Category Archives: General

Pennsylvania Justice

Expert Cannot Base Pain and Suffering Opinion on Lay Testimony

Experts offer valuable opinions during trials, but their opinions must be based on their expertise. In an unpublished decision, the Superior Court of Pennsylvania held that an expert’s opinion that a deceased man suffered before he died was inadmissible because it was based on the testimony of another witness.

Facts of the Case

James Cowher II was given an echocardiogram after experiencing chest pain. The result was normal. About nine months later, Cowher told his treating physician that episodes of chest pain, accompanied by shortness of breath, nausea, and sweating, were becoming more frequent. His physician performed an electrocardiogram and conducted another test for heart damage. The tests revealed no abnormalities.

The physician referred Cowher to a group of cardiologists. Cowher explained his symptoms to Dr. Sobhan Kodali. Dr. Kodali was aware that Cowher had a family history of heart disease, was overweight, and had high cholesterol. Dr. Kodali performed another electrocardiogram and conducted a lipid test. The results were normal. Without further investigation, Dr. Kodali attributed Cowher’s symptoms to stress.

About a month later, at the age of 48, Cowher died from heart failure while jogging. An autopsy revealed substantial blockage in two of Cowher’s arteries. The pathologist concluded that Cowher’s death was caused by severe coronary artery disease. While the pathologist identified the immediate cause of death as “cardiac arrythmia,” the coroner reported the cause of death as “acute myocardial infarction” due to severe coronary artery disease.

Expert Report

Cowher’s widow sued Dr. Kodali for wrongful death based on medical negligence. She also brought a survival claim based on Cowher’s pain and suffering prior to death. Her complaint alleged that Cowher died from an acute myocardial infarction.

Cowher retained a cardiologist as an expert witness. The cardiologist’s expert report opined that Dr. Kodali was negligent in failing to diagnose Cowher as suffering from unstable angina. The report also faulted Dr. Kodali for not recommending cardiac catheterization and other diagnostic testing that would have revealed Cowher’s severe coronary artery disease. In the expert’s opinion, that disease could have been treated successfully with coronary bypass surgery.

The expert report expressed the opinion that Cowher died from cardiac arrythmia caused by severe coronary artery disease. The defense asked the court to exclude the opinion that Cowher died from anything other than a myocardial infarction as the complaint alleged. The court denied that motion.

The expert report also expressed the opinion that Cowher suffered conscious pain before he died. The court denied a defense motion to exclude that opinion.

Expert Testimony

At trial, each side presented the testimony of expert cardiologists. The expert for Cowher’s widow testified that Cowher died from a cardiac arrhythmia caused by coronary artery blockages that prevented sufficient blood from reaching the heart. The expert also testified that Cowher was suffering from unstable angina due to those artery blockages when he was examined by Dr. Kodali.

The expert testified that Dr. Kodali breached the applicable standard of care by failing to diagnose unstable angina in response to Cowher’s symptoms and by failing to order cardiac catheterization, a procedure that would have confirmed the existence of blockages. The expert opined that the correct standard of care would have resulted in bypass surgery that would have prevented Cowher’s death. The expert also testified that Cowher suffered pain before his death.

Dr. Kodali’s expert testified that coronary artery disease could not have caused Cowher’s death because no damage to the heart muscle was found during Cowher’s autopsy. Dr. Kodali’s expert also testified that Dr. Kodali’s diagnosis of Cowher’s chest pain as having a non-cardiac origin without conducting further testing did not breach the standard of care.

The jury awarded Cowher’s widow almost $2.5 million on her wrongful death claim. It awarded another $3.8 million on her survival claim. The trial court denied post-trial motions for a new trial and entered judgment for Cowher’s widow in the full amount. Dr. Kodali appealed.

Cause of Death

Dr. Kodali first argued that Cowher’s expert did not establish that negligence caused Cowher’s death because he testified that Cowher died from cardiac arrythmia (a condition that causes cardiac arrest) while the complaint echoed the coroner’s finding that he died from a myocardial infarction (a heart attack). The appellate court concluded that Cowher’s widow merely needed to prove that negligence caused his death. She did not need to prove the precise way in which he died.

The evidence established that Dr. Kodali failed to diagnose and treat Cowher’s severe coronary heart disease. That failure caused Cowher’s death. Whether the death was caused by a cardiac arrythmia or a myocardial infarction, the result was the same. Cowher died because Dr. Kodali did not diagnose and treat the health condition that caused his heart to stop functioning as it should.

Pain and Suffering

A neighbor who saw Cowher collapse testified that she heard him say “I need help.” The neighbor said that he appeared to be in pain and was very distraught. Cowher was conscious for about three minutes after he collapsed.

The expert witness expressed the opinion that Cowher experienced pain and suffering before his death. When asked about the basis for that opinion, the expert testified that he based his opinion on the neighbor’s testimony.

Dr. Kodali argued that an expert must give opinions that go beyond lay opinions. Testifying that Cowher experienced pain, when that testimony was based on a lay witness’ observation that Cowher seemed to be in pain, was not expert testimony. The expert did not need to apply his own expertise to conclude that Cowher experienced pain.

Since the jury heard the neighbor’s testimony, it seems doubtful that the expert’s opinion affected the verdict. The expert didn’t tell the jury anything more than it already knew. In the court’s view, however, placing the imprimatur of expertise upon an opinion that someone suffered pain could have influenced the jury. The court therefore reversed the verdict on the survival claim and remanded for a new trial on that claim.

Lessons Learned

It seems likely that the expert could have given admissible expert testimony on pain and suffering. A cardiologist presumably knows that heart failure is painful. Based on his experience treating patients who suffered from a cardiac arrythmia, and perhaps on knowledge gleaned from medical texts, the expert could probably have explained why his medical expertise informed his opinion that Cowher suffered pain. If the expert had been advised in advance that he should rely on his medical expertise when expressing his opinion, a new trial could likely have been avoided.

 

DNA

Forensic Experts Continue to Question Kevin Cooper Conviction

The murders of Doug and Peggy Ryen and two children in Chino Hills, California, were horrific. They were attacked with a hatchet, an ice pick, and one or two knives. A third child was stabbed but survived the brutal assault. Josh Ryen told the police that three white men had committed the crime. But Josh was only eight years old and he suffered a cracked skull during the assault. The police discounted his eyewitness account in favor of their theory that the crime was committed by a lone black man who days earlier had walked away from a minimum-security prison camp.

