Category Archives: Working with Experts


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

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

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

Facts of the Case

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

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

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

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

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

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

The 20% Rule

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

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

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

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

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

Appellate Opinion

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

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

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

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

Lessons Learned

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

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

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



Utah Supreme Court Rules That Expert Testimony Went Too Far

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

The Injury

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

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

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

District Court

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

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

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

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

Court of Appeals

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

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

Utah Supreme Court

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

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

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


New Damages Trial Granted Because Jury Ignored Expert Testimony

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

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

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

Expert Testimony

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

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

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

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

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

Challenge to Jury Verdict

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

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

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

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

Appellate Decision

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

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

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

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

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

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

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

Jurors Cannot Ignore Uncontested Expert Evidence

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

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

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

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


USA legal system conceptual series - Illinois

Illinois Court Refuses to Upset Conviction Based on Denial of Expert Eyewitness Identification Testimony

Andre Brown was convicted of murder on the strength of five eyewitnesses. He brought a postconviction challenge to his conviction alleging, among other grounds, that his right to due process was violated by the court’s decision to bar him from calling an expert in eyewitness identification. The trial court denied the challenge.

The Illinois Appellate Court affirmed that ruling. The decision stands as the most recent example of the judiciary’s failure to recognize the importance of defense experts who could educate the jury about the perils of eyewitness identification.

Facts of the Case

A man on a bicycle shot Enrique Fuentes as Fuentes was sitting on a Chicago street corner. The police were alerted to look for a black man riding a mountain bike. The man was described as wearing a black jacket, black cap, and dark pants.

Brown was riding a mountain bike when the police stopped him. He was wearing a black-and-silver Oakland Raiders jacket. He was also wearing a black knit cap with a white Nike swoosh on the front. While the Raiders insignia and the Nike swoosh are easily recognizable, the police decided that Brown matched the generic description of the suspect and arrested him.

Brown had no gun. The police searched the likely path from the murder scene to the point of arrest but found no gun. Brown did not appear to be fleeing or in any particular hurry when the police arrested him.

The police took Brown back to the murder scene. His bicycle was sticking out of the trunk of the squad car, making it obvious that Brown was apprehended while riding a bike.

The police pointed out Brown to five witnesses, only one of whom actually saw the bike rider shoot Fuentes. The others were in the area and advised police that they saw a man on a bike either before or after they heard shots fired.

Brown was sitting in the back of the squad car when the witnesses identified him. In at least one case, the police used a flashlight to spotlight his face. In at least one case, Brown was removed from the car in handcuffs when the witness said it was too dark to see him in the back of the car. The five witnesses identified Brown as the bicyclist they saw.

Eyewitness Identification Issues

Research demonstrates that some identification procedures are better than others. If Brown had been placed in a lineup with other black males wearing similar clothing, his identity as the shooter would not have been signaled to the witnesses. If the witnesses picked him out of a lineup, the legal system could say with greater confidence that Brown was the man they saw.

A showup (presenting only the suspect to the witness when the suspect is obviously in police custody) is inherently suggestive of guilt. Research shows that witnesses are more likely to assume that the suspect is guilty and therefore to misidentify the suspect when they view the suspect in a showup.

Research also shows that misidentifications are more likely when witnesses learn that another witness has identified the suspect. One person’s mistaken identification will tend to encourage the other witnesses to make the same misidentification.

Unfortunately, most jurors are unaware of the body of research that casts doubt on the validity of eyewitness identifications made during showups. Eyewitness identifications expert play a vital role in educating jurors who would otherwise be inclined to believe that five eyewitnesses who are in agreement could not possibly be mistaken.

Brown’s Trial

The witnesses who identified Brown in the showup also identified him at trial. Having seen what Brown was wearing in the squad car, their description of the shooter’s attire became more detailed.

Police witnesses admitted that they stopped a different black man who was on a bicycle. He was released without asking any witnesses whether they could identify him. Police witnesses also admitted that they did not test Brown’s hands for gunshot residue, in part because they thought that his sweat might have washed away any residue. They were apparently worried that a negative test result would undermine the case they were building against Brown.

The defense called an expert witness who explained that the presence of residue would be evidence that a suspect had recently fired a gun. While the expert acknowledged that residue can be washed or rubbed away, the absence of residue would provide some evidence that the suspect is innocent.

The defense wanted to call Jonathan Schooler, an expert on witness identifications and memory. Schooler would have testified that headgear, the presence of a weapon, and lighting conditions all affect eyewitness identifications. He would have testified that suggestive factors (such as showing a handcuffed suspect to a witness, shining a flashlight in his face, or making it clear that the suspect had a bicycle) could also influence identifications.

Finally, Schooler would have testified that cross-racial identifications are less accurate than same-race identifications and that the confidence a witness has in an identification cannot predict whether the identification is accurate. All of that testimony is founded on more than two decades of research by social scientists who study perception and memory.

The trial judge decided that Schooler’s expert testimony would not be helpful to the jury because commonsense and experience teach jurors all the facts that Schooler would have given them. Valuable information suggestive of innocence was thus hidden from the jury. Brown appealed his conviction.

Appellate Decision

A key issue on Brown’s initial appeal was whether the trial court erred by failing to admit Schooler’s expert testimony. The issue arises with distressing regularity. Why judges think it is bad to allow jurors to hear expert testimony that is supported by abundant science is a mystery. Cynics might say that judges who exclude eyewitness identification testimony are biased in favor of the prosecution and want to create barriers against a robust defense to accusations that the judge has decided to believe.

