Category Archives: ExpertWitness

MA-Massachusetts

Lawyer Faulted for Failing to Retain Expert Witness Regarding Voluntariness of Confession

Kenneth Richards beat his wife to death with a baseball bat in their Massachusetts home. He testified at trial that he acted in self defense after his wife stabbed him in the chest. A jury found him guilty of first-degree murder.

While Richards was in the hospital recovering from his stab wound, he gave the police a statement that was used against him at his trial. On appeal, Richards argued that an effective lawyer would have called an expert witness to challenge the voluntariness of that statement. The appellate court agreed that the lawyer erred but affirmed the conviction.

Facts of the Case

The Rowley police received a 911 call from Richards’ young daughter, who advised the dispatcher that her father had a hole in his stomach. When the dispatcher asked why, the daughter said that her mother might have dug the hole. She also told the dispatcher that there might also be something wrong with her mother.

An EMT found Richards covered in blood with a knife at his side. Richards had the kind of lacerations on his hands and arms that are consistent with defending against a knife attack. The EMT also observed that Richards’ wife was dead and that her skull had been fractured.

Richards was rushed to the hospital. Emergency surgery saved his life. Just prior to the surgery, he was given anesthesia and muscle relaxants. During surgery, he was given powerful opioids, including fentanyl and morphine.

As Richards was being transferred to the ICU following his surgery, a nurse asked him if he knew why he was in this hospital. Richards responded, “I stabbed myself and I killed my wife.” He complained of pain and was given additional morphine.

Twenty minutes later, while Richards was still under the influence of narcotics, the police questioned him in the ICU. Interrogating suspects while they are under the influence of thought-altering drugs is an unfortunate but common police practice.

Although Richards was mumbling, not always coherent, and complaining of pain, the police gave him a Miranda warning and accepted his statement that he understood his rights and was willing to waive them. The police made no inquiry into the effect of narcotics on his thought process.

Richards told the interrogating officers that he beat his wife with a bat because she was cheating on him. When asked whether she provoked him, he answered “no.” During another interview a few hours later, while he was still being treated with narcotics, Richards provided similar information and added that he stabbed himself in the chest after cutting his wrists and neck.

Trial Testimony

A state crime lab employee, identified as a forensic biologist, testified about bloodstain patterns. In the expert’s view, some of the bloodstains were consistent with hitting the victim after she stopped moving.

A medical examiner who autopsied the victim testified that she died from blunt injuries to the head. He opined that the victim died about fifteen to thirty minutes after the attack.

The defense consisted almost entirely of Richards’ testimony. He testified that he argued with his wife about her decision to stop taking medication for her bipolar condition. Richards said that at some point after they went to bed, he woke to find his wife kneeling over him. He fell out of bed and had difficulty breathing. At that point he noticed a hole in his chest.

Richards testified that he picked up a bat and used it as a crutch to help him stand. He saw his wife coming toward him and he swing the bat. He told the jury that he was in fear for his life and wasn’t thinking rationally. He said he only recalled hitting her once but conceded that he might have hit her multiple times.

Voluntariness of Confession

Richards’ trial testimony could be reconciled with the physical evidence but it was wholly inconsistent with statements he gave to the police while he was hospitalized. Although Richards’ lawyer challenged the admissibility of those statements, he failed to support that challenge with expert testimony.

The constitutional right to be free from self-incrimination has two components. First, it allows statements a defendant makes to the police to be used as evidence only if they were made voluntarily. Police officers cannot torture suspects to produce a confession. Nor can they use coercive tactics, although courts have a narrow definition of “coercive.” For example, the police can lie to suspects about evidence they don’t have in order to trick a suspect into giving a confession.

Second, suspects must be warned that they have the right to remain silent. The Supreme Court’s Miranda decision was a response to decades of inconsistent court decisions about whether a confession was voluntary — decisions that often excused the infliction of psychological abuse as a tactic to encourage confessions. If a suspect is warned that a statement will be used against him, and is warned that he can choose to remain silent or to consult with a lawyer before deciding whether to answer questions, a suspect who chooses to talk is presumed to have given a voluntary statement.

The Miranda warning is only required if the suspect is in custody. Whether a hospitalized suspect is “in custody” depends on the facts, but the issue did not arise in Richards’ case because he was given a Miranda warning before he was questioned. The question was whether, given his drugged condition, he was capable of understanding his rights or of making a voluntary statement.

Richards’ Expert Witness on Voluntariness

After Richards lost his appeal, he filed a post-conviction motion asking for a new trial. He contended that his trial lawyer was ineffective for failing to use expert testimony in support of his motion to suppress his confession.

Richards’ motion for a new trial relied on the affidavit of Dr. Adam J. Carinci, the director of the Massachusetts General Hospital Center for Pain Medicine. Dr. Carinci is board certified in anesthesiology and pain medicine. Based on a review of medical records, Dr. Carinci concluded that over a five-hour period, Richards was administered “at least eight distinct medications classified as either general anesthetics, benzodiazepines, opioids, cholinesterase inhibitors, or anticholinergics.”

Dr. Carcini stated as a “medical fact that the residual effects of” these medications “detrimentally impact consciousness, awareness, cognition, orientation, concentration, dexterity, comprehension and recall.” He concluded that the drugs “negatively impacted” Richards’ “ability to comprehend his Miranda rights at the time that they were read to him and the voluntariness of the statements that he made to [Trooper] LaBarge.”

Effective Assistance of Counsel

Richards argued that a reasonably effective attorney would have presented the expert testimony of Dr. Carcini or another medical expert to establish that Richards was in no condition to understand the Miranda warnings or to make a voluntary statement. To his credit, Richards’ trial attorney agreed that he should have done so. The attorney stated that he might not have recommended that Richards testify at trial if his incriminating statements had been suppressed.

Both the trial judge and the appellate court agreed that Richards’ lawyer deprived Richards of his constitutional right to effective advocacy by neglecting to retain an expert witness. The recorded interviews should have made it apparent to Richards’ lawyer that Richards “remained, to some extent, impaired by the medications he had received at the hospital and by the physical pain he was suffering from his wounds and from the surgical procedure.”

The appellate court held that “it was manifestly unreasonable for trial counsel not to retain a medical expert to help him understand the effects of the defendant’s medications and physical pain on the voluntariness of his statements or the knowing and voluntary nature of his Miranda waivers.” In other words, the lawyer neglected his duty to his client by not hiring an expert witness.

The trial judge held that he would not have suppressed the evidence even if the expert had testified. The judge was aware that Richards was under the influence of drugs but considered his recorded responses to be coherent and consistent with a clear understanding of his situation. The appellate court deferred to that conclusion. Since the failure to call an expert at the suppression hearing would not have changed the outcome, that failure did not entitle Richards to a new trial.

The appellate court also concluded that expert testimony at trial would not have changed the verdict. Had the expert testified, the jury might have been instructed to disregard Richards’ confession if it concluded that he did not give the confession voluntarily. In the appellate court’s view, however, Richards’ apparent understanding of the Miranda warnings and his clear-headed answers during the interrogation would likely have convinced the jury that Richards’ acted voluntarily, notwithstanding the expert’s opinion.

Lessons Learned

Appellate opinions necessarily make predictions about whether an outcome would have been different if errors had not been made. Those predictions amount to best guesses. The fact is, nobody — including the trial judge — knows whether the trial judge would have suppressed the confession if he had heard Dr. Carcini’s expert testimony before ruling. Nor does anybody know what a jury would have done if it had heard the same testimony.

