Category Archives: Working with Experts

Potential Bias of Expert Witness Does Not Create Exception to Florida’s “Learned Intermediary” Doctrine

After being diagnosed with a pelvic organ prolapse, Charlotte Salinero elected to have an abdominal sacrocolpopexy, a procedure that uses a graft to support the top of the vagina. The surgery was performed by Dr. Jaime Sepulveda in 2012.

While the patient’s own tissue can be used as a graft, it is common to perform the procedure using a synthetic mesh. In 2011, the FDA warned that “serious complications associated with surgical mesh for transvaginal repair of [pelvic organ prolapse] are not rare.”

The warning advised physicians that “it is not clear that transvaginal [pelvic organ prolapse] repair with mesh is more effective than traditional non-mesh repair . . . and it may expose patients to greater risk.” Complications typically arise when the mesh erodes, leading to pain, infection, bleeding, and other health concerns.

Dr. Sepulveda elected to implant Artisyn Y-Mesh, a product made by Ethicon, a subsidiary of Johnson & Johnson. Dr. Sepulveda discussed surgical risks with Salinero but did not disclose or discuss his decision to choose Artisyn Y-Mesh as the material he would use for the graft.

Surgical mesh materials can lead to adhesions that cause organs and tissues to stick together. A few years after her surgery, Salinero developed a rectovaginal vesical fistula, a condition that occurs when the rectum or bladder becomes connected to the vagina.

Dr. Sepulveda removed the implant and separated the adhesion of Salinero’s bladder and rectum. Dr. Sepulveda was able to remove the mesh in one piece, apart from two small segments that he subsequently removed. Salinero continued to experience debilitating complications after the surgery that she attributed to the Artisyn Y-Mesh.

Florida’s Learned Intermediary Defense

Salinero sued Ethicon, alleging that a polypropylene mesh is “biologically incompatible with human tissue and promotes an immune response in a large subset of the population.” Among her other claims, Salinero alleged that the Artisyn Y-Mesh “Instructions for Use” did not adequately warn of the risks associated with the implant.

The lawsuit was filed in a federal court in Florida. The court applied Florida law regarding the duty to warn patients of risks associated with a medical device. Under Florida law, a medical device manufacturer only has a duty to warn the physician who chooses the device, not the patient who receives it. The physician is regarded as a “learned intermediary” between the manufacturer and the patient.

As a learned intermediary, the physician weighs the risks and benefits of a particular medical device when deciding whether to recommend it for the patient’s needs. To bring a successful failure to warn claim against a manufacturer, the patient must prove that the physician would not have chosen the device if the physician had been adequately warned.

The court granted summary judgment in Ethicon’s favor because Dr. Sepulveda testified in a deposition that he was fully apprised of the risks associated with the Artisyn Y-Mesh, that he believed his decision to use the Artisyn Y-Mesh was appropriate even in hindsight, that his implantation of the Artisyn Y-Mesh was the best option, and that he would do it again. That deposition testimony made it impossible for Salerno to establish that Dr. Sepulveda would not have implanted Artisyn Y-Mesh if he had been given any additional information about the risks associated with the product.

Learned Intermediaries Who Act as Expert Witnesses

Salerno appealed. Salerno argued that the “learned intermediary” rule assumes that doctors are objective evaluators of medical evidence who put the interests of their patients ahead of the interests of medical device manufacturers. In their view, Dr. Sepulveda did not qualify as a learned intermediary.

For decades, Dr. Sepulveda has had a financial relationship with Johnson & Johnson, the parent company of Ethicon. In addition to being paid as a consultant on product evaluations and mesh trials, he has served as an expert witness for Johnson & Johnson in more than twenty cases. Over the years, Johnson & Johnson has paid Dr. Sepulveda more than $2 million.

Given that financial relationship, it would be reasonable to question whether Dr. Sepulveda would act as an objective intermediary when deciding whether to recommend a Johnson & Johnson product to a patient. Testifying that he would have recommended a different product if the warning had been adequate might have placed a lucrative income stream at risk.

Given his financial interest, a jury might question Dr. Sepulveda’s credibility when he testified that he received adequate warnings and that he would have performed the procedure using the same mesh if the warning had been more complete. A doctor who is paid millions of dollars by a company might be satisfied with inadequate warnings while a doctor with no financial incentive to support the company might testify differently.

The “learned intermediary” doctrine may work to the disadvantage of patients who retain doctors who worked as expert witnesses for medical device manufacturers. Salerno accordingly argued that a physician who is paid for expert testimony by a company cannot stand as a learned intermediary between the company and an injured patient.

No “Financial Interest” Exception

The Court of Appeals for the Eleventh Circuit affirmed the summary judgment. The federal court noted that Florida courts have not been asked to recognize a “financial bias exception” to the learned intermediary rule. When a state court has not decided a controlling question of state law, federal courts usually try to decide how the state court would decide the issue.

Federal courts in other states have declined to apply the learned intermediary doctrine when there is evidence that the intermediary might be biased. Others require evidence of actual bias. The Eleventh Circuit declined to follow those decisions on the ground that the Florida Supreme Court would probably reject them. The evidence of how the Florida Supreme Court would decide the issue is nevertheless slim.

In a different context, the Florida Supreme Court decided that the learned intermediary defense does not apply when the manufacturer “provides an incentive to the intermediary to withhold the necessary information from the consumer.” In the Eleventh Circuit’s view, paying a doctor to act as an expert witness more than twenty time does not provide an incentive to the doctor to look the other way when warnings about a medical device might be inadequate. A jury might think otherwise.

Regardless of how a jury might view the credibility of a doctor who earsns significant income testifying as an expert for a medical device manufacturer, the court of appeals essentially held that all doctors can be trusted to do what’s right. Since the Florida Supreme Court has not decided the precise issue before the court, the Eleventh Circuit declined to adopt an exception to the learned intermediary doctrine that Florida courts have not adopted.

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Expert’s Testimony About Behaviors that Are Common to Chat Room Participants Who Engage in “Age Play” Deemed Inadmissible

The Colorado Court of Appeals relied on a New Yorker cartoon to illustrate the issue it confronted in People v. Battigalli-Ansell. The cartoon features a dog at a keyboard telling another dog, “on the internet, no one knows you’re a dog.”

The internet site Omegle is essentially a chat room. The site connects users randomly and encourages them to engage in anonymous conversation. Users probably won’t chat with a dog, but they might be connected to someone who has created a false persona. The site encourages users to “have fun” and does not require them to disclose their true identity.

David Battigalli-Ansell began chatting with a user who identified herself as “Brooke.” Brooke claimed to be a fourteen-year-old girl. Omegle does not require users to be adults, so it was possible that the user was telling the truth. Battigalli-Ansell is an adult.

Battigalli-Asell and Brooke exchanged sexually suggestive messages. Brooke then sent Battigalli-Asell her telephone number. To confirm that the person to whom he was chatting was actually a female and not a male engaged in role playing, Battigalli-Ansell texted the number and asked Brooke to send him a picture. In response, he received a picture of an 18-year-old woman. Battigalli-Ansell then sent Brooke a picture of his penis.

A Colorado statute makes it illegal to invite, by means of a computer network, “a person whom the actor knows or believes to be under fifteen years of age and at least four years younger than the actor, to . . . observe the actor’s intimate parts.” Battigalli-Asell was charged with violating that law.

