Tag Archives: medical expert witness

Gavel and Stethoscope on Reflective Table

Civil Commitments in North Carolina May Require Expert Witnesses to Act as Lawyers

State laws typically allow the civil commitment of an individual who is dangerous to himself or others because of a mental disease. The procedures that must be followed to secure a commitment order vary from state to state.

When the allegedly dangerous person is brought into the mental health system by a police officer, states typically require a government attorney to represent the interest of the state is seeking a commitment. The person who might be committed has the right to a lawyer and may be entitled to a public defender.

The procedure in North Carolina is unusual. While North Carolina provides a lawyer to the subject of the commitment proceeding, it only requires the state to be represented by counsel when the proceeding is held at a state facility, such as a state-owned mental health hospital. 

North Carolina law gives the attorney general discretion to assign or not to assign a lawyer to commitment proceedings held in private facilities. That quirk in the law effectively forces expert witnesses to make legal decisions about what testimony they should give rather than responding to questions asked by a lawyer.

A recent appellate decision asked whether the subject of a commitment receives a fair hearing when the expert witness rather than a lawyer is the person who, as a practical matter, represents the state. The North Carolina Court of Appeals decided that the procedure is fair.

Facts of the Case

Police officers brought Q.J. to the emergency department of the Duke University Medical Center. The officers advised hospital staff that Q.J. was “having thoughts of harming his mother,” had threatened to slit her throat in the past and was threatening suicide.

Dr. Naveen Sharma signed a Petition for Involuntary Commitment of Q.J. The petition represented that Duke University Medical Center was familiar with Q.J., that he had a history of schizoaffective disorder, that he wasn’t taking his medications, and that he had been hospitalized many times in the past under similar circumstances. 

Dr. Sharma expressed the opinion that Q.J. needed treatment to prevent further deterioration of his mental condition. Dr. Sharma believed that he would become dangerous without treatment. Dr. Sharma’s petition alleged that Q.J. was unable to care for himself adequately in the community and required inpatient hospitalization for stability and safety.

Based on the petition, a magistrate found that Q.J. was mentally ill and a danger to himself or others. The magistrate authorized a temporary inpatient commitment pending a full hearing. That hearing was held about three weeks later.

Q.J.’s Commitment Hearing

Q.J. was represented by counsel at the commitment hearing. No representative appeared on behalf of the state. Q.J.’s counsel objected to the failure of either the District Attorney’s office or the Attorney General’s office to represent the state. In their absence, a mental health expert from Duke Medical Center was the only individual representing the interests of the state.

Dr. Kristen Shirley testified in support of the commitment petition. She had never evaluated Q.J. Dr. Shirley is not a lawyer. The judge overruled Q.J.’s objection to proceeding with a doctor representing the state in an adversarial proceeding.

The judge began by asking Dr. Shirley to “tell me what it is you want me to know about this matter.” Dr. Shirley testified about the results of Q.J.’s two mental health evaluations following his detention. She opined that Q.J. responded well to medication but has limited insight into his mental health status and was likely to stop taking medication if he was released to the community. 

Dr. Shirley testified that Q.J. posed a high risk of decompensating if he were released. In her opinion, decompensation might cause him to become suicidal or homicidal. Dr. Shirley testified that a community treatment team recommended hospitalization to stabilize Q.J.’s condition, including treatment with a long-acting injectable medication. Dr. Shirley recommended a 30-day commitment.

Q.J.’s attorney cross-examined Dr. Shirley. In the absence of any lawyer representing the state, the judge conducted his own redirect examination. The judge found that Q.J. was mentally ill and that the mental illness made him dangerous to himself and others. The judge ordered a 30-day civil commitment.

Expert Witness as Representative of the State

Q.J. appealed. The most significant issue on appeal was whether, in an adversarial system of justice that depends on two opposing parties being represented by counsel, a civil commitment proceeding can proceed when the only advocate for the state is a testifying expert witness, not a lawyer.

When a lawyer represents the state, the lawyer asks questions and the expert witness answers them. The judge’s role is limited to ruling on objections. Under those circumstances, the judge can remain impartial.