The odds may be that Richards would still have been convicted if he had hired an expert witness, but defense attorneys have an obligation to assure that a client, innocent or guilty, receives a fair trial. This case stands as a reminder that retaining an expert witness can be a critical part of assuring that trials are fair.

Judge in courtroom

Judge Refuses to Hear Expert Testimony in FTC’s Deceptive Practices Lawsuit

To satisfy the Daubert test, some judges require expert witnesses to explain their reasoning in exhaustive detail. When experts fail to support their conclusions with a high level of detail, parties risk the exclusion of expert testimony.

The Federal Trade Commission (FTC) sued Innovative Designs, Inc. for violating a federal law that prohibits using “unfair or deceptive acts or practices” in commerce. The FTC supported its claim with the expert testimony of David Yarbrough. At the conclusion of a bench trial, the court decided that Yarbrough’s testimony failed to satisfy Daubert because Yarborough did not explain potential deficiencies in his reasoning. The court struck the testimony and later dismissed the case.

Facts of the Case

Innovative Design sells a product called Insultex. The product is marketed as a house wrap that is installed just behind the exterior walls of homes. House wraps are intended to prevent rain from penetrating a home and to allow water vapor to escape so moisture does not accumulate inside the walls.

Innovative Design advertised Insultex as an energy saving product. Its advertising claimed that Insultex products have specific R-values. An R-value is a measurement of a product’s ability to restrict the loss of heat. The FTC argued that Innovative Design overstated the product’s R-value and thus misrepresented the energy-saving properties of its product.

The heart of the dispute at trial concerned the measurement of R-value. The FTC maintained that a particular ASTM standard is the “consensus standard” to measure R-value. ASTM standards are developed by an international organization that creates voluntary technical standards that various materials and products should meet. The court agreed that the ASTM standard for R-value measurement is the prevailing industry standard.

Innovative Design advertises the submitted products as having an R-rating of R-3 and R-6. Innovative Design submitted Insultex for testing to two laboratories in 2009. Using standard testing, the laboratories rated the products as R-0.2 and R-0.3, far less than their claimed R-values.

Innovative Design then paid a different laboratory to build a modified testing device. The new device incorporated air gaps that aren’t present in the standard testing device. A third-party accreditation company inspected the device and accredited it to determine an R-value.

Using the modified device, the testing lab certified that Insultex Products had an R-3 or R-6 value. The certificates of analysis stated that the testing complied with ASTM testing guidelines. Whether a testing device that departs from the ASTM standard by incorporating air gaps is reliable was a disputed question at trial.

Pretrial Rulings Regarding Experts

Innovative Design argued Yarborough’s testimony should be excluded because Yarborough had an employment relationship with a company that Innovative Design once hired to test Insultex. Since Insultex did not provide Yarborough with any confidential information, the court disagreed that he was disqualified from acting as an expert witness.

The FTC also disclosed Anastassios Mavrokefalos as an expert witness and Jonathan Malen as a rebuttal expert. Mavrokefalos had been disclosed as an expert witness for Innovative Design. When the FTC took his deposition, however, he changed his opinions. Innovative Design then withdrew Mavrokefalos as an expert witness. The FTC disclosed that it might use Mavrokefalos’ deposition as evidence in support of its case. The judge denied Innovative Design’s motion to exclude that evidence.

Innovative Design designated Donald Garlotta as an expert witness. The court denied the FTC’s Daubert motion to exclude his testimony after finding that the motion should be treated as a challenge to Garlotta’s credibility. The court said it would determine Garlotta’s credibility at trial. However, Innovative Design did not call Garlotta, or any other witness, to provide expert testimony.

Yarborough’s Testimony

Yarborough testified that an experienced lab technician tested Insultex under his supervision. Applying the relevant ASTM standard, Yarborough concluded that, regardless of the thickness of the specific product, Insultex’s R-value was “negligible at best.” Yarborough also testified that, given the structure of Insultex, the claimed R-values are not theoretically possible.

On cross-examination, Yarborough testified that the lab technician’s testing device was calibrated with a fiberglass board, not with a material that is similar to Insultex as the ASTM standards require. Yarborough explained that testing modifications were necessary because Insultex is an unusual material. If no material with a known R-value is similar to Insultex, it is obviously impossible to calibrate the machine using a similar material.

Examining these and other difficulties with Yarborough’s methodology, the court decided that Yarborough’s explanation of his departure from standardized testing methods was conclusory. While the court recognized that nonstandard testing techniques may be necessary when nonstandard materials are tested, the court concluded that departures “need to be well explained.” The court was not satisfied that Yarborough’s explanation of his decision to calibrate the machine with a fiberglass board established the reliability of his methodology.

The FTC argued that Yarborough employed methods used by other testing labs. The court was not persuaded by that argument because the FTC did not establish that the methods used by other labs are generally regarded as acceptable by the relevant scientific community. The court therefore concluded that Yarborough’s testimony did not satisfy Daubert and declined to rely upon it.

Mavrokefalos’ Expert Testimony

At trial, the FTC contended that Innovative Design engaged in deceptive advertising by promoting values of R-3 or R-6 when standard testing never found a value above R-0.3. The FTC hoped to persuade the court that Innovative Design was trying to game the system by creating a modified testing device that would return the results it wanted without revealing the modification in its advertising.

After Yarborough’s testimony was excluded, the only expert evidence that the FTC introduced in its case-and-chief consisted of Mavrokefalos’ deposition testimony. The FTC wanted to use the deposition because it was more favorable to the FTC’s position than the report Mavrokefalos wrote on behalf of Innovative Design.

After reviewing Yarborough’s report, Mavrokefalos investigated the modified testing device and concluded that it did not always return reliable results. Mavrokefalos believed that the modified device used to test the R-value of Insultex distorted the results by “incorporating the value of the air gaps into every reading.”

Based on his own testing, Mavrokefalos expressed the belief that the Insultex’s R-value was less than R-1. He essentially changed his mind about the reasonableness of Innovative Design’s R-value claims after conducting his own testing.

Court’s Ruling

Since Innovative Design moved for pretrial judgment before putting on any evidence, the court did not consider Malen’s expert opinions when it addressed the motion after the trial concluded. Since Malen had been designated as a rebuttal expert, his opinions could not be used to bolster the FTC’s case-in-chief.

While the FTC claimed that Innovative Design misrepresented the R-value of its product, the court concluded that the claim could only be proved by expert testimony. Since Yarborough’s opinions did not satisfy Daubert and Malen’s could not be considered, the FTC was left with only the expert opinion of Mavrokefalos.

The court declined to credit Mavrokefalos’ testimony because he relied on non-standard testing and failed to give a satisfactory explanation of his departure from the standard testing. Moreover, Mavrokefalos had no experience with the tests that he employed. He did not explain whether those tests are relied upon by the scientific community to determine an R-value. He did not explain whether the tests had a known error rate and did not testify that his methods had been peer-reviewed.

The court faulted some of the tests because they were performed on components of Insultex rather than the product as a whole. Finally, the court found that Mavrokefalos’ credibility was impaired by writing a report that favored Innovative Design and then changing his opinions.

A different court might have deemed Mavrokefalos’ credibility to have been enhanced by his willingness to admit that he was wrong, even after he was paid to give an opinion that favored Insultex. While experts are often condemned for being “hired guns,” Mavrokefalos’ opinions were clearly not influenced by money.

