Category Archives: In the News

Articles about legal issues currently in the news.

Report Indicates DOJ Spent Unauthorized Millions on Expert Witnesses

A recent report indicates that the US Department of Justice paid $15 million for expert witnesses who were not needed by federal prosecutors, and an additional $10 million on experts whose use was not clearly defined. The report, released by the Justice Department’s inspector general, revealed poor governance of the DOJ’s expert witness program that resulted in unjustifiable payments.

DOJ Hires Unnecessary Expert Witnesses

The Inspector General (IG) report reviewed 729 expert witness contracts across the US and found that 74, over 10{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4}, did not meet the federal guidelines for obtaining witness services. Of those 74, 43 were hired “before or without a court docket date,” which is one of the criteria of the federal expert witness spending guidelines. In the other 31 cases, the IG report found: (1) there was no indication that expert testimony was anticipated, (2) expert services were provided for cases heard outside of the federal judicial system; or (3) administrative services were the primary purpose. All three uses of experts are not approved under the spending guidelines.

These 74 contracts totaled $15.2 million, which is close to 9{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the close to $180 million that was spent on the cases the IG reviewed. The IG report was not finished, however, as investigators also discovered questionable spending on experts for reasons that were unclear.

IG Report Finds Suspect Expert Hiring

In addition to the 74 contracts that seemed in clear violation of expert witness spending guidelines, the IG report found 39 expert contracts that could not be verified. In these 39 cases, the IG could not determine if the contracts fell within the federal spending guidelines because either the contract terms were too vague or the guidelines themselves were. These 39 contracts totaled $10 million, bringing the total amount of money that was either misspent or unsupported to $25.2 million.

The expert witness contracts costing the federal government millions of dollars without adequate support under spending guidelines, but the agreements were not the only questionable expert spending decisions made by the DOJ.

Expert Witness Report Reveals Excess Spending

The IG report also found several instances of unallowable or unsupported travel expenses paid to expert witnesses by the DOJ. The report noted more than $24,000 spent on hotel charges that were not permitted under spending guidelines, and 26 instances of unauthorized first class travel for experts. Going further, the IG identified more than $100,000 spent on computers that were not solely used by experts – a practice that is not permitted. The IG investigation also uncovered $1.2 million spent on expert witnesses in cases that were not tried in US courts.

At the conclusion of its report, the IG expressed the need for greater institutional control across the DOJ to limit the occurrence of impermissible expert witness spending. With President Obama requesting more than $270 million for the DOJ’s expert witness program, the work done by the Inspector General highlights the need for better financial accountability. The report made 12 recommendations to both strengthen the expert witness spending guidelines and improve training of those responsible for monitoring the expert program’s financial decisions. Improved education across the DOJ staff and regular auditing of expert witness spending should, according to the IG, limit the unauthorized financial decisions that have cost the federal government millions of dollars.

Federal Judge Issues Ruling on Lawyers as Expert Witnesses

A federal magistrate judge in Pennsylvania issued a ruling permitting two lawyers to serve as expert witnesses, but limited the permissible content of their testimony in an effort to avoid improper influence on the jury. Judge Martin C. Carlson followed guidance from a previous case and allowed two legal experts to speak during trial provided they limit their testimony to background information and did not offer opinions on how the law should apply.

Plaintiff in Business Dispute Calls Lawyers as Expert Witnesses

The dispute in question is a corporate shareholder dispute pitting family members who own competing consultant and expert witness services against each other. The plaintiffs, Atlantic Pacific Resource Group owned by Lewis Grill, filed a lawsuit against Sage Corp. and its majority shareholder, Gregg Aversa, Grill’s brother-in-law, alleging Sage employed discriminatory practices in dealing with Mr. Grill. Mr. Aversa countersued alleging that Grill had improperly interfered with Sage’s consultant business, and during the pre-trial process Mr. Grill submitted two legal experts, one a lawyer and one a law professor, to testify on issues of corporate-governance and employment discrimination law.

Judge Carlson reviewed the proposed testimony from the plaintiff’s legal experts and determined that both could speak to the jury, but only to explain the complexities of corporate law that a judgment in the case required jurors to understand.

Federal Judge Limits Testimony of Legal Experts

When approached with testimony from legal expert witnesses, judges must be cautious in the extent to which lawyers and law scholars can speak about the case. The Federal Rules of Evidence permit parties to offer an expert in any field, but no expert may offer opinions that interpret law or legal theory. Jurors can be informed by expert witnesses in order to better understand the relevant facts, but a jury may not hear testimony that offers legal analysis that suggests how the case should be decided. When experts are members of the legal community, parties using them walk a fine line between information and legal opinion, and in this case Judge Carlson specifically limited the intended legal expert testimony to avoid juror confusion.

