Category Archives: General

Texas flag and gavel

Texas Supreme Court Reverses Decision that Expert’s Standard of Care Opinion Was Conclusory

Appellate courts often arrive at conflicting conclusions about the sufficiency of expert testimony to identify a standard of care and its breach in a medical malpractice lawsuit. The recent case of Windrum v. Kareh in Texas illustrates the danger of taking the evaluation of expert testimony away from juries, which have primary responsibility for deciding whether expert evidence establishes a physician’s breach of a standard of care.

Facts of the Case

Lance Windrum was in a parking lot when he suddenly became disoriented and confused. His speech was slurred and he was having problems with his balance. An ambulance took him to a medical center, where he had a CAT scan and an MRI. Windrum reported that he had suffered from two similar but milder episodes in recent weeks. He also reported that he suffered from encephalitis when he was six years old.

The MRI suggested that Windrum had aqueductal stenosis, a narrowing of the aqueduct that carries cerebrospinal fluid through the brain. Aqueductal stenosis can cause hydrocephalus, a condition in which excess cerebrospinal fluid builds up within cavities inside the brain, potentially increasing pressure within the skull.

There are various kinds of hydrocephalus. A neurologist, Dr. Harpaul Gill, diagnosed Windrum’s condition as compensated obstructive hydrocephalus. That condition is characterized by partial or full blockage of the aqueduct, causing the brain to compensate for the increased pressure. The condition is usually treated by inserting a shunt to relieve the pressure.

Dr. Gill recommended surgery to insert a shunt. He referred Windrum to Dr. Victor Kareh, a neurosurgeon. The next day, Dr. Kareh met with Windrum, who was no longer experiencing any symptoms. Dr. Kareh did not review Windrum’s medical history, but decided to insert a ventricular drain rather than a shunt and to monitor Windrum’s intracranial pressure for the next 24 hours.

Windrum was released from the hospital after 24 hours of monitoring because the pressure did not redevelop during that time. About two months later, he had additional symptoms. A new MRI revealed that his aqueductal stenosis had worsened. Dr. Gill did not inform Dr. Kareh of that result.

About a week after the MRI, Windrum died in his sleep. An autopsy attributed his death to complications of hydrocephalus due to acqueductal stenosis.

Lawsuit and Appeal

Windrum’s wife, on her own behalf and on behalf of her children, sued Dr. Gill and Dr. Kareh for Windrum’s wrongful death. A jury found that both doctors were negligent. The jury assigned 20% of the fault to Dr. Gill and 80% to Dr. Kareh. The jury awarded Windrum’s wife and children more than one million dollars in damages.

Dr. Kareh appealed, arguing that the expert evidence was insufficient to establish that he breached the applicable standard of care by failing to install a shunt in Windrum’s brain. The Texas Court of Appeals agreed, reversing the judgment against Dr. Kareh. Over four dissenting votes, the court refused to grant en banc review of its decision. The Texas Supreme Court granted review of the lower court’s decision to determine whether the experts’ opinions regarding breach of the standard of care were, as the court of appeals concluded, “conclusory.”

Challenge to Expert Testimony

As is true in other states, a medical malpractice plaintiff in Texas must prove that a negligent medical professional caused harm by breaching the standard of care that the professional should have followed while treating the plaintiff. The standard of care is what an ordinarily prudent doctor would have done under the same circumstances.

Expert testimony is nearly always required to prove the standard of care. Texas court decisions require specific expert evidence of what the defendant should have done differently. Conclusory opinions that the defendant did something wrong do not establish a breach of the standard of care.

An expert’s opinion is conclusory if it has no basis or explanation. The medical expert’s role is to justify an opinion that the standard of care was breached by reference to specific facts accompanied by an explanation of why the defendant’s breach caused the patient’s injury. There must also be evidence of the specific facts upon which the expert relies.

Dr. Robert Parrish, a neurosurgeon, testified as an expert on behalf of Windrum’s family. Dr. Parrish reviewed Windrum’s medical records, the autopsy report, and the deposition testimony of Windrum’s treating physicians. Dr. Parrish also reviewed information in medical textbooks and literature. He testified that he based his conclusions on that information as well as on his experience treating patients with hydrocephalus and other conditions causing pressure inside the skull.

Dr. Parrish concluded that Windrum’s MRI revealed “classic symptoms” that called for the insertion of a shunt. He therefore opined that inserting a shunt was the appropriate standard of care and that Dr. Kareh’s failure to do so was a breach of that standard.

The court of appeals faulted Dr. Parrish because he cited no specific medical literature stating that inserting a shunt is the appropriate standard of care for treating the specific symptoms that Windrum exhibited. The court decided that Dr. Parrish’s opinion was conclusory because it was merely his opinion rather than an opinion that could be found in medical literature

The Expert’s Role in Explaining a Standard of Care

The Texas Supreme Court rejected the court of appeals’ narrow view of the facts upon which a medical expert must rely in defining a standard of care. Medical experts are entitled to rely on their training and experience when they form an opinion. Dr. Parrish testified that he instructs medical students in neurosurgery and that the recognition and treatment of hydrocephalus, including the use of a shunt, is part of his hospital’s teaching program.