Lessons Learned

Although the laboratories that used standard tests found that Insultex has a minimal R-value, the FTC did not introduce those test results as expert evidence. Since the court did not know whether the testing comported with ASTM standards, the earlier tests could not be relied upon as proof that Innovative Designs made deceptive representations.

The FTC was apparently confident in the opinions formed by Yarborough. However, this case stands as a reminder that even the most competent expert must explain opinions in detail.

When an expert departs in any way from an accepted methodology, the expert must be prepared to justify the departure by explaining why the departure was necessary and why it returned reliable results. The failure to elicit that testimony may result in a trial loss even when the evidence in support of a party’s position seems compelling.

 

Gavel and Stethoscope on Reflective Table

Lawyer Is Qualified to Give Expert Testimony About Physician’s Right to a Hearing on Revocation of Hospital Staff Privileges

Lawyers might be experts in a field of law, but they are not typically experts in the practices followed by other industries. The California Court of Appeal identified an exception to that rule in a case involving a lawyer who was proposed as an expert witness in medical industry practices concerning a physician’s right to a hearing before the termination of hospital staff privileges.

Facts of the Case

Farzin Tayefeh signed a two-year agreement to work with Somnia, Inc. as an anesthesiologist at Kern Medical Center (KMC) in Bakersfield. Somnia’s anesthesiologists were independent contractors rather than employees.

Tayefeh’s agreement with Somnia required him to maintain his hospital staff privileges at KMC. The suspension or termination of hospital privileges was a ground for the immediate termination of the agreement.

Somnia’s anesthesiologists were given an application for temporary hospital privileges at KMC. If privileges were granted and if Somnia decided that it was satisfied with the anesthesiologist’s work, it would ask KMC to give the anesthesiologist full staff privileges.

By signing the application for temporary privileges, Tayefeh agreed to obey KMC’s bylaws. The bylaws provided that, with one exception, temporary privileges could be terminated with or without cause and without a hearing. The bylaws entitled a doctor to a hearing if termination was based on a “medical disciplinary cause or reason.”

Tayefeh represented on his application for temporary privileges that he was not subject to any pending disciplinary action. About two weeks after Tayefeh was granted temporary privileges, the Medical Disciplinary Board notified KMC that it had filed a complaint against Tayefeh for prescribing medication without a patient examination and without maintaining adequate records. The complaint was filed before KMC granted temporary privileges to Tayefah.

The KMC bylaws require doctors with hospital privileges to notify KMC within ten days after a disciplinary action is commenced. Tayefeh did not notify KMC of the complaint. KMC terminated Tayefeh’s privileges for two reasons: (1) failure to report the disciplinary action and (2) the serious nature of the accusations involved in the complaint.

KMC did not give Tayefeh a hearing because it did not regard either justification for termination as a “medical disciplinary cause or reason.” Because he no longer had staff privileges, Somnia terminated its agreement with Tayefeh.

Tayefeh sued KMC for failing to give him a hearing. The trial judge decided that the meaning of “medical disciplinary cause or reason” was subject to conflicting interpretations as the term applied to Tayefeh’s conduct and should therefore be resolved by a jury.

Expert Witness Dispute

A California statute defines “medical disciplinary cause or reason” as any aspect of a doctor’s “competence or professional conduct that is reasonably likely to be detrimental to patient safety or to the delivery of patient care.”

At trial, KMC called an expert witness to educate the jury about the application of the term “medical disciplinary cause or reason” to the termination of Tayefeh’s hospital privileges. The expert testified that, in his opinion, the reasons for terminating Tayefeh’s privileges did not include medical discipline as that term is understood in the medical industry.

Tayefeh wanted to call Arthur Chenan as an expert witness. Chenan is not a physician. He has never participated in making a decision to revoke or suspend a physician’s hospital staff privileges.

Chenan is an attorney who has advised hospitals and medical staffs about whether state law required them to report a physician’s conduct to the medical board. Reporting is mandatory when staff privileges are suspended or revoked for a medical disciplinary cause or reason.

The court decided that Chenan was not qualified to testify as an expert. The court concluded that Chenan was not a doctor and was thus unqualified to testify about the medical industry. Accordingly, the jury only heard expert testimony from KMC. By a 9-3 vote, the jury ruled in favor of KMC.

Appellate Court Analysis

California law permits courts to rely on extrinsic evidence — any evidence that goes beyond the words themselves — to interpret ambiguous contract language. The court applied that same rule to the bylaws that were referenced in Tayfeh’s contract.

The appellate court agreed with the trial court that the phrase “medical disciplinary cause or reason” was ambiguous. Expert testimony about the meaning that is customarily given to that phrase in the medical industry was therefore the kind of extrinsic evidence that is admissible in a trial that hinged upon the interpretation of that language.

California follows the customary rule that a witness “is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” The appellate court rejected the trial court’s conclusion that only a doctor or a hospital administrator can testify about the customary meaning given to a term used in medical bylaws.

That Chenan is not a doctor or a hospital administrator does not mean he lacks knowledge of industry standards when the term “medical disciplinary cause or practice” is applied in the hospital peer review industry. Chenan was not asked to testify about medical matters that require a physician’s training. Nor was he asked about a topic that only a hospital administrator would be qualified to explain.

Knowledge and experience do not need to be gained by working in a particular field. Chenan has taught courses and has published articles in the area of medical staff credentialing, hospital peer review, physician discipline, and restriction of staff privileges.

The court acknowledged that general litigation experience might be insufficient to qualify an attorney as an industry expert. The court noted that a lawyer who handles bad faith claims against insurance companies is not necessarily an expert in insurance industry standards for approving or denying claims.

While an attorney who occasionally represents doctors in employment matters might not have the requisite experience to support an expert opinion, Chenan had years of experience “advising hospital boards, medical staffs, and physicians specifically about peer review matters.” He frequently advised those entities whether a suspension or revocation of staff privileges triggered a reporting requirement because it was based on a “medical disciplinary cause or practice.”

Chenan’s testimony was not founded on knowledge gleaned from litigation experience, but on specific work as an advisor to the medical industry on peer review matters that required the application and interpretation of hospital bylaws. Given Chenan’s experience, the fact that he is a lawyer advising the medical industry rather than a hospital administrator working within the medical industry did not disqualify him from rendering an expert opinion.

The divided jury verdict indicated that this was a close case. Excluding the plaintiff’s expert testimony left the defendant’s expert testimony unchallenged by another expert. The trial court’s erroneous exclusion of Chenan’s testimony might therefore have affected the verdict. The appellate court accordingly reversed and remanded for a new trial.

 

Timesheet

Expert Who Did Not Keep Time Records Deemed Unqualified to Testify in Maryland Medical Malpractice Case

At the urging of the medical and insurance industries, Maryland adopted an unusual law that limits the ability to call an expert witness in malpractice cases. At the time Brown v. Falk & Karim P.A. was litigated, Maryland law prohibited the use of an expert witness in malpractice cases if the expert spent more than 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of his or her professional time acting as an expert witness.

The question in Brown was whether an expert’s word about the time spent working as an expert witness is sufficient to satisfy the 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} rule. On appeal, the court decided that an expert should be prepared to surrender detailed time records to prove the percentage of time spent in medical practice versus the time spent as an expert witness.

