed.  Although Dr. Anderson could not tell how long Wielinski lived after the crash due to a lack of toxicology results, he prepared testimony to say that the fluid in Wielinski’s lungs indicates that his heart was beating while his house burned. Anderson supported his opinion by pointing out that there is no evidence to suggest that Wielinski was instantly killed by the plane because his injuries were not indicative of severe enough trauma.
  • Dr. Joseph L Burton: Dr. Burton is another forensic medical expert who examined Wielinski’s cause of death and determined that tissue of his lungs indicated they were filled with fluid – indicating that Douglas was alive and breathing for a period of time between 3407’s crash and his death.

All three of the Wielinski family expert witnesses were approved by New York State Supreme Court Justice Frederick Marshall, and will be allowed to testify during the wrongful death trial.

Airlines Counter with Forensic Expert Witness

Continental Airlines and Colgan Air have hired Dr. James R. Gill as a medical expert witness to testify in support of Wielinski’s autopsy which lists his death as immediate. Dr. Gill disputed the finding that Wielinski’s lungs were filled with fluid because the condition was not noted in the autopsy report, and there was no evidence of soot in his respiratory system – which is a common symptom among victims of fire. Dr. Gill agrees with the medical examiner’s report of Wielinski’s death, and has prepared expert medical testimony that Douglas died immediately from blunt force trauma when 3407 crashed.

Attorneys for the Wielinski’s unsuccessfully tried to keep Gill from testifying by arguing he had not based his analysis on scientific methods, but Judge Marshall allowed the defense to present Gill by saying the jury could decide which party’s expert has a better supported position. The trial began last week.

Expert Testimony in Zoloft Lawsuit Ruled Inadmissible

Plaintiffs suing drug manufacturer Pfizer over alleged birth defects caused by its antidepressant Zoloft suffered a defeat last week when a federal judge rejected key portions of testimony from three medical expert witnesses. Experts for the plaintiffs were prepared to testify that Zoloft caused birth defects in humans, but US District Judge Cynthia Rufe found the scientific opinion supporting the connection to be unreliable and inadmissible during trial.

Judge Excludes Zoloft Plaintiffs’ Expert Testimony

Judge Rufe held a special hearing to analyze the proposed testimony of three scientific expert witnesses: Thomas Sadler, an embryologist; Robert Cabrera, a teratologist; and Michael Levin, a molecular developmental biologist. The three experts were called upon by plaintiffs to connect Zoloft use by pregnant mothers to infant defects, but, after reviewing their expert opinions, Judge Rufe determined that all three doctors fell short of connecting Zoloft to birth defects with imperfect scientific methodology, and thus could not testify to the jury.

Central to Judge Rufe’s opinion was the failure to reconcile existing studies on Zoloft, which did not find it was related to birth defects, with the proposed testimony in the upcoming trial. Zoloft has been prescribed to pregnant women for the entire duration of its 20 years on the drug market, and as such there is a significant amount of research available on the potential impact it has on pre-natal development. Some of the existing research has produced results that indicate Zoloft does not cause birth defects, but none of the plaintiffs’ doctors addressed the discrepancy in findings.

The rules of trial evidence, as interpreted by the Supreme Court case Daubert v Merrill Dow, require that all expert witness testimony be reliable – a standard that is typically measured by the quality of the scientific methods used to form an expert opinion. Taking that guidance into account, Judge Rufe found that, “The experts’ failure to reconcile inconsistent epidemiological research with their opinions regarding human causation is a significant methodological flaw, undermining their reliability under Daubert,” and the court was therefore forced to exclude portions of the testimony that claimed Zoloft causes birth defects.

Latest Expert Witness Ruling Consistent with Previous Decision

In April, Judge Rufe also denied testimony from a plaintiff expert witness, Dr. Anick Berard, who was prepared to claim that Zoloft could be affirmatively linked to birth defects. Dr. Berard is a professor specializing in teratology, the study of congenital abnormalities, whose testimony was determined to be unreliable for similar reasons. In her finding on Berard, Judge Rufe wrote, “The court finds that the expert report prepared by Dr. Bérard does selectively discuss studies most supportive of her conclusions, as Dr. Bérard admitted in her deposition, and fails to account adequately for contrary evidence, and that this methodology is not reliable or scientifically sound.”

Drs. Cabrera, Sadler, and Levin, whose expertise did not directly pertain to congenital defects, faltered without Dr. Berard’s contribution. Connecting the recent ruling with the similarly reasoned decision to exclude Dr. Berard as a plaintiff expert witness, Judge Rufe wrote, “The court notes that Drs. Cabrera, Sadler, and Levin were retained for their expertise on biological mechanisms, and although they each reviewed the epidemiological literature, it was Dr. Bérard who was retained for her expertise in that field. Had the court found Dr. Bérard’s methodology was sound, they would have been justified in relying upon her report as evidence in support of their own human causation opinions. However, without Dr. Bérard’s opinion to rely upon, the court must examine whether each of these experts adequately addressed the epidemiological evidence in forming their opinions on human causation.”