The physical evidence seemed to support Josh’s account. Two different T-shirts were apparently discarded at the scene. Light colored hairs were found clutched in the hands of the murder victims. A woman contacted the San Bernardino Sheriff’s Department to report her suspicion that her boyfriend (“Lee”), a convicted murderer who had recently been released from prison, had killed the Ryens. She gave the officers the blood-covered overalls that triggered her suspicions and reported that a hatchet was missing from her boyfriend’s tool rack.

Remarkably, the sheriff’s investigators threw out the overalls without testing them for the victims’ blood. They instead focused their tunnel vision on Kevin Cooper. Investigators explained that they did not want the overalls to “complicate” their case against Cooper. Having developed the theory that Cooper was the murderer, they devoted their resources to proving that the theory was correct while disregarding evidence that pointed to other suspects. That practice, all too common throughout the history of police investigations, is the formula for a wrongful conviction.

An investigative article by New York Times columnist Nicholas Kristof raised serious questions about Cooper’s conviction. Kristof asked why the police and prosecutors had failed to ask experts to test the hairs and blood found at the scene of the crime. Expert DNA analysis in criminal cases is, when properly employed, the most objective means of guiding investigations and proving guilt.

Kristof wrote that “an innocent man was framed by sheriff’s deputies and is on death row in part because of dishonest cops, sensational media coverage and flawed political leaders.” His 2018 article spurred Gov. Jerry Brown, and his successor, Gov. Gavin Newsom, to order comprehensive DNA testing of the available evidence. Kristof recently acquired the DNA test results and updated his investigation.

DNA Evidence

A torn T-shirt believed to be worn by one of the killers is key evidence in the case. The police claim that Cooper’s blood was on the T-shirt, but given the conduct of the sheriff’s investigators, neutral observers have concluded that the investigators planted the blood to strengthen their case against Cooper. That conclusion is bolstered by the presence of a preservative in the blood on the T-shirt, suggesting that the blood came from a vial of blood (now nearly empty) that was drawn from Cooper and kept as evidence.

Bicka Barlow, a DNA expert who is helping Cooper, told Kristof that she has never seen so much blood disappear from a vial. The blood testing performed in the case would not account for the loss. Planting blood on other evidence would, however, explain why the blood disappeared.

Whether Cooper ever wore the shirt might be determined by analyzing sweat stains, but that analysis was only recently performed. Police and prosecutors did little to protect the shirt’s integrity. Samples of DNA taken from the shirt have degraded. No DNA profile could be created from the samples.

Testing showed that the hairs clutched in the victims’ hands did not come from Cooper, but that was obvious from the hair color. In fact, no hairs from an African-American were found at the crime scene. The DNA testing did not produce a match to any other suspect.

Authorities found a discarded towel that had been taken from the crime scene. The towel yielded a full DNA profile. Cooper was excluded as the source of the DNA. Unfortunately, the DNA did not match anyone within a DNA database.

The Burden of Proving Innocence

Three witnesses have come to light who are willing to testify that they have recently heard Lee boast about murdering a family. Lee (the owner of the bloody overalls that sheriff’s investigators discarded) is not the source of the DNA on the towel.

It is often true that forensic evidence points in different directions. If, as Josh stated, there were three killers, the fact that Lee’s DNA is not on the towel does not exclude him as a suspect. The evidence is probably not sufficient to prove Lee’s guilt, but the question is not whether Lee killed the victims. The question is whether Cooper killed them. The new DNA evidence raises a serious doubt about Cooper’s guilt.

Prosecutors point to other forensic evidence, including a shoe print and cigarette butts that they associate with Cooper. All of that evidence has been cast in doubt by the likelihood that the San Bernardino Sheriff’s Office planted evidence to strengthen its case against Cooper. Kristof calls attention to the checkered history of that office, including previous accusations that it planted evidence to strengthen dubious proof of guilt.

Unfortunately, prosecutors are too often unwilling to admit that they might have sent an innocent person to prison (or in this case, to death row). The San Bernardino County District Attorney’s Office resisted DNA testing, challenged all of Cooper’s attempts to get a new trial, and continues to oppose investigations of Cooper’s innocence.

It seems odd that prosecutors champion the reliability of DNA testing when they use it to prove guilt but argue against DNA testing that calls their prosecutions into question. Yet prosecutors depend on the police to help them make cases. They are often reluctant to acknowledge faults in police investigations or in their own prosecutions.

Whether Cooper will ever be exonerated is doubtful. He has exhausted all of the legal remedies that are presently available. The new forensic testing, and the opinions of his forensic experts, do not indisputably establish his innocence. But the expert evidence does raise serious doubt about Cooper’s guilt — enough doubt that Cooper should certainly be removed from death row. Nicholas has urged Governor Newsom to convene a panel to review Cooper’s conviction and to make a recommendation about clemency. If Cooper is innocent — and there is good reason to question the evidence of his guilt — clemency may be his last hope for justice.

Discrimination

Pratt & Whitney Wants Experts Disqualified in $1 Billion Soil Toxins Suit

An aerospace and defense company wants a Florida federal judge to disqualify the expert witnesses presented by property owners who have accused it of contaminating their water supply and devaluing their homes.

The Lawsuits

Five married couples who have children who are members of a pediatric brain tumor cluster designated by the Florida Department of Health and two property owners who claim their land is far less valuable because of soil contamination filed two consolidated suits against United Technologies Corporation, which does business as Pratt & Whitney. The parties claim that the company sent toxic and carcinogenic chemicals into the porous underground aquifer that their properties share.

The cases are Cotromano et al. v. United Technologies Corp. et al., case number 9:13-cv-80928, and Adinolfe et al. v. United Technologies Corp., case number 9:10-cv-80840, in the U.S. District Court for the Southern District of Florida.

The total claims are estimated at $1 billion.  The cases were initially dismissed by the trial court, but were reinstated by the Eleventh Circuit, which ruled that the trial court had erred in requiring excessive factual proof at the dismissal stage of litigation.

The Experts

The plaintiffs retained numerous experts to help them prove their claim. Pratt & Whitney filed motions arguing that each of those experts should be excluded.

The plaintiffs presented Dr. Marco Kaltofen as an expert to testify that there is evidence that the plaintiffs had been exposed to contaminants that originated at the Pratt & Whitney facility. Pratt & Whitney argued that Dr. Kaltofen’s testimony should be excluded because he failed to apply or identify a methodology that would allow him to conclude that there was radioactive contamination in the property. Pratt & Whitney also claimed that Dr. Kaltofen’s testimony failed to identify any actual source of materials or address how the materials were allegedly transported to the plaintiffs’ properties.