Facts of the Case

Brenda Brown sued Dr. Joel Falik for medical malpractice after her husband died. Brown alleged that Falik’s negligence during her husband’s back surgery caused her husband’s death.

Maryland law required Brown to certify, at the time the lawsuit was filed, that her case was supported by an expert opinion. Brown certified that Dr. Sanford Davne, an orthopedic surgeon, would testify that Dr. Falik failed to recognize that Brown’s husband was a high-risk patient and failed to advise Brown’s husband about less dangerous treatments for his back pain.

Dr. Davne’s certification stated that less than 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of his annual activities were devoted to testifying as an expert. Dr. Davne testified in a deposition that the statement was accurate, but explained that he kept no records of time devoted to expert witness work and time devoted to other work.

The trial court eventually ordered Dr. Davne to produce his tax returns. The defense apparently regarded his income from various kinds of work as a proxy for the amount of time he spent working to produce that income.

At trial, the defense claimed that Dr. Davne had not produced sufficient tax returns to prove that he satisfied the 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} rule. The judge denied a motion to disqualify Dr. Davne and denied a motion for judgment after Brown presented her case.

The jury returned a verdict in Brown’s favor and awarded her more than $900,000 in damages. The judge eventually concluded that Dr. Davne was not qualified to testify and granted a motion for judgment notwithstanding the verdict. Brown appealed.

The 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} Rule

For decades, the medical and insurance industries have worked diligently to make it more difficult for victims of medical negligence to prove their cases. Some of their efforts have focused on vilifying experts who testify for plaintiffs. Compliant legislators have responded to industry lobbyists by enacting a variety of laws to prevent qualified experts from testifying for plaintiffs.

Maryland’s 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} rule was one such law. The law was later amended to exclude expert witnesses who devoted more than 25{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of their time to testifying as an expert during the previous year.

The fact that a doctor often testifies as an expert has no rational relationship to whether the doctor is competent to testify. While the medical and insurance industry refers to such experts as “hired guns,” they use that term exclusively to refer to experts hired by plaintiffs. Insurance companies hire the same experts to testify over and over in toxic tort cases, but they never refer to their own experts as hired guns. Whether the frequency of testimony affects an expert’s credibility is a decision that should be made by juries, not by legislators who serve the interests of corporate lobbyists.

As the Baltimore Sun argued, the 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} rule is an arbitrary standard. It applies only in medical malpractice cases because the insurance industry knows how difficult it is for plaintiffs to find a doctor who is willing to testify against another doctor. Brave experts who are willing to give truthful testimony in response to a malpractice epidemic are in demand, so the insurance industry strives to limit their availability.

Notably, nobody claims that Dr. Davne’s lacks the training or experience to advance an expert opinion. Nor does anyone claim that, but for the 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} rule, a jury would not be entitled to accept Dr. Davne’s testimony as credible. The 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} rule therefore took compensation away from the widow of a malpractice victim that a jury decided she deserved.

Appellate Opinion

At the time of trial, Maryland law required a plaintiff to prove that the expert witness did not “devote annually more than 20 percent of [his] professional activities to activities that directly involve testimony in personal injury claims.” Maryland courts view the statute as requiring a mathematical calculation. Courts divide the amount of time that the witness is directly involved in expert testimony by the amount of time that the witness spends performing all professional activities.

After disavowing the need for an “exhaustive accounting of an expert’s timesheets,” the court criticized Dr. Davne for failing to produce timesheets that accounted for the time he spent on patient care and other professional activities. The court also faulted him for not producing a list of every case in which he had ever provided services as an expert.

Dr. Davne did provide an affidavit that described the time he spent on professional activities and expert witness activities, but Dr. Davne’s word was not good enough for the appellate court. He also produced his tax returns, but the court wasn’t satisfied that a calculation could be made from the income information supplied to tax authorities.

The court also thought that Dr. Davne’s testimony about the income he received from expert testimony undermined his affidavit. Since expert testimony often commands a higher hourly rate than other work, it is difficult to correlate time spent on an activity with income received from that activity. In any event, the court of appeals agreed that Dr. Davne’s failure to produce detailed records of his time spent as an expert and in professional practice disqualified him from testifying.

Lessons Learned

Whether an expert has the training, experience, and knowledge to opine about a standard of care is wholly unrelated to how much time the expert devotes to giving that testimony. The Maryland rule harms malpractice victims by depriving juries of valuable testimony while shielding negligent doctors from the consequences of their malpractice.

In light of the Maryland rule, however, plaintiff’s lawyers bringing malpractice cases in Maryland must be careful to select experts who keep track of the time they spend in their professional practices and the time they spend working as an expert witness. Gathering that data will not be as easy as the court seems to suggest.

Since billing records do not reflect the hours a doctor spends reading medical journals or engaging in other nonbillable work that is part of the practice of medicine, witnesses may need to estimate their hours in practice by examining the hours they spend in the office (or attending continuing education seminars) each year. They can probably rely on hourly billing records to determine the time they spend testifying as an expert witness. Doctors who regularly testify as experts should take note of Maryland law and retain those records so that they are qualified to testify in Maryland.

 

Historian Gives Expert Testimony in Suit Seeking Protection of Confederate Statue

A six-story tall statue of Robert E. Lee overlooks Richmond, the capital of Virginia. Unlike other statues of Confederate figures that once lined Monument Avenue, the Lee statue stands on state property. Virginia’s governor, Ralph Northam, announced in June that he would order the statue removed. Richmond’s mayor, Levar Stoney, agreed with the decision, remarking that “Richmond is no longer the capital of the Confederacy.”

Northam’s decision is consistent with a nationwide response to protests against systemic racism. After the death of George Floyd, Mayor Stoney ordered the removal of several confederate statues on Monument Avenue. Confederate statutes have been removed — by official action or by protestors — from Charleston, Norfolk, Alexandria, Louisville, Jacksonville, Mobile, and other cities.

Northam’s order to remove the statue has nevertheless been challenged in a lawsuit filed by William C. Gregory. The Virginia resident claims to be a descendant of two landowners who deeded the property to the state on which the statue stands. He contends that removing the monument would breach the state’s promise to his ancestors to “faithfully guard” and “affectionately protect” the statue.

What Do Confederate Monuments Commemorate?

Exactly what the monuments commemorate is a subject of debate. To those who view the Civil War as a war of northern aggression rather than the Union’s use of necessary force to preserve constitutional government, the monuments are part of southern heritage. The Daughters of the Confederacy argues that Confederate monuments “honor the memory” of “fallen forebears.”

To many others, the monuments honor traitors who tore the country apart in order to preserve the institution of slavery. Annette Gordon Reed, a professor of legal history at Harvard Law School, told an interviewer that thousands of members of the Armed Forces, black and white, gave their lives to overcome the Confederate rebellion. She believes “it dishonors them to celebrate the men who killed them and tried to kill off the American nation.”

The removal of monuments in seven former Confederate states has been hampered by laws that limit or prevent local governments from displacing them. Governor Northam’s pledge to remove the Lee statue from state property in Richmond has been challenged by a lawsuit that is making its way through state courts.

Gregory’s Lawsuit

The Lee monument was created by a popular French sculptor and appears on the National Register of Historic Places. As the state explains however, at least in Virginia, a Register listing “results in no special protection or requirements on what a property owner may do with a property.”

