Category Archives: General

Timesheet

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

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

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

Facts of the Case

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

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

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

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

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

The jury returned a verdict in Brown’s favor and awarded her more than $900,000 in damages. The judge eventually granted a motion for judgment notwithstanding the verdict. Brown appealed, arguing that Dr. Davne was qualified to testify.

The 20% Rule

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

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

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

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

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

Appellate Opinion

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

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

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

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

Lessons Learned

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

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

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

 

Utah

Utah Supreme Court Rules That Expert Testimony Went Too Far

The Utah Supreme Court has ruled that a district court went too far when it allowed an expert to offer undisclosed causation testimony.

The Injury

Noe Arreguin-Leon was injured while installing an exit sign on the shoulder of I-15. A driver had fallen asleep at the wheel and the car veered off the road and into a ladder, where Arreguin-Leon was standing.

At the time of his injury, Arreguin-Leon was employed by Highway Striping & Signs. This company had been hired by Hadco, a general contractor, to install signage for the Utah Department of Transportation. Part of Hadco’s task was to implement a “traffic control plan” to protect workers from traffic and drivers from the construction site. Hadco had failed to do so. At the time of Arreguin-Leon’s accident, there were no traffic control measures in place.

Arreguin-Leon suffered significant injuries and sued the driver and Hadco.

District Court

In district court, Arreguin-Leon retained Bruce Reading to testify as an expert on traffic control standards. Hadco’s counsel chose to depose Reading instead of receiving an expert report. At trial, Reading testified “that Hadco or its subcontractor had violated five specific engineering practices, regulatory standards, and contractual provisions and that there was no traffic control plan in place at the accident site.”

Arreguin-Leon’s counsel asked Reading, “If [200 yards from the construction project is] where [the driver] started to exit the roadway, what effect would a correctly installed buffer zone have had on his driving?” Hadco’s counsel objected, arguing that this testimony was going toward causation and was beyond the scope of the opinion that was disclosed. Arreguin-Leon’s counsel argued that because a deposition had been elected instead of a report, Reading’s testimony was not limited. The court overruled the objection.

Reading testified that a proper traffic plan would have included an area where the driver would have to have hit one or more plastic barrels and “would have had closer to six seconds to wake up and take corrective action.” He also testified that if the accident had still taken place, it would not have taken place in the same location.

A jury ultimately found that Hadco was partially liable for Arreguin-Leon’s injury. Hadco appealed.

Court of Appeals

On appeal, Hadco argued that the district court erred by allowing Reading to offer an undisclosed opinion on causation. Arreguin-Leon argued that Hadco could not make this argument without relying on the expert disclosures and deposition transcript, but these were not a part of the trial record. The court of appeals acknowledged that these documents were not officially part of the trial record, but considered them because of the unique facts of the case.

The court of appeals concluded that the district court abused its discretion in allowing Reading to testify about causation at trial. It determined that the error was harmful and required a new trial.

Utah Supreme Court

Arreguin-Leon petitioned the Utah Supreme Court for certiorari. The court granted his request.

In reviewing the case, the court determined that the expert disclosures and deposition transcript were not necessary to Hadco’s argument or the court of appeals’ ruling. The court noted that the fact that a party’s opponent chooses a deposition instead of an expert witness report does not mean that the expert’s trial testimony can be a “free-for-all.”

The Utah Supreme Court agreed with the court of appeals that Reading improperly testified about causation and that the error was harmful. The court affirmed the court of appeals’ decision and remanded the case to the district court for a new trial.

 

New Damages Trial Granted Because Jury Ignored Expert Testimony

Bradley Myers sued Frank Sebastianelli and his business, Ameripride Fence Company, for personal injuries. Myers was employed as a truck driver. He delivered materials to Sebastianelli’s company. The only forklift at Ameripride was inoperable, so Myers attempted to unload the materials by hand.

Bundles of pipe were placed across dunnage (similar to landscaping timbers) on the floor of the truck. The dunnage allows the fork of a forklift to slide beneath the bundles of pipe. As Myers was attempting to unload the pipe, a piece of dunnage swung in his direction, fracturing the tibia and fibula in his left leg. He also suffered a torn rotator cuff in his shoulder.

Myers argued that Sebastianelli was negligent for failing to supply a working forklift to unload the materials from the truck. A jury apportioned negligence to each party, finding that 51% of the fault for the accident rested with Sebastianelli while attributing the remaining 49% to Myers.

Expert Testimony

Myers supported his claim for damages with expert testimony from several witnesses. An orthopedic surgeon testified that he surgically inserted a metal rod in Myers’ leg. Myers needed a second surgery after he developed compartment syndrome. Following that surgery, he developed chronic regional pain syndrome, accompanied by swelling in the leg. The surgeon testified that the pain syndrome is a permanent condition that prevents Myers from returning to his former work. The surgeon later removed the rod and discussed amputation as an alternative to living with the pain.

