Category Archives: In the News

Articles about legal issues currently in the news.

A judge

Court’s Choice Between Competing Expert Opinions on Standard of Nursing Care Is Affirmed on Appeal

Rachel Howard, the widow of C.R. Howard, brought a claim against the government for medical malpractice committed in a Veteran’s Administration hospital. She alleged that nurses failed to prevent her husband from falling while using a commode. It was undisputed that the fall caused a cervical fracture.

Since the case arose in Arkansas, the Arkansas Medical Malpractice Act governed the substantive proof of malpractice. The district court, deciding the case without a jury, evaluated the competing testimony given by expert witnesses concerning the standard of care that the nurses should have followed. The court ultimately found that the evidence did not establish malpractice. The Court of Appeals for the Eighth Circuit affirmed that decision.

Patient’s Hospital Care

Four years before his death, C.R. Howard was diagnosed with blood cancer. By 2015, his treating hematologist concluded that Howard had exhausted his treatment options.

In February 2015, Howard was admitted to the John L. McClellan Memorial Veterans Hospital in Little Rock to treat neutropenic fever. Following hospital protocols, medical staff assessed Howard as having a high risk of falling. The protocols required high risk patients to receive assistance while using the bathroom.

Howard walked to the bathroom at least twice without assistance. He fell at least once. Medical staff noted that Howard suffered from episodes of dizziness or confusion. Staff entered an order requiring him to use a bedside commode.

Five days after his admission, Howard attempted to use the bedside commode. He sat up in the bed and a nurse asked him if he was ready to stand. The nurse assisted him as he moved to the commode. While Howard was sitting on the commode, he “folded over” and fell to the floor, striking his head.

Because Howard did not appear to be breathing, one nurse administered CPR while another called for a code team. The code team used a defibrillator to restart Howard’s heart and placed him on a ventilator. He was transferred to intensive care.

The next day, Howard was removed from the ventilator. An MRI found a spinal fracture in his neck. He had surgery to repair the fracture four days after he fell. The surgery improved his ability to move, but his underlying medical condition precluded physical rehabilitation.

Howard was discharged from the hospital about three weeks after his admission. He entered home hospice care and died about two weeks later.

Expert Witness Testimony

The two nurses who assisted Howard testified that he did not appear to be dizzy before he was transferred to the commode. Rachel Howard, who was present at the time, testified that he was displaying signs of dizziness.

The parties also offered conflicting evidence about the appropriate standard of care. Howard’s nursing expert, Janet Scott, testified that the standard of care required nurses to keep Howard in bed if he was dizzy. She also testified that the standard of care required his nurses to stand in front of Howard and to place a hand on him while he was using the commode.

Howard’s physician expert, Dr. Thomas Huffman, testified about his experience managing nurses. He opined that placing a hand on the patient is the best way to maintain control over a patient who is using a commode. Dr. Huffman concluded that the nurses were not close enough to catch Howard before he fell. Dr. Huffman was also one of the plaintiff’s experts on causation.

The government relied on the expert testimony of Holly Langster to establish the nursing standard of care. Langster emphasized the need to respect the patient’s dignity by providing as much privacy as possible. She testified that a nurse should have hands on a patient like Howard until he was seated and then stand in front and within arm’s length of the patient.

District Court Decision

The district court noted that expert testimony is needed to determine a nursing standard of care because it is not a matter of common knowledge. The court decided that Scott and Langster were both qualified to express an opinion about the standard of care.

The court gave more weight to the expert opinion of the two nursing experts than to the opinion of Dr. Huffman. While Dr. Huffman has managed nurses during his career, he “did not demonstrate that he was familiar with the degree of skill and learning ordinarily possessed and used by nurses and hospital staff in good standing, engaged in the same type of practice or specialty in Little Rock, Arkansas, or in a similar locality, as is required under the Arkansas Medical Malpractice Act.”

The court was satisfied that Howard sustained a “medical injury,” as that term is used in Arkansas law, when he fell while using a commode under the supervision of nurses in a hospital. The court was not satisfied, however, that the nurses committed malpractice.

The court concluded that the appropriate standard of care depended on whether Howard was dizzy. Scott’s opinion was based on Rachel Howard’s testimony that, as soon as the nurse entered, Howard tried to sit up, then fell back down and complained that he felt like an ocean was going by. The nurse testified that Howard did not fall back on the bed and never complained of dizziness.

The court credited the testimony of the nurse rather than Rachel Howard’s testimony. The court concluded that the standard of care for a dizzy patient, as Scott described it, was therefore inapplicable. Since Howard was not dizzy, the standard of care described by Langster was appropriate. Since the nurses followed that standard of care, they did not commit malpractice.