At trial, Battigalli-Ansell testified that he assumed Brooke was a role-playing adult. If he actually made that assumption, he was correct. “Brooke” was a part played by an adult male law enforcement officer. The picture that “Brooke” sent Battigalli-Ansell was a picture of an adult intern. At no time did Battigalli-Ansell communicate with a 14-year-old.

The statute, however, makes it unlawful to send an intimate picture by text or internet message if the sender “believes” the recipient to be under the age of 15. The prosecution contended, and the jury agreed, that Battigalli-Ansell believed Brooke was a 14-year-old girl based on the law enforcement officer’s false representations about his true identity.

Exclusion of Expert Testimony

The question of what Battigalli-Ansell believed is difficult to answer. Nobody can read minds. The jury knew that Battigalli-Ansell was told that Brooke was 14, but it also knew that Battigalli-Ansell received a photo of an 18-year-old that purported to be a photo of Brooke. It is not beyond the realm of possibility that Battigalli-Ansell believed he was talking to an adult female who was playing the role of a 14-year-old girl.

To bolster his defense, Battigalli-Ansell retained an expert witness. Marty Klein, a licensed marriage and family therapist and certified sex therapist, proposed to testify that:

  • scientific studies establish that fantasy role playing is a normal part of human sexual interaction;
  • millions of adults play erotic games centered around age play;
  • fantasy age play does not necessarily indicate a desire to have sex with actual minors or to repeat role-playing behaviors outside the realm of fantasy;
  • transcripts of the chats in which Battigalli-Ansell engaged with “Brooke” are consistent with fantasy age play by an individual who has no desire to move the fantasy behaviors to reality; and
  • “the normalcy of sexual fantasies is not well understood in the general population and . . . often intimate partners fail to recognize and accept, without therapeutic help, the benign nature and normalcy of such fantasies in their partners.”

The trial court agreed that Klein could explain the nature of fantasy role playing in the context of a chat room. The court also allowed Klein to give “brief testimony that sexual fantasies about adult and adolescent sex partners are common and are not abnormal,” but did not permit more extensive testimony on the ground that it would be “a needless waste of time, might create confusion and would not be helpful to the jury.”

In particular, the judge excluded the testimony summarized in the bullet points above. However, when the prosecutor asked Klein on cross-examination whether people “fantasize about having sex with children,” the question opened the door to additional testimony. The court allowed Klein to testify on redirect that people fantasize about sex with “teenagers” and that “fantasies about having sex with minors [do] not predict . . . sexual behavior with minors.”

Battigalli-Ansell was convicted. He based his appeal, in part, on the exclusion of Klein’s full opinions.

Appellate Opinion

Battigalli-Ansell argued on appeal that Klein offered additional opinions in his expert report that were improperly excluded. However, the trial judge expressly asked whether Klein would be offering opinions other than those summarized in the bullet points above. Battigalli-Ansell’s counsel said that he would not. That statement waived the right to challenge the exclusion of other opinions.

The appellate court agreed that the opinions described in the bullet points were inadmissible. The question before the jury was whether Battigalli-Ansell believed he was sending an intimate photo to a person who was 14 years old. According to the court, whether fantasy role playing is a normal part of sexual interaction, whether millions of Americans engage in age play, and whether age play is a predictor of pedophilia are not opinions that shed light on Battigalli-Ansell’s beliefs.

It is true that pedophilia was not an issue in the case. Pedophilia is, by definition, a condition that describes an attraction to prepubescent children, not to 14-year-olds.

In any event, it is unlawful in Colorado to send an intimate picture to a 14-year-old, whether or not the sender is a pedophile. Whether Battigalli-Ansell actually wanted to have sex with the recipient of the photo was not relevant. Sending the photo to someone whom the sender believes to be a minor (even if the belief is mistaken) is unlawful regardless of the sender’s desire to have contact with the recipient.

On the other hand, the normalcy of age play does tend to make Battigalli-Ansell’s position easier to understand. A jury that does not know that age play is widespread might conclude that “nobody would do that.” Evidence that millions of people do, in fact, play fantasy games is relevant because it would tend to make the jury understand that Battigalli-Ansell might be part of that very large group.

Improper Comment Upon Credibility

Klein’s key opinion was that transcripts of the chat were “consistent” with fantasy age-play. The appellate court noted that prosecution experts in child sexual assault cases often testify that an allegedly abused child’s behavior (such as failing to report abuse) is consistent with the behavior of child abuse victims. Klein’s opinion that the chat was consistent with behavior observed by fantasy role players was arguably admissible on the theory that experts are generally allowed to educate jurors about common behaviors of individuals that are outside the ordinary experience of most jurors.

The court nevertheless observed that prosecution experts cannot give opinions about perceived behaviors of child abuse victims that tend to bolster the alleged victim’s credibility. Courts generally prohibit testimony when an expert’s testimony would suggest that the expert believes a child is telling the truth. The veracity of a witness is not a proper subject of expert testimony. The court saw no reason not to apply the same rule outside the context of sexual assault cases.

The issue that the court confronted is tricky. Testimony that a person’s behavior was consistent with behavior that is common to a particular group does not invariably suggest that the expert believes a witness is telling the truth. Police officers routinely testify that a driver’s behavior was consistent with the behavior of drunk drivers. Courts routinely admit that testimony on the theory that it assists the jury, even if it might suggest that the officer disbelieved the driver’s claim to be sober. There is no obvious reason to disallow expert testimony that signals a belief that a witness is telling the truth while allowing testimony that signals a belief that a witness is not telling the truth.

The court acknowledged that the “line between opinion testimony that improperly bolsters a witness’s credibility and admissible testimony that may only collaterally enhance the witness’s credibility is sometimes a difficult one to draw.” Experts who testify about the prevalence of delayed reporting by child sexual assault victims might be seen as bolstering the credibility of a child who delays reporting an alleged assault, but that testimony is routinely permitted. Doctors often diagnose health conditions by determining that a patient’s symptoms and behaviors are consistent with those of other patients who suffer from a particular condition. When doctors testify about a diagnosis that is based on symptoms disclosed by the patient and on consistency with other patients who have the same condition, the doctor signals a belief that the witness is telling the truth about her symptoms.

The court nevertheless concluded that Klein was bolstering Battigalli-Ansel’s testimony by stating that Battigalli-Ansel acted in conformity with the behavior of people who engage in age play. According to the court, Klein was signaling his belief that Battigalli-Ansel was telling the truth, at least in part because “Klein was not acting as a ‘cold’ expert —one who ‘knows little or nothing about the facts of the particular case, often has not even met the victim, and has not performed any forensic or psychological examination of the victim,’ and who educates the jury regarding certain general characteristics.” Klein’s testimony was accordingly inadmissible.

Lessons Learned

Courts are notoriously inconsistent in deciding whether an expert can opine that a person’s behavior was consistent with behaviors seen in members of particular groups. Battigalli-Ansel might have been better served by an expert opinion that simply avoided using the words “consistent with.” It isn’t clear whether Klein ever met Battigalli-Ansel, but establishing that he was a “cold” expert might have improved the chance of making his opinions admissible.