In 2001, the Illinois Appellate Court rejected Brown’s challenge in an unpublished opinion. That court was far from alone in upholding the decision to deny a defendant the opportunity to call an expert witness. As one commentator noted, most appellate courts give judges the discretion to admit the testimony while routinely affirming a trial judge’s decision to exclude it.

Like the judge in Brown’s case, judges often claim that eyewitness identification experts testify about facts that are matters of common sense. Yet as a federal judge has warned, studies establish that “common sense” causes jurors to “rely on inaccurate assumptions and misconceptions when they assess the credibility of others. This renders the notion of ‘common sense’ as a tool for accurately deciding credibility not only a ‘myth’ but also a tool for ‘erroneous assessments of credibility’.”

Judges who value the scholarship provided by experts agree that lay jurors do not have the experience or data that is needed to overcome the “commonsense” belief that people are reliable reporters of what they see. In the words of Judge Easterbrook, jurors “who think they understand how memory works may be mistaken, and if these mistakes influence their evaluation of testimony then they may convict innocent persons.”

Postconviction Proceeding

More than ten years after losing his appeal, Brown sought postconviction relief based on his actual innocence. Brown presented new exonerating eyewitness evidence, the recantation of one of the original eyewitnesses, and alibi evidence. He also offered the testimony of Brian Cutler, another expert in eyewitness identification. Finally, he pointed to a 2016 Illinois Supreme Court decision that belatedly recognized the value of expert eyewitness identification evidence.

The 2016 decision acknowledged that the science of eyewitness identification is well established, strongly supported, and outside the ken of ordinary jurors. It also recognized the value of expert witnesses who can explain that science to juries. Yet the appellate court in Brown’s case decided that the state supreme court’s 2016 decision did not entitle a defendant to call an expert witness in every case.

In any event, the appellate court decided that Brown could not benefit from the 2016 decision because the supreme court’s decision did not bring about a “watershed” change in Illinois law. That opinion is doubtful.

Before the 2016 decision, appellate courts routinely gave their blessing to trial court rejections of expert eyewitness identification testimony. The 2016 decision made clear that expert testimony should usually be allowed as a component of the defendant’s due process right to fair trial. That seems like a change of seismic proportion — a watershed change intended to benefit a defendant like Brown, who could not have been convicted in the absence of the eyewitness identifications.

Unfortunately, the supreme court’s 2016 recognition that expert witnesses play a necessary role in educating juries about the perils of eyewitness identification came too late to benefit Brown. He may or may not be innocent, but it is plain that the denial of an expert witness assured he would not have a fair trial. Unless the state supreme court makes its 2016 decision retroactive, he will likely never have the benefit of a jury that has been informed by an expert witness.

Apple vs Samsung Expert Witness

Can an Expert Witness in a Criminal Case Give Remote Testimony?

As the COVID-19 pandemic continues to take lives, courts have been cautious about protecting trial participants from the risk of infection. Many trials have been delayed. When a criminal defendant is detained while awaiting trial, however, judges must weigh the defendant’s right to a speedy trial against the dangers of holding a trial.

Criminal trials are moving forward in many jurisdictions. Courtrooms have been reconfigured to allow mask-wearing jurors to practice social distancing. The number of observers allowed in the courtroom is typically limited. Yet problems arise when witnesses are unwilling to risk an infection by traveling during the pandemic.

Remote Testimony

In civil cases, many courts have permitted remote testimony of witnesses. In some instances, the testimony is taken in the form of a videotaped deposition prior to trial that is then played to the jury. In other cases, witnesses give live testimony through videoconferencing technology.

Remote testimony can be frustrating for a number of reasons. Low bandwidth can cause the audio or video feed of live testimony to freeze, interrupting the flow of direct or cross-examination. It is also more difficult for juries to assess the credibility of a witness on a television screen than a witness who is testifying from the witness chair.

Confrontation Clause Issues

Constitutional considerations come into play when remote testimony is requested in criminal cases. For example, suppose the prosecution wants to call a crime lab analyst as an expert witness. If the analyst has a health condition that increases the expert’s vulnerability an infection, the expert might ask to testify remotely. A court will likely be forced to deny that request.

In Crawford v. Washington, the Supreme Court held that the Confrontation Clause allows a defendant to insist that testimony be given in person. In Melendez-Diaz v. Massachusetts, the Court held that the results of forensic testing cannot be introduced in the form of a report unless an expert witness gives live testimony about the results.

The Supreme Court has not decided whether and when live testimony given from a remote location satisfies the Confrontation Clause. However, the Court decided in Coy v. Iowa that child witnesses could not be permitted to sit behind a screen while testifying because the Confrontation Clause demands face-to-face cross-examination. Although a later case carved out a narrow exception that permits a child witness to be shielded from the defendant while testifying in person, that exception applies only when a child witness would be traumatized by exposure to the accused.

When the prosecution wants to call an expert witness, the decisions in Crawford and Coy suggest that the witness will need to testify in person unless the defendant agrees to remote testimony. Expert witnesses are not children who will be traumatized by testifying in the defendant’s presence. The Confrontation Clause arguably gives defendants the right to look experts in the eye while the expert testifies.

Lower courts are nevertheless divided as to whether remote testimony in criminal cases is permissible under at least some circumstances. Courts generally agree that only circumstances implicating important policies would permit a prosecution witness to testify outside the presence of a defendant. Some courts have been willing to find that any circumstance more compelling than convenience can serve as an “important policy,” including protecting the health of a seriously ill witness.