The plaintiffs presented toxicologist Dr. William Sawyer to support their claims. Pratt & Whitney argued that Dr. Sawyer’s opinions should be excluded as lacking in fit because they are “fundamentally unreliable.” Pratt & Whitney noted that Dr. Sawyer had not issued an expert report in support of the plaintiffs’ property claims; instead, the plaintiffs relied upon Dr. Sawyer’s previously-disclosed cause opinions from three personal injury cases. Pratt & Whitney argued that because none of the other personal injury cases dealt with the cancer cluster designation, Dr. Sawyer’s opinions were not relevant here. Pratt & Whitney also argued that Dr. Sawyer’s methodology was unreliable. The company noted that for two plaintiffs, Dr. Sawyer had no calculation of the alleged dose of Thorium-230 to which they were exposed. For another plaintiff, Dr. Sawyer relied upon a flowed dose calculation that was based on samples taken from her spine years after she was diagnosed with brain cancer.

The plaintiffs presented Dr. Bernd Franke as a radiological researcher to support their claims. Pratt & Whitney argued that Dr. Franke’s testimony should be excluded because there was no fit between his analyses and any issue to be resolved at trial, he relied upon improper and unjustified assumptions, and his methodology was not reliable. Pratt & Whitney noted that Dr. Franke’s testimony was only related to one individual who was not part of the cancer cluster identified by the FDOH.

The parties participated in a seven-hour hearing on the issues, but the matter remains unresolved. The hearing was continued and the parties were instructed to contact the court with their available dates in the next two weeks.

Alabama

Retired Doctor Could Not Act as Expert Witness in Alabama Malpractice Trial

Janice McGill had surgery to relieve pain in her temporomandibular joint (TMJ). Dr. Victor Szymela replaced the joints in her jaw with prosthetic joints. He assured her that the excruciating pain she felt after the surgery would lessen with time. It did not. The surgery also worsened her overbite and failed to correct the “popping” she experienced when she moved her jaw.

McGill consulted Dr. Michael Koslin, who tried to manage her pain conservatively. After three years, Dr. Koslin determined that McGill’s pain was not responsive to treatment. He therefore performed surgery to remove the prosthetic joints. The procedure immediately relieved McGill’s pain.

McGill sued Dr. Szymela for malpractice. She alleged that he failed to explore alternative treatments and installed the prosthetic joints incorrectly.

McGill identified Dr. Louis Mercuri as an expert witness. The trial court excluded Dr. Mercuri’s testimony because he was not qualified as a malpractice expert under Alabama law. Without his testimony, McGill could not prove her negligent surgery claim. The jury ruled against her on her claim that Dr. Szymela negligently failed to explore alternative treatments.

McGill appealed, arguing that Dr. Mercuri was improperly excluded. The Alabama Supreme Court affirmed the exclusion of Dr. Mercuri’s testimony.

Legislative Interference with Choice of Malpractice Experts

Claiming that a nonexistent malpractice litigation crisis was impairing the availability of healthcare, the insurance and medical industries lobbied state legislatures for “reforms” that make it more difficult for malpractice victims to prove their cases. The perceived crisis involved escalating malpractice insurance premiums that were largely unrelated to litigation.

Many see the true crisis as being the extent of medical malpractice in the United States. Studies estimate that no more than one in seven patients who are harmed by malpractice bring a lawsuit to recover compensation for their injuries.

Since doctors are notoriously reluctant to testify against other doctors, several “reforms” protected doctors from liability by narrowing the range of experts who are allowed to testify. As a consequence, doctors who have the knowledge, training, and experience that traditionally qualify an expert to testify are excluded from the pool of available expert witnesses. Laws limiting the availability of expert witnesses often succeed in their intended goal — preventing victims of medical malpractice from obtaining compensation for their injuries.

Alabama Law

The Alabama Medical Liability Act limits the healthcare providers who are allowed to testify as expert witnesses in a medical malpractice lawsuit. An expert who expresses an opinion about a defendant doctor’s standard of care must be a “similarly situated” healthcare provider. If the defendant doctor is board certified in a medical specialty, the expert witness must be board certified in the same specialty.

Alabama law also requires the expert witness to have practiced in the same specialty within the past year. Since it is easier to find expert witnesses who teach medicine or who have retired from practice, Alabama’s practice requirement serves the insurance industry’s goal of making it difficult for injury victims to find expert witnesses who are willing to testify.

Dr. Mercuri’s Qualifications

The Alabama Supreme Court acknowledged that Dr. Mercuri is “a world-renowned TMJ surgeon, scholar, and surgical instructor” who has been “lifetime-certified by the American Board of Oral and Maxillofacial Surgery.” Unfortunately for McGill, the alleged malpractice occurred in 2014 and Dr. Mercuri retired in 2010.

Since 2010, Dr. Mercuri “devoted himself to research in the field of TMJ prosthetics and to teaching [joint replacement] surgical technique, including supervising students performing surgery on cadavers.” There was no dispute that Dr. Mercuri kept current on surgical techniques and the applicable standard of care.

The question before the court was whether Dr. Meruri met the statutory practice requirement. Dr. Mercuri testified that, as a visiting professor, he performed joint replacement surgery in Brazil with another doctor in 2013. The trial court deemed that testimony to be too vague to establish that Dr. Mercuri had actually “practiced.” Why the court believed that “I performed joint replacement surgery in Brazil” was vague is unclear.

Appellate Decision

As appellate courts tend to do, the Alabama Supreme Court decided that whether a doctor had “practiced” should be left to a trial court’s discretion. That decision is difficult to justify when the facts are undisputed. Whether Dr. Mercuri “practiced” depends on how that word is interpreted. The court was confronted with a pure question of law but declined to decide what the term “practice” actually means.

Instead, the court said that it has “allowed the contours of trial courts’ discretion to be determined over time, in a case-by-case manner.” There’s nothing wrong with developing the law — not every potential application of a statutory term can be foreseen — but trial courts do not have “discretion” to misinterpret or misapply the law. Once the facts are developed, whether those facts satisfy a legal standard is a question of law that the appellate court should decide without deferring to the trial court.

After reviewing four prior cases, the court decided that it had articulated a “clear” rule: “a court has wide latitude in deciding whether to admit or exclude as witnesses medical experts whose work in the year preceding the breach.” In fact, “we let trial courts do what they want” isn’t a rule at all. The supreme court provided no guidance to trial courts in future cases when they decide whether a doctor who practiced in a foreign country has met Alabama’s “practice” standard.