A reconstructive surgeon testified about treating wounds to Myers’ leg following the surgery and the permanent scarring that those wounds caused. An expert in rehabilitative medicine testified about limitations in Myers’ leg that make it difficult for him to walk. The doctor testified about pain treatment for Myers’ syndrome and confirmed that Myers is only able to work at light duty jobs involving very limited standing or sitting and no climbing or significant lifting.

Another orthopedic surgeon testified about surgical repairs made to Myers’ torn rotator cuff. The parties agreed that the cost of medical care Myers had received for his leg and shoulder injuries to date was about $530,000.

An expert in nursing, nurse life-care planning and projecting future medical costs testified that the future cost of pain management and medical treatment will be about $910,000. Additional costs of about $200,000 will be incurred if Myers elects to have an amputation and to use a spinal stimulator to ease his pain.

Finally, Myers offered the testimony of a vocational expert and forensic economist. That expert calculated that the injuries caused Myers to lose wages and benefits of about $212,000. He testified that Myers’ loss of future earning capacity and benefits has a value of about $1 million.

Challenge to Jury Verdict

The defense did little to challenge the expert testimony regarding Myers’ damages. The defense focused instead on liability. It succeeded to the extent that the jury found Myers to be 49% at fault. Under North Carolina law, that finding caused he amount the jury awarded to Myers as damages to be reduced by 49%.

Inexplicably, the jury awarded Myers nothing for past or future medical expenses. It also awarded nothing for lost earnings or loss of future earning capacity. The jury awarded $500,000 for past and future pain and suffering.

Myers moved for a new trial. He argued that the expert testimony established that he had incurred medical expenses and a wage loss because of his injuries. The expert testimony also related his wage loss and loss of future earning capacity to his accident injuries. Myers contended that the jury had no basis for ignoring the expert testimony when it awarded him no damages for those losses.

The trial court decided not to disturb the jury verdict for pain and suffering. It did, however, award Myers a new trial regarding his economic damages.

Appellate Decision

Both parties appealed from the order granting a new trial. Sebastianelli argued that juries decide damages and that the jury had spoken. In the absence of any argument that Myers received an unfair trial, Sebastianelli asked the appellate court to respect the jury’s decision.

The Pennsylvania Superior Court agreed that jury verdicts are not typically disturbed, but it concluded that the trial court did not abuse its discretion in granting a new trial as to economic damages. Pennsylvania law permits a damages verdict to be “set aside as inadequate when, and only when, it is so inadequate as to indicate passion, prejudice, partiality, or corruption, or that the jury disregarded the instruction of the court, or in some instances, where there was a vital misapprehension or mistake on the part of the jury, or where it clearly appears from the uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff.”

The jury found that Sebastianelli was negligent and that his negligence caused harm to Myers. No evidence suggested that any other cause contributed to those injuries. Medical expenses were obviously part of the harm that Sebastianelli’s negligence caused. Expert testimony established that Myers’ accident injuries required medical attention. Sebastianelli offered no expert evidence to the contrary.

The parties stipulated to the amount and reasonableness of Sebastianelli’s past medical expenses. The jury was not free to disregard that stipulation. Nor was it free to disregard uncontradicted expert evidence that the expenses were incurred because of Myers’ accident.

The jury may have had more leeway in awarding future medical expenses, given the absence of a stipulation about the likely amount of those expenses. In addition, there was a factual dispute as to whether the expense of an amputation and/or a spinal cord stimulator should be included in the verdict, given that Myers had refused both treatments.

If the jury had awarded an amount for future medical expenses that was in the ballpark of the expert’s projection, after subtracting the cost of an amputation and spinal cord stimulation, Myers would not likely have been given a new trial as to future medical expenses. However, since the expert testimony that he would need some amount of future health care was uncontradicted, the jury was not free to ignore that testimony and to award Myers nothing.

The same analysis required an affirmance of the trial court’s decision to grant a new trial regarding lost wages. Myers’ serious injuries clearly prevent him from returning to work as a truck driver. While there may have been a dispute about Myers’ alleged failure to mitigate his damages by not agreeing to an amputation or spinal cord stimulation, the expert evidence that he lost income and will continue to lose income because of his inability to work as a truck driver was unchallenged. A verdict of zero was not supported by the evidence.

Jurors Cannot Ignore Uncontested Expert Evidence

Jurors are free to disbelieve expert testimony if they have a rational basis for doing so. The Superior Court agreed with the trial court that there was no rational reason to disregard uncontradicted expert testimony regarding damages.

Sebastianelli argued that the jury may have returned a compromise verdict. While the Superior Court noted that Pennsylvania law regarding compromise verdicts is “murky,” it deferred to the trial judge’s conclusion that the verdict did not result from a compromise.

It is difficult to understand how a rational compromise could have resulted in a decision to award damages for pain and suffering resulting from an accident but not for medical expenses and lost wages resulting from the same accident. The trial judge was in the best position to decide whether the jury’s verdict likely represented a compromise rather than an irrational failure to award damages that were clearly established by the evidence.