The risk of a COVID-19 infection affects everyone who enters the courtroom, including the defendant. Since a prosecution expert will not usually be at greater risk than anyone else, it should be rare that a court will allow a prosecution expert to give remote testimony. Whether the rule is different for a defense expert witness was an issue that recently came before a judge in Yolo County, California.

Defense Expert Refuses to Testify in Person

Keith Whelan is charged in Yolo County Superior Court with multiple counts of having sex with a minor. The alleged victim reported in 2019 that the sexual contact had occurred regularly since 2016.

Whelan’s public defender asked to call two witnesses remotely. One was a social worker who had contact with the alleged victim after she made her allegations. The social worker lived in New York and did not want to travel to California to testify.

The public defender also wanted to call William O’Donohue from the University of Nevada as an expert witness. O’Donohue’s testimony was needed to respond to the anticipated testimony of Blake Carmichael, a prosecution expert who is expected to testify about child sexual abuse accommodation syndrome. O’Donohue has published research that criticizes the controversial syndrome as “junk science.”

O’Donohue advised the defense that he was willing to testify by Zoom but would not travel to testify in person. O’Donohue noted that he is an older man at high risk of becoming seriously ill if he is exposed to the novel coronavirus. O’Donohue also takes care of his developmentally delayed daughter and was concerned that travel would interfere with his parental responsibilities.

The judge initially noted that he had rejected the prosecution’s request for remote testimony in a different case, in part to avoid violating the Confrontation Clause. But the Confrontation Clause protects defendants, not the government.

The prosecutor argued that O’Donohue had provided an 80-page expert report and expressed concern about the ability to cross-examine him effectively over Zoom, given the anticipated length of his testimony. The judge expressed sympathy for that position, advising the public defender that while the court could be “accommodating to him given his age, we are socially distancing and we are all masking, all jurors, lawyers, and staff.”

Court’s Ruling

The judge asked the defense to file a formal motion and delayed making a final decision until a subsequent hearing. When court next convened, the prosecutor renewed her objection, claiming that “it will be impossible for the People to conduct cross-examination in a fair way to preserve our right to a fair trial and our right to due process.”

The prosecutor may have been confused. The Constitution protects the right to due process when a person’s life, liberty, or property may be taken by the government. The Constitution was designed to protect individuals from the government, not to protect the government from defense attorneys. The defendant’s constitutional right to a fair trial must always trump the government’s interest in a fair trial.

While continuing to express reservations, the judge made a conditional ruling that O’Donohue should be allowed to testify remotely. The judge recognized the importance of having a defense expert who could counter testimony given by the prosecution expert. Given the limited pool of experts and O’Donohue’s legitimate concerns about traveling during a pandemic, the court concluded that Whelan should be entitled to benefit from remote testimony.

The court left open the door for requiring in-person testimony if technical obstacles to remote testimony cannot be overcome. The court instructed the lawyers to contact the IT departments in their respective offices to determine whether the prosecution’s complaints about the limitations of Zoom can be overcome.

Perhaps using software that is specifically designed for courtroom video testimony would be a better option. The judge might also want to become familiar with best practices for using video conferencing in the courtroom. In any event, obstacles that can be overcome with even modest success should not prevent the defense from offering critical expert testimony in a criminal prosecution.


Prosecutor Receives Qualified Immunity for Flawed Investigation of Bitemark Evidence

While expert evidence about bitemarks is widely discredited as unreliable, it has played an unfortunate role in assuring the wrongful convictions of innocent defendants. A defendant in Pennsylvania whose conviction was overturned because (among other reasons) it was based on bitemark evidence sued the police and prosecutors for building a case against her that they knew to be baseless. The Court of Appeals for the Third Circuit was recently asked whether the prosecutor was immune from liability for the role he played in directing the bitemark evidence investigation.

Facts of the Case

In 2001, police officers in Connellsville, Pennsylvania found the body of Curtis Haith on a sidewalk. Haith had been beaten and shot. The police asked Nancy Vernon, the District Attorney for Fayette County, to come to the scene and direct the investigation.

Police investigators learned that Haith had hosted a party and attended other parties the night before his body was discovered. They found evidence of drug use in Haith’s apartment.

Interviews with people who attended Haith’s party prompted the investigators to contact Crystal Dawn Weimer. She appeared to have minor injuries. The investigators noticed mud and blood on her clothing.

Weimer told the police that she had given Haith a ride from one party to another. She then spent the rest of the night with her mother and sisters. They confirmed spending the night with Weimer, as did her boyfriend, Michael Gibson.

Weimer explained that the blood on her clothing came from a fight with Gibson. A DNA test confirmed that the blood came from Gibson. None of Weimer’s blood was found at the crime scene, although blood was discovered that came from an unidentified male.

Nearly two years later, a man Weimer had dated before Gibson, Thomas Beal, told the police that Gibson and Weimer killed Haith. Beal claimed that Weimer admitted that the blood on her clothing came from Haith. Since DNA testing had confirmed that the blood was not Haith’s, the police should have known that Beal was lying to them.

Bitemark Evidence

The state police then joined the investigation. They saw what they believed to be a bitemark on a photograph of Haith’s hand. A local dentist compared the photograph to the teeth of Gibson and Weimer and said she could not tell which of them bit Haith.

A bitemark “expert” then compared the photograph to dental impressions from Gibson and Weimer. The “expert” opined that Weimer caused the bitemark. When a question later arose about the timing of the bitemark, the “expert” proclaimed that the bite occurred seven to ten minutes before Haith’s death. He offered that opinion without conducting any additional research.

