Category Archives: Working with Experts

#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.

 

Late Disclosure of Expert Witnesses in Divorce Trial Leads to Order Barring Their Testimony

Jeffrey and Julie Nelson were involved in a divorce proceeding that lasted longer than their four-year marriage. After five earlier appeals from provisional orders pending the final hearing, an appeal of the final outcome was seemingly inevitable.

One of the sticking points involved the value of Jeffrey’s interest in oil leases. Julie testified about Jeffrey’s ownership of those interests and presented expert testimony about their value. Jeffrey did not testify but offered expert testimony of his own. The trial court decided that Jeffrey’s expert was not qualified and therefore declined to consider his opinion.

The day before the final day of trial, Jeffrey disclosed two new experts. One would have testified that Julie’s expert overvalued the oil leases. The other would have testified about the amount and sources of Jeffrey’s income.

Julie had served an interrogatory upon Jeffrey that asked for the disclosure of experts. Julie contended that Jeffrey should have supplemented his interrogatory answers to disclose the two new experts. The court agreed with Julie that the disclosure of those experts on the day prior to the last day of trial came too late. The court excluded the experts from testifying as a discovery sanction. Jeffrey appealed and the Indiana Court of Appeals affirmed the judgment.

Late Disclosure of Experts

On appeal, Jeffrey apparently did not take issue with the trial court’s decision that his original expert was not qualified to render an expert opinion. Rather, he contended that the court should not have excluded the experts he proffered during the trial.

The hearing took place on six days between November 2018 and July 2019. Julie’s expert testified on June 25, 2019. Jeffrey complained that he did not have enough time between June 25 and July 12 (the last day of trial) to retain new experts. Jeffrey argued that he did not recognize the need for expert testimony until Julie’s expert gave valuation testimony that Jeffrey realized was clearly wrong.

The appellate court characterized Jeffrey’s argument that he did not anticipate the need for expert testimony as “baffling.” Jeffrey knew that Julie contended the oil leases were marital property that was subject to division. He knew the court needed to place a value on property that it divided. He apparently knew that he would not be relying on his own testimony to establish their value, given his decision not to testify.

It is difficult to understand why Jeffrey did not know in advance of trial the opinions that Julie’s expert would offer. If Jeffrey did not engage in discovery, that choice would not excuse his failure to anticipate the need to call his own expert witnesses.

The appellate court was unsympathetic with the claim that Jeffrey had too little time to find an expert. He should not have waited until Julie’s expert testified to begin his search. Under the circumstances, the trial judge did not abuse his discretion in excluding Jeffrey’s experts due to Jeffrey’s belated disclosure of their identities.

Lessons Learned

The trial court was plainly influenced by its belief that Jeffrey’s late disclosure was an obstructive litigation tactic. The court characterized Jeffrey as having “repeatedly interrupted, obstructed, embarrassed, and prevented the due administration of justice in these dissolution proceedings.”

Obstructive tactics will never endear a litigant to a judge. The lesson to learn is that lawyers should make diligent efforts to learn what expert testimony an opposing party will present, to locate experts who can present more favorable testimony (if any exist), and to respond to a request to disclose experts in a timely manner.

Utilizing Handwriting Experts: They’re Only as Good as the Samples You Provide

A forensic document examiner is better known as a handwriting expert. They come into play when one person says that another person signed some document — a contract, a lease, a will, a power of attorney, a promissory note, etc. — but the second person, or his or her representative, denies that he or she did. At that point, it may be necessary to have an expert examine the purported, or claimed, signature, to see if it is — or is not — that person’s signature.

How do they do this? They compare the purported signature to known or uncontested examples of that person’s signature, to see whether, and to what extent, they match. That means that the samples, known as “exemplars,” provided to the expert are critical: as in the old computer-related acronym GIGO, or “garbage in, garbage out,” poor or inadequate samples will result in a weak, erroneous, or easily neutralized (by the other side) expert opinion.

What Do Experts Look for When Analyzing a Signature?