Sebastianelli argued that if a new trial is granted, it should address all categories of damages, including pain and suffering, not just economic damages. Myers did not oppose that request, probably because most juries return a larger award for pain and suffering than they award for medical expenses. The appellate court agreed to allow Myers to present expert testimony as to all issues of damages.

 

California Law Legal System Concept

Expert Witness Testimony Improperly Tossed Out

A California Court of Appeals has reversed a trial court’s summary judgment order and reinstated a wrongful death lawsuit after it concluded that the trial court had improperly thrown out “clear, reasoned” expert testimony.

The Death

In October 2013, Marleny Escobar attended her first prenatal appointment with her ob/gyn, Dr. Azmath Qureshi. She complained of pain with urination and blood in her urine. Her lab tests showed a low white blood cell count and low platelet counts. Dr. Qureshi prescribed her medicine for urinary tract infections.

Over the course of Escobar’s pregnancy, she experienced a fever, a sore throat, congestion, cough, and an earache. Escobar failed to gain weight after her initial prenatal appointment and eventually lost ten pounds. Her urinalysis showed abnormal levels of proteins, ketones, and bilirubin, and her lab results showed that her white blood cell count remained abnormally low. Dr. Qureshi prescribed her an antibiotic and did not order additional lab tests.

In March 2014, Escobar was admitted to the hospital for the early onset of labor. She arrived at the hospital with a fever, an enlarged fatty liver, and gallstones. Her lab work showed that her white blood count was still abnormally low and that she had “severely deranged liver function.”

Escobar gave birth to a healthy son and was transferred to Long Beach Memorial Medical Center where she was treated by Dr. Jennifer McNulty. Within a week, Escobar’s new physician was considering hemophagocytic lymphohistiocytosis (HLH), a rare immunodeficiency disease, as a diagnosis. Within days, Escobar began treatment for HLH. Escobar died on April 17, 2014. Her autopsy confirmed a diagnosis of HLH and a fungal infection throughout her body.

Superior Court

Two years after Escobar’s death, her husband and sons sued Dr. Qureshi for wrongful death. The lawsuit alleged that Dr. Qureshi’s failure to investigate Escobar’s HLH symptoms fell below the standard of care and led to her premature death.

The court dismissed the husband’s claims on the grounds that his case was time-barred. Dr. Qureshi then filed a motion for summary judgment against the remaining plaintiffs, arguing that they failed to prove causation. Dr. Qureshi claimed that Escobar’s symptoms did not meet the criteria for HLH while she was pregnant, therefore he could not have diagnosed her and given her treatment.

The plaintiffs submitted testimony from obstetrician-gynecologist Dr. Paul Sinkhorn, opining that if Dr. Quereshi had investigated Escobar’s symptoms while she was pregnant, it was more likely than not that she would have survived. The trial court did not admit Dr. Sinkhorn’s testimony because he did not have any experience treating patients with HLH. The court also decided that the testimonyt did not raise a triable issue of fact about causation because Dr. Sinkhorn did not opine that Escobar’s “chance of survival would have been greater than 50% if Defendants had acted differently.”

The trial court granted Dr. Qureshi’s motion for summary judgment.

California Court of Appeals

The plaintiffs appealed to the California Court of Appeals. On appeal, the Court of Appeals determined that the trial court abused its discretion by striking Dr. Sinkhorn’s testimony. The appeals court noted Dr. Sinkhorn’s more than thirty years of experience working as an obstetrician-gynecologist, the time he served as a professor at several local medical schools, and the time he spent reviewing Escobar’s medical records. The court determined that he was qualified to testify about whether the defendants’ acts or omissions caused Escobar’s death.

The Court of Appeals also stated that Dr. Sinkhorn’s declaration was sufficient to raise a triable issue of fact as to whether Escobar’s chance of survival would have been more than 50% if Dr. Qureshi had taken the proper steps to investigate her symptoms. The court reversed the summary judgment order.

 

Baby powder

New Jersey Court Reverses Order Excluding Causation Experts in J&J Baby Powder Case

Brandi Carl and Dianna Balderrama sued Johnson & Johnson after discovering that they suffered from ovarian cancer. Carl and Balderrama attributed their cancer to their use of Johnson & Johnson Baby Powder. After losing several trials, J&J has stopped marketing the product while continuing to insist that it is not carcinogenic.

Carl and Balderrama’s cases were selected as the first two cases to be tried in multi-county litigation in New Jersey. Johnson & Johnson moved to exclude the opinions of their two causation experts. The trial court granted that motion and then entered summary judgment in favor of J&J. The Appellate Division of the Superior Court of New Jersey reversed the judgment.

The court’s opinion is noteworthy not just for its careful analysis of the evidence, but for its thorough discussion of the admissibility of expert testimony in toxic tort cases. While the insurance industry has condemned nearly all expert testimony offered by plaintiffs in toxic tort cases as “junk science” — and while some judges have echoed that hostility to plaintiffs’ experts — the Appellate Division’s dispassionate analysis is a model for how courts should apply the Daubert decision in cases involving allegedly dangerous substances.