The supreme court affirmed the trial court’s decision to disallow Dr. Mercuri’s expert testimony, notwithstanding Dr. Mercuri’s undisputed testimony that he “performed” the surgical procedure that was the subject of his testimony within one year prior to Dr. Szymela’s performance of the same procedure. While the supreme court noted that Dr. Mercuri’s “general responsibilities” do not include practicing surgery, the statute only requires the expert to have practiced within the last year, not to have practiced with any particular frequency.

In a footnote, the court also recognized that Alabama allows “highly qualified” experts to testify even if they have not actively practiced within the last year. Because McGill did not expressly argue that Dr. Mercuri was highly qualified, a fact that was never in doubt, the court declined to apply the exception.

Lesson Learned

The McGill decision assured that a potential victim of malpractice lost her right to ask a jury for compensation because her expert witness, who was well qualified to express an expert opinion, had not engaged in sufficient practice within the prior year to satisfy the trial court. The decision elevates the protection of negligent doctors and their insurers above justice to injury victims.

It may have been difficult to find a better witness than Dr. Mercuri, but the decision stands as a reminder that the best expert witness is not always the right expert witness. A board-certified doctor with lesser qualifications who had performed multiple joint replacements for TMJ patients within the last year would have satisfied the statutory standard. Plaintiffs cannot always benefit from the best expert, but they should always try to find an expert who will be deemed qualified to testify.

 

A judge

Doctors Sued for Malpractice Must Use Expert Witness to Prove that a Different Doctor’s Negligence Caused the Patients Injury

The injury victim in a medical malpractice lawsuit is nearly always required to present expert testimony to establish that a physician breached the applicable standard of care and that the breach caused the victim’s injury. The Maryland Court of Appeals was asked whether the same standard applies to a doctor who defends a malpractice claim by asserting that the negligence of another party caused the victim’s injury. Under the facts of the case, the court decided that expert testimony was required.

Facts of the Case

Martin Reiss suffered from tumors in his kidney. A surgeon made a plan to remove the cancerous kidney as well as an enlarged lymph node that was adjacent to the kidney. The surgeon removed the kidney in 2011 but elected not to remove the lymph node because it was close to a large blood vessel that transports blood to the heart.

After the surgery, Reiss was treated by Dr. Russell DeLuca, an oncologist. Dr. DeLuca suspected that the lymph node was cancerous but agreed that it could not be removed safely. He opted to treat Reiss with chemotherapy. The treatment caused the lymph node to shrink, confirming that it was cancerous.

During a period of five years, Dr. DeLuca ordered periodic CT scans of the lymph node to determine whether it was enlarging. Between 2011 and 2014, Dr. Victor Bracey, a radiologist, interpreted the scans. He noted that a contrast dye was not used to perform scans, making interpretation less than optimal. He nevertheless concluded that the lymph node was not enlarging.

In 2015, a different radiologist, Dr. Elizabeth Kim, interpreted a non-contrast CT scan and found “soft tissue density” in the vicinity of the lymph node. She also concluded that the lymph node had enlarged since 2011. A biopsy confirmed that the lymph node was cancerous. A new oncologist agreed that the condition was inoperable.

Malpractice Lawsuit

Reiss sued Dr. Bracey and the surgeon who removed his kidney. He alleged that the surgeon was negligent for not removing the lymph node. At some point, Reiss dismissed his claim against the surgeon.

Reiss alleged that the lymph node could have been surgically removed at an earlier time. He alleged that by 2015, it had become inoperable. He contended that Dr. Bracey was negligent for failing to diagnose the enlargement of his lymph node at a time when it could have been removed.

Dr. Bracey denied that he was negligent. In his answer to the complaint, Dr. Bracey contended that Reiss’ oncologists were negligent and that their negligence caused Reiss’ injury.

Expert Testimony

Reiss presented the expert testimony of Dr. Paul Collier, a vascular surgeon, to establish that the lymph node could have been safely removed at any time before 2015 but not later. Dr. Bracey called Dr. James Black as an expert in vascular surgery. He agreed that the lymph node could have been removed in 2011 but disagreed with Dr. Collier’s opinion that the lymph node could not have been removed after 2015.

Reiss called Dr. Barry Singer as an expert in oncology. Dr. Singer testified that Reiss would have had a much greater probability of survival if the lymph node had been removed between 2011 and 2014. Dr. Singer opined that a biopsy would have confirmed that the lymph node was cancerous. He testified that surgical removal of cancer is always the best treatment option and that Reiss would have been cured if the lymph node had been removed. He explained that Reiss’ life expectancy is significantly shorter because the cancerous lymph node was not removed.

Alleged Negligence of Non-Parties

Dr. Bracey did not designate an expert to support his claim that Reiss’ oncologists were negligent. He instead made a general reservation of his right to rely on Reiss’ expert witnesses.

The trial judge ruled that the alleged negligence of the oncologists was relevant to Dr. Bracey’s defense. The judge also ruled that Dr. Bracey would not be allowed to cross-examine Reiss’ experts about the alleged negligence of his oncologists. The judge decided that Dr. Bracey needed to rely on his own experts and that disclosing an intent to rely on Reiss’ experts did not comply with expert designation rules. That ruling was not appealed.

Reiss called Dr. DeLuca as a fact witness. Dr. DeLuca testified that he discontinued chemotherapy because Dr. Bracey’s radiological reports convinced him that the cancer was in remission. He explained that he did not order dye to be used in administering the CT scan because he did not want to damage Reiss’ remaining kidney. He also testified that he did not refer Reiss’ case to the tumor board for an opinion on the viability of removing the lymph node because he relied on the surgeon’s opinion that the lymph node could not be removed safely.

Reiss’ new oncologist testified that he consulted with a general surgeon who advised against surgical removal of the lymph node because there was no clear separation between the lymph node and the vein. In that surgeon’s view, the risk of surgery would have outweighed the anticipated benefit. The oncologist acknowledged, however, that he did not ask a vascular surgeon to review the case.

No expert witness testified that the surgeon who removed Reiss’ kidney breached an applicable standard of care by not removing his enlarged lymph node. Nor did any expert witness testify that the standard of care required Dr. DeLuca or Reiss’ new oncologist to refer Reiss to a surgeon to remove the lymph node or to order a biopsy.

The jury demonstrated its confusion about the verdict form before finally determining that Dr. Bracey was not liable for Reiss’ injury. Reiss appealed.