Appellate Opinion

Medical malpractice claims against a VA Hospital are brought under the Federal Tort Claims Act. That law requires the trial to be held before a judge, not a jury.

Unless an appellate court dislikes a district court’s result and needs an excuse to overturn it, a district court judge’s assessment of the facts is virtually unassailable. The court of appeals found no reason to overturn the trial court’s finding that Howard was not dizzy when he tried to sit up.

It was also up to the trial judge to determine the appropriate standard of care. Since the judge decided that Howard was not dizzy, the judge did not err in discounting Scott’s testimony, which was premised on the opinion that a careful nurse will keep a hand on a dizzy patient who uses a commode.

A jury might have seen the facts differently. Allowing a patient to fall to the floor does not seem consistent with appropriate care, particularly when the patient has fallen in the past. However, the judge believed the nurses when they testified that Howard was not dizzy and he believed the defense experts when they testified that the nurses followed an appropriate standard of care. Deciding which witnesses to believe is the trial judge’s job when there is no jury.

The court of appeals suggested that even in the absence of a dispute about Howard’s dizziness, the district court could have accepted Langster’s expert opinion that standing within an arm’s length of a patient on a commode is an acceptable standard of care. It hardly benefits a patient to stand in front of the patient while allowing the patient to fall, but again, when there is no jury to decide the facts, a judge gets to make that call. Since the district court was entitled to choose between competing expert opinions, the court did not err in deciding the case in favor of the VA Hospital.

Fire

Appeals Court Rules Firefighter and Electrician Qualifies as Expert

The Third Circuit Court of Appeals has ruled that a veteran firefighter, licensed master electrician, and forensic expert were qualified to give expert testimony about a Pennsylvania shopping center fire.

The Fire

On December 17, 2012, a fire broke out at Natrona Heights Shopping Plaza in Harrison, Pennsylvania. The fire began at around 9:40 pm and destroyed or damaged twelve businesses. It took almost 300 volunteer firefighters from thirty companies to contain the damage.

James Tanda, the agent in charge of the Pittsburgh office of the Bureau of Alcohol, Tobacco, Firearms and Explosives, estimated that the fire caused “in excess of $10 million” in damages.

The Natrona Heights Shopping Plaza was insured by Seneca Insurance Company, and Seneca paid for the losses resulting from the fire. An investigation revealed that Mark Beal and his company, Mark’s Maintenance and Repair, may have caused the fire when removing a neon sign from the facade of the building. Seneca sued Beal for damages.

The Trial

At trial, Seneca retained three experts to testify on its behalf. The experts were Dennis Brew, an expert in installing and removing neon signs; Gerald Kufta, a private investigator specializing in fires; and Samuel Sero, a forensic engineer. Beal retained Ralph Dolence, a firefighter, fire officer, licensed master electrician, and forensic expert.

Seneca Insurance requested that the Beal’s expert, Ralph Dolence, be disqualified, arguing that his testimony was “speculative and lacked foundation.” The district court denied the motion.

A jury found Beal negligent in removing the sign, but that his acts or omissions did not cause the fire. Seneca filed a motion for a judgment notwithstanding the verdict or a motion for a new trial. The district court denied the motion. Seneca appealed.

The Appeal

On appeal, Seneca argued that the district court erred by allowing Ralph Dolence to testify as an expert. The Third Circuit reviewed the district court’s decision for an abuse of discretion.

In the Third Circuit, an expert’s testimony is admissible if their “methodology and reasoning are sufficiently reliable to allow the fact finder to consider the expert’s opinion.” The Third Circuit determined that Dolence was qualified as an expert witness “because of his knowledge from years of professional experience, which included over 30 years as a fire investigator and 40 years as a licensed electrician. At the time of his testimony, Dolence, a qualified forensic expert in 30 states, had served on arson task forces, investigated over 12,000 fires, and taught hundreds of classes on fire causes and origin investigations.”

The court additionally noted that Dolence’s testimony was “based on, among other things, his personal observations and review of materials from the fire investigation. The foundation of his opinion was an examination of several hundred photographs, videos, and other documentation provided by the township, fire marshal, and individuals who were at the scene of the fire. He also analyzed depositions, documents, and reports provided by appellant’s experts and attended a joint evidence examination with Gerald Kufta and several other experts.”

The court determined that Dolence “ultimately testified that the cause of the fire was ‘undetermined’ because the fire investigation was improper and other causes were not ruled out.” The Third Circuit affirmed the district court’s verdict.