The court suggested that the outcome might have been different if Klein had confined his testimony to explaining “what characteristics of a dialogue generally inform his determination that the dialogue is ‘consistent with’ role-playing, as opposed to opining on the nature of the specific communications between Battigalli-Ansell and ‘Brooke’.” Unfortunately, the opinion does not make clear whether the trial judge gave Battigalli-Ansell the option to introduce more limited testimony. Had the trial judge parsed the testimony as carefully as the appellate court, Klein might have been able to give the limited testimony that the appellate court thought would be proper.

It is always perilous for experts to testify that the behavior of one person is “consistent with” the behavior of a group of persons. Unless precedent clearly establishes that such testimony is not an inadmissible comment upon credibility, experts might want to couch their opinions in terms that avoid making such comparisons.

Medical Malpractice Sex Assault Case Fails for Lack of Expert

A patient who claims that her medical provider touched her inappropriately during an exam lost her medical malpractice suit because she didn’t have an expert witness to testify about the appropriate standard of care.

The Alleged Assault and Battery

In September 2016, Erica Vipond had a medical appointment with Lance Beebout, a physician’s assistant with Heartland Orthopedics Specialists.  Vipond had been experiencing knee pain, shooting pain in her back and legs, and numbness and tingling.

Vipond claims that during the examination, Beebout instructed her to remove all of her clothing from the waist up, including her bra, to examine her for scoliosis.  Vipond claims that Beebout did not leave the room while she undressed and that he instructed her to bend over and straighten her back several times, while her clothes were removed.  After she was fully clothed and on the exam table, Vipond claims that Beebout examined her spine and lower body.  Allegedly, the exam included Beebout touching Vipond on the front of her pelvic bone and on the inside of her leg near her pelvic area.

Minnesota District Court

Vipond sued Beebout in Douglas County District Court, alleging that Beebout had committed tortious assault and battery against her during the examination.

Vipond submitted an affidavit from expert witness Mark R. Halstrom, M.D.  The affidavit stated that Dr. Halstrom had read the complaint, that he was “familiar with the standard of care” for such situations, and that Beebout had “deviated from the applicable standard of care and by that action caused injury to Vipond.”

Beebout filed a motion to dismiss, arguing that the affidavit did not meet the specificity requirements of Minn. Stat. § 145.682.  The district court agreed and dismissed Vipond’s claims.

Minnesota Court of Appeals

Vipond appealed.  On appeal, the Minnesota Court of Appeals noted that Minn. Stat. § 145.682 requires an expert witness affidavit to “contain specific details of the plaintiff’s claims, including (1) identification of any experts expected to testify, (2) ‘the facts and opinions to which the expert is expected to testify,’ and (3) ‘a summary of the grounds of each opinion.’”

Vipond argued that no expert testimony was required at trial to make a finding of malpractice because her claims fell “within the general knowledge or experience of laypersons” or that Dr. Halstrom’s affidavit was sufficient.  The court disagreed.

The court ruled that an expert affidavit was necessary because all of the alleged conduct occurred during a medical examination and an average layperson would not be equipped to know whether this examination fell outside the standard of care.  The court also ruled that Dr. Halstrom’s affidavit was insufficient to satisfy the disclosure requirements of Minn. Stat. § 145.682 because he failed to state what the applicable standard of care is or how it was violated.  He also failed to identify any facts that he used to formulate his opinion, aside from referencing that he read the complaint.

The Minnesota Court of Appeals affirmed the dismissal of Vipond’s complaint.

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Child Abuse Pediatrician Removed from Roster of Expert Witnesses After Making False Statements in Court

Medical experts can play a significant role in diagnosing child abuse. As medical science has evolved, however, the judicial system has come to realize that expert testimony about whether an injury or death was caused by abuse can be problematic.

Medical experts are not present when an injury occurred and have no firsthand knowledge of its cause. To decide whether an injury was caused accidentally or intentionally, experts must engage in deduction. The line between deduction and speculation can be exceedingly thin.

Until recently, a pediatrician in Tacoma was regarded as one of Washington’s leading child abuse experts. Authorities believed she had an uncanny ability to detect “subtle” signs of child abuse. Unfortunately, “subtle” evidence is usually synonymous with “ambiguous” evidence. The pediatrician’s opinions have been called into question, in part because she provided untrue information about her expertise.

Dr. Elizabeth Woods

Government authorities in Washington routinely relied on Dr. Elizabeth Woods to provide expert opinions about child abuse. Those opinions provided the foundation for criminal proceedings and for civil actions to remove children from their parents.

Until recently, Dr. Woods was the director of the child abuse intervention program at Mary Bridge Children’s Hospital in Tacoma. On several occasions, Dr. Woods’ professional opinions were controversial.

In one case, Dr. Woods opined that a mother had abused her 5-year-old daughter by seeking excessive and harmful medical treatments. Authorities responded by removing the 5-year-old and the mother’s 8-year-old (who was never alleged to be a victim) from the mother’s custody.

In another case, Dr. Woods concluded that a 2-year-old child’s bruise was caused by abuse. Although her opinion contradicted a pediatrician’s opinion that the bruise was consistent with the parent’s explanation that the child accidentally fell on a heating grate, authorities who regarded Dr. Woods as a child abuse expert removed the child from the parent’s home.

Those cases and others were the subject of an extensive investigation by NBC News and one of its affiliates. NBC discovered that Dr. Woods “lacks key medical training for assessing potential abuse cases.”

Lack of Credentials

In some cases, the results of child abuse are so obvious that most pediatricians can readily determine that injuries could only have been inflicted with the intent to harm the child. In other cases, the evidence is less clear.

Pediatricians who specialize in child abuse now receive extensive training that helps them identify abuse. In addition to general training in pediatrics, a child abuse pediatrician completes a 3-year child abuse pediatrics fellowship. The physician must then pass an examination to become board certified in child abuse pediatrics.

In the case of the 5-year-old who was allegedly subjected to unnecessary treatment, Dr. Woods admitted on cross-examination that she did not complete the medical fellowship that is required to specialize as a child abuse pediatrician and was not board certified in the field. She claimed that the training is unnecessary.

While the necessity of specialized training might be a matter of opinion, Dr. Woods also testified about facts that are simply untrue. Dr. Woods testified that there “are approximately 250 of us nationwide that function as child abuse consultants” and “a very small minority of those have received training.” She also claimed that she had not completed the training because it was first offered three years before she testified.

NBC reported that the child abuse subspecialty was created in 2009, while Dr. Woods was still in medical school. NBC also reported there are 375 certified child abuse pediatricians in the United States, all of whom either completed the training or were allowed to take the board exam based on years of experience prior to the 2009 creation of the subspecialty.

The pediatrician who determined that a child’s bruise was consistent with accidentally falling on a grate was astonished that child welfare authorities accepted Dr. Woods’ claim that the bruise was caused by abuse. The authorities claimed they believed Dr. Woods because of her “extensive training,” prompting the pediatrician to ask, “Where’s the extensive training?”

How Training Shapes Opinions

Certified child abuse pediatricians have been trained not to give opinions that exceed the bounds of medical knowledge. For example, Dr. Woods prepared a report that claimed two young parents probably abused their child because, in her opinion, they didn’t display an appropriate emotional reaction when they learned that their baby had suffered several fractures. Medical knowledge does not allow a doctor to identify abusers by their emotional reactions. In any event, certified child abuse pediatricians are trained to understand that their role is to identify abuse, not to identify the abusers.