Appellate Decision

Under Maryland law, “evidence of non-party negligence is relevant and admissible in medical malpractice cases.” The court noted that evidence of negligent acts by other doctors are relevant for three purposes: (1) to prove that the defendant doctor was not negligent; (2) to prove that the defendant doctor’s negligence was not a cause of the patient’s injuries; or (3) to prove that another doctor’s negligence was a superseding cause of the patient’s injuries “that cleaved the chain of causation running from the defendant’s negligence.”

Dr. Bracey was therefore entitled to introduce evidence that other doctors were negligent — for example, by not removing the lymph node during Reiss’ initial surgery, by not ordering dye to be used in the CT scan, by not performing a biopsy, or by not removing the lymph node after its cancerous nature became clear. If the jury decided that Reiss was injured because of mistakes made by other doctors and that Dr. Bracey did not contribute to that injury, it was entitled to find in Dr. Bracey’s favor.

The jury heard evidence about the decisions made by other doctors. The question before the court was whether the jury could find that those doctors were negligent in the absence of expert evidence.

Dr. Bracey made the technical argument that he never asserted the negligence of other doctors as an affirmative defense and therefore had no burden to prove their negligence. Rather, he denied liability and raised non-party negligence as an alternative theory of causation that, in his view, he didn’t need to prove.

The court of appeals concluded that the label attached to the defense is not dispositive. The court held that “expert testimony is required to establish non-party medical negligence without regard to whether a defendant is raising the non-party medical negligence as an affirmative defense or in connection with a general denial of liability.”

That holding is consistent with the general rule that juries require the assistance of expert witnesses to determine whether a physician breached an applicable standard of care. Dr. Bracey’s “alternative theory of causation” could not be advanced without evidence. Expert evidence is required to persuade a jury that medical negligence occurred. Without that evidence, a jury would have no basis for concluding that Dr. Bracey’s “alternative theory” was grounded in fact.

Whether or not Dr. Bracey had the burden of persuasion, he had the burden of producing admissible evidence that non-party doctors were negligent. That burden of production could only be met by introducing expert opinions. Since Dr. Bracey failed to offer expert opinions, it was error for the trial court to submit a jury form that asked whether non-party physicians were negligent. That question sent the message that non-party negligence could relieve Dr. Bracey of liability. In the absence of expert evidence that the other doctors were negligent, the jury should not have considered their conduct in determining whether Dr. Bracey was liable. The court therefore remanded the case for a new trial.

 

Expert Allowed to Use Statistical Evidence of Plaintiffs’ Damages in FLSA Class Action

Eighth Circuit Discusses Whether an Expert Considered “Sufficient Facts” to Support a Conclusion

Joseph and Cindy Hirchak sued W.W. Grainger, Inc. and its subsidiary for selling and failing to warn about an allegedly defective product. They based their claim that Grainger sold the product on the opinion of an expert witness. A federal judge in Des Moines ruled that the expert’s testimony was inadmissible and granted summary judgment to Grainger. The Court of Appeals for the Eighth Circuit affirmed that decision.

Facts of the Case

Grainger distributes industrial equipment, including web slings. A web sling consists of straps or webbing. The webbing is typically made from polyester or a similar synthetic material. Web slings are wrapped around heavy objects and attached to a lifting device (such as a crane). The sling supports the objects as they are being lifted.

Joseph Hirchak was employed by Weiler Inc. Hirchak was working at Weiler’s plant when a web sling broke. The sling had been holding a load of steel tubing. The tubing fell on Hirchak, causing injuries.

While workers’ compensation is generally an exclusive remedy against an employer, an injured employee can bring injury claims against third parties if their negligence contributed to a work injury. Hirchak’s suit against Grainger alleged that Grainger supplied a defective web sling to Weiler and failed to warn Weiler about the defect.

Grainger distributes a variety of slings, including slings made by Juli Sling Company. Juli is a Chinese company. Hirchak alleged that the Grainger sold the defective Juli sling to Weiler. Grainger admitted that Weiler has an account with Grainger but denied that it supplied the defective sling to Grainger.

Grainger relied on its sales records and on the absence of Weiler purchase records evidencing sling purchases from Weiler. Grainger also argued that the Juli slings it distributes have sewn-in tags that the defective sling lacked. According to Grainger, those tags are sewn in by Juli. Grainger therefore contended that the defective sling was not a Juli sling.

Expert Evidence

To prove that Grainger supplied the defective sling, Hirchak relied on an expert opinion. Hirchak’s expert identified similarities between the defective sling and slings manufactured by Juli and distributed by Grainger. The expert based that comparison on two Juli slings that Grainger distributed, including a sling purchased from Grainger for the purpose of comparison and one furnished by Weiler. How Weiler determined that the sling was acquired from Grainger was unclear to the appellate court.

Grainger challenged the expert report. Grainger argued that virtually all web slings distributed in the United States share the similarities that the expert identified, regardless of their manufacturer. Grainger also argued that the expert failed to establish that it distributed the defective sling.

District Court Opinion

The district court decided that the expert’s opinion was not based on sufficient facts. Assuming that the points of comparison were sufficient to identify the defective sling as a Juli sling, that identification did not prove that Grainger distributed the sling. Weiler could have acquired it from any of Grainger’s competitors.

After excluding the expert opinion, the district court asked whether the remaining evidence established that Grainger distributed the defective sling. Finding none, it granted summary judgment in Grainer’s favor.

Appellate Opinion

The Eighth Circuit noted that experts must base opinions on sufficient facts to assist the jury in deciding factual disputes. When are facts “sufficient”? One measure of sufficiency is whether the facts both support the expert’s opinion and allow the expert to exclude other possibilities.

The court recognized that it isn’t necessary to rule out every possible alternative conclusion. It is, however, necessary to consider enough facts to account for obvious alternatives. The failure to rule out obvious alternatives suggests that the expert either failed to consider sufficient facts or failed to explain why the expert’s reasoning makes the expert’s conclusion more sound than alternative conclusions.

The court decided that the expert failed to consider sufficient facts to rule out the conclusion that a different distributor supplied the defective sling to Weiler. The expert’s focus was on facts tending to show that Juli manufactured the sling. The expert considered only a few facts to prove that Weiler obtained the sling from Grainger.

The expert compared the defective sling to two Juli-manufactured slings that came from Grainger. That comparison supported a conclusion that Grainger sells slings that are similar to the defective sling. Since other distributors also sell Juli-manufactured slings, the facts upon which the expert relied were not sufficient to rule out the alternative conclusion that a different distributor supplied the sling to Weiler.