#9867034 Mallet And Stethoscope Over Sound Block In Court

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

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

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

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

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

Willis’ Surgery and Its Aftermath

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

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

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

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

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

Willis’ Litigation

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

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

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

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

Willis’ Expert Testimony

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

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

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

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

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

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

Appellate Decision

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

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

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

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

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

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

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

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

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

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

 

Water Treatment

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

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

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

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

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

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

Fluoride and IQ

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

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

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

Fluoridation Lawsuit

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

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

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

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

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

Petitioners’ Expert Evidence

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

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

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

EPA Expert Evidence

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

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

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

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

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

Trial Paused

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

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

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

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

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

 

Seal of State of Florida and Gavel

Florida State Attorney Releases “Brady Alert List”

Orange-Osceola, Florida State Attorney Aramis Ayala has released a new database that identifies experts that have credibility issues. This database is called the “Brady Alert List.”

Ayala created this database to have a centralized list of witnesses who appear in court on a recurring basis and who have engaged in criminal behavior, misconduct, or dishonesty.

Brady Committee

Ayala initially announced her plans to create this database in July 2019. With the database came the creation of a Brady Committee to evaluate witness credibility. The Brady Committee is comprised of the director of conviction integrity, the chief investigator, two felony bureau chiefs, and the chief assistant state attorney.

The Brady Committee is tasked with reviewing information about witnesses and determined whether witnesses should be cleared, placed on a Brady Alert List, or placed on a Brady exclusion, or “Last Resort” list.

If a witness is listed on the Brady alert list, the prosecutors will be notified. It will be up to the prosecutors whether to proceed with caution or obtain permission if they choose to call that person as a witness. If a witness is on the Brady exclusion list, he or she is not permitted to testify as a state witness.

In explaining her reasoning for creating the Brady Alert List, Ayala explained, “My office processes hundreds of thousands of criminal cases every year, and in many instances, prosecutions rely solely on the honest and credible testimony of law enforcement and other personnel who either witness or investigate crimes.”

Ayala gave the example of a recurring state expert witness who was later found to have questionable credentials. A former fingerprint examiner had documented performance issues relating to failing to identify prints of value, questionable findings, and mislabeling of print cards. This issue was not discovered for two years. The 2,500 cases that involved this expert are currently under review.

Review Process

The Brady Committee has been meeting monthly since June 2019 to determine who should be on the list. The committee initiates a review of a law enforcement officer or expert witness when that person is relieved of duty, under investigation for criminal conduct, or accused of any other misconduct. Once someone is added to the database, their place of employment is notified.

The Fraternal Order of Police has raised concerns about the Brady Committee and its process. The Order has suggested that the committee should have members outside of the state attorney’s office on it, that it publish its criteria, and that due process be provided for the people placed on the list. The organization’s concern may be related to the fact that prosecutors so often rely on law enforcement officers with dubious credentials as expert witnesses.

Initial Release

The newly released list includes 38 law enforcement officers, confidential informants, and forensic experts. This first iteration of the list is only a Brady Alert List. None of the names were listed on a Brady Last Resort List.

Ayala said that she believed that some of the names listed on the initial Brady Alert List should have instead been on a Last Resort list, but that she decided not to immediately publish a Last Resort list when the Orlando Police Department Chief Orlando Rolon told her that anyone that was placed on this list would not be able to function at the agency, but would still have to be paid.

 

Missouri flag, gavel

Judge Recommends New Trial for Missouri Man Whose Conviction Rested on Recanted Expert Testimony

Donald Nash was convicted of capital murder in 2009 by a Missouri jury. He was sentenced to 50 years in prison without parole. Since Nash is now 78 years old, Nash was effectively sentenced to life in prison. His life might be shortened by the COVID-19 outbreak in the prison where he is incarcerated.

Nash was charged with killing his former girlfriend, Judy Spencer, in 1982. The charge followed a cold case investigation that purportedly linked Nash’s DNA to the killing.

Nash lost his case on appeal. New attorneys brought a habeas corpus petition alleging that the prosecution relied on untrue expert testimony and that undiscovered DNA points to the guilt of another suspect.

Given the time that passed since Nash’s appeal was denied, Nash must prove his “actual innocence” to win his freedom. The Missouri Supreme Court appointed a retired federal judge, Richard K. Zerr, to take evidence and make a recommendation as to whether Nash satisfied that standard.

In a detailed opinion, Judge Zerr determined that Nash’s conviction was based on junk science. He recommended that the Missouri Supreme Court vacate Nash’s conviction on the ground that he is actually innocent.