First, a quick primer on what forensic document examiners look for when comparing signatures. Obviously, they look at the shape of the letters — does the “A” in the purported or questioned signature match the “A” in the known exemplars of that person’s signature, for example. But that’s only the start of the analysis: they also look at (among other things) —

  • The slant of the signature: does it slant right or left, upward or downward?
  • The weight or thickness of the lines
  • Whether it rests on, above, or below the signature line, and how far below the line any extensions of letters (like the lower part of a “p” or “g”) go
  • Do the loops or curls appear to have been drawn counterclockwise or clockwise?
  • Where are the starts and stops in the signature?
  • How “fluid” is the signature, and does it appear to have been drawn in one smooth move, like a well-practiced signature would be, or does it look like there were hesitations, as if someone were trying to copy something they are unfamiliar with?
  • The handedness — was it evidently made by a righty or lefty?

There are many elements to the analysis, and two signatures can look superficially the same but yet show significant inconsistencies on deeper examination. That’s why good exemplars are critical: you need samples that will let the expert do a deep, detailed analysis of multiple elements of the signature.

People Don’t Sign Things the Same Way Every Time

Complicating the handwriting expert’s job is that people do not sign things the same way every time. To begin with, people sign differently depending on how “formal” or “informal” the document is. We take more care on “weighty” documents that affect our rights than we do on documents carrying few or no consequences, and that means that we tend to take more time signing, and have a more legible signature, on formal (important) documents than on informal (less or unimportant ones). Think about signing an apartment lease or contract to buy a home or your will. Now contrast that with scrawling your signature on the receipt for take-out pizza or even the sign-in sheet in a courtroom and you’ll understand the difference. Is your signature the same in these different contexts? Almost certainly not.

Second, we tend to sign things we sign all the time differently than we sign one-off or uncommon documents. With things we sign all the time — cover letters; checks — we run on autopilot; with less-familiar documents, we often think about them more, and that thinking introduces a hesitation into, and therefore alters, our signature.

Third, the amount of space you have to sign will alter your signature: if you normally have an expansive signature but are now cramming it into a form’s small signature box, that will change letter forms and spacing.

Fourth, signatures change over time. Just as we are not static or unchanging — we learn, we grow, we change — so, too, does our signature change over time. Look at a document you signed 10 or 20 years ago and compare it to how you sign today — it’s virtually certain that even your inexpert eyes will see differences.

Fifth, the conditions under which we sign affects how we sign: when you’re in a rush, or tired, or had too much coffee or some wine, you will sign differently than on those occasions you are unhurried, unrested, and unaffected by what you’ve been drinking.

And sixth — we’re not robots. We simply do not do things the exact same way every time, even when we do something several times in quick succession under the same or similar circumstances. Take out your pen and sign your name five times; even though the five signatures should be very similar, they are not 100{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} identical. That’s because we’re human, not Siri or Alexa.

What Makes for a Good Exemplar?

Because signatures change over time, you want to provide your expert with exemplars that are as contemporaneous as possible with the signature being examined. If, for example, someone claims that your client signed a document 20 years ago giving that person a life estate in a home (which was the issue in the author’s most recent experience with forensic document examiners), then you want to provide your expert with signature samples from 20 years ago, or as close to that time frame as possible.

Because we sign formal and informal documents differently, if the questioned signature is on a formal document — something like a deed, a lease, a will, etc. — you want to provide samples of similarly formal documents. And conversely, if the questioned signature is on an informal document, be sure to provide informal exemplars.

Because we tend to sign document types we sign day-in and day-out differently than we sign unusual or uncommon documents, try to provide exemplars of the same, or at least similar, type(s) of document(s). And because the amount of space for signature affects how we sign, try to provide exemplars which have similarly sized signature lines or blocks.

Quantity Has a Quality All Its Own

Remember, our signatures are never identical, even when we sign two documents in close succession: there is always some natural variation. In a sense, none of us have “a” single signature; what we think of as our signature is really the current “average” of how we sign documents. Sometimes the letters of our signature will be slightly larger, sometimes slightly smaller; sometimes closer together, sometimes wider apart; sometimes more legible, sometimes less; etc. Any one sample of your signature will almost certainly not match 100{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} any other single sample. Therefore, you want to provide multiple samples, so that as the expert examines exemplar after exemplar, he or she can derive the common elements and compare those fundamentals of the person’s signature to the signature in question.