In another case, Dr. Woods reported that twin babies who suffered multiple fractures must have been the victim of abuse because “a motor vehicle collision” would be the only possible alternative cause of those injuries. Dr. Woods identified no medical basis for that opinion, but child welfare authorities accepted it without question and removed custody of the children from their parents.

Three medical experts later concluded that the fractures were probably caused by a mineral deficiency that weakens bones, a potential cause that Dr. Woods failed to identify. A well-trained specialist would have ruled out all potential alternative causes of the injuries rather than jumping to the conclusion that they resulted from abuse.

Having appropriate training is important because child welfare authorities generally defer to medical experts. If an expert claims that an injury was likely caused by abuse, child welfare authorities tend to err on the side of protecting the child. That often means removing children from their parents, even if the parents are entirely innocent. Authorities who base decisions on suspicions rather than solid evidence often harm, rather than help, the children they are charged with protecting.

Slow Response

Hospital leaders were slow to recognize that Dr. Woods held herself out to be an expert in the absence of credentials possessed by actual experts. A spokesperson for Mary Bridge Children’s Hospital claimed that Dr. Woods “has treated thousands of children over her many years of dedication to this field.” There is a difference, however, between treating an injured child and determining the cause of the injury. The fact that Dr. Woods has years of experience doesn’t mean she has a history of correctly identifying child abuse when the medical evidence is ambiguous.

The spokesperson also praised Dr. Woods for being “an ally to the vulnerable children in our community.” Unfortunately, experts who regard themselves as an ally for a cause often slant their opinions to serve that cause. An expert who regards herself as an advocate for children will tend to find abuse when the evidence is ambiguous. An expert witness should be an advocate for the truth, not for a cause, even if the cause is as worthy as preventing child abuse.

For a time, officials at Mary Bridge and Seattle Children’s Hospital, which manages the state’s child abuse medical consultation network, simply ducked questions about Dr. Woods’ misstatements under oath. They apparently did not consider whether Dr. Woods should be trusted to form reliable opinions about child abuse if she could not give reliable answers about her credentials.

Belated Removal from Role as Child Abuse Expert

While reluctant to accept an uncomfortable truth, Washington authorities and hospital administrators belatedly acknowledged that Dr. Woods’ credibility is open to challenge. Dr. Woods is no longer the director of the child abuse intervention program at Mary Bridge. Internal documents obtained by NBC imply that hospital officials initiated the change in response to a review of the program that the hospital asked an outside expert to conduct.

Last month, Dr. Woods was removed from the roster of doctors who provide expert medical reports to Washington’s child welfare agency. Dr. Woods’ removal was celebrated by parents whose children were taken away based on Dr. Woods’ expert opinion. Some of those parents have told their stories in a Facebook group devoted to wrongly accused families.

At least two Washington prosecutors have taken the honorable step of reviewing cases in which Dr. Woods testified. One prosecutor is notifying defense attorneys in those cases that grounds exist for challenging Dr. Woods’ credibility. Prosecutors in two counties added Dr. Woods to their list of potentially discredited expert witnesses, and the prosecutor in Kitsap County is considering whether it should add Mary Bridge Children’s Hospital to that list.

Lessons Learned

Expert witnesses for both the prosecution and the defense provide critical testimony in criminal cases. Expert reports in civil cases can persuade child welfare authorities to take the drastic but common step of separating children from their parents out of an abundance of caution, an action that may inflict more harm on children than it prevents.

Given the importance of expert opinions, it is vital that child abuse experts have appropriate training. It is just as vital for experts to have integrity. Experts should base opinions on their best assessment of medical evidence, not on a well-intentioned desire to protect children. Any bias that grows out of an expert’s desire to advance a cause necessarily compromises the expert’s objectivity and impairs the expert’s value to prosecutors and child welfare agencies.



Expert Witnesses Properly Barred After Removal of Case from State to Federal Court

After a case is removed from state court to federal court, the federal rules of evidence apply. A federal appellate decision regarding a lawsuit that was filed in Massachusetts makes clear that lawyers cannot expect to be rescued by reliance on state rules when they fail to make the expert witness disclosure required by federal rules. Nor can lawyers gain back door admissibility of expert opinions by filtering them through a disclosed expert who lacks the qualifications to render those opinions.

Facts of the Case

A doctor in Massachusetts prescribed Levaquin to Kevin Carrozza. Levaquin is a quinolone antibiotic. Carrozza took the prescription to a CVS pharmacy to be filled. Neither Carrozza nor the prescribing doctor knew that Carrozza had an allergy to quinolones.

The CVS computer system alerted the pharmacist on duty, Richard Wokoske, of Carrozza’s allergy to quinolones. Wokoske checked Carrozza’s patient profile, which indicated that Carrozza had been prescribed Levaquin in the past and had denied knowledge of a quinolone allergy.

Pursuant to CVS policy, Wokoske used his own judgment in deciding how to resolve the conflicting information. He chose to dispense the prescription.

Carrozza took the Levaquin and suffered an allergic reaction. He alleged that the reaction caused permanent damage to his eyes. Carrozza sued CVS for dispensing the medication after being alerted to his allergy.

Carrozza’s lawsuit was removed to federal court. CVS filed a motion to preclude the testimony of Carrozza’s expert witness, Dr. Kenneth Backman. Carrozza filed a motion to take a deposition of a second expert witness, Dr. Stephen Foster. The trial court denied the motion to take Dr. Foster’s deposition because the discovery deadline had passed. The court then granted summary judgment in favor of CVS.

Dr. Foster’s Opinion

Carrozza initially based his case on information provided by Dr. Foster, an ophthalmologist. Dr. Foster executed an affidavit in which he opined that Carrozza’s ingestion of Levaquin caused his eye injuries.

The affidavit was arguably admissible evidence under Massachusetts law, which makes an exception to its hearsay rule for certain sworn statements from physicians, including “the opinion of such physician or dentist as to proximate cause of the condition so diagnosed.”

Federal law has no corresponding exception. When the case was removed to federal court, Carrozza could no longer rely on Dr. Foster’s affidavit as trial evidence. Carrozza nevertheless filed a motion, relatively early in the case, to admit the affidavit as evidence. The district court ruled that the affidavit was essentially an expert report. The court advised Carrozza that if he wanted to rely on Dr. Foster’s affidavit, he needed to designate Dr. Foster as an expert witness and to comply with federal rules governing the disclosure of expert opinions.

Dr. Backman’s Opinions

Carrozza did not designate Dr. Foster as an expert. He instead designated Dr. Backman. Carrozza supplied an affidavit from Dr. Backman opining that Wokoske’s decision to dispense Levaquin despite the warning was a breach of the standard of care. Dr. Backman also opined that Carrozza’s ingestion of Levaquin was the likely cause of his injuries.

Dr. Backman’s medical background includes a specialization in allergies and immunology. During his deposition, Dr. Backman admitted that he did not know the standard of care applicable to pharmacists. Dr. Backman also testified that he based his opinion about Carrozza’s eye injuries on Dr. Foster’s affidavit.