Spencer’s Death

Before Spencer died, Nash and Spencer were together in a friend’s apartment. They quarreled. Spencer left, telling the friend that she planned to visit some bars in a neighboring town. Nash remained in the apartment.

Spencer’s body was found the next day at an abandoned schoolhouse far from town. The killer strangled Spencer with her own shoelace and shot her in the neck with a shotgun.

The prosecution offered no evidence that Nash owned or possessed a shotgun. On the same day Spencer’s body was found, the police questioned Nash and tested him for gunshot residue. The test was negative. Nash had no scratches on his body. Nash’s emotional reaction when he learned that Spencer was dead convinced the investigators that he was not involved.

Spencer had a blood alcohol content of 0.18, an indication of significant intoxication at the time of death. Spencer’s car was found in a ditch several miles from her body. Two sets of fingerprints were found on the car’s window. Neither belonged to Nash, but one set of prints belonged to the resident of a dwelling that was near the ditch. That resident denied having any knowledge of Spencer’s car, an obvious lie given the presence of his fingerprints.

Fresh tire tracks were found near the abandoned schoolhouse. They did not match the tires on Nash’s or Spencer’s vehicle. They were never matched to any vehicle.

It is a reasonable theory that Spencer became intoxicated and drove her car into a ditch, where one or more killers found her. It is also reasonable to surmise that the killer or killers drove Spencer, either alive or dead, from the ditch where her car was found to the schoolhouse.

None of the investigators at the time of the murder believed they had probable cause to arrest Nash. Two of those investigators told Judge Zerr that they believed Nash was innocent.

Nash’s Trial

The case languished for 26 years until the Spencer family pressured the Highway Patrol to test Spencer’s fingernails for DNA. Nash’s DNA was found underneath her fingernails. That finding is hardly surprising since Nash and Spencer lived together.

Investigators determined that after Spencer left Nash at their friend’s apartment, she returned to her apartment and washed her hair before leaving again. When they applied for an arrest warrant, the investigators claimed that the DNA beneath Spencer’s fingernails would not have survived the hair washing, proving that Nash had contact with Spencer again that evening.

Judge Zerr concluded that the investigators made that assertion without consulting with an expert. It is patently false that DNA beneath fingernails would necessarily be eliminated by washing hair. The judge essentially concluded that the investigators fabricated that statement to justify an arrest warrant.

At trial, the prosecution’s expert testified that hair washing would have a “great effect” on the amount of Nash’s DNA found beneath her fingernails. She also testified that the amount of DNA present would not have come from “low level” contact with Nash.

Nash called a DNA expert to testify that that Nash’s DNA would logically be found under Spencer’s nails since Nash and Spencer lived together. Nash’s expert discounted the effect of hair washing because, in her experience, DNA trapped beneath fingernails can survive hand washing. The expert also explained that Spencer could have reacquired the DNA by touching a surface or clothing that Nash had also touched.

During his closing argument, the prosecutor boldly asserted that Nash’s DNA would have been washed away when Spencer shampooed her hair and that its presence proved Nash’s guilt. That argument was unsupported by any evidence at trial.

The jury was apparently swayed by the prosecutor’s untrue theory that hair washing eliminates all DNA from beneath fingernails. When Nash appealed his conviction, the state again relied on the theory that hair washing removes DNA and argued that the jury therefore had sufficient proof of guilt to support a conviction. In a rather cursory opinion, the Missouri Supreme Court agreed.

Expert Testimony Reconsidered

Ruth Montgomery was the prosecution’s DNA expert. Montgomery was a Highway Patrol lab analyst. Although she did not say so during her testimony, her “expectation” that the act of hair washing would have a “great effect” on the amount of DNA beneath her fingernails was nothing more than a guess.

Judge Zerr characterized Montgomery as having “no education, training, or experience” in whether washing hair eliminate DNA concentrations beneath fingernails. Montgomery later admitted that her only research consisted of reading a handful of articles the day before she testified in a pretrial deposition.

None of the articles Montgomery reviewed supported her claim that hair washing would have a great effect on the concentration of DNA beneath fingernails. Rather, the articles indicated that DNA persists under fingernails under a variety of conditions. The only article addressing personal hygiene found that it had a statistically insignificant impact on the amount of DNA beneath fingernails.

Montgomery thus made a minimal effort to educate herself about the relevant science and chose to ignore scientific evidence that was unhelpful to the opinion that the prosecution needed her to express. In any event, her claim that hair washing has a great effect on the quantity of DNA under fingernails was not generally accepted by the scientific community in 2008 and was inadmissible under Missouri’s Frye rule. Unfortunately, Nash’s lawyer made no Frye challenge so the jury was permitted to consider the baseless expert testimony.