Gregory’s lawsuit contends that the circular plot on land on which the monument stands was deeded to the Lee Monument Association in 1887. The Association erected the monument and deeded the land to the Commonwealth of Virginia in 1890. The deed was signed by the governor pursuant to a joint resolution of the general assembly.

The deed states that the commonwealth accepted the gift with the guarantee that it would hold the statue, pedestal, and circle of ground “perpetually sacred to the Monumental purpose to which they have been devoted and that she will faithfully guard it and affectionately protect it.”

The lawsuit alleges that Gregory’s ancestors signed the deed on behalf of the Lee Monument Association. The lawsuit claims that Gregory would be irreparably harmed if the monument were removed, apparently because he takes pride in his family’s connection to the monument.

Historian Testifies as Expert Witness

Descendants of Virginia slaves might just as easily argue that they are irreparably harmed by the existence of a “sacred” monument to a Confederate general who fought to preserve the institution of slavery. To put the monument in its historical context, the state called historian Edward Ayers as an expert witness.

Ayers testified that the drive to fill public spaces with Confederate statues was designed to rehabilitate the image of the Confederacy. Ayers noted that the monuments were erected during an era when white politicians in the South were taking action to stifle the political power of African Americans.

Ayers expressed the belief that the Lee monument is not just a tribute to Lee. By its very size and dominance of a public space, the monument sends a message about the legitimacy of the Confederate cause. Ayers testified that the monument portrays Lee as “a great man” who fought for a just cause — “a new nation based on slavery.”

The court is unlikely to pass upon the political wisdom of maintaining monuments to leaders of an insurrection. The two competing legal issues that the judge must confront are whether Gregory’s family connection to a member of the group that deeded the statue allows him to challenge the monument’s removal, and whether the governor has the power to order the statue’s removal without the legislature’s consent. The judge will likely make that decision in the near future.

Update: In an August 3, 2020 decision, the court dismissed the lawsuit and ended the temporary injunction that prevented the monument’s removal.

Photo via Good Free Photos

 

Expert Testimony Not Needed to Prove Hurricane Damage

The Eleventh Circuit Court of Appeals has overturned a district court and ruled that an expert witness is not required to prove hurricane damage in Georgia.

The Damage to the Church

In March 2016, Southern Mutual Southern Mutual Church Insurance Company issued an insurance policy to Greater Hall Temple Church of God in Brunswick, Georgia. The policy covered “direct physical loss to covered property” if the loss is “caused by a covered peril.” The policy did not cover losses caused by water or loss to the interior of buildings caused by rain, unless the rain enters through an opening made by a “specified peril.” The policy defined specified perils to include windstorms.

In October 2016, Hurricane Matthew hit Georgia. Following the hurricane, the roof of the Greater Hall Temple Church of God in Brunswick, Georgia was damaged. Greater Hall submitted a claim for $15 million in damages with its insurer, Southern Mutual.

Southern Mutual retained an independent field adjuster, Alan Taylor, to inspect the damages. Taylor determined that the damage to the church was not caused by wind; it was caused by pre-existing structural issues. Southern Mutual denied the claim.

District Court

Greater Hall filed a lawsuit against Southern Mutual in district court, arguing that Southern Mutual had violated the terms of the insurance agreement for failing to pay for its claims.

Greater Hall retained three experts to testify on its behalf: John Kern, Shawn Brown, and Alfred Teston. The court refused to allow each of these witnesses to present expert testimony. One proposed expert was a civil engineer who had little experience with the type of metal roof that had been installed on the church. Another proposed expert had put in a bid to repair the roof damage, but had little knowledge about the roof’s prior condition and no experience in determining the causes of roof damage. The third expert was a contractor who had installed the roof, but the church did not disclose the subject of his testimony until after the discovery deadline.

Southern Mutual presented experts who testified that the water damage to the interior of the church was caused by “improper flashing” that diverted rainfall through the building’s HVAC system. They also presented evidence that the church’s roof had leaked prior to the hurricane.

Southern Mutual filed a motion for summary judgment and the district court granted it. Greater Hall appealed.

Eleventh Circuit

On appeal, the Eleventh Circuit agreed with the district court’s decision not to admit the proposed expert testimony of Kern and Brown because neither had the requisite experience or had used a sufficiently reliable methodology to formulate their opinions. The court of appeals also agreed that the district court had not erred by excluding Teston’s expert testimony for untimeliness.

However, the Eleventh Circuit disagreed with the district court’s decision to grant summary judgment in the insurer’s favor. The district court had granted summary judgment because “proving causation requires expert testimony,” all of Greater Hall’s expert testimony had been excluded, and Greater Hall could not rebut Southern Mutual’s expert report that suggested the damage to the building was caused by poor workmanship.

The Eleventh Circuit ruled that, under Georgia law, expert testimony is not necessarily required to prove causation in an insurance contract — a plaintiff may satisfy its burden with lay testimony. Accordingly, the court ruled that Greater Hall’s case survived summary judgment because it was possible for a reasonable jury to find in its favor.

Photo by NASA on Unsplash

Man on a computer

How Should an Expert Prepare for an Online (e.g. ZOOM) Deposition?

During the pandemic, many things that can be done remotely are in fact being done remotely: those whose jobs allow it are working at home; we interact with our friends and family online; and motion hearings are often being done remotely. Expert witness depositions are also being taken remotely.. There are a number of upsides to this, beyond decreasing potential exposure to the Covid-19 virus: for example, saving the time and travel costs associated with bringing an expert to an in-person deposition or opening up the universe of potential experts by increasing the ability to tap others who are less local.

But there are also challenges associated with online depositions. Some are for the attorney, not the expert, such as coordinating with the court reporter to make sure everything will be properly recorded. For the expert, there are plenty of things the expert should do to prepare for the deposition.

Technical & General Preparation

First, the expert should find out what software will be used for the deposition, make sure it’s downloaded ahead of time, and test the system— including the computer’s camera, microphone, and speakers — well in advance. Frantically trying to download and install the software when its “go” time does not engender confidence in your client or his or her attorney — and will not make the other side take you seriously.

Second, the expert should double check what will be in his or her background during the deposition and “stage” the setting appropriately. It may be helpful to have diplomas, technical certifications or licenses, treatises, and perhaps some tasteful and unobjectionable artwork as background. Don’t have children’s artwork, stuffed animals, the trashy novels the expert reads during his or her downtime, or anything controversial or political in view. The background framing the expert should look as professional as would the inside of the law firm conference room where in-person depositions are typically taken.

Related to this: the attorney taking the deposition may — and can — ask the expert to pan the camera around the room to make sure there is no one there feeding the expert cues or responses. Make sure the entire room is a suitable backdrop for a deposition.

Third: dress to impress. Yes, we all know that Zoom conference dress codes are generally laxer than in-person dress codes … but a deposition is the exception that proves the rule. Treat it as what it effectively is: a remote court hearing. After all, the video may be played in court — the expert should not wear anything he or she would not want a judge or jury to see him or her in. And yes — that includes work pants (or skirt) and work shoes: the expert should not assume that it’s enough to wear a dress shirt and blazer, since at some point, he or she may stand up or back-up or otherwise bring what’s below the waist into view.

Coffee or water — leaving the field of view of an online deposition presents issues that getting up from your chair in an in-person deposition does not. For example: did you get up so you could call, text, or email someone off camera, to get guidance as to how to answer? It is better to minimize, to the greatest degree possible, having to get up and break the online deposition. You can’t control bathroom breaks, but you can minimize breaks for water, coffee, or granola/energy bars: lay the refreshments out ahead of time, if you can.