With no lawyer representing the state, the judge left it to Dr. Shirley to decide what testimony to give. When the judge invited her to “tell me what you want me to know,” the judge put the expert in the position of making legal judgments about the evidence that the judge should hear. The expert likely had some awareness of the evidence that is required to meet the legal standard for a commitment, but she was trained to make medical judgments, not legal judgments about the relevance of particular facts.

Q.J. complained that placing the expert in the dual role of lawyer and witness raised questions about the judge’s impartiality. The court got the ball rolling by asking Dr. Shirley to tell him what she wanted him to know, arguably asking the kind of question that a lawyer for the state would have asked. 

More troubling were the questions that the judge asked on redirect in an apparent attempt to rehabilitate Dr. Shirley’s testimony. On cross-examination, Dr. Shirley admitted that Q.J. had not actually engaged in violent behavior before the police took him into custody, that he made no threats and expressed no suicidal thoughts while he was being evaluated, and that he had no history of harming others. When, on redirect, the judge asked Dr. Shirley if her testimony was that Q.J. was a danger to himself and whether he was a danger to others, the judge was asking the kind of rehabilitative questions that a lawyer for the state would be expected to ask.

The appellate court concluded that North Carolina law does not require the state to be represented by counsel when commitment hearings are held at a private hospital. The court further concluded that there is no constitutional barrier to having an expert witness present all the testimony required to support a commitment without having a lawyer elicit that testimony. 

Perhaps because it was unwilling to upset the apple cart of North Carolina’s unusual procedure, the court concluded that the judge always remained impartial. While it is true that judges are entitled to question witnesses to clarify testimony if they do so without becoming an advocate for a party, the judge’s redirect examination was exactly the kind of questioning one would expect from an advocate, not from an impartial judge.

Policy Issues

North Carolina’s commitment procedure places expert witnesses in a difficult position. It is usually improper for a witness to give narrative testimony rather than responding to specific questions. Narrative testimony makes it difficult for opposing counsel to object since no question has been posed to which an objection can be lodged. Narrative testimony also makes it more likely that a witness will stray from the facts that are relevant to the proceeding.

Appellate judges are extraordinarily reluctant to find that trial judges were anything other than impartial. While the record makes clear that the judge acted as an advocate for the state by asking questions to rehabilitate the testimony of the expert witness, the appellate court refused to equate advocacy with partiality. As long as North Carolina continues to leave the presentation of evidence at commitment proceedings to expert witnesses rather than lawyers, the fairness of commitment proceedings — and unfairness to expert witnesses — will continue to be an issue.

Baby feet

California Appellate Court Disallows Expert Testimony in Medical Malpractice Case

The California Court of Appeals recently decided an appeal from a trial court ruling that excluded expert opinions in a medical malpractice case. The appellate court agreed that those opinions were not based on facts and therefore could not be considered as evidence of malpractice.

Facts of the Case

Baby Ngide was born at St. Agnes Medical Center in Fresno on September 27, 2011. The next day, a nurse noticed that the baby was not responsive. The baby was transferred to the Neonatal Intensive Care Unit (NICU) for resuscitation. The NICU is located in St. Agnes Medical Center but is operated by Children’s Hospital of Central California.

Dr. Patrick Nwajei, a neonatologist, did not see the baby girl until she arrived at Children’s Hospital. Dr. Nwajei was not the baby’s treating physician and was not authorized to treat St. Agnes patients unless he was asked to consult by a treating physician. Dr. Nwajei was, however, among the doctors who were responsible for providing patient care at the NICU.

When the baby arrived at NICU, staff members called for Dr. Nwajei. He treated the baby by providing ventilation using a bag mask and by intubating the baby. He then called for a transport team so that the baby could be taken to the Children’s Hospital NICU in Madera, where more specialists were available.

Transport started about one-and-a-half hours after Dr. Nwajei first saw the baby. After transport began, the receiving neonatologist was responsible for the baby’s care.

On June 18, 2012, the baby died from complications caused by a hypoxic brain injury. The brain injury occurred before Dr. Nwajei saw the baby.

Summary Judgment

The father sued St. Agnes Medical Center and Dr. Nwajei for medical malpractice. St. Agnes and Dr. Nwajei both moved for summary judgment, arguing that the undisputed facts established that they were not responsible for the baby’s death.