Montgomery now admits that her opinion was speculative and incorrect. She still maintains that hair washing would remove some DNA from beneath fingernails, but she admits that she has no way to quantify the amount of DNA that would be washed away.

New DNA Evidence

The shoelace used to strangle Spencer was taken from her left shoe. After Nash was convicted, that shoe was tested for DNA. Male DNA was found on the shoe. Nash was excluded as a possible contributor of the DNA, as was the trooper who handled the shoe. Nor was Nash’s DNA found on the shoelace.

In fact, the evidence established that after she left Nash and returned home, Spencer changed her outfit, including her shoes, before leaving again. While male DNA might have been on her shoe before she left, the murderer likely touched the shoe while removing the shoelace. The absence of Nash’s DNA and the presence of another male’s DNA is significant evidence of Nash’s innocence.

Judge’s Recommendation

The judge recognized that Nash’s lawyer was ineffective in failing to seek the exclusion of Montgomery’s testimony under Frye and in failing to cross-examine Montgomery about her lack of qualifications to express an opinion about the removal of DNA trapped beneath fingernails while washing hair. In addition, Nash’s appellate counsel was ineffective in failing to raise the issue.

The judge noted that the prosecutor compounded the problem by claiming in his closing argument that Spencer would have removed all of Nash’s DNA when she washed her hair. Not only was the statement contrary to prevailing scientific theory, it misrepresented Montgomery’s testimony. The state’s appellate lawyer continued to make that misrepresentation in its argument on appeal — a mistake that it now concedes.

Under Missouri’s “actual innocence” standard, a defendant must present reliable new evidence that would likely convince a reasonable jury to return a “not guilty” verdict. Montgomery’s admission that she erred and the discovery of a stranger’s DNA on Spencer’s shoe satisfied the reliable new evidence requirement.

Judge Zerr concluded that the prosecution’s case rested almost entirely on discredited expert testimony. The other evidence against Nash was both weak and consistent with his innocence. Arguing with a girlfriend does not make someone a killer.

The prosecution failed to connect Nash to the scene of the crime or to present evidence that he ever possessed a shotgun. The prosecution also failed to explain why the fingerprints on Spencer’s car window did not point to a different suspect. Those failures contributed to the judge’s decision that no reasonable jury, presented with all of the evidence that is now available, would have voted to convict. Judge Zerr therefore recommended that the Missouri Supreme Court overturn Nash’s conviction and set him free.

Bamboo stick massage

No Expert Testimony Required to Prove Negligent Supervision of Massage Provider Who Sexually Assaulted a Customer

As a general rule, expert testimony is required to prove the liability of a healthcare provider for negligence. That rule is typically enforced in medical malpractice cases alleging that a doctor harmed a patient by breaching a duty of care. The injury victim must use an expert witness to establish the duty of care because ordinary jurors do not usually understand what the medical profession expects a prudent doctor to do when caring for a patient.

An exception to the rule allows medical negligence cases to proceed without an expert witness when the negligence is obvious to ordinary people. A doctor who operates on the wrong knee is a classic example. A jury does not need expert testimony to understand that a doctor should verify which knee is injured before surgery begins.

The Tennessee Supreme Court was recently asked whether the “common knowledge exception” to expert testimony should apply to a case involving negligent hiring and supervision by a spa. Under the facts of the case, the court held that no expert testimony was required to prove liability.

Facts of the Case

Lataisha Jackson went to Gould’s Day Spa & Salon in Cordova for a massage. She alleged that she was sexually assaulted by a masseur.

Jackson alleged that two other customers of Gould’s had made complaints about the masseur’s inappropriate conduct but Gould’s took no action to protect her from similar misconduct. She sued Gould’s for negligently hiring, training, supervising, and retaining the masseur who assaulted her.

Whether or not Jackson’s massage meets an ordinary understanding of “health care,” all the courts that considered the case categorized it as a “health care liability” lawsuit. Tennessee’s Health Care Liability Act applies to lawsuits against any “health care practitioner” if the practitioner must be licensed under Tennessee laws governing “professions of the healing arts.”

Tennessee law deems massage practitioners to be members of a profession of the healing arts who must be licensed. Without discussing whether licensing alone makes a massage provider a “health care practitioner,” the supreme court concluded in a footnote that Gould’s was protected by the Health Care Liability Act.

Certificate of Good Faith

The Act requires plaintiffs to file a “certificate of good faith” with a complaint that alleges the negligence of a health care practitioner. The certificate must state that the plaintiff consulted with an expert who is competent to testify under the Act and that the expert determined the existence of a good faith basis for bringing the lawsuit.