Daubert in New Jersey

In 2018, the New Jersey Supreme Court analyzed the state’s rules of evidence governing the admissibility of expert testimony in civil cases. The court adopted the Daubert factors for assessing the reliability of expert testimony and incorporated them into New Jersey law.

The Appellate Division emphasized that the reliability of a methodology does not depend on whether the trial judge agrees with the expert’s conclusions. The focus is on “the level of intellectual rigor” that the expert displays. If the expert’s methodology is based on sound principles and the expert applies those principles to relevant data in a reliable way, the expert’s testimony is admissible, whether or not the judge is persuaded by the expert’s opinions.

Application of Daubert to Epidemiology

The precise cause of a disease can rarely be determined with certainty, but certainty is not the standard of proof in civil cases. The plaintiffs only needed to prove that asbestos contaminating the talc in baby powder probably caused their ovarian cancer.

Experts typically determine whether exposure to an agent caused a disease by reference to epidemiological studies. Courts regard epidemiological studies as reliable when they reveal an association between an agent and a disease and when the association is probably not the result of a limitation in the study, such as a sampling error.

All of the experts in the case agreed that valid epidemiological studies include cohort studies, which compare exposed and unexposed people over a period of time, and case-control studies, which compare the exposure of people who have acquired a disease to a control group of people who did not. Both types of studies can yield relevant information and neither is necessarily superior to the other. Statistical methods, including a pooled analysis or meta-analysis, may help experts draw conclusions when individual studies are in apparent conflict.

To raise an inference of causation, a study must produce a relative risk (or odds ratio) of more than 1.0, which implies that the association is greater than chance would produce. Study results must also be statistically significant.

When studies permit an inference of causation, experts then decide whether the association reflects an actual causal connection. Experts often rely on the Bradford Hill criteria to distinguish mere association from causation. The appellate court’s thorough review of those factors ends with Hill’s admonition that absolute certainty should never be required to demonstrate causation because science by its nature is based on incomplete knowledge. Experts offer their best understanding, not a perfect understanding.

The Appellate Division noted that experts should be advocates for the truth, not for a party. Experts must therefore consider the entire body of scientific research rather than cherry-picking research results that support the expert’s opinion. Experts are entitled to reject significant evidence that does not support their opinion but they must offer a reasonable explanation for doing so.

Daniel Cramer’s Expert Opinion

A lengthy section of the court’s opinion reviewed the scientific literature upon which the experts for both parties relied. The court noted that neither party claimed the studies were based on unsound methodologies, that they misstated the results, that they evidenced bias, or that they were otherwise unworthy of consideration by the scientific community.

The court then discussed the opinions offered by the plaintiff’s experts. Daniel Cramer, a professor of obstetrics, gynecology, and reproductive biology at Harvard Medical School, has studied the relationship between genital powders and ovarian cancer for many years.

Based on his literature review and his own research, Cramer concluded that the odds ratio for women who used talc-based powders and those who did not was 1.29. He concluded that the odds ratio was statistically significant.

Cramer applied the Bradford Hill criteria and explained his disagreement with other experts about the application of certain factors. He acknowledged shortcomings in the literature, including the inability to standardize a measurement of the amount of powder that women applied or the amount that entered the body. He concluded that recent literature approximated that information by asking subjects about the frequency with which they used powder. That information permitted a dose response analysis that some courts consider to be critical evidence of causation in cases involving unsafe drugs and products.

In addition to expressing the opinion that talc-based powders can cause ovarian cancer (general causation), Cramer assessed the likelihood that talc-based powder caused the ovarian cancers with which Carl and Balderamma were diagnosed. He considered specific risk factors, including obesity, genetic history, and use of oral contraceptives. He assessed the two women in light of studies that most closely matched the factors associated with each woman. While acknowledging the possibility of alternative causes, he identified the use of talc-based powders as the most likely cause of the ovarian cancer that each woman acquired.

The Court’s Correct Understanding of Relative Risk

Cramer explained his disagreement with industry opinions that a relative risk of less than 2.0 is insufficiently strong to create an inference of causation. He noted that no scientist has ever expressed that opinion. As long as bias and other causes of error can be ruled out, there is no magic odds ratio that creates a threshold for inferring causation.

Cramer’s opinion, it should be noted, is contrary to the position adopted by some courts, including a significant number of federal courts. Those courts have concluded that a relative risk of less than 2.0 cannot prove that causation is “more likely than not.” Those courts often confuse general causation, which asks only whether a substance can cause an illness, and specific causation, which asks whether the substance probably caused the plaintiff’s illness.

As a paper for the National Academies of Science explains, judicial insistence on a relative risk of at least 2.0 is based on false assumptions, proving once again that science should be left to scientists. Even a low risk is a risk. General causation does not ask whether a substance probably caused a disease but whether it is capable of causing the disease. The “more likely than not” standard of proof is relevant to specific causation but not to general causation.