Denial of Motion to Depose Dr. Foster

CVS moved to exclude Dr. Backman’s testimony on the ground that he had no relevant knowledge of Carrozza’s injuries but was merely channeling the information in Dr. Foster’s affidavit. In response to that motion, Carrozza asked the court for permission to take Dr. Foster’s deposition so that he would have an admissible expert opinion.

The district court denied the motion. The court noted that Carrozza had never disclosed Dr. Foster as an expert witness despite having ample time do so. The court had warned Carrozza that Dr. Foster’s affidavit would be inadmissible hearsay at trial. Dr. Foster’s opinions might have been admissible as the opinions of an expert witness, but Dr. Foster was never designated as an expert. Taking his deposition would not result in admissible evidence because expert opinions can only be offered by witnesses who have been identified as experts.

The court of appeals determined that the district court reasonably exercised its discretion in denying the motion. Carrozza did not explain why he failed to designate Dr. Foster as an expert witness despite having sufficient time to do so after his motion to admit Dr. Foster’s affidavit was denied. In the absence of that designation, Carrozza had no grounds to reopen discovery so that he could take Dr. Foster’s deposition.

Exclusion of Dr. Backman’s Testimony

There isn’t much doubt that a party who fails to disclose an expert can’t use the expert. The more meaningful question in Carrozza’s case was whether he was entitled to use Dr. Backman as an expert. There was no dispute that Carrozza made a timely disclosure of Dr. Backman.

Dr. Backman testified that he had no personal knowledge of the standard of care that applied to pharmacists. Carrozza argued that as an allergist, Dr. Backman understood whether a pharmacist should dispense Levaquin to a patient after being alerted of the patient’s allergy to quinolones.

The appellate court disagreed. While Dr. Backman is qualified to discuss the standard of care an allergist would follow, the question here is how a pharmacist should react when the pharmacist has inconsistent information about a customer’s possible allergy to a particular drug. Dr. Backman’s admission that he did not know the standard of care that applies to pharmacists made him unqualified to render an expert opinion.

Nor did Dr. Backman’s testimony establish his familiarity with the cause of Carrozza’s eye injury. Dr. Backman relied on Dr. Foster’s affidavit in forming the opinion that Levaquin caused the injury.

Experts are entitled to rely on the opinions of other experts to the extent that experts in the field would generally do so, but that rule does not permit experts to serve as a back door conduit to admit an expert opinion that is otherwise inadmissible. Since Dr. Backman had no expertise of his own in ophthalmology and was not familiar with the causes of an eye condition like Carrozza’s, he was not qualified to render an expert opinion as to the cause of Carrozza’s injury.

Lessons Learned

A standard of care expert is nearly always needed to prove a professional negligence claim. Lawyers risk exclusion of expert testimony if their expert does not have experience in the same field as the negligent professional. An allergist is unlikely to have significant knowledge about the standards that are routinely followed by pharmacists when they determine whether it is safe to dispense medications. A pharmacist would have been an appropriate expert on standard of care in Carrozza’s case.

Dr. Foster might have been an appropriate expert to prove that Levaquin caused Carrozza’s eye injury. However, Dr. Foster was not identified as an expert. Lawyers who are accustomed to filing cases in state court and following state rules of evidence should take note of the Carrozza case. When a lawsuit is removed to federal court, the federal rules of evidence apply, including rules governing the disclose of expert witnesses and their reports. The failure to follow those rules will doom a party’s ability to rely on an expert witness.


Forensic Pathologist and Other Expert Witnesses Help Innocent Woman Avoid a Return to Prison

Kimberly Long was convicted of murder in 2005. It took years for lawyers, with the assistance of forensic experts, to establish her innocence.

Long spent seven years in prison before she was released. The prosecution’s appeal of the order granting her a new trial left her wondering whether she would return to prison for a crime she didn’t commit. Fortunately, her freedom is now assured.

Facts of the Case

Long returned to her home in Corona, California, where she found the body of her boyfriend, Oswaldo Conde. Lacking any obvious suspects, the investigating officers in the Corona Police Department focused their investigation on the belief that Long had murdered him. They based that belief on the fact that Long was in an intimate relationship with Conde, she admitted having an argument with him before he died, and she called the police to report finding his body.

Long passed a polygraph test. Polygraph results are inadmissible in court, but the police like to use them to confirm their own suspicions. When the polygraph does not confirm their suspicions, they tend to dismiss the results.

A man named Jeff Dills told the police that he dropped Long off at her home 49 minutes before she called 911. Long told the police that she called 911 immediately after she discovered Conde’s body. The police viewed the discrepancy between Dills’ and Long’s timelines as evidence that confirmed Long’s guilt. Dills was also a suspect until he offered to cooperate with police.

Long was charged with murder based on Dills’ statement. Dills testified at a preliminary hearing but he died before Long’s trial. His preliminary hearing testimony was introduced as evidence at Long’s trial.

The first jury to hear the case hung, with nine jurors voting for acquittal. The second jury found her guilty. The verdict surprised the trial judge, who said that he would have acquitted her if the case had been tried to the court. California’s appellate courts nevertheless affirmed the conviction.

Federal courts that reviewed the conviction declined to vacate it, in part because federal statutes governing habeas corpus review severely restrict the power of federal judges to do justice in state criminal prosecutions. A district court judge said it was “unfortunate” that Long was convicted on the basis of preliminary hearing testimony given by a witness who died before trial. An appellate judge opined that it would have been nearly impossible for Long to commit the murder and eliminate all evidence of her involvement in the 49 minutes that she was allegedly with Conde before she called 911.

New Forensic Evidence

Eleven years after her conviction, Long asked for a new trial based on expert evidence that her trial lawyer failed to present. A forensic pathologist determined that Conde died hours before the time that Dills claimed he brought Long home. That evidence destroyed the prosecution’s weak theory of Long’s guilt.

Long also presented an expert opinion that Conde’s blood would have splattered onto his killer. Crime scene photos showed that blood had splattered in all directions from Conde’s body. No blood was found on Long’s clothing or body.

Finally, DNA evidence was detected at the crime scene that had not been previously analyzed. The DNA belonged to an unknown male.

The trial judge decided that Long’s attorney failed to provide Long with effective legal assistance. The lawyer should have retained experts and presented the evidence that Long identified eleven years later. The lawyer should also have discovered and presented evidence of death threats that Conde received from his ex-girlfriend.

Rather than conceding that it prosecuted an innocent person, the state appealed the judge’s order granting Long a new trial. The court of appeals decided that the performance of Long’s attorney was not deficient.

Supreme Court Decision

Long appealed to the California Supreme Court. The supreme court reversed the court of appeals’ decision.

The court recognized that an effective attorney would have consulted a time-of-death expert. The prosecution’s case depended entirely on the assumption that Long killed Conde less than an hour before she called 911. Given that fact, it was important for the defense to determine whether Conde actually died within that limited window.

The only expert consulted by Long’s lawyer was an accident reconstruction expert. That expert was an engineer who had no medical training that would allow him to determine a time of death.

A law professor with years of experience as a criminal defense lawyer testified that a reasonable lawyer would consult with a pathologist to obtain time-of-death evidence when time of death is critical to the prosecution’s case. Relying on an engineer was unreasonable.