But Don’t Forget Quality

The expert needs to be able to see the signature’s elements clearly. Originals are better than copies, since there is no “blurring” due to the copying process and certain aspects (like, for example, the pressure used by the signor when signing) are more easily seen in originals. If you can’t provide an adequate number of originals, provide the best-quality copies you can — for example, “first generation” copies of originals, not copies of copies, since with each successive copying, detail and crispness is lost.

Summing It Up: What You Should Provide Your Expert as Exemplars

When trying to determine if person A did or not sign a certain document, provide as many samples as possible of how A signed similar documents (similar level of formality or import; similar type of document; similar space for his or her signature) at the same or a similar point in time as the document in contention. The more, the better: 60, 70, or more exemplars are not too many, because you want your expert to be able to confidently state that he or she has identified the fundamental elements of that person’s signature, explain them to the court, and state whether those same elements are (or are not) found in the questioned document.

A failure to provide enough, or relevant enough, or sufficiently high-quality exemplars will leave your expert vulnerable on cross examination. Opposing counsel who knows what they are doing will be able undercut your expert’s conclusions by showing that the exemplars are from sufficiently different types of documents or circumstances or time periods that they are not relevant; or perhaps they will show that there were insufficient exemplars as to draw firm conclusions; or that the exemplars are of such low quality that no fair comparison can be made.

No matter their academic qualifications or experience, a forensic document examiner’s opinion is only as good as the samples they have to work with — give them what they need to help your case.

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.

 

Zoom Meeting

How to Conduct an Online Deposition of an Expert Witness

Social distancing makes cramming at least four (deposing attorney; other side’s attorney; expert witness; court reporter) and often more people into a conference room for hours on end inadvisable, even when it’s legal (i.e. when your state’s executive orders aren’t outright banning having so many unrelated persons in a room together). We don’t know how long this will go on, but smart money says that minimizing in-person contact will be with us for at least another year or more, until there’s a vaccine (knock wood). Under the current circumstances, much business — including legal business (up to and including hearings and trials) — is being conducted via Zoom or its videoconferencing equivalent. Even after a COVID-19 vaccine is widely available, there are good reasons why remote depositions will often make sense, such as minimizing travel time and therefore legal and expert expenses, or being better able to accommodate various parties’ disparate schedules, and opening up the universe of potential experts to ones who are not local.

For all these reasons, deposing experts by Zoom is becoming a must-have skill for attorneys’ toolboxes. Everything not affected by not having the participants in the same room remains the same: e.g. how to qualify experts, how to lay the foundation for their deposition, the questions to ask, the usual reservation of all objections other than as to form of question, etc. That said, there are significant adjustments you’ll have to make to the usual expert deposition “script.”

Most of the additional questions or instructions come from the fact that you have less control over a remote deposition than one conducted in-person — you only see what the laptop camera sees, and so the expert could have colleagues, confederates, representatives of the opposing party, or others right there in the room with him or her, or otherwise feeding the expert answers or suggestions on an iPad or tablet or via a separate (and invisible to you) window on the computer or the expert’s phone. If you want to imagine what the expert could be up to, think about your last Zoom meeting and whether you were watching anything else, doing any work, or talking to or corresponding with anyone else while you were in the meeting. Now multiply that by 10, since the expert and the party hiring him or her has a real incentive to cheat, not just boredom causing one to multitask or seek diversions.

Additional Instructions

For You:

  • Make sure all parties share all exhibits at least two business days in advance, so they can be pre-marked.
  • Make sure that everyone, including the deponent, has a full hard copy of all exhibits in advance.
  • Test the “meeting” and the recording of it ahead of time (and not just 10 minutes before showtime; test it days or a week ahead, to allow time to work the bugs out) — nothing is worse than conducting the greatest expert deposition of your career but then finding out that nothing recorded.

For the Court Reporter: Make sure that you confirm not only that the deposition will be recorded but that the video will only show the expert being deposed. As vain as you may be, you don’t need your face muddying the videographic record.

For the Expert: The following should be stated at the outset and agreed to by the expert and also repeated or reiterated as necessary; see the “Additional Questions” below, which indicate places where you might reiterate certain instructions.