Other Expert Opinions

The court evaluated the expert opinions of Graham Colditz, an epidemiologist, on general causation. His expert report reviewed the literature and concluded that genital talc use can cause ovarian cancer.

Colditz carefully explained why he gave greater weight to studies that took a stronger analytic approach than studies that were analytically flawed. Colditz agreed with Cramer that the magnitude of risk need not reach 2.0 to support an inference of general causation.

The court also considered the expert opinions of John Godleski, a Harvard Medical School professor of pathology. He analyzed tissue samples from Carl and Balderrama. He concluded that the tissues contained substantial amounts of talc.

Curtis Omiecinski, a professor of molecular toxicology at Penn State, explained how talc in baby powder can migrate from the perineum to the ovaries. He also explained how talc can cause inflammation that triggers the development of cancer.

Daubert Analysis

The court’s thorough review of the expert reports and the underlying literature convinced it that the trial court erred in excluding the testimony of the plaintiffs’ experts. The experts based their opinions on a significant number of reliable studies. They provided reasonable explanations for giving greater weight to some studies than others. They did not misinterpret the studies or give undue weight to a small subset of studies.

The experts anchored their opinions on reasonable scientific evidence that provides a plausible explanation of the mechanisms by which talc in baby powder enters the body and causes ovarian cancer. They carefully applied the Bradford Hill criteria in reaching opinions about general causation. They met the defendants’ objections to their reasoning with reasonable answers.

The court concluded that the methodologies used by the plaintiffs’ experts were reasonable. The cumulative data used in the studies upon which they relied was sufficient to support their opinions. Attacks on the quality of that data raised questions of credibility which were for the jury to assess.

The trial court erred by weighing the defense evidence against the plaintiffs’ evidence. Competing expert opinions should be weighed by juries, not judges. The trial judge’s preference for cohort studies over case control studies did not find evidentiary support in the record and was contrary to New Jersey precedent.

The trial court’s contention that the plaintiffs’ experts relied on a “made for litigation methodology” missed the point. The question is whether the methodology is reliable. The plaintiffs’ experts used methodologies that are generally accepted as reliable by scientists in their field and based their analysis on sufficient data. That is all that Daubert requires.

Since the trial court overstepped its role by accepting the opinions of defense experts as more credible than those of the plaintiffs’ experts, the court erred by excluding the plaintiffs’ expert testimony. Since summary judgment was based on the exclusion of that evidence, the summary judgment was reversed and the case was remanded for trial.

 

Expert Witness

Experts Battle Over Legitimacy of Retrograde Extrapolation

Two toxicology experts are battling over the use of retrograde extrapolation in the trial of a former EMT who is on trial for vehicular homicide.

The Accident

On July 3, 2018, 37-year-old former EMT and Hamilton County reserve deputy Justin Whaley was driving the wrong way on Highway 111 in Tennessee. Whaley’s vehicle crashed into another car head-on. The crash claimed the life of James Brumlow, who was driving the other car.

The police and EMS arrived on the scene within minutes; however, Whaley’s blood draw was not conducted for four hours after the police arrived on the scene.

Investigators said that Whaley was driving in the early morning hours after a night of drinking with a friend. Whaley was arrested and charged with vehicular homicide, reckless driving, two counts of failure to yield, failure to maintain lane, speeding, failure to exercise due care, and driving under the influence.

The Extrapolation Controversy

Because the blood was taken from Whaley four hours after the incident, the state had to extrapolate the results of the test to determine what his blood alcohol level would have been at the time of the accident. Whaley’s defense attorney, Lee Davis, asked for the results of the blood draw to be suppressed, arguing that the extrapolation was unreliable.

Prosecutor Chris Post retained East Tennessee State University professor Kenneth Ferslew of the William L. Jenkins Forensic Center to explain why the blood draw results should be admitted.

Professor Ferslew explained that “the body begins breaking down and processing alcohol from the moment it enters the body, but that as a person drinks, the amount of alcohol being broken down is outpaced by the amount coming in. When people drink more, then that’s when their blood alcohol content goes up. But after alcohol is no longer consumed, then the blood alcohol level goes down in a linear fashion.”

Professor Ferslew testified that, based on the time that the blood was drawn, the Tennessee Bureau of Investigation was “99.73 percent confident by statistical analysis that blood [had] a 0.02 gram percent concentration in it.” Professor Ferslew told the judge that if the police had waited even 15 minutes longer to draw the blood, the results would have been unusable. However, Professor Ferslew testified that the blood taken from Whaley could appropriately be used to determine that he was intoxicated when the crash occurred.

Defense attorney Davis brought in his own toxicology expert to explain why extrapolating the blood draw results would be unreliable. Jimmie Valentine, Ph.D., holds a degree in medicinal chemistry from the University of Mississippi and served as a professor of pharmacology at the University of Arkansas College of Medicine for 19 years.