Jackson did not file the certificate because she viewed a lawsuit for negligent hiring and supervision as outside the scope of the Health Care Liability Act. The trial court decided that the Act applied to the negligence claims that Jackson alleged. The court granted summary judgment against her because she did not file a certificate stating that she had consulted with an expert.

The court of appeals, over a dissent, concluded that the standard a spa should follow after receiving a complaint about a massage provider was not within the common knowledge of jurors. The dissenting judge opined that the need to protect disrobed customers from being touched inappropriately by a masseur was not the kind of complex question that could only be answered with expert assistance.

The Common Knowledge Exception in Tennessee

Whether an expert witness was required to prove that Gould’s was negligent turned on the applicability of the common knowledge exception. The exception excuses plaintiffs from providing expert testimony when the alleged misconduct falls within the understanding of lay members of the public. If an applicable standard of care, a breach of that standard, and resulting injury would all be obvious to ordinary people, no expert testimony is required.

The common knowledge exception is widely accepted. The Tennessee Supreme Court filled two pages of its opinion with cases from other jurisdictions that recognize the exception.

While Tennessee’s Health Care Liability Act applies to negligence claims against health care providers, the court decided that consultation with an expert is only necessary in cases that require expert testimony. When the common knowledge exception applies, no certificate of good faith is required. Since the legislature supposedly required the certificate to assure courts that a health care liability claim had arguable merit, requiring the certificate would be pointless when the claim’s merit would be obvious to a lay member of the public.

Tennessee Supreme Court Decision

The court relied on Tennessee precedent in deciding whether a health care provider’s negligence is obvious. The court cited a case involving an X-ray technician who asked a patient to stand on a wobbly stool. The patient fell and was injured. Since telling a patient to stand on unsafe furniture is obviously negligent, no certificate of good faith was required.

In a case with facts that more closely parallel to Jackson’s, a patient at a mental health facility sued the facility for the negligent hiring and training of a security guard who attacked him. While providing security scarcely qualifies as health care, the court decided that the Health Care Liability Act applied to the lawsuit. It concluded, however, that whether the facility negligently breached its duty to protect patients from the assaultive conduct of security guards was a question that a jury could answer without the assistance of expert testimony.

In light of that precedent, the supreme court sensibly decided that the need for expert testimony turns on whether the allegedly negligent conduct “involved the exercise of medical judgment or skill.” When a jury will be called upon to consider whether a doctor used the skill that a reasonable doctor should possess, or made professional judgments involving medical risks and benefits that a reasonable professional would make, the plaintiff must provide expert evidence in support of the negligence claim.

Applying that rule to Jackson’s case, the court decided that expert testimony was not required. The claim that a spa knew or should have known, based on customer complaints, that a masseur might assault customers can be decided without expert evidence. Ordinary jurors have sufficient knowledge and experience to decide whether a spa negligently hired, retained, or supervised an employee who sexually assaulted a customer.

A different result might apply when the plaintiff claims that a massage provider “negligently performed the massage, used improper technique or excessive force, or erred in decision-making as a massage therapist.” In cases involving hiring or retention decisions that do not require professional expertise, however, no expert testimony is required to prove negligence.

 

Georgia

Georgia Court Says No Conflict in Same Firm Expert Affidavit

The Georgia Court of Appeals has ruled that there is no conflict of interest in using an expert affidavit supporting a complaint written by an attorney who is also a law partner of the filing attorney.

The Personal Injury Case

Plaintiff David Mitchell retained attorney Randall Cade Parian of Parrian Injury Law, LLC to represent him in a personal injury action. Without informing Mitchell, Parian referred the case to Brian Wesley Craig of Craig & Avery, LLC. Attorney Craig filed a personal injury action on Mitchell’s behalf in Fulton County State Court.

Mitchell contacted Parian numerous times in the two years after retaining them. Parian told Mitchell that the case was “chugging along” and never informed him that the case was actually being handled by another law firm.

The defendants in the personal injury case set a deposition for Mitchell and notified Craig, but neither Parian nor Craig notified Mitchell of the deposition. The defendants filed a motion to compel and a motion for sanction, but neither Craig nor Parian contacted Mitchell. As a result of the motions, Mitchell’s case was dismissed with prejudice.

When Mitchell learned of the dismissal, he reviewed the complaint that Craig had filed on his behalf. Mitchell saw that the allegations had little resemblance to the facts of his case, leading him to conclude that Craig had simply used a complaint his firm had filed in a different case and substituted Mitchell as the plaintiff.