  • “The device on which you are participating, whether computer or phone, should have no other windows or applications open or running while this deposition is ongoing, unless and only if I have specifically given you permission to use other software or another application and have identified the software or application you may use.”
  • “You should not have any other computers or telecommunication devices ‘on’ and with you. Please turn off any other devices or remove them from the room during this deposition unless you identify the devices to me and I give you permission to have them with you and ‘on’.”

(In some cases — e.g. an expert who’s also a parent and needs to be reachable by his/her offsite children or their caregiver — you’ll have to allow them to have a phone with them and on. But in that case, you can ask them to position the phone so it is the camera’s field of vision, so that you can see if they are using or checking it.)

  • “You should not have any chat boxes or ‘messenger’ apps open at this time and if you do, please close them.”
  • “You should not have anyone else in the room with you during this deposition other than the party hiring you or representatives of that party, or the attorney(ies) for the party hiring you. If there is any other person or persons in the room with you, even family members, please ask them to leave at this time.”
  • “If anyone else comes into the room during this deposition, you are to notify me at once.”
  • “If you are using a laptop, tablet, or phone for this deposition, please pick it up and pan it around the room, so I can see the entirety of the room.”
  • “Please adjust the camera on the device you are using so that I can see your entire upper body, including your hands.”

Further Questions

Before you launch into anything substantive, you have to get the following questions in to protect the integrity of the process — feel free to change the exact wording to better capture your own style. Where there is something that you have to “fill in” so it’s accurate for your deposition — like the name of the software or app being used — we’ll put it in square brackets in italics.

  • “I want to confirm that we are engaged in a deposition and that we are doing so remotely; is that correct?”
  • “I also want to confirm that we are taking your deposition remotely due to [insert reason; e.g. COVID-19 and social distancing]; is that correct?”
  • “Are you aware that the parties have agreed to take your deposition remotely via [name of software or app being used]?”
  • “I want to confirm that we are using [name of software or app] to conduct your deposition; is that correct?”
  • “What kind of device are you using to participate in this deposition? Please identify it as precisely as possible.”
  • “Do you have any other windows or applications open, including but not limited to messenger apps or email?”
  • “If you have any other windows or applications open, what are they?”
  • (If they have any other windows or apps open, once they have identified them, reiterate the instruction to close them)
  • ‘Do you or anyone in the room with you have any other computer or telecommunication devices with you at this time? If so, please identify them to me.”
  • “If you have any other computers or telecommunications devices with you, are they currently ‘on’?”(If they have other devices, reiterate instructions to turn them off and/or remove them.)
  • “Has anyone asked you to have any messenger software or apps open during this deposition, and, if so, who?”
  • “Is any [insert name of software or app being used for the deposition; e.g. Zoom) ‘chatbox’ open? (Reiterate instructions to close all such software, apps, or chat boxes.)
  • “Where are you physically located? Please identify the state, county, municipality or unincorporated area, address, and the location or room within that address. Be as specific as possible.”
  • “Is anyone else physically in the room with you? If so, please identify them.”
  • “Will you immediately tell me if anyone enters or leaves the room?” (If there is anyone else in the room, reiterate instruction to have all other persons leave, unless the only other person(s) are the other party(ies) and/or the other party’s(ies’) attorney[s].)
  • “If I ask you a question, do you agree that you will not check your email, your texts, any messenger apps, any social media, or otherwise communicate with anyone — including counsel for the party hiring you or that lawyer’s client — to answer the question?”

Remember: the purpose of an expert deposition is only half exploratory — to learn what the expert knows, thinks, and will testify to. The other half is to create record which can use to pin the expert down or impeach him or her. If you don’t do that — if you don’t create a clear, unequivocal record  —you will have wasted your time and your client’s money.

Photo by Allie on Unsplash

No Expert Needed for Improper Morphine Injection Claim in Nevada

The Nevada Supreme Court has ruled that the “common knowledge” exception to the affidavit requirement for professional negligence claims against a health care provider can be applied to determine whether a claim constituted negligence.

The Accidental Death

Mary Curtis was a resident at Life Care Center of Las Vegas nursing home. Life Care Center was contracted to administer the professional services necessary to maintain Curtis’s physical and mental health.