Dr. Parrish explained the structure of the brain, the way in which aqueductal stenosis causes obstructive hydrocephalus, and the potential consequences of not treating the condition with a shunt. Dr. Parrish explained why he disagreed with defense expert opinions that there was no evidence of pressure on Windrum’s brain, including testimony that there was no evidence of pressure on Windrum’s optic nerve.

While Dr. Parrish could point to no medical literature supporting his view that the absence of pressure on the optic nerve could easily be explained by scar tissue preventing the pressure from reaching the back of the eye, he testified that it is widely known in the medical field that the absence of evidence of pressure on the optic nerve cannot be taken as proof that no intracranial pressure exists. Dr. Parrish’s experience qualified him to opine about facts that are widely known in the profession, even if those facts do not appear in textbooks.

Substantial portions of Dr. Parrish’s opinions, if not his ultimate conclusion as to the standard of care, were expressly supported by medical literature. He also explained why alternative causes of death (including a “brain-eating virus”) suggested by defense experts were unlikely. His explanation referred to specific symptoms that would accompany those conditions that Windrum did not have.

Dr. Parrish ultimately relied on evidence that Windrum had slurred speech, was staggering, and had MRI results that revealed aqueductal stenosis. The totality of the symptoms and test results, in Dr. Parrish’s view, would have convinced a prudent neurosurgeon that Windrum was suffering from obstructive hydrocephalus that needed to be relieved with a shunt.

Supreme Court Reinstates Verdict

The court of appeals made the mistake of concluding that an opinion as to a standard of care is only valid if the standard has been described by researchers or medical textbook authors. The reality is that the various combinations of symptoms that doctors treat are so vast that each potential standard of care will not always be discussed in medical literature.

Dr. Parrish articulated his reasoning and the facts upon which he based his opinion. He did not make the unsupported statement that “I know what the standard of care is and Dr. Kareh breached it.” Nor did he testify that “this injury would not have happened if Dr. Kareh had not been negligent” with nothing more.

Since Dr. Parrish’s opinion was not conclusory, it was up to the jury to evaluate it. When medical experts disagree about a standard of care, it is the function of the jury, not the judge, to resolve that disagreement. Since the jury was entitled to believe Dr. Parrish and to reject the opinions of the defense experts, the court of appeals erred in reversing the judgment. The Supreme Court accordingly reinstated the jury’s award of damages.

Fire

Fire Marshal Testifies in Ghost Ship Warehouse Trial

The former assistant fire marshal for the city of Oakland offered expert testimony in the Ghost Ship warehouse trial.

The Ghost Ship Warehouse Fire

The Ghost Ship warehouse fire occurred at 1309 31st Avenue in Oakland’s Fruitvale district late on the night of December 2, 2016. The building was a former warehouse that had been turned into an artist collective that was known as the Ghost Ship.

At the time of the fire, the collective was hosting a music concert at the warehouse featuring artists from the house music record label 100% Silk. During the party, a fire occurred and 36 people were killed.

Criminal Charges

The Alameda County District Attorney’s office investigated the cause of the fire. The investigation revealed emails from 2014 that allegedly described serious electrical problems in the building.  On June 5, 2017, the master tenant Derick Almena and his assistant and creative director Max Harris were charged with 36 counts of felony involuntary manslaughter in connection with the deaths.  Both pleaded no contest; however, the judge overseeing the case discarded the plea deal and the case continued to trial.

At trial, Alameda County prosecutor Casey Bates alleged that the two are criminally liable for the fire because there was no time and no way for the people to escape the party, as the warehouse lacked important safety features such as fire extinguishers, smoke alarms, and exit signs. Bates also claims that Almena and Harris violated the terms of the warehouse lease by turning it into a living space and throwing underground parties there.

To defend Harris and Almena, their attorneys, Curtis Briggs and Tony Serra, claim that the fire was an act of arson that could not have been prevented.

Expert Witness Testimony

Alameda County prosecutor Bates proposed Cesar Avila to testify as an expert at trial. Avila was formerly the assistant fire marshal for Oakland and is currently an Alameda County Deputy Fire Marshal serving the city of Emeryville. Almena’s lawyer Tony Serra objected to qualifying Avila as an expert because he had never previously testified as an expert.

Alameda County Superior Court Judge Trina Thompson certified Cesar Avila to testify as an expert witness at trial on the topics of the implementation of fire and building codes for the purpose of conducting experiments. 

Alameda County prosecutor Bates questioned Avila as to whether it was permissible for the warehouse at 1309 31st Avenue to have RVs and trailers that were used as living spaces. Avila answered, “Absolutely not.” 

Avila explained that the governing building code does not allow RVs in warehouses because they are a potential fire hazard. He told the court that the fuel and propane tanks in RVs can cause fires to burn more intensely. He said, “There are a lot of fluids that could augment a fire.” Additionally, Avila noted that RV batteries “are another potential augmentation” for fires.

The trial of Harris and Almena is expected to last at least several months.