Beal later changed his story, implicating a man who was in prison at the time of the murder. The District Attorney nevertheless decided to pursue a murder charge against Weimer based on Beal’s first story and the opinions offered by the bitemark analyst.

A prison witness surfaced who claimed that the murder was committed by Weimer, Gibson, and Beal. That witness implicated another prisoner, Joseph Stenger, who supposedly wrote a statement confessing his participation in the crime. Stenger denied writing the statement.

Weimer’s Trial

The evidence against Weimer was obviously so inconsistent that no conscientious prosecutor would have believed that it proved guilt beyond a reasonable doubt. Three years after Haith’s death, police officers nevertheless prepared a criminal complaint charging Weimer with his murder. Vernon approved the complaint, leading to Weimer’s arrest.

According to the appellate court, “the case against Weimer fell apart almost immediately.” At a preliminary examination, Beal admitted that the police had coached him to give testimony implicating Weimer. A judge dismissed the charges because of that recantation.

Undeterred, the police again approached Stenger, hoping to obtain new evidence against Weimer. Stenger agreed to testify against Weimer in exchange for a reduced sentence. A jailhouse snitch who testifies in exchange for a reward should never be viewed as a credible witness, but Weimer was recharged on the strength of that dubious evidence.

Stenger and the state’s bitemark expert provided the only significant evidence against Weimer at her trial. A jury found her guilty in 2006.

Weimer’s Exoneration

In 2015, a judge determined that police and prosecutors acted improperly to obtain Weimer’s conviction. By that time, having obtained the benefit of his lie, Stenger was willing to admit that he knew nothing about Haith’s murder and that his testimony was prepared by the police.

Other jailhouse informants testified that they never asked for or received deals in exchange for their testimony. Weimer’s new lawyers discovered letters in the prosecutor’s file proving that the informants had, in fact, offered to trade favorable testimony for favors.

Critically, the bitemark expert also disavowed his trial testimony. The expert admitted that bitemark identification is junk science.

A defense expert reviewed Haith’s autopsy and photographs of Weimer’s injuries. The expert concluded that Weimer’s injuries were consistent with her statement that they occurred a few days before Haith’s death.

Based on the new evidence, a judge granted Weimer a new trial. Having no remaining evidence other than statements by obvious liars, the prosecution then dropped the charges.

Weimer’s Civil Rights Lawsuits

Weimer sued the county and city, several police officers, and Vernon for violating her civil rights. The legal theories she asserted against Vernon included malicious prosecution and the failure to intervene to prevent the police from violating her civil rights.

Vernon moved to dismiss the complaint on the ground that prosecutors are absolutely immune from liability for their official conduct in prosecuting a case. The trial judge agreed that Vernon could not be sued for actions taken in the prosecution phase of the case, but concluded that Vernon was not absolutely immune for actions she took when she directed the police in their investigation of Weimer.

The judge dismissed the malicious prosecution claim except to the extent that it was premised on the bitemark investigation. The judge allowed Weimer to amend her complaint to allege more specific facts about the role Vernon played in directing the investigation of the bitemark.

After Weimer amended her complaint, Vernon renewed his motion to dismiss. The trial judge denied the motion. The judge ruled that Weimer alleged sufficient facts that, if proved, would demonstrate that Vernon allowed the police to build a case that Vernon knew was meritless. Vernon appealed, contending that he was entitled to absolute or qualified immunity from liability.

Appellate Opinion

The Court of Appeals for the Third Circuit agreed that a prosecutor’s absolute immunity only extends to actions that are closely associated with the judicial phases of a prosecution, such as presenting evidence in court. Administrative or investigative actions do not entitle a prosecutor to absolute immunity.

The court agreed that Vernon’s conduct at the crime scene was investigative in nature. Vernon was also engaged in investigative duties while overseeing a police investigation that produced and relied upon conflicting statements. Vernon was not entitled to absolute immunity for those actions. She was, however, immune from liability for her decision to prosecute Weimer based on such shaky evidence.

The court nevertheless found that Vernon had qualified immunity from liability based on the claim that she failed to intervene in the police investigation. Qualified immunity is a controversial doctrine that shields government employees from liability for constitutional violations when the specific conduct for which they are sued has not been clearly established as the violation of a constitutional right. The court concluded that the right to have a prosecutor intervene to protect a defendant from a meritless prosecution had not been clearly established.

The appellate court also disagreed with the trial judge that Vernon had a clearly established duty not to tell the police to rely on the junk science of bitemark identification. Vernon realized that the mark on Haith’s hand might not have occurred on the day of his murder, so she asked the police to obtain expert evidence about the timing of the bitemark. The police returned to the expert who, without reviewing any new evidence, claimed to know that that the bitemark was caused shortly before his death. The prosecutor’s bad faith in relying on such doubtful evidence seems apparent.

The appellate court nevertheless decided that defendants have no clearly established constitutional right not to have prosecutors direct an investigation based on junk science. The court noted that during the 2002 to 2006 time frame, prosecutors often presented bitemark evidence in support of prosecutions. According to the court of appeals, the unreliability of bitemark evidence was not widely accepted until a few years later.

Prosecutors fought (and continue to fight) vigorously against the recognition that bitemark evidence is junk science. Their resistance to science that gets in the way of convictions explains why it took courts so long to agree that bitemark evidence is useless. Their success in convincing courts and juries to accept unreliable science shielded Vernon from liability for telling the police to obtain bitemark evidence from an expert who now concedes that his opinion was groundless.