Dr. Valentine testified that “Using this retrograde extrapolation is just not very scientific at this juncture. It’s best used when you have multiple samples from different times, so you can be sure.” Dr. Valentine pointed out that in other states, two or three samples would be taken over the course of several hours.

Judge Steelman, who is presiding over the case, announced that he would take both experts’ testimony into consideration and would make a decision about what the jury will hear when the case goes to trial in September.

Pennsylvania Justice

Pennsylvania Supreme Court Considers Court’s Gatekeeper Role

The Pennsylvania Supreme Court has decided a product liability case that required it to reexamine the state’s standards for the admission of expert witness testimony.

Walsh’s Death

Thomas Walsh served as the groundskeeper and superintendent at several Pittsburgh area golf courses for almost 40 years. His work involved the regular application of pesticides. On October 5, 2008, Walsh was diagnosed with Acute Myelogenous Leukemia. On February 2, 2009, died. His oncologist, James Rossetti, D.O., opined that Walsh’s extensive exposure to pesticides raised a high degree of suspicion that the exposure played a significant role in the development of his AML.

Trial Court

Walsh’s executor initiated a wrongful death and survival action against the manufacturers of the various pesticides that Walsh had applied over his career. The lawsuit raised claims in strict products liability, negligence, and breach of warranty. The trial court granted summary judgment in favor of a large number of manufacturers based upon a lack of expert testimony identifying their pesticides as substantial contributing factors in Walsh’s death.

The remaining manufacturers filed Frye motions to exclude two of the executor’s expert witnesses, Nachman Brautbar, M.D, and April Zambelli-Weiner, Ph.D. The motions claimed that Drs. Brautbar and Zambelli-Weiner failed to apply methodologies generally accepted in the relevant scientific communities. Following a review of depositions and briefs filed by each party, the trial court granted the Frye motions. Following the trial court’s grant of the Frye motions, the parties stipulated to summary judgment in favor of all remaining defendants.

Superior Court

The executor appealed to the Superior Court. On appeal, the superior court reversed the trial court’s grant of the Frye motions. The court ruled that the expert opinions that pesticides in general could cause cancer in general were admissible under Pennsylvania’s Frye framework for evaluating expert testimony, and sufficient to preclude summary judgment as to the pesticide products of fourteen different manufacturers.

Pennsylvania Supreme Court

The defendants appealed to the Pennsylvania Supreme Court, asking it to review the following:

(1) Did the Superior Court majority commit reversible error in concluding that, when evaluating scientific evidence under the Frye standard, trial courts are not permitted to act as “gatekeepers” to ensure the relevance and reliability of scientific studies offered by experts to support their opinions by scrutinizing whether those studies actually support their opinions?

(2) Did the Superior Court majority commit reversible error in concluding that trial courts may not review experts’ opinions extrapolating from a broad class of products and injuries to a specific product and injury, thereby eliminating plaintiff’s burden to show product-specific causation of plaintiff’s specific injury?

(3) Did the Superior Court majority commit reversible error in concluding that the trial court erred without explaining how it abused its discretion because of manifest unreasonableness, partiality, prejudice, bias, ill-will or such lack of support from the evidence or the record so as to be clearly erroneous?

Addressing the first “gatekeeping” issue, the Pennsylvania Supreme Court affirmed the Superior Court’s decision, but did not give a clear ruling about the trial court’s role as gatekeepers. The court stated that “the trial court must be guided by scientists in the relevant field, including the experts retained by the parties in the case and any other evidence of general acceptance presented by the parties.”

For the second extrapolation issue, the Supreme Court ruled that the record did not show that the plaintiff’s experts used extrapolation in the way that the defendants claimed. It stated, “while both experts employed the Bradford Hill criteria to establish a causal link between cancer (or AML) and long-term exposure to pesticides, neither expert opined that this link wholly constituted product-specific causation between cancer and long-term exposure to the Appellants’ specific pesticide products.”

For the third abuse of discretion issue, the court ruled that it is an abuse of discretion for a trial judge “to make its own bald judgments about which studies relied upon by [an expert] were scientifically acceptable, relevant and/or supportive of [the expert’s] conclusions.”

The court then affirmed the order of the Superior Court and remanded the matter to trial court for the defendants to renew their Frye motions in line with the Supreme Court’s opinion.

 

Fingerprint Experts Question Fingerprint Science

Fingerprint Expert’s Testimony Held Insufficient to Support Conviction

Drawing a distinction between “the sufficiency of credible evidence” and “the credibility of sufficient evidence,” an Illinois appellate court recently held that a fingerprint examiner’s expert testimony, no matter how credible it might have been, was insufficient to support a burglary defendant’s conviction. The opinion underscores the need for criminal defense lawyers to counter every prosecution expert with the testimony of a defense expert when there is any possibility that the prosecution expert’s testimony is based on bad science.