Hirchak argued that, since Weiler had a Grainger-distributed Juli sling in its plant, it is reasonable to infer that Weiler acquired the defective sling from Grainger. Oddly, the court of appeals held that the expert could not draw that inference because only the jury could do so. Yet by granting summary judgment, the court deprived the jury of the opportunity to draw the inference.

A better analysis might focus on whether the inference is sufficiently reasonable that it would support a jury verdict in Hirchak’s favor. The fact that Weiler had one Juli-sling that was distributed by Grainger does not imply that all of its other slings came from Grainger.

While an expert may well have been able to identify the manufacturer of the defective sling, identifying its distributor was probably beyond the realm of expert testimony. Purchases and sales are typically proved by purchase records or the testimony of sellers or buyers. In the absence of that evidence, Hirchak had little hope of proving his case through expert testimony.

 

Ethics

Lawyer Sanctioned for Intimidating Expert Witness

In an ideal world, all the players in the legal system, including judges, lawyers, and expert witnesses, would behave professionally at all times. Professional behavior includes treating other professionals with civility.

In the real world, participants in the legal system do not always bring a professional demeanor to court. A lawyer who tried to intimidate an expert witness recently learned that unprofessional behavior has consequences.

Intimidating Comments

Rudy W. Gorrell, Jr. is an attorney in Louisiana. He represented Brienne Russ in separate custody cases against the fathers of her two children. Both fathers were represented by Terrance Prout.

Prout called the same pediatric psychologist to testify as an expert witness in each case. She appeared in court three times.

On the first occasion, Gorrell approached the expert in the courtroom before she testified. Gorrell told her: “I’m coming for you”; “You’re not needed here”; “You’re not going to get on the stand”; and “I’m going to make you sit here all day.”

Before the expert testified, the hearing was continued to a new date. The expert appeared again on that date. Before the hearing started, Gorrell approached her in the courthouse parking lot and said, “I’m not sure why you’re here” and “You’re not going to testify again today.” The expert explained that she was in court because she had been subpoenaed to appear. Gorrell then said, “Well, you can’t testify to the child’s anxiety, and I am going to get you.” He added, “I don’t know why you are coming up, because we don’t need you to come up here [to testify].”

The hearing was again continued. The expert returned for the third court date. As she was sitting next to one of Prout’s clients on a bench outside the courtroom, Gorrell approached her and said, “You better stop messing with me, I will get you.”

The expert was finally able to testify at the third hearing. However, she was intimidated by Gorrell’s remarks and at times felt physically afraid of him.

Gorrell’s Explanation

At his disciplinary hearing, Gorrell denied threatening the expert or telling her she didn’t need to be present. He claimed that he merely suggested she should be on call rather than sitting around waiting to testify.

Gorrell testified that he told the expert that he disagreed with the relevance of her opinions because they were based on anxiety the children had experienced two years earlier. Why Gorrell would deem it appropriate to discuss the relevance of testimony with the witness rather than opposing counsel or the court is unclear.

Gorrell suggested that Prout’s animosity toward him accounted for the expert’s accusations. He admitted, however, that he could not think of any reason why the expert would lie about him.

Discipline Imposed

The hearing committee that considered the ethics complaint resolved the conflicting testimony in the expert’s favor. The committee concluded that Gorrell’s comments to the expert “caused her to feel intimidated and had no substantial purpose other than to delay or burden her.”

While the expert felt intimated, the hearing committee noted that Gorrell’s conduct caused no actual harm because it neither delayed the proceedings nor influenced the expert’s testimony. The committee nevertheless recognized the potential for harm. Witness intimidation can discourage witnesses from giving truthful testimony.

Intimidation can also discourage professionals from providing expert testimony in future cases. Experts who suffer abuse may decide that providing expert testimony isn’t worth the trouble.

The Louisiana Supreme Court agreed with the hearing committee. The court noted that Gorrell had no prior discipline during a long career. It therefore agreed with the committee that a public reprimand was warranted as discipline for his unprofessional conduct.

The Need for Civility

Commentators have long bemoaned the loss of civility in the legal profession. Supreme Court Justice Neil Gorsuch has argued that the loss of professional civility reflects a larger “civility crisis” in society. In Justice Gorsuch’s words, the growing tendency to shout down and insult people with whom we disagree reflects a failure to embrace the American ideals of freedom and equality. Maintaining a free society requires “treating each other as equals — as persons, with the courtesy and respect each person deserves — even when we vigorously disagree.”

The Gorrell decision should remind lawyers that the duty to provide vigorous advocacy in the courtroom does not justify an attempt to discourage an expert witness from testifying. Lawyers who disagree with an expert witness can attempt to expose flaws in the expert’s opinions through cross-examination. Confronting and attempting to intimidate an expert witness outside the courtroom is never acceptable behavior.

 

North Carolina

North Carolina Permits Expert Testimony Regarding Shell Casing Ejection Pattern

The North Carolina Court of Appeals faulted an attorney for challenging a decision to admit expert testimony without relying on the North Carolina Rules of Evidence. A doubtful experiment in shell casing ejection by a prosecution expert was deemed admissible because the defense attorney failed to challenge the admissibility of the experiment under Daubert.

Facts of the Case

John Turner shot Nicholas Parker. The two neighbors had a quarrelsome history. They had heated disputes about the location of their property boundary, among other issues.

Turner testified that a stray dog had been causing problems in the neighborhood. Turner said he had tried, without success, to get the dog under control.

Turner testified that he heard gunshots coming from Parker’s property. He then saw that the stray dog was injured. Believing that Parker had shot the dog, Turner armed himself with a handgun. Turner then walked down the road to find the dog.

Turner saw the dog at about the time he encountered Parker. Turner chambered a round in his gun, apparently to ready himself to end the dog’s suffering. He discovered, however, that the dog had already died.

According to Turner, Parker was enraged. Turner testified that Parker said that he shot the dog and would shoot Turner too. Turner also testified that Parker said he had been “waiting for this” and that they would “get this over with.”

Turner testified that he saw Parker reach for his waist. Assuming that Parker had a weapon in his waistband, Turner shot him. Turner testified that he was “stumbling backward” when he fired the shots. Turner then called 911 to request medical assistance for Parker.

The medical examiner testified that Parker was shot eleven or twelve times. All but two of the bullets entered Parker’s back.