The supreme court agreed with the trial court’s decision to grant Long a new trial. Facing a complete lack of evidence that Long murdered Conde, the prosecution recently announced that it would not retry Long. Whether the police will make a belated attempt to identify the actual killer is unclear.

Lessons Learned

The defense attorney testified that he didn’t do more because he assumed that time of death estimates cover a wide range of time and that the range would not have excluded Long as a possible killer. The supreme court pointed out that the lawyer made that assumption without consulting an expert witness.

The supreme court acknowledged that time-of-death estimates are often inexact. Yet the lawyer had no reason to believe “that any range derived from the available evidence would necessarily encompass the prosecution’s time frame — a time frame that tended to rule out the possibility that someone other than Long committed the crime.” The supreme court held that it was unreasonable to “write off the possibility that a time of death estimate would help exculpate Long” without first consulting with an expert.

Lawyers can make a reasonable judgment not to call an expert witness, but only an informed judgment is reasonable. The supreme court’s decision is a reminder that defense attorneys must consult with experts whenever an expert opinion might assist the defense. Lawyers should not assume that an expert witness will be unhelpful without consulting with an expert to determine whether an expert opinion might help create a reasonable doubt about a client’s guilt.


Priest Deemed Expert in Coded Language Used by Church to Refer to Clergy Sexual Misconduct

Filing suit anonymously, John Doe 122 sued Chaminade College Preparatory and the Marianist Province of the United States for clergy abuse. The key issue in the case was whether the school knew that a counselor had abused other students and disregarded that knowledge when it failed to protect Doe from abuse.

Doe offered the testimony of an expert witness who inferred the school’s knowledge from documents in the counselor’s personnel file that made coded references to the counselor’s misconduct. The trial judge concluded that the expert testimony was inadmissible and granted summary judgment in the school’s favor. On appeal, the Missouri Supreme Court held that the trial court erred by excluding the expert testimony.

Facts of the Case

Doe alleged that he was sexually abused by his counselor, Brother John Woulfe, during his senior year at Chaminade. Doe alleged that he put the abuse behind him and didn’t think about it again until he received a letter from Chaminade, almost forty years after his graduation.

The letter advised Doe that allegations of sexual abuse had been made against Woulfe. Doe alleged that the letter brought back memories of his own abuse. Three years later, Doe sued Chaminade on several theories, including alternative counts of negligent and intentional failure to supervise Woulfe.

The trial court held that the negligent supervision claim was barred by Missouri precedent. A decision of the Missouri Supreme Court held that religious organizations have a First Amendment right to hire and retain clergy without government interference. In the court’s view, holding a religious organization liable for making negligent decisions to retain employees would violate the First Amendment.

For similar reasons, the court held that religious organizations cannot be held accountable for negligent supervision of its employees. The court drew the non-obvious conclusion that inquiring into what a church “should have known” about its employee’s conduct would “require inquiry into religious doctrine.” The court therefore held that the well-recognized claim of negligent supervision, while applying to all other employers, cannot be applied to religious organizations because doing so would create an “excessive entanglement” of church and state.

Courts in most states disagree with Missouri’s analysis of the First Amendment. Missouri precedent nevertheless foreclosed Doe’s claim for negligent supervision However, Missouri precedent allows abuse victims to sue for an intentional failure to supervise when a religious employer knows that an employee is engaged in acts of abuse and fails to take action to prevent the abuse from reoccurring.

Documents Addressing Woulfe’s Employment Issues

Doe had no direct evidence that the school or the Marianist Province knew Woulfe was abusing students in 1971, when he allegedly abused Doe. Since the school removed Woulfe in 1977 because of sexual abuse allegations, the school clearly had that knowledge six years later. The question was whether the school knew that Woulfe posed a risk to children in 1971 and disregarded that known risk.

To prove his claim of intentional failure to supervise, Doe relied on a 1968 letter that Brother Gray wrote to Woulfe in 1968. Referring to Woulfe’s departure from St. Boniface, the letter stated that “the actual grace left by this unusual situation may be one which helps you to confront and overcome the problem, which if left untended, would eventually become a serious one for religious life.”

The letter does not describe the “unusual situation” or the potentially serious “problem” to which it refers. A 1970 letter from Gray to Woulfe notifies Woulfe that he would be retained at the school despite the Provincial Council’s “considerable misgivings and reservations.” The letter does not explain the Council’s “misgivings and reservations.”

Expert Testimony

Father Doyle was proffered as an expert witness to decode the meaning of the unexplained words and phrases. Father Doyle spent more than 30 years investigating the problem of sexual abuse within the church. He has reviewed the personnel files of thousands of priests. Based on that experience, he has developed an understanding of how the church encodes specific information about sexual abuse in personnel documents.

Based on his experience, Father Doyle was qualified to determine “what will (and will not) appear in personnel records when a priest has committed acts of sexual abuse and, if reference to such conduct is made, the form such references will take.” He is therefore an expert in how the church encodes information about a priest’s sexual abuse in personnel documents.

In Father Doyle’s experience, personnel documents address most performance issues directly. When a priest has a problem with alcohol, consensual relationships with adult women, or the failure to perform his duties, personnel materials address those issues directly.

Father Doyle noted that the church uses indirect language when a priest has engaged in improper relationships with minors. In his 30 years of experience, including his review of hundreds of personnel files of priests who were accused of engaging in sexual abuse of minors, Father Doyle never saw an explicit reference to sexual abuse. Instead, the files routinely use “coded or euphemistic language” to discuss the priest’s misconduct.

Father Doyle identified references in Woulfe’s file to the “unusual situation” and to his untended “problem” as coded references to his sexual abuse of minors. In Father Doyle’s experience, the church routinely uses language of that nature to describe sexual misconduct with minors.

Father Doyle also concluded that the provincial considered removing Woulfe from the school in 1970 because of sexual abuse allegations. Its reference to retaining him “with considerable misgivings and reservations” fueled Father Doyle’s opinion that the school knew about Woulfe’s history of sexual abuse and chose to retain him.

Father Doyle also concluded that the personnel file’s failure to refer to sexual abuse before 1971 was consistent with a similar failure to refer to sexual abuse when Woulfe was removed from the school in 1977. The priest who made the decision to remove Woulfe testified in a deposition that the removal was based on sexual abuse. The school’s failure to document that reason in Woulfe’s personnel file is consistent with its failure to document its awareness of earlier instances of sexual abuse in plain language.

Court Decision

Father Doyle forthrightly acknowledged the possibility that he was wrong. He did not claim to have “metaphysical certainty” about the meaning of the terms he decoded. But he rested his opinion on the church’s decades-long practice of using similar euphemistic language to avoid making a direct reference to sexual abuse of minors.

The supreme court concluded that Father Doyle’s opinion was admissible evidence. Courts routinely admit the expert opinions of police officers who testify about the “coded language” used by drug dealers. Father Doyle’s expert opinion is no different.

The court also rejected the argument that Father Doyle’s opinion invaded the province of the jury. Father Doyle expressed no opinion as to whether Woulfe sexually abused Doe. He simply explained the meaning of terms that would allow the jury to infer the school’s knowledge of Woulfe’s sexual abuse of students prior to and during the time when Woulf was a student.