Facts of the Case

Tom Slowinski returned home to find that his home had been burglarized. Among other missing items, Slowinski noticed that headphones had been removed from a case. An evidence technician lifted four latent fingerprints from the case.

For reasons that the appellate opinion does not explain, a police detective questioned John Cline about the burglary. Cline denied having been inside the Slowinski home or in his neighborhood. Cline and Slowinski both stated that they did not know each other.

Daniel Dennewitz, a police officer who had been trained in the area of fingerprint examination and identification, examined the fingerprints taken from the headphone case and compared them to Cline’s fingerprints.

Dennewitz determined that three of the four lifted fingerprints lacked sufficient detail to make a comparison. Dennewitz identified the fourth as having come from Cline’s finger. On the strength of Dennewitz’s opinion, Cline was arrested and charged with burglary.

The Science of Fingerprint Comparison

Dennewitz testified about his training and experience in examining and identifying fingerprints. His credentials were not seriously challenged. The court determined that he was qualified to testify as an expert.

Dennewitz explained the stages that he followed in comparing the fingerprints. The first stage compares the ridge pads, the flow of the ridges, and the pattern. If the first stage does not exclude the latent print as being consistent with the known print, the analyst compares unique details in the ridge pads that are the same in both the known print and the latent print.

The final stage determines whether the unique details are in the same position. If they coincide, the examiner proclaims them to be from the same source.

Dennewitz identified nine points of comparison on the latent print. He compared them to a print of Cline’s right middle finger and decided they came from the same source.

On cross-examination, Dennewitz admitted that the latent print showed only one side of the finger. He assumed that since the parts he could see were the same on both the latent and known print, the parts he could not see would also be the same.

Inadequate Methodology

The appellate court concluded that Dennewitz did not follow the “standard analytical procedure” for comparing fingerprints. Components of the standard “ACE-V” examination include Analysis, Comparison, Evaluation, and Verification.

During the analysis stage, the examiner determines whether there is sufficient ridge detail to compare the latent fingerprint and the known fingerprint. The comparison stage requires the examiner to perform a visual or measured comparison of unique details in the known and latent prints.

The examiner makes an evaluation by deciding whether there are a sufficient number of unique details of sufficient quality to support an opinion that the two prints came from the same source. Finally, the verification stage requires another examiner to repeat the process and come to the same conclusion.

The court decided that the ACE-V examination method is the “gold standard” that should be followed by fingerprint examiners. Without using the language of the Daubert decision, the court essentially concluded that the ACE-V method is the only reliable methodology for comparing fingerprints.

The court faulted Dennewitz for skipping the verification stage. That stage is critical because courts and analysts have declined to agree upon an objective standard for determining whether “sufficient” unique details justify the conclusion that two prints came from the same source. Since examiners may have conflicting opinions, the verification step helps avoid the bias of witnesses (in this case, a law enforcement officer) who might be tempted to arrive at a conclusion that favors the government.

On appeal, the prosecution argued that Dennewitz could not have testified about any verification that might have been done because that testimony would have been hearsay. The prosecution’s understanding of the hearsay rule as it pertains to an expert who relies on the opinion of a second expert is doubtful, but the appellate court noted that the problem could have easily been resolved by having the second examiner testify.

Improper Assumptions

The court also faulted Dennewitz for making assumptions about the portions of the latent fingerprint he could not see. Dennewitz admitted that the partial fingerprint did not show all of the characteristics of Cline’s fingerprint because the partial fingerprint was incomplete. Dennewitz testified that he based his comparison on the assumption that the missing portion of the fingerprint would have matched the full fingerprint.

The appellate court cited the rule that key elements of a prosecution may not rest on assumptions. If Dennewitz had not testified that he made an assumption, but had said he based his analysis on the information before him, his testimony might not have been so easily challenged.

Using the language of Daubert, however, the question is whether a partial print supplied Dennewitz with adequate data upon which to base a comparison. Dennewitz testified that he found nine unique characteristics in the same location in each print. In 1924, New Scotland Yard decided that 16 points of comparison should be required for a valid determination that two prints came from the same source.

Apparently believing that an objective standard for comparing fingerprints got in the way of giving testimony that is favorable to prosecutors, FBI fingerprint examiners abandoned the notion that a fixed number of points of comparison must exist before deciding that two prints are from the same source. By 1968, the FBI had rejected an objective standard in favor of the examiner’s subjective impression that “enough” points of comparison exist. Subjectivity is, of course, the enemy of science.

When objective standards are feasible, subjective standards undermine the scientific value of expert opinions. One examiner’s subjective belief that “sufficient” points of comparison exist may be contradicted by the subjective opinion of an equally qualified examiner.

In any event, reliable opinions must be based on adequate data. A partial print that permits only nine points of comparison is arguably inadequate to support a conviction, particularly when the partial print is the only evidence of guilt that the prosecution can muster. A police officer’s subjective opinion that “nine is enough” is a questionable basis for convicting a suspect of a crime.