While Curtis was under Life Care Center’s care, licensed nurse Ersheila Dawson mistakenly administered to Curtis 120 milligrams of morphine that had been intended for another patient. Nurse Dawson soon realized her mistake and reported it to her supervisor. Under physician’s orders, Life Care Center administered Narcan, another drug, to Curtis to counteract the morphine. Life Care Center decided not to send Curtis to the hospital at this time; instead, it monitored her vital signs.

The following day, Curtis’s daughter, Laura Latrenta, came to Life Care Center to check on her mother. Latrenta found her unresponsive. Curtis was taken to the hospital, where she passed away two days later. Curtis’s death certificate lists morphine intoxication as the cause of death.

The Negligence Suit

Latrenta sued Life Care Center as Curtis’s heir and the representative of the estate. The estate brought claims against Life Care Center: abuse and neglect of an older person, wrongful death, and tortious breach of the implied covenant of good faith and fair dealing. The estate did not assert claims for professional negligence, name Nurse Dawson as a defendant, or file an expert affidavit.

Life Care Center filed a motion for summary judgment, arguing that although the estate hadn’t specifically asserted professional negligence claims, that was the essence of the claims. Under Nevada law, any lawsuit for professional negligence must be filed along with an affidavit that supports the allegations in the action, is submitted by a medical expert who practices or practiced in that area, identifies the negligent defendant by name, and specifically sets forth the specific acts or acts of negligence. Nev. Rev. Stat. 41A.071

The district court agreed with Life Care Center’s characterization of the claims as sounding in professional negligence. Because the estate had failed to file a supporting medical expert affidavit, the district court dismissed the case. The estate appealed.

The Nevada Supreme Court

On appeal, the estate argued that it was excused from complying with NRS 41A.071 because its claims against Life Care Center were for ordinary and not professional negligence or that the common knowledge exception applied. Therefore, an expert affidavit was not required.

The Nevada Supreme Court determined that the estate’s complaint was based on two underlying allegations: (1) that Nurse Dawson administered morphine to Curtis that had been prescribed for another patient, and (2) Life Care Center failed to properly monitor and care for Curtis.

The court ruled that the second claim was based on professional negligence, but that that the first claim was a claim for ordinary negligence. The court reasoned that there was no professional judgment in administering the morphine; the nurse had simply given Curtis the wrong drug. The court ruled that the act of administering another patient’s morphine to Curtis was an ordinary negligence claim and therefore the estate was not required to submit an expert affidavit to pursue a negligence claim for this act. This could also be characterized as the “common knowledge” exception to the rule that an expert witness is required to prove professional negligence.

 

Choosing the Right Expert Means Asking the Right Questions

Court Requires Disclosure of Memorandum Discussing Expert’s Methodology

In most cases, a retained expert must prepare a report that states the expert’s opinions, as well as the facts and reasoning that supports those opinions. Yet expert reports do not appear out of the blue. Experts may labor over the report for weeks, treating them as works in progress that evolve over time.

The finished draft of an expert report must be disclosed, as well as certain underlying data. A continuing issue in the law is whether other documents, including prior drafts and communications with an attorney about the report, must also be disclosed. A federal magistrate recently ruled that a memorandum about methodology that an expert wrote for his own use and shared with an attorney is subject to disclosure.

The Work Product Doctrine and Expert Reports

Law students who struggle to stay awake during dry lectures about civil procedure will eventually encounter the work product doctrine. While simple on its face, the work product doctrine compounds the confusion surrounding the obligation to comply with discovery requests.

Under the federal rules, parties may not discover materials that were prepared by or for an attorney in preparation for litigation. However, the rule must be read in light of other discovery rules, including the obligation to disclose reports prepared by experts who will testify at trial. Those reports are plainly prepared for attorneys to assist in litigation, but the reports were both mandated and made discoverable by a 1993 amendment to Rule 26.

The 1993 amendment also allowed discovery of “data or other information” upon which the expert relied in forming opinions. Courts issued confusing and contradictory rulings about whether communications between an attorney and an expert were discoverable as “other information.” Many courts also required disclosure of preliminary drafts of the report in addition to the final report.

Lawyers responded by instructing experts not to produce drafts prior to the final report, for fear that the drafts would include statements that contradict statements made in the final report. Since reports typically evolve over time as experts refine their thinking or incorporate new data, experts expressed frustration that lawyers did not understand how they work.