Logistical Preparation — Exhibits

It’s always best practice for the expert, the attorney for the expert’s client, opposing counsel, and the court reporters to always have their own pre-marked set of exhibits. (Always pre-mark exhibits: it saves time and cuts down on confusion.) But in an in-person deposition, a failure to do so is of less moment: the parties can share exhibits on the spot, then provide extra copies later, as needed. However, that’s clearly not an option during a remote deposition, where you might have people in four, five, or more locations (e.g. the expert, the attorneys on each side, any litigants attending the deposition, and the court reporter may all be appearing from their own homes or offices); everyone needs to have their own copy in advance.

The real responsibility for marking and forwarding exhibits this rests principally on the attorney taking the deposition, but the expert should at least contact the attorney representing his or her client to make sure that copies of any exhibits are forwarded to him or her … after all, everyone is working outside their comfort zone during the pandemic and things drop in the cracks, so to speak. By checking to make sure that he or she has copies in advance of anything he or she will be questioned about, the expert can help make sure the deposition is fruitful and not a waste of anyone’s time — and if the proper exhibits are not provided to the expert, at least he or she can truthfully say that they tried and therefore are not responsible for any lapses.

Similarly, if there are materials that the expert is asked to bring, such as any treatises that he or she relied upon in coming to an expert opinion, the expert should either copy and provide shorter materials (they can be provided to the attorney representing the expert’s client, who then will circulate them) or at least provide — well in advance — the citations for any longer works, so that anyone who wants to have a copy during the deposition has the chance to obtain them.

And then there are demonstrative exhibits which are things which are not evidence in and of themselves, but illustrate key evidentiary points. They are the equivalent of the graphics the nightly news puts up to illustrate important statistics or developments. These always have had to be created in advance … but now the expert may need to create them differently. What looks good in person may NOT look good when viewed on your MacBook Air’s camera. Test the demonstrative exhibits on the video conferencing platform you are using in advance and make sure they work.

Testimonial Preparation

Experts should always review their testimony in advance with the attorney representing their client. Yes, they can’t “script it,” and the expert (and attorney) have a legal and ethical obligation to assure that all testimony is truthful … but all that said, the lawyer and expert should go over in advance what issues the opposition is expected to ask about and some “basics” about testifying — e.g. to pause a moment before answering, in case the lawyer wants to object; to not extrapolate, but only answer the question that is asked; to not be afraid to ask for clarification of an unclear question; etc.

But bear in mind that a Zoom (or the equivalent) deposition will present challenges an in-person deposition does not, such as the possibility of the deposition “freezing” at an inopportune moment or losing connection momentarily. Discuss with the lawyer representing the expert’s client how to deal with those eventualities — does the expert ask for the question to be restated after the interference or break? Does the expert leave a longer-than-normal pause before answering, to make sure the lawyer has time to object? And so forth. Assume there will be connectivity issues at inopportune moments and plan for them, so that the expert and his/her client’s attorney are reading (so to speak) from the same playbook. Do not assume that the lawyer representing your client will always be able to object in real time to problematic questions.

During the Deposition

We’ve alluded to this above, but experience teaches us that Zoom, Microsoft Go To Meeting, and similar software will have problems in practice: internet connections stutter or drop out, there are buffering issues, etc. During all depositions, the deponent — including an expert witness — should not hesitate to ask the examining attorney to restate or repeat a question. But this goes doubly for remote depositions, due to software and connectivity issues. When in doubt, the expert should ask opposing counsel to restate or rephrase his or her question.

In Conclusion

Compare a Zoom call with a friend or family member with talking with that individual face-to-face. You may find it more challenging and less rewarding. There may be parts of the conversation which were not clear or garbled. That’s for an informal, “no stakes” call. Now imagine what it might be like for a formal, high stakes call, such as you will find in a remote deposition. Plan for the inevitable Zoom-related issues in advance.

#9867034 Mallet And Stethoscope Over Sound Block In Court

Experts Improperly Excluded from Giving Res Ipsa Loquitur Testimony in Medical Malpractice Lawsuit

In most medical malpractice cases, one or more expert witnesses for the plaintiff testify about the appropriate standard of care, a physician’s breach of that standard, and how the breach caused an injury to the patient. In most of those cases, a specific negligent act is identified as the mechanism that caused the harm. In some cases, however, no single act of negligence is the clear cause of the patient’s injury.

A legal theory known as res ipsa loquitur (“the thing speaks for itself”) allows negligence to be inferred from the nature of the accident. If it is unreasonable to conclude that the accident could have occurred in the absence of a negligent act, negligence can be inferred.

Alma Willis sued a plastic surgeon and other healthcare providers, alleging their negligence during surgical procedures regarding her breasts and abdomen. Although the experts testified to various breaches of standards of care, they could not determine which specific breach caused Willis’ injuries. The trial court did not allow the experts to testify that her injuries would not have occurred in the absence of negligence.

The trial and appellate courts treated the argument that no injury could have occurred without negligence as being based on res ipsa loquitur. An Illinois Appellate Court ruled that Willis’ experts should have been allowed to testify that no injury would have occurred in the absence of a negligent act, even if they could not identify the specific negligent act that caused her injury.

Willis’ Surgery and Its Aftermath

Willis’ doctor recommended that she have surgery to relieve her back problems. A plastic surgeon, Dr. Jeffrey Flagg, performed surgery to reduce the size of one breast and to reconstruct the other. He also performed a revision of her abdomen.

Dr. Flagg decided to perform all the procedures in a single surgery. He told Willis the operation would take five hours but it actually lasted twelve hours.

Willis was discharged the next day despite having painful swelling in her arms. Three days later, her daughter observed that she was disoriented. The daughter brought Willis back to the hospital, where doctors found blood clots (pulmonary embolism) in both of her lungs. She remained in the hospital for a week as the clots were treated.

During her hospitalization, nurses noted that Willis continued to complain about ongoing pain in her right hand that had been present since the surgery. A nurse noted in her chart that doctors were aware of her complaint.

Willis’ pain persisted after her discharge. About a month after her surgery, a neurologist determined that she had sustained nerve damage near her right elbow and in the carpal tunnel. Surgery to relieve pressure on the nerves was only partially successful. She continues to have pain and some limitation of motion in her right hand.

Willis’ Litigation

Willis sued Dr. Flagg, the hospital where her surgery was performed, and the anesthesiologists involved in the surgery. She alleged that Dr. Flagg unnecessarily prolonged her surgery and that her nerve injury would not have occurred in the absence of medical negligence.

Although an anesthesiologist testified that he did not remember the surgery, he believed that he, Dr. Flagg, and the initial nurse anesthetist would have supervised the positioning of Willis’ body during surgery. He thought they would have placed soft restraints on her arms between the wrists and the elbows, that they would have checked her positioning every hour, and that they would have repositioned her before the abdominal surgery.

Dr. Flagg testified that the surgery was prolonged by the discovery of a large mass on the chest wall. He acknowledged that longer surgeries increase the chance of developing a blood clotting condition known as deep vein thrombosis (DVT). He also acknowledged that Willis suffered from DVT after the surgery.

Dr. Flagg did not prescribe anticoagulants after the surgery, although he agreed that anticoagulants are one way to prevent DVT. He instead gave instructions to have Willis walk and move around after surgery, although he did not put that instruction into her discharge orders.