Fortunately, Weimer will be able to continue her case against the police officers who allegedly coerced witnesses to change their stories and hid exculpatory evidence from the defense. When and if the case will settle or go to trial is yet unknown.


North Carolina

Internist Is Qualified to Give Expert Testimony About Hospitalist’s Standard of Care in North Carolina

Many states have adopted laws that limit the universe of potential experts who are permitted to testify about the standard of care in a medical malpractice lawsuit. The question before the North Carolina Supreme Court in Da Silva v. WakeMed was whether an internist is qualified to give expert testimony about the standard of care that should be exercised by a hospitalist. The court ruled that North Carolina law permits the testimony.

Facts of the Case

Before she was admitted to a WakeMed hospital, 76-year-old Dolores Pierce was taking prednisone, a prescription drug that treated her inflammatory disorder. She was admitted to the emergency room with symptoms that were diagnosed as a urinary tract infection.

Concerned that the infection had induced sepsis, a hospitalist ordered the antibiotic Levaquin to be administered intravenously. A known side effect of Levaquin is the increased risk of tendon ruptures in patients over the age of 60 and in patients who are taking prednisone or other cortical steroids.

Three hospitalists treated Pierce over the next few days. All three continued to prescribe Levaquin. They were all aware of Pierce’s age and they all continued to administer her daily dose of prednisone.

After a few days, Pierce was discharged to a rehabilitation facility. The hospitalists prescribed Levaquin and prednisone during the first four days of her stay in that facility, after which the Levaquin was discontinued. A few days later, Pierce completed her recovery and was discharged.

About a week after her discharge, Pierce ruptured her Achilles tendon. The rupture required a surgical repair, but Pierce never fully recovered. She died from pneumonia about ten months after the rupture.

Expert Testimony

The hospitalists who prescribed Levaquin for Pierce were board certified in internal medicine. The supreme court described hospitalists as “physicians who specialize in internal medicine in a hospital setting and care for hospitalized patients.”

Pierce’s estate sued the hospitalists for malpractice. They identified Dr. Paul Genecin as an expert witness regarding the applicable standard of care. Dr. Genecin is an internist who is licensed in Connecticut.

Dr. Genecin testified in a deposition that the hospitalists deviated from the standard of care by administering Levaquin to an elderly patient who was taking prednisone. A hospitalist’s standard of care, according to Dr. Genecin, would have required the hospitalist to understand the risk of an adverse drug interaction and to prescribe a different antibiotic. Dr. Genecin also testified that Pierce’s tendon rupture was caused by the interaction of prednisone and Levaquin.

The hospitalists urged the court to disqualify Dr. Genecin as an expert witness because he is an internist rather than a hospitalist. The trial court agreed with their strained interpretation of North Carolina law and disqualified Dr. Genecin. It then entered summary judgment against the estate because, with no expert witness to prove standard of care, the estate could not prove that the hospitalists were negligent.

The North Carolina Court of Appeals reversed the trial court in an unpublished decision. The hospitalists then asked the North Carolina Supreme Court to decide whether internists are qualified to give expert testimony about the standard of care that applies to hospitalists.

North Carolina Law

As is true in many states, North Carolina passed a law that makes it difficult for injured patients to find expert witnesses who will testify on their behalf. Rather than allowing a court to apply the traditional test of an expert’s qualifications — whether the expert has sufficient knowledge, skill, training, or experience to help the jury understand an issue in the case — many states narrow the range of experts who are allowed to testify in medical malpractice cases.

A North Carolina statute specifies that a medical expert who testifies in a lawsuit against a specialist must either specialize in the same field of medicine or “in a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients.”

To satisfy North Carolina law, the expert must also have, within the prior year, devoted the majority of his or her time to the active clinical practice of the same or similar specialty as the defendant or to teaching students in that specialty.

Appellate Decision

Dr. Genecin was board certified in internal medicine, as were the hospitalists. Dr. Genecin testified that a hospitalist is a doctor who is hired to practice the specialty of internal medicine on a full-time basis in a hospital. According to Dr. Genecin, “hospitalist” is merely a job title that describes an internist who works in a hospital.

The defendants presented no evidence to contradict Dr. Genecin’s testimony. The supreme court declined to determine whether hospitalist and internist are two terms that describe the same specialty, but the court had no difficulty concluding that the terms describe similar specialties.

Dr. Genecin explained that when internists treat hospitalized patients, they are doing the same work as hospitalists. Dr. Genecin regularly performs the same duties as hospitalists, including treating hospitalized patients, reviewing the patient’s history, interpreting test results, making referrals to other specialists, prescribing medications, and checking for adverse medication interactions.

Dr. Genecin serves as an attending physician in a hospital for two months each year. He admits and discharges patients and performs all of the other duties that hospitalists perform.

Dr. Genecin also testified that dozens of times each year, he treats hospitalized women in their 70s who suffer from serious infections, including urinary tract infections. The undisputed evidence established that Dr. Genecin had performed the procedures that, according to the complaint, were performed negligently by the hospitalist defendants. Since that evidence was undisputed, the court concluded that Dr. Genecin’s practice included the treatment of patients who were similar to Pierce.

It is difficult to understand why the trial court thought that the description of a doctor who practices internal medicine as a hospitalist rather than as an internist was a reason to disqualify Dr. Genecin as an expert witness. The supreme court determined that Dr. Genecin satisfied the requirements of North Carolina law. It therefore reversed the summary judgment against Pierce.

Lesson Learned

Finding a doctor who will testify against another doctor is always challenging. State laws protect doctors from the consequences of their negligent acts by imposing expert witness requirements that enhance the challenge of finding a suitable expert.