In this case, Judge Carlson expressed his concern that the proposed expert testimony from the plaintiff’s legal witnesses could potentially cross the line, writing, “In each instance, we believe that the proffered testimony of these two legal experts provides some useful background and information regarding accepted practices in the field of employment discrimination litigation and corporate governance in closely-held companies, but then couples that information [with] opinions regarding the application of the law to the facts, and offers opinions regarding matters that are plainly the court’s task, determining what the proper legal outcome of this case should be.” Under this awareness of the potential for the plaintiff’s legal experts to overstep the rules, Judge Carlson went on to limit their testimony to the useful background information and exclude any opinion on the legal outcome of the case.

Judge Relies on Similar Case in Opinion on Legal Expert Witnesses

In his opinion, Judge Carlson pointed to a similar case in a federal District of Maine in which a lawyer and law professor, Arthur Laby, was called as an expert witness to explain how a particular legal industry operated. Judge Carlson wrote, “Professor Laby was tendered as an expert witness, and proffered testimony which, in some instances went beyond a narrative description of how certain factual matters tied into industry norms, but instead opined on the ultimate issues of whether certain fiduciary duties were breached. In terms that are equally applicable here, the district court curtailed the scope of this proffered testimony.” In the case of Laby’s testimony, the Maine court was similarly faced with concerns about a legal expert offering more information than was permitted.

Judge Carlson went on to reference the outcome of Laby’s testimony as guidance in the case before him, saying, “We believe that the lines previously drawn for Professor Laby in Goldenson v. Steffens provide an appropriate line of demarcation for the parties in this litigation as well. Thus we will permit these expert witnesses to testify, in general terms, based upon their experience regarding industry practices and customs in the field of corporate governance within closely held corporations, and litigation of EEO claims. The witnesses may then provide a factual, descriptive narrative of defendants’ conduct in light of these customs and practices, but the witnesses may not tender their interpretation of the law to the court, opine on the ultimate legal issues in this litigation, or opine how the court should apply the law to the facts of this case.”

Operating under this rule, Judge Carlson permitted Atlantic Pacific Research Group’s legal expert witnesses to testify, but limited the content strictly to information about the relevant business practices central to the dispute.

Ohio Court Dismisses Medical Expert Witness in Asbestos Cancer Lawsuit

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

Plaintiff Alleges Asbestos Caused Cancer

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

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

Asbestos Plaintiff Retains Medical Expert Witness

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

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

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

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

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

Starbucks Coffee Relies on Expert Witnesses to Dispute Cancer Lawsuit

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

Starbucks Sued in California

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

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

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

Medical Experts Dispute Carcinogen Levels in Starbucks Coffee

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

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

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

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

Texas Anti-Abortion Expert Witnesses Dismissed by Federal Judge

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

Texas Anti-Abortion Statute Limited

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

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

Federal Judge Condemns Texas Evidence in Anti-Abortion Case

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

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

Texas Conceals Involvement of Discredited Expert Witness

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

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

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

Judge Dismisses Four Anti-Abortion Expert Witnesses

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

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

Forensic Experts Duel in Plane Crash Wrongful Death Suit

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

Plaintiffs Allege Victim Was Alive After Plane Crash

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

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

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

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

Airlines Counter with Forensic Expert Witness

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

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

Expert Testimony in Zoloft Lawsuit Ruled Inadmissible

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

Judge Excludes Zoloft Plaintiffs’ Expert Testimony

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

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

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

Latest Expert Witness Ruling Consistent with Previous Decision

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

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

Zoloft Plaintiffs’ Expert Witnesses May Limit Testimony

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

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

Nationally Renowned Lethal Injection Expert Resigns Post

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

Expert Anesthesiologist Supports Death Penalty Procedure

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

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

Death Penalty Expert Quits to Avoid Professional Scrutiny

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

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

Loss of Lethal Injection Expert Leaves Impact

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

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

Museum and Non-Profit Experts Present Alternatives to Corcoran Gallery Merger

The future of the historic Corcoran Gallery of Art, an independently owned art gallery in Washington DC which is one of the oldest museums in the country, sits in the hands of a DC Judge after days of testimony in a merger lawsuit. The proposal, which involves millions of dollars in both endowment funds and value of an extensive art collection, has met vigorous opposition from supporters of the museum who have presented a variety of expert witnesses with specialties ranging from financial planning to art valuation who argued at trial that the Corcoran can continue to exist as an independent gallery as it has for over 150 years.

Corcoran Gallery Merger Trial

After years of financial struggles, trustees of Corcoran have submitted a proposal that requests legal authority to abandon the 1869 deed of trust, which established the institution in favor of a merger with George Washington University and the National Gallery of Art. Opponents to the proposal, made up of current faculty and students of the Corcoran College of Art, challenged the trustees, arguing that there are alternative means to raise capital, better manage the museums financials, and keep Corcoran in its traditional place as an independent art gallery and college.