Since a jury could believe Father Doyle’s testimony and could conclude from that testimony that the school knew about Woulfe’s sexual abuse of children before he allegedly abused Doe, the jury could find that the school ignored a known danger to students by disregarding its duty to supervise Woulfe. The trial court erred by excluding Father Doyle’s expert opinion and by basing summary judgment on the absence of evidence that the school knew about Woulfe’s sexual abuse of students.

Virginia court gavel

Virginia Court Considers Whether Expert Disclosures Were Timely

A group of Virginia taxpayers brought a legal action challenging the tax assessments of their property by the County of Northampton and the Town of Cape Charles. The taxpayers relied on expert witnesses to prove that the assessors overvalued their property.

The trial court excluded the expert opinions on the ground that the taxpayers failed to disclose them before a deadline established by a scheduling order. The court then granted summary judgment to the government defendants. Noting that the government defendants were well aware of the identity and opinions of one expert, the Virginia Supreme Court reversed the judgment.

Disclosure of Jason Restein

In 2015, the government entities served an interrogatory that asked for the identification of expert witnesses. The taxpayers identified Jason Restein and disclosed his expert report. A plaintiff signed the interrogatory answers under oath, but the taxpayers’ lawyer failed to sign them.

The interrogatory answers were combined in a single document with a response to a request for production of documents. The lawyer signed that response. The lawyer also signed a certificate of service at the end of the document.

In 2018, the court scheduled the case for trial on April 6, 2019. The scheduling order required expert witnesses and their opinions to be disclosed 90 days before trial.

In March 2019, after a government lawyer notified the taxpayers’ lawyer that he hadn’t signed the interrogatory answers, the taxpayers’ lawyer signed them. The government then moved to exclude Reston as an expert witness because he had not been disclosed 90 days before trial.

The trial court ruled that the interrogatory answers did not constitute an effective disclosure of Restein until they were signed by the attorney. Since the attorney did not sign them within 90 days of the scheduled trial, the court granted the government’s motion to exclude Restein as a witness.

Disclosure of Steven Noble

The government served a supplemental interrogatory in December 2018 asking the taxpayers whether their intended experts had changed. The taxpayers responded by disclosing Steven Noble as an expert.

The response promised to elaborate on the disclosure by January 19, 2019. However, no additional response was provided until March 18, 2019, when the taxpayers provided Noble’s report.

The government moved to exclude Noble’s report because it was not disclosed within 90 days of the trial. The court granted that motion.

Appellate Decision

In the absence of testimony from Restein or Noble, the taxpayers could not offer an expert opinion of the fair market value of their property. The court therefore dismissed their lawsuit. The taxpayers appealed.

A Virginia rule of civil procedure allows a trial judge to exclude evidence as a sanction for disobeying a scheduling order. The court had little difficulty affirming the decision to exclude Noble’s testimony. While the disclosure of Noble’s identity was timely, the disclosure of his opinions was not. The taxpayers’ lawyer consented to the scheduling order before the court entered it and therefore had ample notice of the deadline.

The appellate court rejected the argument that the government could have obtained Noble’s opinions by taking his deposition. The court held that litigants must obey scheduling orders even if their opponents could obtain the same information in a different way.

The appellate court took a different view of the order excluding Restein’s testimony. The government received Restein’s report four years prior to the scheduled trial.

The court was unimpressed with the government’s argument that the disclosure of Restein’s identity was untimely because the taxpayers’ lawyer did not sign the interrogatory answers. Virginia procedural rules require that a discovery document contain the lawyer’s signature and address. The lawyer complied with that rule by signing the portion of the response that disclosed documents.

The lawyer’s failure to add a second signature to an unnecessary signature line following the interrogatory answers did not negate the fact that his signature appeared on the document. Since the rule does not require multiple signatures, the interrogatory answers were timely. Nor was it even arguable that the government was prejudiced, given that it received Restein’s report four years before the trial.

The trial court abused its discretion by excluding Restein’s testimony. It therefore abused its discretion by dismissing the case for lack of expert testimony. The appellate court acccordingly reversed the trial court’s judgment.

Lesson Learned

Courts take their orders seriously. While the trial court had no legal basis to exclude Restein’s testimony, the failure to make a timely disclosure of Noble’s opinions resulted in Noble’s exclusion. Lawyers run a huge risk when they fail to comply strictly with expert disclosure deadlines.

dollar bills

Exclusion of Expert Opinion About Lost Profits Reversed on Appeal

Damages for lost profits are notoriously difficult to prove. Judges are often skeptical about projections of profits that were not actually earned. Still, expert evidence can overcome judicial skepticism if the expert bases an opinion about lost profits on an accepted methodology and applies that methodology to the evidence in the case. The California Court of Appeals recently reversed a trial court’s decision that an expert’s opinion about lost profits was too speculative to be admissible.

Two Conflicting Contracts

Jillian Michaels and Empowered Media, LLC sued their law firm, Greenberg Traurig, and one of its partners, David Markman, for professional malpractice. Michaels is a “fitness celebrity” who appeared on the television show, The Biggest Loser.

Michaels co-owns Empowered Media. Michaels and Empowered Media hired Markman to negotiate two contracts. The first addressed Michaels’ compensation from the company that produces The Biggest Loser. That contract contained several restrictions on Michaels’ ability to participate in commercials.

The second contract was with a company called ThinCare that makes nutraceutical products. The contract addressed branding and promotional services to be provided by Michaels.

In the ThinCare contract, Empowered warranted that it had the sole and exclusive right to control Michaels’ participation in commercials. That warranty was inconsistent with the contract that allowed the production company to restrict her participation in commercials.

Michaels’ Litigation with ThinCare

Over the course of time, ThinCare paid Empowered more than $5 million in royalties. ThinCare eventually sued Empowered for making a false representation that induced it to enter into the contract with Empowered.

Empowered settled the ThinCare lawsuit by paying $2.2 million to ThinCare and by foregoing payment of another $1.3 million that ThinCare was holding in escrow. The agreement also required Michaels to continue promoting ThinCare products for a period of time without being paid a royalty.

Empowered and Michaels sued their lawyers. They based the lawsuit on several legal theories, including professional malpractice for negotiating a warranty in one contract that it knew was inconsistent with the terms of the second contract.

Empowered tried to prove damages with the report of an expert witness who computed Michaels’ lost profits. The court held that the expert’s conclusions were speculative and therefore inadmissible. The court later entered summary judgment against Empowered and Michaels on the ground that they could not prove damages. They appealed the judgment.

Lost Profits

In California, an established business can recover lost profits that can be ascertained with reasonable certainty. It is reasonable to ascertain lost profits by examining the business’ past performance to extrapolate potential future earnings.

Empowered relied on an expert report prepared by Sidney Blum, a certified public accountant, to establish lost profits. Blum treated Empowered and Michaels as an established business because Michaels promoted ThinCare products for 16 months before she was sued.

Blum considered the impact on profits of class action complaints that had been filed against ThinCare and Michaels alleging false advertising. Those complaints were filed about a year before ThinCare sued Empowered and were dismissed prior to the settlement of ThinCare’s lawsuit against Empowered.

Blum applied the “Before and After” method of calculating lost profits. He considered the profits that Empowered would have received if the contract dispute had not arisen and reduced those profits by actual benefits that Empowered received.