Willis’ Expert Testimony

Willis’ treating neurologist testified that the nerve damage near her wrist was caused by the carpal tunnel filling with fluid. Charles Barton, a nurse anesthetist, testified that the nurse anesthetist who positioned Willis during her surgery violated the standard of care by failing to position her correctly and by infusing far too much fluid. Barton also attributed the swelling in her arms after surgery to excessive fluid.

An orthopedic surgeon, Dr. John Fernandez, testified that Willis’ surgery caused her nerve damage. He opined that injuries to her brachial muscles that were shown on an MRI and injuries to her nerves shown on an EMG would not “just happen on their own.” Since Willis had no symptoms of those injuries before the surgery, they must have been caused by the surgery.

A neurologist, Dr. William McElveen, explained that a hematoma, probably caused by compression, led to the swelling at the elbow. He believed the compression could have been caused by the blood pressure cuff on her arm, someone leaning on her arm, or the extended position maintained during the surgery. He rejected the theory that nerve damage was caused by improper insertion of a needle during her subsequent hospitalization for blood clotting because Willis would have felt and complained about extreme pain if that had happened.

Dr. Geoffrey Keyes, a plastic surgeon, testified that the applicable standard of care required Dr. Flagg to end the surgery after he completed the abdominal revision, about five hours into the surgery, because Willis had lost a great deal of blood. The prolonged surgery and excessive blood loss increased the risk of complications, including pulmonary embolisms. He thought the prolonged surgery and Willis’ positioning most likely resulted in her nerve damage, although he could not identify the specific mechanism by which pressure was placed on the nerve. He thought the swelling of her arms might have caused the straps that held her arms to tighten, compressing the nerve.

Testifying as an expert in anesthesia, Dr. Brian McAlary testified that multiple factors, taken together, might have caused Willis’ arms to swell, even if no single factor was responsible. He identified the administration of excessive fluids, diminished oxygen delivery to the nerves in her arms, and the failure to change the position of her arms during surgery as contributing factors.

The court would not permit the experts to testify that the nerve damage would not have occurred in the absence of negligence. The jury returned a verdict in favor of the defendants.

Appellate Decision

On appeal, Willis challenged the trial court’s refusal to allow her experts to testify that the injuries could not have happened unless the healthcare providers were negligent. She also challenged the trial court’s refusal to instruct the jury that it could infer negligence if the principles of res ipsa loquitur were satisfied.

In Illinois, negligence can be inferred from the fact of an injury if (1) an injury of that nature would not ordinarily occur in the absence of negligence, and (2) the means of causing the injury were within the defendant’s exclusive control. Under those circumstances, the plaintiff need not call a witness who saw the act that caused the injury.

Willis was unconscious during her surgery and could not have seen anything. Since she was under the control of the defendants, a jury could find that any injury occurring during the surgery was caused by negligence if the injury would not ordinarily occur in the absence of negligence.

Willis presented expert evidence that she was injured during surgery. That evidence was sufficient to permit the jury to reject the defendant’s claim that she was injured during her second hospitalization. It was up to the jury to decide whether to believe Willis’ experts or the defense experts.

Willis’ also presented expert evidence that standards of care were breached during her surgery. Experts testified in depositions that the nerve damage Willis sustained would not have occurred in the absence of negligence. No defense evidence suggested a non-negligent explanation for the nerve damage that occurred during the surgery.

The trial court thought that res ipsa loquitur was inapplicable because Willis’ expert witnesses agreed that nerve compression during the surgery caused the injury. But the witnesses did not know what caused the nerve compression. It could have been caused by failing to loosen straps when Willis’ arms started swelling, or by administering excessive fluid during the operation, or by leaning against Willis’ body during the surgery, or by failing to reposition her during the lengthy breast surgery, or by repositioning her incorrectly before the abdominal surgery.

The trial court erred by concluding that the expert witnesses understood the mechanism of the injury. The outcome was a compressed nerve, but the mechanism by which the nerve became compressed was unknown.

A dissenting opinion suggested that the second hospitalization was a possible cause of the injury outside the defendants’ control and that the res ipsa theory was therefore unavailable. The majority opinion recognized that Willis’ experts provided ample reason to reject the testimony of the defense experts as speculative.

Which experts were worthy of belief was for the jury, not appellate judges, to decide. Willis was therefore entitled to have the jury instructed that it could find in favor of Willis if they agreed that (1) her injuries occurred while she was under the control of the defendants during the first surgery, and (2) those injuries would not ordinarily occur without negligence. She was also entitled to have her experts testify that she would not have been injured if negligent acts had not occurred.

A res ipsa loquitur jury instruction, and testimony that the injury could not have occurred in the absence of negligence, were necessary for a fair trial. Since Willis did not receive a fair trial, she was entitled to present her expert’s full opinions and to have her case decided upon the basis of correct jury instructions in a new trial.

 

Late Disclosure of Expert Witnesses in Divorce Trial Leads to Order Barring Their Testimony

Jeffrey and Julie Nelson were involved in a divorce proceeding that lasted longer than their four-year marriage. After five earlier appeals from provisional orders pending the final hearing, an appeal of the final outcome was seemingly inevitable.

One of the sticking points involved the value of Jeffrey’s interest in oil leases. Julie testified about Jeffrey’s ownership of those interests and presented expert testimony about their value. Jeffrey did not testify but offered expert testimony of his own. The trial court decided that Jeffrey’s expert was not qualified and therefore declined to consider his opinion.

The day before the final day of trial, Jeffrey disclosed two new experts. One would have testified that Julie’s expert overvalued the oil leases. The other would have testified about the amount and sources of Jeffrey’s income.

Julie had served an interrogatory upon Jeffrey that asked for the disclosure of experts. Julie contended that Jeffrey should have supplemented his interrogatory answers to disclose the two new experts. The court agreed with Julie that the disclosure of those experts on the day prior to the last day of trial came too late. The court excluded the experts from testifying as a discovery sanction. Jeffrey appealed and the Indiana Court of Appeals affirmed the judgment.

Late Disclosure of Experts

On appeal, Jeffrey apparently did not take issue with the trial court’s decision that his original expert was not qualified to render an expert opinion. Rather, he contended that the court should not have excluded the experts he proffered during the trial.

The hearing took place on six days between November 2018 and July 2019. Julie’s expert testified on June 25, 2019. Jeffrey complained that he did not have enough time between June 25 and July 12 (the last day of trial) to retain new experts. Jeffrey argued that he did not recognize the need for expert testimony until Julie’s expert gave valuation testimony that Jeffrey realized was clearly wrong.

The appellate court characterized Jeffrey’s argument that he did not anticipate the need for expert testimony as “baffling.” Jeffrey knew that Julie contended the oil leases were marital property that was subject to division. He knew the court needed to place a value on property that it divided. He apparently knew that he would not be relying on his own testimony to establish their value, given his decision not to testify.

It is difficult to understand why Jeffrey did not know in advance of trial the opinions that Julie’s expert would offer. If Jeffrey did not engage in discovery, that choice would not excuse his failure to anticipate the need to call his own expert witnesses.

The appellate court was unsympathetic with the claim that Jeffrey had too little time to find an expert. He should not have waited until Julie’s expert testified to begin his search. Under the circumstances, the trial judge did not abuse his discretion in excluding Jeffrey’s experts due to Jeffrey’s belated disclosure of their identities.