Fertilizer Plant

Appellate Court Affirms Exclusion of Toxicologist’s Opinion Linking Respiratory Disease to Pollutants from Fertilizer Plant

Rhonda Williams sued Mosaic Fertilizer, claiming that her lung diseases and other health conditions were related to toxic substances emitted by Mosaic’s plant. Mosaic made a Daubert motion to exclude the expert testimony that linked Williams’ health problems to Mosaic’s emissions. A federal district court granted the motion and the Court of Appeals for the Eleventh Circuit affirmed its decision on appeal.

Williams’ Claim

Williams has lived her whole life in Tampa, about three miles from a Mosaic factory. She alleged that Mosaic uses a number of toxic chemicals in its manufacturing process. She further alleged that Mosaic produces toxic emissions, including arsenic, cadmium, chromium, lead, manganese, nickel, phosphorous, and zinc.

Government agencies have found that sulfur dioxide in their air near Mosaic’s plant exceeded national and state standards. Measurements of particulate matter (inhalable particles that are 10 micrometers or smaller) exceeded the national standard in Williams’ neighborhood. Particulate matter is a respiratory irritant.

Williams’ lung-related health problems included pulmonary hypertension, obstructive pulmonary disease, asthma, and lower lung scarring. She also attributed her fatigue, abdominal pain, and diabetes to the pollutants or to the side effects of treating her lung conditions.

Expert Evidence

To prove that her health conditions were caused by Mosaic’s pollution, Williams relied on the expert opinion of Dr. Franklin Mink, a toxicologist. Dr. Mink opined that Williams had been exposed to a lifetime of pollutants and hazardous materials generated from Mosaic’s operations, including mining, processing, storage, transportation, and waste handling. Mink also concluded that Williams developed adverse health effects from her exposure to those pollutants and materials, and from the therapeutic agents used to treat those diseases.

Dr. Mink appended a list of sources to his report that included environmental studies and regulatory documents. However, he did not make specific references in his report to the cited sources that supported each of his conclusions. One lesson to learn from this case is that experts should carefully cite the specific sources they rely upon in support of each fact or opinion stated in an expert report.

In granting Mosaic’s Daubert motion, the trial court concluded that Dr. Mink failed to address “the hallmark of the science of toxic torts — the dose-response relationship.” The dose-response relationship is a means of proving that a toxic substance caused a particular health outcome by demonstrating that increasing exposure to the substance correlates with an increased risk that the outcome will occur.

The trial court also faulted Dr. Mink’s methodology because he:

  • “unjustifiably” relied on regulatory standards to determine the dose that would cause harm to health;
  • inferred facts from studies that contradicted his conclusions;
  • failed to consider background risks for Williams’ conditions;
  • failed to rule out other potential causes for Williams’ conditions; and
  • speculated about Williams’ exposure to the toxic substances.

Since the court deemed Dr. Mink’s methodology to be unreliable, the court concluded that his opinions were inadmissible.

Causation Standards

Without deciding whether Williams failed to prove general causation (in other words, to prove that the pollutants emitted by Mosaic are capable of causing the harmful health conditions from which Williams suffered), the Court of Appeals for the Eleventh Circuit agreed that Williams failed to demonstrate specific causation. To establish that her health conditions actually were caused by Mosaic’s toxic discharges, Williams needed to establish a level of exposure that was necessary to produce those effects, and to prove that Williams was exposed to that level. The court concluded that her expert’s failure to do so was fatal to her proof of specific causation.

Dr. Mink did not independently measure the level of pollutants in Williams’ environment, but relied on academic studies measuring the ambient concentration of air pollutants in Williams’ neighborhood. He also relied on Environmental Protection Agency (EPA) air quality standards to determine the threshold exposure to those pollutants that could produce Williams’ health problems.

The court of appeals concluded that Dr. Mink’s analysis was “methodologically problematic,” in part because one of the studies upon which he relied concluded that the concentration of pollutants emitted by fertilizer plants in the Tampa Bay area was below the level that would present a health risk to the public. Dr. Mink explained that he relied on the study’s data, not on its conclusions, but the court of appeals held that Dr. Mink never “clearly explained” until after his opinion was deemed inadmissible why he disagreed with the study authors’ conclusions.

Unfortunately, the appellate opinion does not tell the reader what explanation Dr. Mink gave that prompted the district court’s ruling, making it impossible for the reader to evaluate the clarity of that explanation. Nor does the opinion explain why Dr. Mink was less qualified to draw opinions from the data than the authors of the study.

The court also faulted Dr. Mink for relying on EPA standards to establish causation. The court noted that regulatory standards are protective, in that they might build in a “cushion” to protect sensitive people from exposures that would not adversely affect most people. According to the court, relying on EPA standards is a poor methodology because the standards, unlike the dose-response relationship, cannot predict how many people will be affected by a particular level of contamination.

The court rejected the argument that the EPA standards are, in fact, based on the dose-response relationship. The court noted that EPA cautions that its data cannot predict future risk with precision. Yet the burden in a civil case is not to prove facts with precision, but to prove that they are more likely than not true. While the court stated that it does not require experts to produce “precise numbers,” it faulted the expert’s methodology because the methodology was not based on precise numbers.