Turner argued that he acted in self-defense. Even if Parker had no gun, a mistaken belief that the facts justify killing another person in self-defense could result in a conviction for the lesser crime of voluntary manslaughter under North Carolina law.

The jury found Turner guilty of murder. The jury also found Turner guilty of possessing a firearm as a felon.

Expert Testimony

Investigators discovered eight shells at the crime scene that had been ejected from Turner’s gun. The shells were in a straight line and at various distances from each other.

Kelby Glass, a forensic firearms examiner employed by the sheriff’s department, testified over objection as an expert witness for the prosecution. Glass conducted an experiment to determine the direction and distance that shells would travel after being ejected from Turner’s gun.

Glass testified that when he fired the gun while it was parallel to the ground, the ejected casings traveled backward and to the right for about eight or nine feet. When he angled the gun downward, the ejected casings traveled forward and to the right for about nine to eleven feet.

Glass offered no opinion about Turner’s location or movement when he fired the gun. Given the location of the shell casings, the prosecutor argued that Glass’ experiment disproved Turner’s testimony that he was stumbling backwards when he shot the gun.

The prosecutor argued that the position of the shell casings proved that Turner was moving toward Parker as he fired the gun. The prosecutor asked the jury to infer that Turner shot Parker in the back after Parker was already on the ground, an inference that is inconsistent with self-defense.

Potential Daubert Challenges to Expert’s Experiment

North Carolina has interpreted its Rules of Evidence in a matter that adopts the Daubert standard. Had Turner based his objection on Daubert, he could have challenged Glass’ testimony on the ground that it was not derived from a reliable methodology. Glass did not claim to have fired the gun while stumbling backwards. In the absence of that data, it is difficult to understand how Glass’ experiment could be said to disprove Turner’s testimony.

There is no suggestion in the appellate decision that Glass based his experiment on a peer-reviewed methodology. At least one forensic study concluded that a variety of factors can affect shell casing ejection patterns, including how the shooter gripped the gun. Two different people standing in the same location and holding the same gun at the same angle can produce significantly different ejection patters. That information, if placed before the court, might have convinced the judge that Glass’ experiment was incapable of returning meaningful results.

Moreover, Glass did not interpret his experimental results. The prosecutor, who certainly isn’t a forensic expert, provided an interpretation during closing argument. One wonders how an expert’s testimony about experimental results that fails to recreate the circumstances of the shooting and that is not accompanied by interpretative analysis was relevant. One might also wonder how a prosecutor with no scientific credentials at all was permitted to express opinions about the meaning of an experiment that the expert who conducted it failed to articulate.

Court’s Analysis of Turner’s Challenge

How the court might have analyzed a Daubert challenge is unknown because Turner did not make one. Instead, he relied on an older line of North Carolina cases that he viewed as more favorable to his position. While those cases, which ask whether the challenged experiment was “substantially similar” to the facts of the case, raise questions that are relevant to a Daubert analysis, they do not reflect the totality of the Daubert standard.

The court of appeals concluded that the “substantial similarity” of an experiment is no longer a standalone test in North Carolina. Rather, the Daubert analysis asks whether the expert’s opinion is based on sufficient facts or data, was the product of reliable principles and methods, and derived from a reliable application of those methods to the facts.

A strong challenge to each of those prongs could have been advanced. Turner could doubtless have found a forensic expert of his own to challenge the reliability of Glass’ methodology and the adequacy of the data that his experiment produced. He could also have challenged the relevance of an experiment that the expert witness fails to interpret. Since he didn’t, the court rejected his argument because it was based on precedent that is no longer controlling.

Lessons Learned

Although Turner did not mention the Daubert standard on appeal, the appellate court noted that it would “readily conclude” that the trial court would not have abused its discretion if it had applied the Daubert standard. On the record before the court, that observation might have merit. However, Turner’s counsel didn’t make a record that would allow the court to apply Daubert in a meaningful way.

The appellate court recognized that Glass didn’t know how Turner was gripping the gun and that Glass and Turner were standing on different surfaces when Glass conducted his test. However, Glass testified that those differences weren’t important. That was good enough for the appellate court to conclude that a Daubert challenge would have failed.

Turner could have challenged Glass’ opinion by calling his own forensic expert. The court might have come to a different conclusion after learning that research undermines Glass’ confidence that his failure to consider important variables did not influence his findings. It is difficult to understand how Glass’ experiment could have survived a Daubert analysis if an expert, relying on peer-reviewed studies, had pointed out the obvious flaws in Glass’ methodology.

There are two lessons to learn from Turner’s case. First, in a Daubert state, objections to the admissibility of expert evidence should be framed in terms of the Daubert standard. Second, when the prosecution wants to introduce an expert witness, the defense should always investigate the possibility of calling its own expert to elucidate flaws in the prosecution expert’s methodology.

 

Idaho Justice Legal System Concept

Medical Malpractice Decision Reversed for Improperly Excluded Expert Testimony

The Idaho Supreme Court has ruled that an Idaho family will have another chance to prove that a hospital is vicariously liable for the actions of doctors because a lower court improperly excluded its expert witness testimony.

The Injury

In May 2015, Duane Dlouhy went to the emergency room at Kootenai Health because of rectal bleeding. Dr. Robert Seeley performed a CT scan on Dlouhy and found “no obvious mass,” but noted the presence of “dark red blood.” A radiologist noted that a “neoplasm could not be excluded.” Dlouhy was discharged from the hospital.

Just hours later, Dlouhy went back to the hospital when the rectal bleeding resumed and his wife found him passed out in the bathroom. Another doctor saw Dlouhy and noted that the CT scan that had been performed earlier that day revealed “some thickening of the lateral aspect of the rectum.” Dr. Michael James performed a colonoscopy on Dlouhy but was unable to get a complete view of the rectum. Dr. James suspected that the bleeding was diverticular and noted that there was a large amount of blood and clotting in the mid-ascending colon. Dlouhy was discharged and followed up with his primary care physician in June 2015.

Dlouhy had additional follow-up visits related to his gastrointestinal issues in June 2015, September 2015, and January 2016. The possibility of colorectal cancer was not discussed or charted at any of these visits. In August 2016, Dlouhy was diagnosed with stage IV colorectal cancer.

The Lawsuit

In May 2017, the Dlouhys filed a complaint against the Kootenai Clinic and two physicians, alleging medical malpractice.  On June 5, 2017, Dlouhy died of colorectal cancer. Amended complaints were filed, adding Dlouhy’s children as plaintiffs and adding additional doctors, Western Medical Associates, and Kootenai Health as defendants. The parties settled claims against all defendants, with the exception of Kootenai Health.