Lessons Learned

The trial court was plainly influenced by its belief that Jeffrey’s late disclosure was an obstructive litigation tactic. The court characterized Jeffrey as having “repeatedly interrupted, obstructed, embarrassed, and prevented the due administration of justice in these dissolution proceedings.”

Obstructive tactics will never endear a litigant to a judge. The lesson to learn is that lawyers should make diligent efforts to learn what expert testimony an opposing party will present, to locate experts who can present more favorable testimony (if any exist), and to respond to a request to disclose experts in a timely manner.

Water Treatment

Judge Pauses Trial After Hearing Expert Testimony About Fluoridation of Drinking Water

Conspiracy theories sometimes overcome facts in the minds of those who are inclined to believe them. Few public policies have been attacked by conspiracy theorists as persistently as fluoridation. Yet modern science raises legitimate questions about the risks and benefits of fluoridating water.

During the 1950s and into the 1960s, a popular conspiracy theory convinced many believers that fluoridation was a Communist plot. An equally far-fetched theory insisted that fluoride is a mind control chemical that governments rely upon to control their populations.

Fluoridation of public drinking water is intended to prevent tooth decay. While conspiracy theories have no basis in fact, legitimate scientific debates have long addressed the balance between the public health benefits and the risks of fluoridation.

Critics have also complained that fluoridation deprives individuals of freedom to choose whether or not to expose themselves to fluoride. That isn’t quite true, because people are free to forego municipal water and to drink fluoride-free bottled water, albeit at their own expense.

The government often requires people to do things they don’t like (paying taxes, for example) in order to serve the greater good. Debates about the wisdom of public programs that depend on a cost-benefit analysis should be driven by facts. In the case of fluoridation as well as other public health issues, facts are supplied by experts because they have knowledge and experience that the rest of us lack.

Fluoride and IQ

Responding to evidence that fluoridation can have an impact on cognitive development, the Department of Health and Human Services in 2015 recommended that water utilities reduce the amount of fluoride added to tap water from 1.2 parts per million (ppm) to 0.7 ppm. The Centers for Disease Control and Prevention released a statement in 2018 that endorsed fluoridation of community water supplies to reduce the health risks associated with tooth decay.

Dr. Phillipe Grandjean, an Adjunct Professor of Environmental Health at the Harvard T.H. Chan School of Public Health, authored a 2019 review of studies that addressed the relationship between fluoride intake and IQ levels. Dr. Grandjean concluded that “elevated fluoride intake during early development can result in IQ deficits that may be considerable.”

Dr. Granjean concluded that the impact of fluoride on IQ is dose dependent. In other words, greater exposure is likely to have a greater impact on IQ. He also found that “tentative benchmark dose calculations suggest that safe exposures are likely to be below currently accepted or recommended fluoride concentrations in drinking water.”

Fluoridation Lawsuit

Everyone agrees that too much fluorine in drinking water would be unsafe. Experts dispute whether the permitted level of fluorine creates an unreasonable risk to the public.

The Environmental Protection Agency (EPA) does not require municipalities to add fluorine to public water supplies, but it does limit the amount that they can add. Since a “safe” amount of exposure is difficult to establish with certainty, opponents of fluoridation argue that it should be not permitted at all.

The Toxic Substances Control Act (TSCA) allows citizens to petition the EPA to address unreasonable risks posed by toxic chemicals. In November 2016, a group of organizations, including the American Academy of Environmental Medicine, the Fluoride Action Network, and Moms Against Fluoridation, petitioned the EPA “to protect the public and susceptible subpopulations from the neurotoxic risks of fluoride by banning the addition of fluoridation chemicals to water.”

The EPA denied the petition on February 17, 2017. It concluded that the studies supplied by the petitioners did not prove that any person had actually suffered neurotoxic harm because of fluoride exposure. The petitioners then sued the EPA for breaching its statutory duty to protect the public from unsafe toxins.

While most administrative decisions are reviewed deferentially by federal courts, the TSCA entitles petitioners to a de novo proceeding and to prove the need for regulation by a preponderance of the evidence. After denying summary judgment motions that had been filed by both parties, the case proceeded to trial.

Petitioners’ Expert Evidence

The petitioners relied on the expert opinions of Howard Hu, Bruce Lanphear, Philippe Grandjean, and Kathleen Thiessen. The EPA and other government agencies have in the past relied on each of those experts for guidance. Their qualifications as experts were not seriously contested.

The petitioners’ experts pointed to evidence that fluoride passes through the placenta into the brain of the fetus. They opined that babies who are bottle fed with fluoridated water are being exposed to fluoride at the most vulnerable point in their lives, while their brains are still developing.

The petitioners’ experts cited animal studies that, according to EPA experts, produced mixed results. The petitioners’ experts also relied on birth cohort studies that found associations between early life exposures to fluoride and a reduction of IQ by about five points.

EPA Expert Evidence

The EPA argued that there is too much uncertainty about safe dosage limits to support an outright ban on fluoridated water. It relied on two toxicologists employed by Exponent, an engineering and scientific consulting firm.

Joyce Tsuji and Ellen Chang testified that the scientific literature does not support a clear connection between fluoridated water at the current maximum dose and adverse health effects. Accordingly, they contended that fluoride at 0.7 ppm is not a neurotoxin.

The EPA contended that the law requires it to balance risks and benefits when it decides whether a risk is unreasonable. There is undeniably a benefit to reducing tooth decay. While that goal can be achieved more efficiently in other ways, fluoridation assures that everyone who drinks from a public water supply receives some protection against tooth decay.

The EPA uses expert staff members to determine whether the benefit of a chemical is outweighed by an unreasonable risk of toxicity. The EPA called its employee, Kris Thayer, as a fact witness to testify about that process. It did not, however, call Dr. Thayer as an expert witness and therefore did not ask her to assess the scientific literature regarding fluoride exposure. The petitioners asked the court to infer that she was not called as an expert because her testimony would have been unfavorable to the EPA.

The petitioners also pointed to the opinion of Joyce Donohue, an EPA staff scientist, who agreed that studies by the National Institute of Health warrant a reassessment of all existing fluoride standards.

Trial Paused

Having listened to the expert testimony, the presiding judge pressed the pause button and asked the EPA to reconsider its position. The judge noted that cohort studies are the gold standard of scientific evidence in cases involving toxic chemicals. The cohort studies that the petitioners relied upon had not been published when the petition was filed.

After suggesting that the EPA applied the wrong causation standard, the judge asked whether it would be productive for the petitioners to file an amended petition citing the new studies so that the EPA could make a new determination using the correct standard. He also suggested that the EPA could reconsider its ruling in light of new evidence.

Neither party supported the judge’s solution. The EPA noted that it has no authority to reconsider a petition that it has denied. It also contended that it has no ability to review an amended petition within 90 days as required by the TSCA. The latter argument, amounting to “we don’t have the resources to obey the law,” did not impress the judge.

The petitioners contend that the EPA is entrenched in its position, perhaps for political rather than scientific reasons, and that it is unlikely to budge. The petitioners suggested that giving the EPA a “do-over” would be a waste of time.

The judge postponed proceedings to give the parties an opportunity to negotiate a proposed path forward. If they are unable to come to an agreement by August 6, the judge may decide to make a ruling based on the arguments and expert testimony presented at the trial.