Toxic tort cases have become monstrously difficult to prove because appellate courts have set the bar for expert testimony so high that, without investing huge sums of money to establish precise dose-response relationships, experts are unable to use the “exacting” methodologies that industry-friendly judges believe Daubert requires. The unfortunate result is that jurors never get a chance to apply the less-than-exacting civil burden of proof to decide whether a company’s pollution probably caused a plaintiff’s injury. Whether that’s good or bad depends on how judges and legislators balance a company’s interest in being shielded from judgments against society’s interest in compensating victims of toxic torts.

Other Potential Causes of Harm

Finally, the court faulted Dr. Mink for failing to rule out other potential causes of Williams’ health conditions, such as “obesity, allergies, lifestyle, exposure to secondhand smoke, or possible genetic predisposition.” Dr. Mink testified that the probability of those factors causing Williams’ health condition was low.  The court faulted that testimony because it was unsupported by “probability studies.” That complaint arguably goes to Dr. Mink’s credibility. If Dr. Mink was testifying based on his knowledge and experience, whether he can cite supportive probability studies is an issue that could be explored on cross-examination to attack his credibility.

Credibility is generally for the jury to determine. While the court held that “[t]he law does not require the District Court to take [the expert] at his word,” the law does allow juries to do so by assigning credibility determinations to juries rather than judges. In addition, the district court declined to hold a Daubert hearing and thus gave Dr. Mink no opportunity to discuss probability studies that he did not mention (and apparently was not asked about) during his deposition.

Different courts view the elusive border between credibility and the “reasonableness” of testimony in very different ways. This case is a further example of the importance of having experts prepare reports that document every single fact upon which the expert relies in forming an opinion, even if the fact seems blindingly obvious to the expert.

Perjury

Former Cop and Expert Witness Pleads Guilty to Perjury and Theft

A former Flagstaff Police Officer and expert witness for the Northern Arizona Healthcare’s Safe Child Center has pleaded guilty for perjury and theft of between $4,000 and $25,000.

The Investigation

Carli Moncher was retained as an expert witness to testify in cases involving children, including cases of child abuse for the Northern Arizona Healthcare’s Safe Child Center.

The Arizona Department of Public Safety led an investigation into Moncher’s actions. The department determined that Moncher would falsify her reports to the Safe Child Center and the courthouses where she worked, allowing her to be paid twice for one job. According to her indictment, Moncher received $8,148.15 from the Safe Child Center while also doing private work.

Moncher was fired from her position in April 2017 when Northern Arizona Healthcare confronted her with evidence of her “violation of Northern Arizona Healthcare’s ethical standards and unprofessional conduct.”

The investigation revealed that Moncher had forged official subpoenas to support her employer’s expense and travel reimbursements.

Guilty Plea

Moncher pleaded guilty to one count of theft and one count of perjury. Those crimes carry a penalty of anywhere from 1 to 5 years in prison. Her plea deal showed that 22 of Moncher’s original 24 charges were dropped as a result of her plea deal. The charges that were dropped include one count of fraud, one count of perjury, and 20 counts of forgery.

Moncher submitted a sealed statement that detailed her history of sexual and physical abuse by her stepfather, her lack of paid leave after several surgeries related to her Cushing’s syndrome, and an instruction from her bosses to reduce the services she provided to the surrounding counties as her motivation for turning to theft and the alleged forgery and fraud.

At her sentencing hearing, Moncher admitted wrongdoing for her crimes and said, “I deeply regret my actions, and any fallout that may have occurred from them.” She also said that, “This is where my child abuse history influenced my judgement and created a skewed view of the situation and how to handle it.”

La Paz County Judge Matthew Newman sentenced Moncher to four months in prison and three years of supervised probation. Newman explained that this mitigated sentence was because “I believe your remorse is real. … I don’t believe anything this court could do to you can possibly measure up to or accomplish what you [can do to yourself].”

The Fallout

Because Moncher testified as an expert witness in many cases, her perjury charge may allow the defendants in those cases to reopen their convictions. Attorneys in the cases where Moncher testified may try to utilize her perjury plea to try to overturn or appeal convictions.

A report from the Department of Public Safety shows that Moncher has testified in cases in multiple northern Arizona counties and in federal courts. Katie Conner, a spokeswoman for the Arizona Attorney General’s Office, said the plea would affect “a number” of cases in which Moncher was involved.

Wooden Mallet and flag Of New Jersey

Court Throws Out Digital Evidence When Experts Could Not Authenticate It

A New Jersey administrative law judge has barred the introduction of digital evidence when experts were unable to explain how the data was collected.

The Allegations

The State of New Jersey filed charges against John Savadjian, alleging that he transferred “orphan” accounts, or accounts without a servicing agent, to his book of business without authorization from his supervisors or the account owners.

Savadjian is an insurance producer, which makes him subject to the New Jersey Insurance Producer Licensing Act.  N.J.S.A. 17:22A-26 et seq. The Producer Act prohibits fraudulent, coercive, or dishonest practices. Prudential procedures required agents to have a policyholder’s signed consent prior to transferring their account to their book of business.