Under the merger, Corcoran would donate most of its 17,000 artworks to the National Gallery of Art, and give the building, along with $35 million for renovations, to the George Washington University – merging Corcoran’s art college into GWU. Citing $28 million in cumulative deficits since 2008, the Corcoran trustees claim they have no choice but to seek support from stronger institutions and claim the merger will keep the Corcoran tradition alive even if the institution is no longer independent. During trial, the Corcoran trustees presented witnesses who outlined the dire financial situation and promised that the merger would preserve the institution’s history and legacy, cutting at the opponents’ position that the proposal would dissolve the museum for good.

Corcoran Merger Opponents Call Expert Witnesses

Opponents of the Corcoran merger, known as Save the Corcoran (STC), sought to attack the trustees’ argument that the financially insolvent museum had no alternative but to merge with GW and the National Gallery of Art by use of three expert witnesses. The experts specialized in non-profit management, museum oversight and development, financial planning, and donor fundraising. During the 8-day trial, these experts explained that Corcoran’s financial troubles were not inevitable nor irreversible, and that proper non-profit management could undo the trustees’ dysfunction and keep the museum operating independently.

The STC’s experts pointed out that proper management of non-profit museums like Corcoran could keep institutions financially solvent and even successful. During testimony, the experts made use of tutorials on how art museums operate, and pointed to real life examples across the country of art galleries that raised millions in capital through effective donation and development offices that Corcoran lacks. The STC’s expert witnesses also contrasted the failings of Corcoran’s management with successful museum operations and presented testimony that supported alternative plans for the museum’s financial recovery.

Corcoran’s fate now sits in the hands of District of Columbia Superior Court Judge Robert Okun who will consider whether or not the trustee’s request to break the terms of the deed is allowable. With the Corcoran’s art collection and building worth more than $2 billion in assets, the decision will have a significant impact across DC’s cultural and educational community.

Independent Pathologists Provide Unbiased Insight Into Michael Brown’s Death

While the world watches the political and racial protests unfolding in Ferguson, Missouri, officials investigating the Michael Brown police shooting turn attention to testimony from expert forensic pathologists to identify details in the teen’s death. Although witnesses to the shooting will provide information regarding the incident, the scientific data gathered by pathologists is expected to provide hard evidence designed to help investigators clear up the uncertainties surrounding Brown’s death.

Brown Family Hires Two Independent Pathologists

New York City Chief Medical Examiner, Dr. Michael Baden, and forensic pathologist Shawn Parcells were called upon by family members to conduct an independent autopsy of Michael Brown’s body. Although Ferguson officials had performed an autopsy, the importance of understanding how the teenager died has warranted independent forensic expert testimony.

After conducting the autopsy, Drs. Baden and Parcells confirmed that Brown was shot at least 6 times, possibly 8, with two of those shots, including the fatal one, hitting the young man in the head. Dr. Baden also confirmed that Brown did not have gunpowder on his body – suggesting he was not shot at close range – and that the angle of the fatal head shot indicated the young man was bent forward when he was shot. Baden theorized that Brown could have survived the other wounds, but the head shots would have caused immediate death.

Beyond the certainty that Brown was shot multiple times, including twice in the head, the independent expert pathologists were unable to make definitive conclusions after their review of the body. Parcells noted that a bullet wound to Brown’s right arm may indicate that his hands were raised at the time of impact – confirming witness accounts that Brown’s arms were above his head – but more investigation into the wound is required. Brown’s bullet wounds could also suggest that he had his back to the police officer, but neither Baden nor Parcells were able to say with clarity that this was the case.

Independent Pathologist Experts Alleviate Fears of Cover Up

Brown family attorney Benjamin Crump announced that Michael’s relatives wanted the independently performed autopsy due to distrust of the officials conducting the investigation. “They could not trust what was going to be put in the reports about the tragic execution of their child,” Crump said in a news conference this week. Dr. Baden reinforced the importance of the independent expert testimony by noting that the unbiased transparency of his and Dr. Parcell’s examination was key to alleviating the concerns of an already on-edge community.

Adding to the investigation will be a federally performed autopsy ordered by US Attorney General Eric Holder, a step that Baden called “appropriate,” but also “extremely unusual.” Despite unanswered questions, the Brown family expressed encouragement by the confirmation that Michael was shot at least 6 times, a fact that will likely be used to build both a prosecution of the responsible officer and a lawsuit against the Ferguson police department. As the investigation continues, federal, local, and independent forensic pathologist experts will conduct more thorough examinations of Brown’s body and clothing in an effort to determine what happened on the day of his shooting.