Lesson Learned

While defense counsel cross-examined Dennewitz about the inadequacies of his examination, juries tend to believe that police officers know what they are doing. The Cline case should remind defense attorneys of the value of hiring their own experts.

In a case like Cline’s, it isn’t necessary to have an expert testify that the latent print and Cline’s print were not made by Cline’s finger. An independent expert may or may not have been able to draw that conclusion.

An independent expert could instead have testified that Dennewitz based his opinion on a single partial print that lacked sufficient points of comparison to permit a reliable conclusion to be drawn. That testimony may have been sufficient to inject reasonable doubt and to avoid the need for an appeal.

 

Alleged Attempt to Intimidate Defense Experts Does Not Warrant a New Trial

Salomon Melgen was charged with operating a scheme to defraud Medicare. The charges were based on allegations that he deliberately misdiagnosed his patients so he could bill the government for unnecessary treatment. A jury found Melgen guilty of 67 counts of fraud. The court sentenced Melgen to 17 years in prison.

On appeal, the defense argued that attempts by a government expert to intimidate two defense experts should result in a new trial. The Court of Appeals for the Eleventh Circuit rejected that argument and affirmed the conviction.

Facts of the Case

Melgen was an ophthalmologist. He focused his practice on age-related macular degeneration. That disease comes in two forms: “wet” and “dry.” The dry version is much more common and is essentially untreatable. The wet version afflicts no more than 15% of patients who suffer from macular degeneration, almost all of whom are white.

The government became suspicious because 97% of Melgen’s billings to treat macular degeneration were for the wet version of the disease. That in itself might not be unusual, since only the wet version is treatable. However, all of Melgen’s billings for macular degeneration treatment of African American patients were for the wet version of the disease. The wet version rarely affects African Americans.

In addition to billing for treatment for those who did not have a treatable disease, the government alleged that Melgen billed for treatment of patients who had healthy eyes or patients who were legally blind. The government presented evidence that Melgen billed for 96 treatments of a prosthetic eye.

Melgen also administered an expensive drug to patients that could slow or stop the progress of the wet version of the disease. The drug was ineffective if the patient had the dry version. The government produced evidence that Melgen gave the drug to patients who would not benefit from it.

The government argued that Melgen not only administered an unnecessary medication that costs $2,000 per vial, but that he improperly administered three doses from a vial that contains only a single dose. That evidence suggested that Melgen thus tripled his medication reimbursement requests and pocketed the difference.

Finally, the government contended that Melgen used laser surgery to correct the wet version of the disease. The government argued that medication is an effective treatment and that laser surgery is almost never medically necessary.

Expert Witness Intimidation

Among the other arguments made on appeal, Melgen complained that the government’s expert witness intimidated two defense experts during breaks in the trial. While the appellate opinion does not elaborate on the nature of those encounters, a news report indicates that the prosecution’s expert “harangued” the defense experts during a confrontation in a parking lot. The prosecution expert allegedly “intimidated one of the defense witnesses by saying his reputation would be ruined for testifying in favor of Melgen.”

If the reports were true, the government expert’s conduct would certainly be unprofessional. The role of an expert witness is to provide information to the party that hires the expert and to testify about relevant opinions the witness has formed. Berating the other side’s experts is not part of the job description.

The appellate court noted that there was “contact between a government witness and two defense witnesses” but did not discuss the circumstances of that “contact.” Instead, it was satisfied that the district court “conducted a brief hearing before deciding that the contacts had not been prejudicial in the end because no testimony had been altered.”

In the end, the appellate court found no abuse of discretion in the district court’s refusal to grant a remedy for the alleged attempt to intimidate the defense experts. The district court declined to order a new trial or to conduct an evidentiary hearing to find out exactly what happened in the parking lot. The appellate court was satisfied with the district court’s decision not to explore the facts because the defense could produce no evidence that the intimidation changed the content of their experts’ testimony. “No harm, no foul” appears to be the legal standard that governed the outcome.

Lessons Learned

An attempt by government witnesses to intimidate defense experts should result in more that a “brief hearing.” In some circumstances, it may require the kind of inquiry that leads to a criminal prosecution for witness tampering. Unfortunately, since the decision to bring criminal charges is up to the government, they are generally lodged against people who intimidate government witnesses, not against government witnesses who attempt to intimidate defense experts.

One lesson to learn from the Eleventh Circuit decision is that “it’s good to be the government.” Had defense witnesses tried to intimidate government witnesses, the court would likely have taken a firmer stand to protect the integrity of the proceedings.

A more important lesson is that no expert should attempt to intimidate an opposing expert. Witness intimidation is a crime. The best practice for experts is to avoid any contact at all with an opposing expert during a trial. Keeping a safe distance from opposing experts will avoid even the appearance of an improper contact.

 

Expert Testimony Not Needed to Prove Hurricane Damage

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

The Damage to the Church

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

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

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

District Court

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

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

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

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

Eleventh Circuit

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

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

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

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