The rules committee eventually concluded that disclosure of attorney interactions with experts inhibited “collaborative interaction” with experts because attorneys feared disclosure of “their most sensitive and confidential case analyses.” Experts also complained that limiting their communications with the attorneys who hired them impaired their ability to perform high quality work.

Rule 26 was modified in 2010 to address those concerns. The amended rule requires disclosure of “facts or data considered by the witness” in forming expert opinions and “assumptions” that the attorney who retained the expert communicated to the expert if the expert relied upon those assumptions. The changes were meant to exclude disclosure of communications with lawyers that provided theories of the case or the lawyer’s mental impressions. The new rule also provided that the work product privilege protects prior drafts of an expert report from disclosure.

Expert’s Memorandum in Hernandez Lawsuit

Angel Hernandez, a Major League umpire, sued the Commissioner of Baseball for national origin discrimination. Hernandez complained that, despite his seniority, he was not promoted to crew chief and was never selected to umpire the World Series.

Hernandez identified Gregory Baxter as an expert witness and disclosed Baxter’s expert report. The Commissioner took Baxter’s deposition.

When asked if he had reviewed any documents in preparation for the deposition, Baxter testified that he had reviewed a memorandum that he wrote to himself but did not include in the expert report. Baxter testified that the memorandum described his methodology for deciding whether comments about Hernandez were positive or negative and for determining whether statements made in Hernandez’s year-end review were supported by Umpire Evaluation Reports.

Baxter prepared the memorandum weeks after he finished the expert report. He testified that he wrote it because he expected to be deposed about his methodology. He also testified that Hernandez’ attorney did not ask him to prepare the memorandum.

Baxter based the memorandum on notes that he made to himself while preparing the report. He destroyed those notes after he finished the memorandum.

At some point, Baxter gave the Memorandum a title, referring to it as a “supplement” to the “expert report methodology.” He sent the memorandum to Hernandez’ attorney with the subject line “Proposed Supplement to Baxter’s Expert Report.”

The Commissioner moved to compel production of the memorandum. Hernandez resisted on the ground that the memorandum was work product and not discoverable.

Magistrate’s Decision

The memorandum was not an earlier draft of the expert report because it was created after the expert report was finished. Hernandez argued that it was nevertheless a draft of a new or supplemental report.

The magistrate decided that the work product privilege applies to drafts of expert reports that are “required” by Rule 26. No supplemental report was required in this case, so the privilege did not apply to the memorandum. In addition, since no part of the memorandum was actually included in the required report, the memorandum cannot be regarded as a draft of the report that was submitted.

The court also noted that the work product privilege is designed to protect an attorney’s mental impressions, conclusions, opinions, or legal theories, not those of the expert. Since Hernandez’ counsel did not ask Baxter to prepare the memorandum, it did not qualify as attorney work product.

The court rejected the argument that the memorandum was a privileged communication between expert and attorney. While Baxter’s affidavit stated that the memorandum was prepared in anticipation of discussing methodology with Hernandez’s attorney, it was not created as a communication to an attorney.

The fact that Baxter sent the memorandum to an attorney did not “change its character at inception.” To hold otherwise would result in any document becoming privileged merely because the document was sent to an attorney.

Lessons Learned

The court emphasized that an expert’s “notes to himself do not qualify for protection” as work product. Notes are not drafts of a report unless they are intended for later inclusion in the report. Nor are notes made by an expert for the expert’s own purposes protected as communications to an attorney even if they are eventually sent to an attorney.

Experts should be cautioned that if they prepare notes for their own purposes, other than as drafts of portions of an expert report, those notes are likely discoverable. Experts should therefore be careful about preparing notes that they would not want a party in the case to review.

 

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.

 

Lawyer Allowed to Testify as Expert Witness in Fraud Prosecution

Lawyers (some more than others) are experts in the law, but they rarely testify as expert witnesses. Legal malpractice cases, in which expert testimony is needed to establish a lawyer’s standard of care, provide one of the few opportunities for a lawyer to testify as an expert.

But lawyers in malpractice cases do not explain the law to juries. Rather, they explain the actions a prudent lawyer should take or avoid in light of prevailing professional standards.

In most cases, lawyers may not testify as experts on the law. The only expert who can explain the law to the jury is the presiding judge. The judge provides that explanation through jury instructions, not testimony.