The Malpractice Action

Mitchell retained attorney William Ney to represent him in a legal malpractice action against Parian and Craig. Ney filed a complaint that was supported by the affidavit of Jacob Rhein, an attorney who is licensed to practice law in Georgia. In his affidavit, Rhein indicated that he was familiar with the standard of care for Georgia attorneys and that it was his opinion that Parian and Craig had breached that standard of care. The day after Rhein executed his affidavit, he and Ney formed a law firm together, Ney Rhein, LLC.

Parian and Craig filed a motion to dismiss, arguing that because Rhein was a member of Ney’s law firm, he was not competent to provide the affidavit that was required to support a legal malpractice action. Following a hearing, the trial court granted the motion to dismiss. The court ruled that there was “an inherent conflict between Rhein making the affidavit as a witness and being a member of the law firm” that represented Mitchell.

The Appeal

Mitchell appealed the trial court’s ruling. On appeal, the Georgia Court of Appeals, First Division, looked to the language of the statutory requirement. OCGA § 9-11-9.1 provides, in relevant part, that to assert a claim for legal malpractice, the plaintiff is “required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such Claim.”

The Georgia Court of Appeals found that Rhein met the statutory requirements for an expert witness as set forth in OCGA § 24-7-702. The court further found that Rhein’s status as Ney’s law partner affected Rhein’s qualifications as an expert witness. Presiding Judge Anne Elizabeth Barnes authored the opinion with the concurrence of Judges Elizabeth Gobeil and John Pipkin III.

Attorney for the plaintiff William Ney said of the ruling, “It just confirms what the ethics rules are: That members of the same firm can provide pretrial affidavits on behalf of each other’s clients and still comply with [the statute].” Whether a member of the firm could testify at trial, as opposed to filing a pretrial affidavit attesting to the claim’s legal merit, was not a question the court needed to answer.

 

Ohio wooden Mallet

No Expert Required to Admit Lidar Results in Ohio Speeding Cases

With little analysis, state courts have routinely held that common scientific instruments used by law enforcement agencies should be presumed accurate and that their results should be admissible without expert testimony. For example, Wisconsin’s appellate courts have firmly followed the holding that “tests by recognized methods need not be proved for reliability in every case of violation. Examples, speedometer, breathalyzer, radar.”

The court presumed the accuracy of those devices without giving the matter much thought and without considering any expert evidence that they are, in fact, accurate. How to decide that a method is “recognized” is another question that the court neglected to answer.

Presuming the accuracy of a device makes life easier for prosecutors who would otherwise need to call an expert witness in each trial to explain why the device works as intended. Presumptions shift the burden to defendants to establish that the device did not produce a reliable result. Whether a system that requires each element of the offense to be proved beyond a reasonable doubt by the prosecution is undermined by presuming the accuracy of the prosecution’s evidence has been a source of contention for decades.

The presumption of accuracy sometimes overlooks doubtful assumptions made by the manufacturers of devices sold to law enforcement agencies. Breath testing devices, for example, generate results based on the assumption that the ratio of alcohol concentration in blood to alcohol concentration in breath is 2100:1. But that number is just an average. The actual ratio ranges from 1500:1 to 3000:1, depending on the person.

Since breath testing devices make the false assumption that everyone has the same blood to breath concentration of alcohol, breath testing devices produce blood alcohol results that are low for some people and high for others. The discrepancies have rarely troubled judges, who too often believe it is more important for prosecutors to present their cases quickly than to assure their convictions are based on accurate evidence.

Radar and Laser Devices

Radar and laser devices are commonly used to measure speed. A radar device shoots a radio signal at a moving vehicle and detects the signal when it bounces back to the device. The change in frequency of the signal as the vehicle moves is assumed to be proportional to the vehicle’s speed.

A laser device shoots a concentrated beam of light rather than a radio signal. It measures the time it takes for the reflected light to return to the device. By comparing multiple readings over time (usually less than a second), the device can calculate the speed at which the vehicle is moving.

Laser speed detection devices, sometimes known as Lidar, have grown increasingly popular with law enforcement agencies. While radar emits a wide beam that might capture a passing bird or a vehicle the operator did not intend to target, the narrow laser beam arguably reduces the risk of operator error.

Police officers are commonly presented in court as “expert operators” of radar and Lidar, which simply means they have been trained to use and calibrate the devices. They typically have little understanding of the scientific principles upon which the devices are based. Again, the presumption that the devices work as intended saves the prosecution from calling an expert witness to fill in the gaps in the officer’s knowledge.