The Dlouhys retained expert witnesses to testify on their behalf. Two experts, Kenneth J. Hammerman, M.D., and Judy L. Schmidt, M.D., were retained to testify about the standard of care. Kootenai Health filed a motion for summary judgment, arguing that the Dlouhys failed to establish an essential element of their claim because they had not presented experts with “actual knowledge” of the applicable community standard of care. The district court agreed with Kootenai Health and granted the motion for summary judgment. The Dlouhys appealed.

Dlouhy v. Kootenai Hospital District

The Idaho Supreme Court reviewed the district court’s ruling for an abuse of discretion. In Idaho, for an expert to testify about the applicable community standard of care, “he or she must have actual knowledge of the community standard as it existed ‘at the time and place of the alleged negligence.’” Plaintiffs may use local experts (who practice in the same community as the defendant health care provider with actual knowledge of the community standard of care that applies) or out-of-area experts (who must also explain how he or she came to be familiar with the community standard of care). Both Dr. Hammerman and Dr. Schmidt were out-of-area experts.

The court noted that for board-certified specialists, the local standard of care is equivalent to the national standard of care. Both of the proposed experts were board-certified in gastroenterology.  By reviewing the record, the court determined that Dr. Hammerman learned that the community standard of care did not deviate from the national standard of care by reviewing depositions. The court also determined that Dr. Schmidt had not given a timely affidavit or declaration in response to the motion to summary judgment. The court concluded that the district court had erred in excluding Dr. Hammereman’s testimony only.

The Idaho Supreme Court reversed the order granting summary judgment and remanded the case to the district court for additional proceedings.

 

Painkillers

North Carolina Court Disallows Expert Testimony About Impact of Methamphetamine Consumption Upon Shooting Victim

A defendant who alleges that he committed a violent act in self-defense must usually establish a reasonable basis for believing that his safety was threatened. Courts have recognized that evidence of drug use may be relevant when the defendant was attacked by a drug user whose violent conduct can be explained by the ingestion of drugs. An expert witness can help a jury understand why the use of a particular drug may have caused the attacker’s aggressive behavior, thus posing a threat to the defendant.

The defendant in a recent North Carolina case argued that he should have been allowed to use an expert witness to bolster his theory that he acted in self-defense after being attacked by a methamphetamine user. In an opinion that fails to recognize the important role that expert witnesses play in helping juries understand evidence of drug intoxication, an appellate court affirmed the decision to disallow the expert testimony.

Facts of the Case

Shirley Hollifield left her home at midnight to put gas in her car. A man confronted her. The man was later identified as Chris English. Hollifield texted Jerry Echols, the boyfriend with whom she lived, to tell him about the confrontation. She was sobbing when she returned home twenty minutes later.

Echols wanted to know why English had approached Hollifield late at night. Echols and Hollifield drove to a neighborhood where they spotted English. They testified that English was babbling before he got down on all fours and started growling at them. English then charged at Echols and Hollifield.

English fought with Echols, who got on top of him. After Echols let English go, English again got on all fours, started growling, and rushed toward Echols. Echols pulled a handgun from his pants and shot English. Echols testified that he believed English was armed. Echols and Hollifield then drove away.

English had been a regular user of methamphetamine since his release from prison about a year earlier. English suffered from paranoia and hallucinations. On the night of the shooting, English was “talking crazy” and “not making any sense” before he was seen to use drugs. He then began smoking methamphetamine with other users. One of those users testified that English was growling like a dog when she last saw him.

The police discovered English’s body at 1:00 a.m. A couple of days later, Echols fled from a police officer who tried to pull him over for running a red light. The officer arrested Echols and, during a search of his car, found the handgun he used to shoot English.

Expert Evidence

Echols was charged with murder. At his trial, an expert witness testified that she matched Echols’ handgun to the shell casings found at the scene of the shooting.

Echols wanted to introduce the expert testimony of Wilkie A. Wilson, a neuropharmacologist. Wilson would have testified that English’s aggressive and bizarre behavior was consistent with methamphetamine intoxication. Echols contended that Wilson’s testimony would have bolstered his contention that he was acting in self-defense after being attacked by a person who was seemingly deranged.

The trial judge ruled that Wilson’s proposed testimony was based on speculation rather than a reliable application of scientific principles and methods to the facts of the case. The defense countered that the evidence established English’s use of methamphetamine and that Wilson’s specialized knowledge of the behavioral effects of methamphetamine ingestion supplied a reliable basis for his expert opinion.

The trial judge also ruled that the relevance of Wilson’s testimony was outweighed by its prejudicial nature because English was behaving strangely before he ingested methamphetamine. Yet there was no evidence that English was behaving aggressively, much less getting on his hands and knees and growling like a dog, until he used the drug.

Appellate Analysis

In a decision that strikes a blow to the ability of defendants to use expert witnesses to educate juries, the North Carolina Court of Appeals ruled that Wilson’s testimony was inadmissible. According to the court, Wilson’s testimony was not supported by sufficient facts and was therefore speculative. The court noted that Wilson did not examine English, but failed to explain why an examination was necessary to opine about the pharmacological effects of methamphetamine ingestion.

Wilson based his opinion about English’s drug use on the testimony of other witnesses, as experts are entitled to do. Those witnesses saw English smoking methamphetamine. Wilson explained that abundant studies prove that methamphetamine ingestion causes the kind of behaviors that English exhibited. That evidence supplied a factual basis for Wilson’s conclusion that English was suffering from methamphetamine intoxication when he attacked Echols.

The trial court ruled that there was “a real problem” concerning whether the facts upon which Wilson relied were correct. But deciding whether facts are correct is the jury’s duty. Courts improperly deny parties the benefit of a jury determination when they take it upon themselves to decide disputed facts. Since the evidence would have permitted the jury to rely upon the facts that informed Wilson’s opinion, the opinion should not have been rejected simply because the court had a “real problem” with those facts.

The trial court drew a distinction between testimony that methamphetamine makes people behave in the way that English behaved — a conclusion that, as the court conceded, is well established by science — and testimony that English was violent because he used methamphetamine. That distinction is illusory. Would a court say that an expert can testify that alcohol impairs driving but disallow testimony that the driving ability of a driver who drank a bottle of bourbon was impaired by alcohol consumption?

Courts routinely allow experts to draw conclusions about human behavior, at least when the experts testify for the prosecution. Disallowing Echols the opportunity to use an expert in his defense was plainly unwarranted.