Savadjian’s supervisor sent faxes approving the transfer of a limited number of orphaned accounts to his book of business without the policyholders’ signed consent. New Jersey alleges that, without the knowledge or approval of that supervisor, Savadjian used those same fax letters multiple times to move additional additional orphan accounts to his book of business.

New Jersey also alleges that Savadjian forged the signature of account holders authorizing the transfer of their accounts and that he misrepresented his identity to Prudential’s customer service office over the phone.

Savadjian denied all allegations.

Administrative Law Hearing

New Jersey presented a CD with recordings of phone calls that had been allegedly made by Savadjian and a spreadsheet that showed the metadata of the calls to enter into evidence.  Savadjian objected, arguing that the items were not authentic because the audio recordings had been stripped of their metadata.

The state planned to call Thomas Schreck, director of Prudential’s corporate investigation to testify as an expert witness. Schreck had reviewed the calls and worked with the employee who had created the report containing the metadata of the phone calls. Schreck was expected to authenticate the evidence.

Prior to Schreck’s testimony, he was suspended from Prudential. The state said that Prudential would provide another expert to authenticate the evidence in the case.

The Department of Banking and Insurance presented Charles Shanley, a director in Prudential’s corporate investigation division as an alternative expert to authenticate the evidence. Shanley testified that he had completed hundreds of investigations for Prudential, but had not been personally involved in the investigation of Savadjian.

During Shanley’s testimony, the cross-examination “revealed just how little he knew about the audio recordings at issue and the software system that recorded them.” Shanley also admitted that he did not have enough knowledge to disagree with Savadjian’s expert, who questioned the authenticity of the recordings.

Administrative Law Judge Barry Moscowitz ruled that the commissioner of Banking and Insurance could not admit into evidence audio recordings of calls that were allegedly made by Savadjian when he worked for Prudential Insurance. He wrote, “All Shanley knows is that the CD, the spreadsheet and the report, which DOBI seeks to admit into evidence, match the ones that someone in Prudential’s legal department gave to him in 2016. As such, Shanley does not know whether the CD, the spreadsheet or the report — which DOBI says are from 2013 — were altered between 2013 and 2016, when Shanley reviewed them.”

Flint, Michigan Water

Expert Witnesses Bill Over $108K in Flint Water Cases

The bill for expert witnesses for the defense of current and former Michigan Department of Environmental Quality employees in the Flint water crisis cases now exceeds $108,000.

Flint Water Crisis

In 2014, the city of Flint, Michigan attempted to reduce costs by getting its water from the Flint River instead of from Detroit. Soon after the switch, residents began to complain about the water’s smell and taste.

Tests by the Environmental Protection Agency and Virginia Tech showed that the water contained dangerous levels of lead, which can have detrimental effects on the heart, kidneys, and nerves. Exposure to lead in children can impair cognition and cause behavioral disorders, hearing problems, and delayed puberty.

Legal Proceedings

Numerous lawsuits were filed against Michigan, the City of Flint, and the state and city officials who were responsible for switching the source of Flint’s drinking water and for monitoring the water quality.

Criminal cases were brought against some of the Michigan Department of Environmental Quality employees who are alleged to be responsible, including Liane Shekter-Smith, former director of the Office of Drinking Water and Municipal Assistance; Stephen Busch, a district supervisor; Michael Prysby, a district engineer; and Patrick Cook, a community drinking water specialist.

Expert Witness Fees

Records obtained from the DEQ show that the state has been billed $58,713 by Ramboll Environ, $46,996 by Northeast Water Solutions, and $3,019 by Berkeley Research Group for expert witnesses to defend the DEQ employees. Additionally, the state has been billed $87,000 for experts retained by two top executives for the Michigan Department of Health and Human Services who have been charged in connection with the water crisis.

Some state officials have expressed concern with the amount of these bills. State Senate Minority Leader Jim Ananich, D-Flint, has said that Gov. Rick Snyder’s administration is letting “taxpayers foot the bill to help protect the very people who poisoned them. . . . As far as the department is concerned, they can just keep putting all of these sky-high costs on the taxpayer’s tab and call it a day. There’s just no restraint.”

Governor Rick Snyder’s press secretary, Anna Heaton, has said that the costs for defending state employees are unprecedented “because this preliminary exam has been dragged out for an unprecedented length of time. . . . Government employees sued or charged in the course of their duties, whether they work in the executive, legislative or judicial branches, are entitled to the same presumption of innocence and protection for a fair trial as everyone else.”

Tiffany Brown, a spokesperson for the DEQ, has said that the bills for expert witnesses have been paid directly by the Michigan Department of Treasury, which is partially reimbursed for the cost by the DEQ. Brown said, “All state of Michigan expenditures are reviewed for appropriateness prior to payment. . . . The department evaluates costs for expert witnesses on a case by case basis. As needs arise, the department identifies budget within available and applicable appropriations.”

Shotgun

Experts Testify That Gun Could Have Fired Unintentionally Twice

Two firearms experts have testified that a man who is on trial for murder could have unintentionally pulled the trigger twice.