The court’s decision provides relief for plaintiffs’ lawyers in their search for medical malpractice experts. In a state like North Carolina, lawyers should look beyond the job titles of the defendant doctors and ask what duties they perform. A physician with a different job title might be qualified to act as an expert witness under state law if the expert performs those same duties as the defendant, particularly if the expert and the defendant doctor are board-certified in the same field of medicine.


a doctor and a child

Judges Disagree Whether Expert Testimony Established that Vaccinations Caused SIDS

The U.S. Court of Appeals for the Federal Circuit recently considered the testimony of two expert witnesses who disagreed whether vaccinations caused a baby’s death. A majority of the panel that heard the case agreed with the Court of Claims that the parents’ expert witness failed to establish causation. A dissenting judge questioned whether the burden should instead be placed on the government to prove that the vaccinations did not cause the death.

Vaccine Injury Compensation

The National Vaccine Injury Compensation Program (VICP) is administered by the Department of Health and Human Services (HHS). The VICP is described as “a no-fault alternative to the traditional legal system for resolving vaccine injury petitions.” The government, rather than the vaccine manufacturer, pays compensation to individuals who are injured by a vaccination.

The “no-fault” label means that injury victims need not prove that the vaccine manufacturer was negligent. Victims must nevertheless prove that the vaccine caused an injury before compensation can be paid.

Congress created the VICP in the 1980s to protect the pharmaceutical industry from lawsuits that allegedly threatened to cause vaccine shortages. Congress intended VICP to assure adequate supplies of vaccines. Government production of vaccines would be an alternative to allowing drug companies to reap profits while taxpayers absorb risks, but substituting the government for a profit-making enterprise was not a politically palatable option.

In the last few years, the VICP has “paid out an average of $229 million a year to patients and their families.” That statistic is often quoted by conspiracy theorists who promote false claims about the dangers associated with vaccinations.

Facts of the Case

Individuals who believe they have been harmed by a vaccine can file a claim with the VICP. After reviewing the claimant’s medical records, a team of doctors will recommend that compensation be paid or denied. A denial can be litigated in “vaccine court,” the colloquial term given to the U.S. Court of Claims when it hears cases under the VICP. The court appoints a Special Master to recommend that the claim be approved or rejected.

Baby J.J. received several vaccinations during a well-baby examination at the age of four months. The next morning, J.J.’s parents discovered that J.J. was unresponsive. J.J. was rushed to the hospital, where he was pronounced dead.

According to the appellate opinion, the undisputed cause of J.J.’s death was Sudden Infant Death Syndrome (SIDS). As the dissent pointed out, SIDS is not a cause of death. It is “an announcement that the cause is unknown.”

J.J.’s parents petitioned for vaccine injury compensation. The case was eventually assigned to a Special Master who held an entitlement hearing. To receive compensation, J.J.’s parents needed to prove that a vaccine caused J.J.’s SIDS.

To prove causation, J.J.’s parents needed to present (1) a medical theory showing that one of the vaccines J.J. received is capable of causing SIDS; (2) “a logical sequence of cause and effect showing that the vaccination was the reason for the injury”; and (3) evidence that SIDS occurred in close proximity to the vaccination.

Expert Testimony

J.J.’s parents relied on the expert testimony of Dr. Douglas Miller. The claim was opposed by HHS, which relied on the expert testimony of Dr. Christine McCusker. Both doctors are well qualified and both have testified in other VICP proceedings.

Dr. Miller relied on a medical theory known as the Triple Risk Model. It was undisputed that J.J. satisfied the first two prongs of that theory. J.J. was a vulnerable infant, in part because he had a defective brainstem. J.J. died during a critical developmental period of life.

The third prong of the Triple Risk Model requires evidence of an exogenous stressor. An exogenous stressor is an external factor that is capable of causing the patient’s injury. Dr. Miller testified that vaccines can cause SIDS by inducing the immune system to produce proteins known as cytokines, which impair the brain’s ability to rouse the body from sleep in response to elevated levels of carbon dioxide.

Dr. McCusker testified that Dr. Miller’s theory was unsupported by the current state of medical knowledge regarding the production, transportation, and effect of cytokines. She also testified that Dr. Miller’s theory was undermined by the fact that J.J. had a defective brainstem. She concluded that a normal brainstem is necessary for cytokines to affect the brain. Dr. McCusker offered no alternative explanation for J.J.’s death.

The Special Master found that Dr. Miller failed to establish that a transport mechanism exists that would carry cytokines to the brain. The Special Master also agreed with Dr. McCusker than a normal brainstem would be required for Dr. Miller’s theory to operate.

Claims Court Decision and Appeal

The Claims Court reviews the decision made by the Special Master. In this case, the Special Master recommended a denial of compensation because J.J.’s parents did not prove that the vaccinations caused SIDS. The Claims Court accepted that recommendation. The court found that the Special Master made reasonable determinations regarding the credibility and reliability of the expert witnesses and applied the law correctly. It therefore dismissed the claim.

The Court of Appeals for the Federal Circuit noted that Dr. Miller had relied in an earlier case on the same Triple Risk Model to link vaccinations to SIDS. In that case, the court faulted the Special Master for accepting an “unsound and unreliable theory that constitutes a significant extension of the Triple Risk Model.”

The court rejected the argument that medical knowledge supporting a relationship between SIDS and vaccinations had advanced in the short time that passed between the court’s earlier rejection of Dr. Miller’s theory and his reliance on that theory in J.J.’s case. The court also accepted the Special Master’s finding that J.J.’s defective brainstem undercut Dr. Miller’s theory.