Ohio Considers Admissibility of Lidar Device Results

The Ohio Supreme Court recently considered whether courts should take judicial notice of the accuracy of laser devices used to measure speed. A police officer in Brook Park stopped Joseph Rodojev for driving 15 mph over the speed limit.

The officer captured Rodojev’s speed on a Lidar device manufactured by Laser Technologies Inc. The company markets its TruSpeed products as “a laser speed device that any department can afford.”

The city prosecutor introduced the readout from the budget-saving device through the testimony of its operator. No expert testimony was introduced to establish the reliability of the device. The judge did not take judicial notice of its reliability.

The Ohio Supreme Court decided in 1958 that radar was based on valid scientific principles — in particular, the Doppler effect — and that radar results did not need to be supported by expert testimony. The state court of appeals decided that Lidar was similar to radar, notwithstanding that laser devices do not rely on the Doppler effect, and that the same result should therefore apply. Since the court’s lazy reasoning conflicted with the decision of another state appellate court, the state supreme court agreed to resolve the conflict.

Based largely on an explanatory law review article and court decisions in other states, the Ohio Supreme Court decided that Lidar devices are reliable. Since no expert ever testified in the case, it reached that conclusion without the benefit of expert assistance. The court did a favor for prosecutors by reducing their burden in speeding cases, but like other courts, it did so with remarkably little consideration of the science underlying the devices.

The court did note that Lidar results are still subject to challenge at trial, “including challenges involving the angle at which the officer held the device in relation to the targeted vehicle, the device’s accuracy-validation algorithms, the device’s calibration and maintenance schedule, and the officer’s qualifications to use the device.” Cross-examining the officer by comparing the officer’s actual use of the device to the procedure required by the device manufacturer’s manual is often a fruitful way to beat a speeding ticket. But those challenges, the court said, go to the weight of the evidence, not to Lidar’s reliability. The bottom line is that in Ohio and many other states, no expert testimony is required to admit Lidar results into evidence.

 

PAM Spray Defect Case Tossed Out for Lack of Admissible Expert Evidence

The Eastern District of New York has dismissed claims against the makers of PAM cooking spray after the plaintiffs failed to present admissible expert witness testimony.

The Incident

In August 2016, Lucita Arena was in her kitchen preparing dinner when a nearby can of PAM cooking spray exploded and injured her. Lucita and her husband Jose Urena sued ConAgra Goods, Inc. and DS Containers, Inc., the makers of PAM and its container. The couple alleged design defect, failure to warn, and loss of consortium.

The type of PAM canister that exploded has four U-shaped score lines that are designed to open when the pressure inside the can rises to a particular level. The can features warnings including, “USE ONLY AS DIRECTED. FLAMMABLE. DO NOT SPRAY ON HEATED SURFACES OR NEAR OPEN FLAME … CAN MAY BURST IF LEFT ON STOVE OR NEAR HEAT SOURCE.” The canister that injured Lucita Arena was discarded by her attorney’s custodial staff after it was left in a conference room before experts had the opportunity to examine it.

The Design Expert

Plaintiffs retained Dr. Lester Hendrickson, Ph.D., as a design expert to help them prove their theory of causation. Dr. Hendrickson had a Ph.D. in metallurgical engineering and serves as a professor emeritus at Arizona State University. He has authored more than 1,000 technical reports as an expert witness. Dr. Hendrickson planned to testify that “absent the vents in this can, the circumstances under which” the plaintiff “was burned would not have occurred.”

The defendants objected to the design expert and the district court decided to exclude him. The court ruled that Dr. Hendrickson did not satisfy Daubert because he had failed to explain how the alternative design that he proposed would be safer. The court also found that Dr. Hendrickson’s opinion failed to satisfy Daubert’s criteria for reliability because he had criticized the PAM canister’s propellant, but had not proposed a safer proponent, nor tested any. Further, his proposal had never been subjected to peer review or publication. Therefore, the court found that Dr. Hendrickson had failed to show general acceptance of his design or methodology.

The defendants filed a motion for summary judgment. The defendants argued that the plaintiff’s design defect failed because they had not offered admissible evidence that the design of the PAM canister and not a manufacturing defect had caused the plaintiff’s injuries. The plaintiffs had also failed to offer admissible evidence from an expert regarding a defect or a feasible alternative design. The court agreed with the defendants.

The court also ruled that the plaintiffs’ failure to warn claim did not raise any triable questions of fact because they could not show that any inadequacy of the warnings was the proximate cause of the plaintiff’s harm. The court ruled that the plaintiff’s theory that the warnings were inadequate for failure to warn about the canister’s vent design failed because they could not show that the absence of the warning was the cause of the plaintiff’s injuries.