In opposing summary judgment, the father submitted the affidavit of an expert witness. Dr. Arie Alkalay opined that the nurses and staff at St. Agnes, as well as Dr. Nwajei, failed to provide an appropriate standard of care and that their respective failures contributed to the baby’s death.

Dr. Nwajai relied on an affidavit of his expert witness, Dr. Gilbert I. Martin, who concluded that Dr. Nwajei followed an appropriate standard of care and that none of his actions were a cause of the baby’s death.

St. Agnes submitted the expert affidavit of Dr. Philippe Friedlich, who opined that the actions of the nurses and staff at St. Agnes satisfied the appropriate standard of care.

The trial court concluded that Dr. Alkalay’s opinions were not based on facts established in the record. The court therefore ruled that his opinions were inadmissible. In the absence of expert testimony to establish malpractice, the court granted summary judgment in favor of the medical defendants. The baby’s father appealed.

Objections to Dr. Alkalay’s Opinions

Medical malpractice lawsuits must usually be based on an expert’s opinion that a healthcare provider failed to provide an appropriate standard of care for the patient and that the patient was harmed by that failure. By the same token, medical malpractice defendants must rely on expert witnesses to establish that they met the appropriate standard of care.

Based on his review of medical records and his experience as a neonatologist, Dr. Alkalay expressed the opinion that the mother presented a high-risk pregnancy, that the hospital should have consulted with Nr. Nwajei at the time of delivery, that failing to do so breached the standard of care that a hospital should provide, and that the failure contributed to the baby’s death.

Dr. Alkalay also faulted Dr. Nwajei for waiting until he was notified by St. Agnes of the baby’s need for a neonatologist. Dr. Alkalay opined that Dr. Nwajei had a duty “to ensure that he would be informed and included in the delivery diagnosis, care and treatment of high risk deliveries and high risk newborns.” Dr. Alkalay concluded that Dr. Nwajei failed to abide by an appropriate standard of care when he neglected to remedy the “systems failures” at St. Agnes.

The California Court of Appeals agreed with the trial court that Dr. Alkalay had no factual basis for his criticism of Dr. Nwajei. Dr. Alkalay assumed that it was Dr. Nwajei’s duty to correct “systems failures” at St. Agnes, but Dr. Nwajei was employed by Children’s Hospital, not by St. Agnes. Dr. Alkalay did not explain why Dr. Nwajei would have any responsibility or authority to correct problems at St. Agnes. The court therefore concluded that Dr. Alkalay’s opinion about the standard of care was based on speculation, not on facts.

The appellate court also agreed with the trial court that no factual basis supported Dr. Alkalay’s opinion that St. Agnes staff members should have notified a neonatologist of a high-risk pregnancy. The mother’s attending pediatrician did not do so, and the St. Agnes staff members merely carried out the pediatrician’s orders when he was not there. Since Dr. Alkalay did not explain why nurses would have the authority, much less the duty, to second-guess the pediatrician’s judgment, his opinion about St. Agnes’ alleged breach of the standard of care was again unsupported by the facts.

Since the trial court properly excluded Dr. Alkalay’s opinions, the appellate court concluded that it appropriately granted summary judgment in favor of the medical defendants.

Mirena, IUD

Defective Product Lawsuit Against Bayer Fails Without Medical Expert Testimony

A defective medical products claim with 1,300 joint female plaintiffs has been dismissed four months after a New York federal judge prohibited medical expert witnesses from testifying.  The case has limped along since the plaintiffs suffered a devastating ruling against their expert testimony this year before finally being put to rest last week for lack of evidence against the device manufacturer.

High Profile Defective Device Lawsuit Dismissed in New York Federal Court

US District Judge Cathy Seibel in New York dismissed a complaint filed by 1,300 women against medical device manufacturer Bayer for lack of evidence the company caused the plaintiffs’ injuries.  The claim originated from complaints about Bayer’s Mirena intra-uterine contraceptive device (IUD) which allegedly perforates women’s uteruses after it has been surgically inserted.  According to the plaintiffs, the Bayer Mirena IUD caused internal injuries after surgery, and the company failed to provide warning about that possibility when it marketed the product to surgeons and patients.