The court concluded that the Special Master acted reasonably in deciding that Dr. Miller failed to prove that a transport mechanism exists that allows cytokines to cross the blood-brain barrier. The Special Master gave greater weight to Dr. McCusker’s testimony than to Dr. Miller’s. Since the Special Master was in a better position to judge the credibility of the two experts, the court of appeals deferred to the Special Master’s findings.

Finally, the court acknowledged that suspicious timing — a SIDS death less than 24 hours after receiving vaccinations — raised a concern that the vaccinations caused the death. The court noted the “significant medical uncertainty surrounding SIDS” and acknowledged the possibility that vaccinations could have caused J.J.’s death. But possibilities and suspicions, the court held, do not meet the standard of proof required by the VICP.

Dissenting Opinion

The dissenting judge read the VICP to shift the burden of proof to the government when it is reasonably possible that a vaccination caused a harm. A healthy baby’s death within hours of receiving vaccinations creates a reasonable possibility that the vaccinations caused the death.

The dissent concluded that the purpose of the VICP (to award quick and generous compensation to victims of vaccine-related injuries) would best be advanced by requiring the government to prove that the vaccinations did not lead to J.J.’s death. In the dissent’s view, the statute requires the government to prove an “unrelated cause” of death when the claimant offers evidence of a causal relationship between the vaccination and a subsequent injury. Dr. McCusker offered no other cause to explain a healthy baby’s death.

While scientific advances in the understanding of SIDS are encouraging, the dissenting judge recognized the continuing lack of concrete knowledge as to the specific mechanisms that cause the unexplained deaths of babies. The judge concluded that it is inconsistent with the purpose of the VICP to expect an expert to testify about the specific ways in which vaccines cause SIDS.

It is enough, in the dissenting judge’s view, for an expert to determine that the vaccine caused the death, an opinion that can be based on the absence of any other likely cause for a death that quickly follows the administration of a vaccine. If the government expert cannot establish a different cause of death, the claimant should prevail.

The unfortunate fact is that medical experts, for all their value, can only base opinions on the current state of medical knowledge. It may be that, some years from now, the opinions of either Dr. Miller or Dr. McCusker will be vindicated by further research. In the meantime, whether the burden should be on claimants to prove the specific means by which a vaccination caused a death, or on the government to prove that a vaccine did not cause a death that quickly followed a vaccination, is a question that will continue to divide judges unless and until it is resolved by the Supreme Court.


Maryland Adopts Daubert

In 1978, the Maryland Court of Appeals (Maryland’s highest court) decided Reed v. State. That decision adopted the Frye standard as Maryland’s approach to determining the admissibility of expert testimony. The issue before the Maryland Court of Appeals in the recent case of Rochkind v. Stevenson was whether to abandon the Frye-Reed standard in favor of the Daubert standard.

Frye Versus Daubert

The “Frye standard” is the shorthand used to describe the holding of Frye v. United States, a 1923 decision of the Court of Appeals for the D.C. Circuit. The court in Frye decided that helpful expert testimony should be admitted into evidence if it is based on principles that are generally accepted by other experts in the same field.

In the years following the Frye decision, critics pointed out that the Frye standard only allows the admission of opinions that are rooted in the past. Opinions based on new or novel theories that have not yet gained general acceptance might be excluded from evidence despite their validity. Despite its shortcomings, the Frye standard was adopted by most courts in the years that followed.

In 1992, the U.S. Supreme Court decided that the federal rules of evidence created a new standard. Again named after the case that created it, the Daubert standard opens the door to expert opinions that are grounded in reasonable methodologies even if those methodologies have not yet gained general acceptance.

The Daubert standard has also been criticized. Much of the criticism stems from the inconsistent roles that federal judges play as gatekeepers when they decide whether expert opinions are admissible. Some judges view Daubert as broadening the admissibility of evidence. In their view, if a jury could view the expert’s methodology as reasonable, even if new or novel, the jury should decide whether the expert’s opinion should be credited.

Other judges view the Daubert standard as protecting juries from questionable expert opinions that, in the judge’s view, are based on unsound methodologies. Those judges tend to view themselves as more capable than jurors of deciding whether an expert opinion is consistent with valid principles of science.

Some scholars conclude that whether a court uses Frye or Daubert has little impact on the ultimate decision whether to admit expert testimony. In any event, there is little doubt that adopting Daubert comes with a price. Challenges to admissibility under Daubert often trigger evidentiary hearings that delay trials and increase the cost of litigation. On the other hand, courts that once routinely admitted expert evidence in criminal cases that was based on generally accepted but unsound methodologies may be less receptive to flawed science when they use the Daubert standard.

Facts of the Case

Against that background, the Maryland Court of Appeals has repeatedly been asked to join the trend of replacing Frye with Daubert. It finally did so in the Rochkind decision.

More than two decades ago, Charlena Montgomery moved into a home with her 10-month old daughter, Starlena Stevenson. She rented the home from Rochkind.

Starlena lived in that property for 15 months. Paint was chipping from the walls. Tests revealed that Starlena had an elevated level of lead in her blood. She had a lower level of lead in her blood two months after moving out of the property. Testing at Rochkind’s property revealed the presence of lead-based paint on multiple surfaces.

Starlena suffered from learning disabilities and psychological disorders since childhood. At the age of 20, she sued Rochkind, alleging that her difficulties were caused by the ingestion of lead-based paint chips. The evidence convinced multiple juries that Rochkind was negligent in failing to remove flaking lead-based paint from the walls before leasing the property to tenants.