The Shooting

Duilio Antonio Rosales was a Juneau jeweler who was shot and killed in 2016 while on a hunting and fishing trip. Rosales suffered two shots to the back of his head while he was sitting down and removing his boots. His coworker, Mark Desimone, was charged with his first degree murder.  Desimone claimed that the shooting was an accident. Another member of the trip, Seth Bradshaw, said that he heard the gunfire and thought that someone was target shooting. Bradshaw later ran into Desimone, who said, “ I shot him, I shot him.  It’s all my fault, I shot him.”

The Trial

Desimone did not contest that he shot Rosales. His defense at trial was that the shooting was accidental.

The defense called Dr. Roger Enoka as an expert witness. Dr. Enoka testified via video call from Colorado. Enoka explained the different ways that a person could fire a gun unintentionally. These ways include if a shooter is startled or a sympathetic response. A sympathetic response occurs when one hand is doing something and the other hand wants to do the same thing. Enoka told the court about instances where an officer was detaining a subject with one hand and holding a gun in the other; sometimes when the non-armed hand closed into a fist, the hand holding the gun would automatically form a fist and pull the trigger.

The defense called Chad Kendrick, a firearms expert and owner of a gun and ammunition store, to testify on Desimone’s behalf. Kendrick used a revolver to demonstrate how he thought a person could end up firing two unintentional gunshots. Kendrick stated that a subject could fire accidentally and then the recoil of the gun could cause the subject to fire the gun again quickly. Kendrick demonstrated that a person might try to stop a gun as it recoils, but end up accidentally re-cocking the gun instead. Kendrick testified that if someone did fire unintentionally two times, it likely happened in extremely fast succession. This testimony fit with the testimony of a forensic pathologist, Dr. Todd Grey, who testified that the bullets likely went through Rosales’ head in quick succession because their paths were very similar.

The prosecution argued that firing a single-action revolver requires deliberate movements.  Each time a person fires, he or she would have to cock the hammer and pull the trigger.

Assistant District Attorney Amy Paige called Debra Gillis, a forensic firearms and tool marks examiner for the Alaska Scientific Crime Detection Laboratory in Anchorage to testify in response to Kendrick’s demonstration.  Gillis testified that the back-to-back unintentional gunshot theory was ridiculous.  She said, “It’s rare to have an unintentional discharge in the first place…To have two in conjunction, I think, is very rare.”

The jury found Desimone guilty of first-degree murder.  He faces a prison sentence ranging from 20 years to 99 years.

AML Acute Myeloid Leukemia

Flawed Expert Testimony Leads to Dismissal of Benzene Exposure Claims

The Tenth Circuit Court of Appeals dismissed an appeal after finding that an expert witness’ methodology was flawed and that he failed to rule out idiopathic origins.

Trial Court

Samantha Hall grew up near a ConocoPhillip’s refinery in Ponca City, Oklahoma. When Hall developed Acute Myeloid Leukemia with Inversion 16 approximately 20 years later, she claimed that it was due to her childhood exposure to the refinery’s emissions of benzene.

Hall called three expert witnesses to testify at trial court: Dr. David Mitchell, an air modeler; Dr. Steven Gore, an oncologist; and Dr. Mary Calvey, an epidemiologist. Dr. Mitchell created an air model to estimate the benzene concentrations near where Hall had lived. Dr. Gore used these estimates to calculate Hall’s cumulative exposure to benzene and opine that benzene exposure has caused Hall’s leukemia. Dr. Calvey gave a similar opinion.

ConocoPhillips moved to exclude the opinion testimony of expert witnesses, including Dr. Gore and Dr. Calvey and summary judgment on the issue of causation. The district court granted the motion.

The Appeal

Hall appealed the district court ruling. The Tenth Circuit rejected her challenge. The court found Dr. Calvey did not adequately address the issue of benzene exposure and the district court did not err in excluding her testimony. The court also found numerous flaws in Dr. Gore’s testimony.

Dr. Gore used the highest hourly average-emission level to estimate Hall’s cumulative exposure to benzene. He was instructed to use this figure by Dr. Mitchell, who created the model. The court found that Dr. Mitchell was not adequately qualified to make this determination.

The court also found that Dr. Gore made errors regarding the extent of Hall’s exposure to benzene. Dr. Gore assumed that Hall had lived near the refinery for eight years; however, Hall had lived near the refinery for only four years.

Dr. Gore also stated that he used differing methodologies. Dr. Gore initially stated that he calculated Hall’s exposure by assuming that Hall had been exposed to benzene for one hour every day. In a later statement, Dr. Gore stated that he assumed exposure for 8 hours per day, 5 days per week, 50 weeks per year. Later, Dr. Gore testified that his second statement was incorrect and he had only assumed one hour of exposure per day.

The court also found that Dr. Gore had been inconsistent about what he was calculating. He stated that he was calculating Hall’s exposure to benzene; at other times, he stated that he was calculating exposure to volatile organic compounds. These inconsistencies were important because benzene is only one of many volatile organic compounds.