Zoloft Plaintiffs’ Expert Witnesses May Limit Testimony

Unlike her decision with Dr. Berard, Judge Rufe did not fully exclude testimony from Drs. Sadler, Cabrera, and Levin. All three doctors are experts in biological mechanisms, which is a field that can support a relationship between Zoloft and birth defects without making the argument that the drug definitely caused them. Because all three experts are able to support the opinion that it is plausible that Zoloft alters biological mechanisms necessary to fetal development, plaintiffs are able to use limited portions of their testimony.

All three plaintiffs’ expert witnesses used in the Zoloft lawsuit have conducted extensive research on animals, but none can definitively say the results carry through to humans – further preventing them from linking Zoloft to human birth defects. Pfizer attorneys expressed satisfaction in the ruling, and noted that the lack of expert witnesses capable of offering reliable evidence that Zoloft causes birth defects is a hurdle that plaintiffs will not be able to overcome.

Sixth Circuit Allows Expert Testimony Lacking Daubert Requirements in Wal-Mart Injury Lawsuit

An expert witness on slip and fall injuries recently used by Wal-Mart to successfully defend a personal injury lawsuit was affirmed by the United States 6th Circuit Court of Appeals last week despite objections from the injured plaintiff. In its ruling, the 6th Circuit clarified the standard for non-scientific expert witnesses under the guiding principles of expert admissibility found in Daubert v Merrell Dow.

Wal-Mart Injury Leads to Lawsuit

Plaintiff Carolyn Wood filed her personal injury lawsuit against Wal-Mart after tripping on a quarter-inch lip of sidewalk in front of one of the company’s Tennessee stores and seriously injuring her hand. Ms. Wood fell where the asphalt of the parking lot transitions into the sidewalk, which was designed to be flush, but had become uneven after the parking lot asphalt settled. Ms. Wood’s lawsuit alleged two theories of recovery: 1) Wal-Mart was negligent for failing to repair and warn of the quarter-inch change in elevation; and 2) Wal-Mart was liable under the legal theory of negligence per se because the quarter-inch lip violated applicable building codes.

Negligence per se allows recovery for injuries suffered because the defendant violated a law, regulation, or, in this case, construction codes. Unlike general negligence, which considers a number of factors, negligence per se only requires a plaintiff to prove that a violation of an applicable law occurred and the injury resulted. In this case, Ms. Wood’s per se argument relied on the interpretation of two building codes that defined the area where she fell as a “means of egress,” which are required to be flush. During trial, the parties presented competing expert witnesses to interpret the codes, with Wal-Mart using an architect named Mr. Edwards to inform the jury that the area in question was not considered a means of egress, and therefore the store was not in violation of building codes.

The trial court did not instruct the jury on negligence per se, meaning that Ms. Wood’s only hope of recovery was on a general negligence claim. When the jury found in favor of Wal-Mart, Wood filed an appeal claiming that Mr. Edwards was not a reliable expert witness under the requirements of Daubert because his testimony was not adequately supported by scientific evidence or methodology.

Sixth Circuit Affirms Wal-Mart Trip and Fall Expert Witness

On appeal, the 6th Circuit rejected both of Ms. Wood’s challenges to Wal-Mart’s use of Mr. Edwards as an expert witness regarding the applicable building codes. Wood, citing Daubert’s requirements on expert witness reliability, argued that Mr. Edwards should not have testified because his analysis of the situation was not supported by generally accepted authority or reliable testing, did not reflect industry standards, and did not offer peer reviewed or published opinions. These factors are critical to a Daubert analysis, and Edwards’ testimony was built solely on his personal knowledge and experience with construction and the housing codes in question.

The 6th Circuit acknowledged the lack of support for Edwards’ opinions, however, pointed out that the list of Daubert factors “neither necessarily nor exclusively applies to all experts or in every case.” The Court clarified that non-scientific expert witnesses, like Mr. Edwards, can establish the relevant reliability by drawing on personal knowledge or experience, and it is up to a trial judge to determine if a non-scientific expert relying on experience is sufficiently reliable given the circumstances. In the Wal-Mart case, Mr. Edwards had been an architect for over 40 years and had specific experience with the codes in question – more than enough to justify the trial court’s admission of his expert testimony.

By affirming Wal-Mart’s expert witness in this trip and fall case, the 6th Circuit reminded litigants that trial courts have a great deal of latitude when allowing testimony from a non-scientific expert whose testimony is based on personal experience. Under Daubert, judges are afforded room to evaluate a non-scientific expert’s qualifications and experience when determining admissibility of testimony.

Nationally Renowned Lethal Injection Expert Resigns Post

A nationally renowned expert witness who has worked to defend the lethal injection method used by a number of states across the country has terminated his role, leaving the states facing legal action questioning their death penalty procedures without his critical testimony.  Mark Dershwitz, an anesthesiologist at the University of Massachusetts, withdrew himself from the litigation challenging death penalty drugs last week.