Expert Testimony

Starlena relied on the expert opinion of Cecilia Hall-Carrington, a pediatrician. Dr. Hall-Carrington prepared a report concluding that Ms. Stevenson was poisoned by lead and that her lead poisoning was a significant contributing factor to her neuropsychological problems.

The trial court rejected a motion to exclude Dr. Hall-Carrington’s testimony that the lead Starlena ingested came from Rochkind’s property. The court ruled that her opinion was based on reliable sources of information and was therefore admissible under Maryland law.

The court also rejected a motion to exclude opinion testimony that lead consumption caused Starlena’s behavioral problems. The court ruled that Dr. Hall-Carrington’s opinions were admissible because they were based on generally accepted science regarding the relationship between lead and neuropsychological impairments.

The case went to trial. Dr. Hall-Carrington testified about studies that, in her view, linked lead consumption to Attention Deficit Hyperactivity Disorder (ADHD). Since ADHD was Starlena’s primary diagnosis as a child, Dr. Hall-Carrington opined that the lead consumption caused that condition. She also noted that Starlena was treated with Adderall, which studies link to depression and hallucinations. Dr. Hall-Carrington testified that treatment of her ADHD with Adderall was the underlying cause of Starlena’s depression and delusional behavior.

Starlena prevailed and was awarded more than $1 million in damages. The court ordered a new trial on damages. After a second trial, Starlena was again awarded more than $1 million. That verdict was reversed on appeal because Dr. Hall-Carrington did not adequately explain why she concluded that an Environmental Protection Agency study supported her belief that lead consumption causes ADHD.

Prior to the third trial, the judge ruled that Dr. Hall-Carrington could give essentially the same testimony but could not mention the term “ADHD.” The court declared a mistrial when the doctor uttered the forbidden phrase. During the fourth trial, Dr. Hall-Carrington did not use the terms “ADHD” but linked Starlena’s attention deficit, hyperactivity, and impulsivity to the consumption of lead. This time the jury awarded $3 million. Rochkind again appealed.

Appellate Opinion

The court of appeals concluded that the Frye-Reed standard “holds a confusing grip on Maryland bench and bar.” The court notably avoided blaming itself for causing the confusion. Nor did the court explain why Daubert is any less confusing. Given the varying interpretations of Daubert, one could argue that judicial disagreement about how to apply a standard for admitting expert testimony causes more confusion than the standard itself.

The court noted that Maryland law has drifted in the direction of Daubert, adding language from Daubert and its progeny to the state’s Frye-Reed standard. Maryland courts, for example, began to exclude opinions when the expert could not close the “analytical gap” between the data that the expert relied upon and the conclusion that the expert drew.

Maryland also loosened the Frye-Reed standard to permit evidence based on novel scientific processes that had not been generally accepted if the processes were based on generally accepted principles of science. Conversely, Maryland courts concluded that general acceptance of scientific processes (such as comparative bullet lead analysis) is insufficient to support admissibility if there was no general acceptance of the scientific principles upon which the processes were founded.

In addition to nudging the Frye-Reed standard in the direction of Daubert, Maryland courts decided that the state evidence code, which required expert opinions to be based on sufficient facts, also required opinions to be based on a reliable methodology. Daubert makes reasonably clear that facts and methodology are two distinct elements that underlie expert opinions. Maryland courts took an aggressive step in the direction of Daubert by interpreting “sufficient facts” to mean “sufficient facts plus a reliable methodology.”

The court decided that the time had come to jettison its drifting precedent and to adopt Daubert outright. It therefore remanded Starlena’s case for yet another trial, but only if the court determined that Dr. Hall-Carrington’s testimony satisfied the Daubert standard.

The Dissent

Three judges dissented. They did not believe that this was the right case in which to “pick a side” between Frye-Reed and Daubert. They noted that Rochkind appealed after the second trial, that the trial court relied on the Frye-Reed standard on remand, and that Starlena again prevailed. Her case has gone to verdict three times. According to the dissent, changing the standard of expert witness admissibility in a case that has been appealed once before, after the trial judge applied the standard dictated by the appellate court, “would undermine the finality and predictability of the court system.” Fairness to Starlena, however, did not seem to be uppermost in the mind of the court’s majority.

The dissent also pointed to studies demonstrating that application of the Daubert standard “disproportionately and negatively affects claimants of color.” The dissent concluded that the discriminatory impact of Daubert should be studied and that any change in the admissibility of expert opinions should be adopted by rule with prospective application, after placing litigants on notice of the rule that will apply in their case.

Finally, the dissent noted that the trial court concluded that Dr. Hall-Carrington based her opinion on sufficient data and a reliable methodology. Dr. Hall-Carrington relied on a variety of records to support her conclusion that Starlena suffered from attention deficit problems, hyperactivity, and impulsivity. She also relied on research showing a causal link between lead exposure and cognitive deficits as well as disorders relating to attention, impulsivity, and hyperactivity.

It is unclear whether the outcome would be any different using a Daubert analysis. The trial judge generally made findings that are required by Daubert and may well decide to admit Dr. Hall-Carrington’s testimony again. If so, there will be a another trial and, unless the jury differs from the first three juries to consider the evidence, Starlena will likely prevail again.


California Law Legal System Concept

Expert Witness Testimony Improperly Tossed Out

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

The Death

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

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

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

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

Superior Court

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

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

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

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

California Court of Appeals

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

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