During the Before period of the analysis, from the commencement of the agreement until ThinCare sued Empowered and Michaels, Empowered received monthly royalties of about $350,000. Blum concluded that the royalties would have been higher if the class action litigation had not harmed ThinCare’s reputation.

Blum divided the After period into two parts. During the first part, extending to the scheduled end of Empowered’s contract, Blum calculated lost profits of more than $7 million. During the second part, to the end of the period during which Michaels was required to promote ThinCare products pursuant to the agreement to settle ThinCare’s lawsuit against her, Blum calculated lost profits of more than $11 million. Blum performed that calculation by multiplying $350,000 by the number of months in each period.

Admissibility of Expert Report

The trial judge excluded Blum’s report on the ground that it was “entirely too speculative” because it was based on assumptions that were unsupported by evidence. Those would be reasonable grounds for excluding an expert report if they were accurate observations. The California Court of Appeals disagreed with the judge’s view of Blum’s assumptions.

The appellate court identified four assumptions that were critical to Blum’s analysis: (1) ThinCare product sales are a direct result of marketing; (2) ThinCare’s profits (and thus royalties paid to Empowered) depended on Michaels’ involvement with marketing; (3) Michaels was prevented from marketing because of ThinCare’s lawsuit against her; and (4) if ThinCare had not sued Michaels and Empowered, Michaels would have continued to market ThinCare products into the “After” period. Whether the lawsuit resulted from Markman’s negligence was a separate question.

Markman persuaded the trial judge that Michaels stopped promoting ThinCare before ThinCare sued her. Markman contended that Michaels was worried about her reputation, given the class action lawsuit alleging that ThinCare had engaged in false advertising. Markman based that argument on documents expressing Michaels’ dissatisfaction with certain aspects of her relationship with ThinCare.

The appellate court faulted the trial judge for finding that Michael’s decision to stop marketing ThinCare products before ThinCare sued her was undisputed. The judge disregarded Michaels’ declaration that she “continued to actively promote” ThinCare products before the ThinCare lawsuit. Michaels stated that she “limited [her] promotional and marketing activity during the class action lawsuits” but “would have continued to meet [her] marketing and promotional obligations under the contract” after the class actions were dismissed if she had not been sued by ThinCare.

While Markman objected that Michaels’ declaration was “self-serving,” truthful statements are often self-serving. The appellate court noted that all evidence submitted in a case serves the interests of a party. Since it is up to the jury to decide whether evidence is credible, evidence cannot be discounted on summary judgment simply because a judge regards it as self-serving.

Other evidence supported Michaels’ claim that she continued to market ThinCare’s products after it was sued for false advertising. The appellate court concluded that the trial judge improperly weighed the evidence and found Markman’s to be more convincing. Juries, not judges, weigh evidence.

The appellate court agreed that lost profits during the second part of the After period were speculative. Michaels stated that she would have agreed to extend her contract to promote ThinCare’s products if ThinCare had not sued her, but there was no evidence — beyond the settlement agreement that required Michaels to promote the products without earning a royalty — that the contract would actually have been extended. Blum’s assumption that Michaels would have continued to promote ThinCare’s products based on a contract extension was too speculative to support a claim for lost profits.

Since there was evidentiary support for a part of Blum’s damages calculation, that part of Blum’s expert opinion was admissible. The judge therefore erred by granting summary judgment based on a failure to establish damages.


Human brain

Alaska Doctor Cleared of Malpractice Due to Insufficient Expert Testimony

An Alaska couple has lost their medical malpractice case against a doctor that they claimed caused the wife’s seizure for failure to support the claim with sufficient expert witness testimony.

The Incident

On February 6, 2016, William Beistline brought his wife Marcie to the Fairbanks Memorial Hospital emergency room.  She was seen by Dr. Bruce Footit, a board-certified internal medicine physician.  Marcie had been acting strangely and dealing with confusion, lethargy, and unsteadiness in the days prior to her visit.  She was also suffering from nausea, vomiting and diarrhea.

Marcie had been receiving “very unorthodox” and “fairly nontraditional” treatments for Lyme disease and insomnia. Marcie’s treatment providers had implanted a port in her chest so that she could self-administer “vitamin bags.” These providers had not given her any follow-up care for her port. Marcie was also taking Ambien, benzodiazepines, muscle relaxants, and other herbal remedies. Marcie’s medical history appeared to include depression, “potential psychiatric disease,” and chronic insomnia.

Dr. Footit was unable to determine what was in the vitamin bags or the dosage or frequency of Marcie’s medications. Dr. Footit believed that Marcie was possibly experiencing hyponatremia, or abnormally low amounts of sodium in the blood, and delirium due to her excessive medication use.  He also determined that Marcie’s change in mental status was likely due to sepsis or bacteremia from her port.

Dr. Footit ordered a hold on Marcie’s medications, a toxicology screen, IV fluid resuscitation, and the removal of her port. Two days after her port was removed, Marcie suffered a tonic-clonic seizure. She was transferred to the intensive care unit and discharged three days later.

Superior Court

In 2018, the Beistlines filed a lawsuit against Dr. Footit and the hospital. They claimed that Marcie’s seizure was the result of Dr. Footit’s decision to cut off all of her medications, which breached the standard of care.

Dr. Footit and the hospital filed a motion for summary judgment. They supported their motion with the expert affidavit of Dr. Thomas McIlraith, a licensed and board-certified internal medicine physician. Dr. McIlraith noted that Dr. Footit did not have access to Marcie’s medical records and that Marcie was delirious. He testified that the standard of care required that potential causes of the delirium be treated and that Dr. Footit did this by correcting the hyponatremia and treating the sepsis from the implanted port. He also testified that Dr. Footit acted competently, met the standard of care, and acted as a reasonable and prudent internist by withdrawing the unknown medications.

The Beistlines opposed the summary judgment motion and filed an affidavit from pharmacist Dr. Gregory Holmquist. Dr. Holmquist assumed that Dr. Footit had discontinued Marcie’s benzodiazepine drugs and Ambien and testified that there are strict protocols for how to remove patients from these drugs and that a failure to follow the protocols could contribute to seizure.

The superior court determined that Dr. Holmquist was not qualified as an expert under AS 09.20.185(a), which requires a witness to be “certified by a board recognized by the state as having acknowledged expertise and training directly related to the particular field or matter at issue.” The court ruled, “A doctor of pharmacy’s expert testimony is insufficient to rebut the testimony of a board-certified internist about the standard of care required of a board-certified internist practicing internal medicine.”

The superior court granted summary judgment for Dr. Footit and the hospital.

Alaska Supreme Court

The Beistlines appealed. The Alaska Supreme Court agreed with the superior court that a pharmacist who was not board-certified in the same field of practice as Dr. Footit would not qualify to give expert testimony about the standard of care required of a board-certified internist practicing internal medicine.

The court pointed out, “Dr. Holmquist thus concedes that he does not know whether the withdrawal protocols he describes, known to a pharmacy expert, are also ‘general knowledge to a board-certified internal medicine physician,’ although he believes that they ‘should be.’ And nothing in his affidavit indicates that he has a basis in training or experience for knowing the answer to that question or for knowing the circumstances under which an internist would consider it necessary to consult ‘the hospital’s pharmaceutical department.’”

The Alaska Supreme Court affirmed the judgment of the superior court.