The court found that Dr. Gore failed to rule out idiopathic causes, or a disease in which the cause is unknown. The parties agreed that acute myeloid leukemia is frequently caused by idiopathic sources. Hall presented expert testimony that 70-75% of acute myeloid leukemia cases are idiopathic. Dr. Gore did not rule out the possibility of an idiopathic cause for Hall’s acute myeloid leukemia.

The court concluded that the district court did not abuse its discretion in excluding Dr. Gore and Dr. Calvey’s testimony and that, without this testimony, Hall lacked the evidence to survive summary judgment.

Texas flag and gavel

Texas Appellate Court Finds Expert Opinion of Foreseeability Insufficient in Medical Negligence Case

Desiree Ford used a prescription compounded cream containing ketamine and cyclobenzaprine. She sent a text saying that she would take a shower because “this lotion is making me feel weird.” Four days later, she was found dead in her bathtub. An autopsy determined that her death was caused by the toxic effects of ketamine and cyclobenzaprine.

Ford’s parents sued Dr. Michael Kelly, who prescribed the medication, and the pharmacy that dispensed it. Pursuant to Texas law, the parents served the defendants with expert reports prepared by a pharmacist, Diane Ginsburg, and by a physician, Dr. Michael Dominguez. The defendants objected to the reports.

The trial judge decided that Dr. Dominguez was not qualified to determine the cause of Ford’s death or to opine that the medication caused her death. The judge also determined that Dr. Dominguez’ report failed to explain adequately how the medication contributed to Ford’s death. Under Texas law, a pharmacist cannot testify as to the medical cause of a death, so Dr. Dominguez’ opinion was critical to Ford’s case.

The court granted Ford’s parents thirty days to correct the deficiencies in the report. The parents filed a more extensive report that included Dr. Dominguez’ C.V., and later filed an expert report prepared by Dr. Jill Urban. After considering other issues in the case, including the addition of a new defendant, the court overruled all objections to the reports and denied a motion to dismiss the case. The defendants appealed to the Texas Court of Appeals, which reversed the trial court’s order.

Texas Law

A statute in Texas requires the plaintiff in a negligence lawsuit against a healthcare provider to serve an expert report that provides a fair summary of the expert’s opinions regarding:

  • the applicable standard of care;
  • the manner in which the provider failed to meet that standard; and
  • the causal relationship between the provider’s negligence and the harm suffered by the patient.

Texas courts have interpreted the law to require plaintiffs to make a “good faith effort” to provide reports that:

  • inform the defendant of the specific conduct that is alleged to be negligent; and
  • allow the trial court to decide whether the lawsuit has merit.

A conclusory report does not meet that standard. Rather, the expert must explain any conclusions stated in the report. On the other hand, the report need not state all of the plaintiff’s evidence. Defendants can obtain that evidence in discovery.

Reports must be specific in their explanation of how a negligent act caused harm to the patient. Courts cannot rely on inferences to supply missing evidence of causation.

The defendants argued that the reports failed to explain why they should have foreseen that prescribing or dispensing the mediation to Ford would have caused her death. Foreseeability in Texas is regarded as an element of proximate cause. Expert reports need not use the word “foreseeability,” but they must make a good faith effort to provide proof of causation.

Dr. Dominguez’ Report

Dr. Dominguez based his opinion, in part, on these facts:

  • Kelly pre-signed prescriptions for a compounded cream that combined ketamine and cyclobenzaprine and provided those prescriptions to the pharmacy
  • Ford was paid $100 for every person she signed up to take compounded pain cream
  • Ford filled prescriptions Dr. Kelly gave her for the compounded cream
  • Ford had an extensive history of mental health problems, drug abuse, and an HIV infection
  • Ford self-administered the cream, felt weird, and was found dead in her bathtub four days later
  • Ford’s autopsy attributed her death to the toxic effects of ketamine and cyclobenzaprine

Dr. Urban’s report confirmed that Ford’s death was caused by the toxic effects of the compounded cream. Dr. Urban’s report did not address Dr. Kelly’s departure from the appropriate standard of care, as that was the function of Dr. Dominguez’ report.

Standard of Care

Dr. Dominguez opined that Dr. Kelly breached the appropriate standard of care because:

  • he failed to obtain an adequate history or to conduct an appropriate physical examination of Ford and did not maintain her medical chart appropriately;
  • a pain medication such as ketamine should only be prescribed after an in-person consultation, which did not occur;
  • a pain medication such as ketamine should not be prescribed in the absence of a therapeutic indication, such as chronic musculoskeletal pain, and should only be prescribed to patients who have an intolerance to oral analgesics; and
  • physicians are required to keep control of their prescription pads and may not provide pre-signed prescriptions to pharmacies.

Dr. Dominguez also explained that he is familiar with the pharmacological effects of therapeutic and nontherapeutic doses of the two drugs, and that he is familiar with how toxic drug overdoses cause death. He explained how ketamine (which is primarily used in anesthesia) and cyclobenzaprine (a muscle relaxant) could combine to cause respiratory depression to the point of death. He opined that using the cream caused Ford’s death, and faulted Dr. Kelly for prescribing the cream to a patient who had no need for it and whose history of mental illness and drug abuse made her a poor candidate for following prescribed doses. In Dr. Dominguez’ opinion, Ford’s death was a foreseeable result of having an inappropriate prescription for the compounded cream.