Expert Anesthesiologist Supports Death Penalty Procedure

Dr. Dershwitz had risen as a leading expert for prison officials over the past decade, and most recently was called as an expert witness by the state of Ohio in support of its new two-drug combination used in lethal injections. Ohio was challenged for violating constitutional protection against cruel and unusual punishment after the two-drug method led to a 26-minute execution in January.  During the legal process, Ohio consulted with Dr. Dershwitz who has long defended the use of the two-drug system and has offered testimony that inmates do not suffer throughout the process.

Throughout his career as a death penalty expert witness, Dr. Dershwitz has written affidavits, presented expert reports, and offered testimony in court for states accused of civil rights violations in lethal injection procedures.  Over the past 10 years, Dershwitz has testified at the behest of the federal government, and 22 states including Ohio, Florida, Alabama, Kentucky, Maryland, Arizona, and Texas.

Death Penalty Expert Quits to Avoid Professional Scrutiny

The American Board of Anesthesiology forbids its members from contributing to the creation of death penalty procedures, and after a recent miscommunication about his role with the state of Ohio, Dr. Dershwitz felt he was walking too fine a line.  In a press release statement regarding Dershwitz’s involvement in the latest lethal injection challenge, Ohio officials announced that they had consulted with the doctor and determined that the process had been conducted humanely.  The state went on to note that “to allay any remaining concerns” it was increasing the dosages used in the two-drug method – giving appearance that Dershwitz’s expert opinion had factored into the decision.

Although the state later clarified that Dershwitz had nothing to do with the process of changing the lethal injection method, the doctor felt the mistake could jeopardize his status as an anesthesiologist.  Noting that the confusion could happen again should he continue to provide expert witness services in death penalty challenges, Dr. Dershwitz decided to terminate his role as an expert witness working for Ohio, all other states, and the federal government. Following Dershwitz’s abrupt departure as a lethal injection expert witness supporting the two-drug method, states will struggle to replace him as civil rights challenges to the death penalty mount.

Loss of Lethal Injection Expert Leaves Impact

Dr. Dershwitz’s decision will impact lethal injection litigation because he filled a unique niche in the industry as one of the few anesthesiologists willing to testify in support of the two-drug method of lethal injection.  Dr. Mark Heath, a Columbia University anesthesiologist who often testifies against use of lethal injection, said of the difficulties states will have replacing Dershwitz, “I think it’s very unlikely that any other medical experts familiar with these drugs will be willing to support [the two-drug] combination.”

With the lethal injection process coming under increased scrutiny after challenging executions in Ohio, Oklahoma, and Arizona earlier this year, Dr. Dershwitz’s decision to step down as an expert witness leaves a void that states defending their death penalty procedures will not easily fill.

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Expert Witness Provider Sues Louisiana Law Firm in Fee Dispute

An expert witness provider is suing a Louisiana law firm for allegedly failing to pay for the expert services provided. US Forensic LLC filed its lawsuit last month after the firm of Anzelmo, Milliner & Burke LLC did not pay the full amount for expert witness services provided.

Expert Witness Provider Sues Law Firm

US Forensic filed its suit alleging that it entered into an agreement with Anzelmo, Milliner & Burke to provide expert witnesses for the firm’s use in trial. The agreement stipulated that the firm would pay plaintiffs US Forensic $11,173.50 for expert services provided to the defendants. The plaintiffs asserted in the lawsuit that the law firm breached the contract by only paying a partial amount totaling $4,813.50 – less than half of the agreed upon amount – before claiming that the firm no longer needed US Forensics’ services since the case had settled.

In response to accusations that it had breached the expert witness contract, Anzlemo, Milliner & Burke argued that the expert witness provided by US Forensics did not satisfy the performance the firm had expected when the contract was formed. Pointing to inconsistencies in the expert’s deposition, testimony, and background, the firm stopped payment on a check to US Forensics citing failure to perform to the standards of the agreement.

Plaintiffs US Forensics are seeking damages in the amount of $4,813.50 for alleged breach of contract and unjust enrichment. The case will proceed over the coming weeks after the two sides go through the pre-trial process.

Expert Witness Fee Dispute Highlights New Market

As use of expert witnesses has become commonplace in both civil and criminal trials, a market for connecting law firms to experts has emerged. Firms are able to reach out to expert witness service providers for access to experts in a wide variety of fields that can accommodate legal needs regardless of the specific issues central to a dispute. Whether the expert provider contracts directly with the law firm or simply acts as a directory, the market for expert witness service providers has grown substantially and is one that savvy lawyers and firms are familiar with.

The US Forensics lawsuit also highlights the importance of being familiar with expert witness contracts prior to entering a relationship. Lawyers and firms must be careful shoppers for expert witness services, and write detailed contracts that sufficiently outline expectations for expert testimony and conditions that could result in partial or incomplete payment. Legal professionals should always be careful when choosing an expert witness, but need to be particularly wary of potential disputes that could result in litigation when contracting with a professional expert testimony provider.