A federal criminal case spotlights an unusual instance in which a lawyer was allowed to explain fiduciary duties imposed by state law, the breach of which was relevant to a federal prosecution for fraud. The Court of Appeals for the Third Circuit rejected an appellate challenge to the admission of that expert testimony.

Facts of the Case

Renee Tartaglione was charged with 53 crimes related to defrauding a community clinic and for failing to report income earned from the fraudulent acts. Tartaglione, described in the press as a “member of a longtime Philadelphia political dynasty,” was the president of the board of the Juniata Community Mental Health Clinic.

Prosecutors convinced a jury that Tartaglione caused the nonprofit clinic to pay exorbitant rent for buildings that she and her husband controlled. Prosecutors offered evidence that she used the rent proceeds to remodel her own home and to fund her lifestyle.

Prosecutors also presented evidence that Tartaglione was responsible for a bogus drug treatment program aimed at low income people. The crimes were charged in federal court because the clinic primarily served Medicaid recipients.

The jury convicted Taraglione after a nineteen-day trial. Noting that Taraglione had betrayed the public trust by misappropriating money from a taxpayer-funded program, the judge sentenced Taraglione to 82 months in prison. She appealed, challenging the prosecution’s use of a lawyer as an expert witness.

Expert Testimony Regarding Non-Governing Law

The prosecution called the Deputy Attorney General of Pennsylvania, Mark Pacella, as an expert witness. While a prosecutor who testifies for another prosecutor might have an inherent bias, the question of bias is usually for a jury to consider. Potential bias, by itself, does not typically disqualify expert witnesses, although on rare occasions judges have excluded experts because of their financial interest in the case or because their history of extreme bias renders their opinions unreliable.

Pacella “explained the legal and regulatory framework for Pennsylvania charitable nonprofit corporations, including the fiduciary duties imposed on board members and directors of such organizations.” Since the judge could have explained fiduciary duties in jury instructions, the question before the appellate court was whether the expert testimony violated the rule that lawyers cannot generally testify as experts in the law.

While recognizing the general rule, the court noted that an exception permits legal experts to testify about “non-governing law” if the testimony will assist the jury. The exception usually applies to the law of a foreign country.

Rule 26.1 of the Federal Rules of Criminal Procedure allows a court to consider relevant testimony about foreign law. At least one legal scholar has bemoaned the use of legal experts to testify about domestic law that a trial judge is fully capable of understanding and explaining.

The appellate court nevertheless concluded that a “non-governing law” exception to the general rule covers “applicable legal duties, especially when those non-governing laws help explain fraudulent intent.” Pacella explained the clinic’s Articles of Incorporation and the legal distinction between a for-profit and a charitable nonprofit corporation. The court decided that the testimony did not cover governing law.

Expert Testimony Regarding Fiduciary Duties

More troubling was Pacella’s testimony about the “fiduciary duties of care and loyalty applicable to directors and officers of such organizations under Pennsylvania law.” The court decided that those duties were not “governing law” because they arose under Pennsylvania law and Tartaglione was not charged with violating Pennsylvania law. The court thought it was noteworthy that Pacella testified that Pennsylvania does not criminalize the breach of a fiduciary duty.

The court’s analysis is questionable. Since prosecutors used Pacella’s testimony to argue that a breach of state law fiduciary duties evidenced a violation of federal law, Pennsylvania law “governed” the very conduct that prosecutors deemed fraudulent.

It is difficult to understand the relevance of Pacella’s testimony if not to define legal duties that governed Tartaglione, the breach of which gave rise, at least in part, to federal charges. The court acknowledged that the testimony was offered to support the argument that Tartaglione’s breach of a governing fiduciary duty proved her intent to commit fraud.

The court cited no on-point precedent, probably because most trial judges do not allow prosecutors to call another prosecutor as an expert witness to bolster their case. The court likened Pacella’s testimony to background evidence about scientific principles, but the issue was whether a lawyer can be called as an expert to explain the law, not whether a scientist can be called as an expert to explain science. If the court is the only expert on the law, it is difficult to understand why the explanation of Pennsylvania law governing Tartaglione’s fiduciary duties should not have come from the court rather than an expert witness.