Foreseeability

Remarkably, the court of appeals held that Dr. Dominguez’s opinion was conclusory because:

  • the only contraindications that Dr. Dominguez noted for ketamine are bipolar disorder and a history of drug use (both of which Ford had);
  • while those conditions might make a patient more likely to overdose, Dr. Dominguez did not determine that Ford actually overdosed, and in fact opined that the compounded cream would have killed her even if taken as prescribed;
  • Dominguez’ conclusion that the compounded cream can cause death does not establish that it did cause Ford’s death (notwithstanding the autopsy result, Dr. Urban’s report, and the absence of any other explanation for her death); and
  • even if Dr. Dominguez’ opinions establish “but for” causation, they do not explain why it was foreseeable that Dr. Kelly’s breaches of the standard of care would cause Ford’s death.

While many states view foreseeability as an element of duty (that is, everyone has a duty to avoid engaging in conduct that could cause a foreseeable harm to another person), Texas views foreseeability as an element of proximate cause. That view of the law requires plaintiffs to prove not only that negligent conduct caused a harm, but that the negligent actor should have foreseen that result.

In Texas, a harm is foreseeable if a person of ordinary intelligence would anticipate the danger created by a negligent act. Foreseeability is usually a jury question. A view of the evidence that is more respectful of a jury’s role in the civil justice system might lead to the conclusion that the likelihood of a mentally ill patient overdosing on a drug that should never have been prescribed to her creates a foreseeable risk of death. Whether or not Ford actually overdosed shouldn’t matter if, in fact, death was a foreseeable consequence of giving the drug to a mentally ill patient and if the patient died because she took the drug.

The court of appeals seems to have set an impossible standard for expert witnesses to meet in a case where a jury might reasonably regard a doctor’s negligence as obvious, and where it could reasonably agree with an expert that the patient would still be alive if the doctor had not breached a standard of care. Setting impossible standards for expert opinions is an unfortunate tendency of appellate courts that place the protection of doctors from the consequences of negligent actions above protection of the public. The tendency is particularly unfortunate for the public when judges substitute their own opinions for the well-reasoned opinions of experts.

Baby feet

Medical Examiners Clash Over Cause of Baby’s Death

The medical examiners testifying in the aggravated manslaughter trial of Michael Marrara offered vastly different explanations for why his son died on March 26, 2012.

Death of Andrew Marrara

On March 26, 2012, Michael Marrara called 911 to report that he found his son blue and non-responsive. Andrew Marrara was pronounced dead a short time later at Englewood Hospital. The postmortem exam found blunt force trauma to the head and nerve damage to the eyes. There were also three posterior healed rib fractures. The official cause of death was ruled “closed head trauma” and categorized as a homicide.

Michael Marrara was charged with aggravated manslaughter, aggravated assault, endangering the welfare of a child and hindering in connection with Andrew’s death. He faces a maximum of 65 years in prison, with up to 46.5 years of parole ineligibility.

Expert Testimony

At trial, the state is attempting to show that Marrara killed his son because he was frustrated that he would not stop crying. The state argues that Marrara shook his son so hard that the blood vessels burst in his head.

An autopsy showed that Andrew died from blunt force trauma to the head as a victim of homicide. The autopsy was conducted by Dr. Jennifer Swartz, a forensic pathologist, and confirmed by Dr. Frederick DiCarlo and Dr. Lucy Rorke-Adams.

Dr. DiCarlo testified that the forensic tests show that the bruise on Andrew’s lip occurred on the morning of his death and that the blood on the brain was fresh. DiCarlo concluded that Andrew’s injuries were caused by “blunt force,” which “can be due to shaking” or “a punch to the forehead.”

Senior Assistant Prosecutor David V. Calviello asked Rorke-Adams if there was any evidence that the death was natural. Rorke-Adams, who is an expert on child injuries, testified that there was no way that Andrew died of natural causes.

Marrara’s defense team argued that Andrew was a sick child that died of natural causes. They pointed to his 18 visits to the doctor during his 10 weeks of life and state that the hemorrhages found on the brain were not the result of physical abuse; rather, they were due to a medical condition called cerebral venous thrombosis, or CVT, a rare form of stroke triggered by a virus.

The defense team hired acting Bergen County Medical Examiner, Dr. Zhongxue Hua, to review the autopsy. Hua claims that there is microscopic evidence of a virus in Andrew’s system. Hua identified “inclusion bodies,” the microscopic clusters of proteins that are often indicators of a virus. Rorke-Adams acknowledged that inclusion bodies were present in Andrew’s brain tissues, but said that their presence had no significance and that there was no evidence that Andrew suffered from CVT or a blood disorder.

Hua said that Andrew lacked several injuries that are common in shaken baby cases such as retinal hemorrhage, neck injury, and bruising. He said, “You do not have significant trauma, you do not have reasonable evidence of shaking, but you do have a real disease there that could be fatal.”