Bayer has not denied the fact that the 1,300 plaintiffs suffered internal injuries, but responded to the complaint by arguing that the damage occurred during surgical insertion and is therefore the responsibility of the doctors and hospitals rather than the company.  The company also warns about the possibility of uterus perforation during insertion, and argues the plaintiffs understood the risks associated with the product.  Bayer has maintained the position that the Mirena IUD is not defective throughout the lawsuit, and successfully argued for a dismissal last week by showing that the plaintiffs failed to provide evidence that injuries occurred after surgical insertion due to a defect in the device.

Bayer’s argument for dismissal was made easier in March when Judge Seibel dismissed expert witnesses hired by the plaintiffs to argue that the Mirena IUD can cause internal damage.

Plaintiffs in Bayer IUD Case Lose Expert Witness Testimony

At the outset of the case, the 1,300 plaintiffs hired medical expert witnesses to conduct an analysis of the types of injuries they suffered and Bayer’s Mirena IUD product to see if a defect contributed to their harm.  The plaintiffs’ expert witnesses included two ob-gyn professionals and a uterine physiologist who were prepared to testify that the uterus perforation occurred after the IUD’s were inserted due to a defect in the design and manufacture.  After reviewing the content of the proposed expert testimony, Judge Seibel banned four of the experts from testifying at all and severely limited two others to the point where they would have been of very little help to the plaintiffs’ case.

According to Judge Seibel, several of the Bayer IUD plaintiffs’ experts were unqualified to speak on the issue, and those who were offered opinions and hypotheses rather than proven fact.  The judge determined that the expert testimony was not based on sound scientific findings, but instead on anecdotal theories prepared specifically for the litigation by a collection of medical professionals.  Under the Daubert standard of expert witness testimony used in federal courts, the plaintiffs’ experts could not be allowed to testify without providing scientifically accepted research.

Judge Seibel further weakened the plaintiffs’ position by allowing several of Bayer’s expert witnesses to testify because they had documented medical research regarding the performance of the company’s Mirena IUD.

Bayer Mirena IUD Lawsuit Fails after Lawyers Forego Expert Testimony

Rather than abandon the case or seeking other qualified experts after Judge Seibel’s decision against the plaintiffs’ expert witnesses in March, attorneys representing the women decided to pursue the case without medical expert support.  According to the attorneys, Bayer’s admission that the women’s harm was caused by the Mirena IUD was sufficient to prove liability, despite the fact that Bayer argued the injuries occurred during insertion – something the company warned about and was not liable for.

Ultimately the strategy to move forward without viable and qualified medical expert witnesses failed, and the dismissal of the complaints against Bayer last week confirms an outcome that many have suspected was forgone.  The failed lawsuit against Bayer’s Mirena IUD provides a cautionary tale to plaintiffs and their attorneys that defective product lawsuits are unlikely to succeed without qualified medical expert testimony.  Medical experts must be ready to provide testimony which is supported by scientific research, not prepared specifically for the trial, and backed by the expert’s qualifications in the field.

Plaintiff Earns New Medical Malpractice Trial Due to Expert Witness Testimony

A Pittsburgh woman who lost a malpractice lawsuit has been granted a new trial because a lower court erred by restricting medical expert testimony that would have bolstered her case.  According to a Pennsylvania Superior Court, the plaintiff had a right to present the full testimony of a medical diagnosis expert witness who was called to help her explain why a Pittsburgh area hospital was negligent in responding to her symptoms.

Pittsburgh Woman Files Medical Malpractice Suit for Failure to Diagnose Breast Cancer

In 2009, Maria Heddleston gave birth to a child at the University of Pittsburgh Medical Center, and, as part of her care, received a breast-feeding consultation which included instructions about how to operate a breast pump machine.  During the consultation and training, Heddleston complained of severe breast pain when she pumped, but this was not investigated by the attending nurses or physicians at the facility.  Maria was diagnosed with breast cancer in 2010, and she sued the Obstetrical and Gynecological Associates of Pittsburgh Inc. and other individual defendants for failing to run diagnostic tests which would have given her an earlier cancer diagnosis.

During trial, Heddleston claimed that by delaying the diagnosis almost a full year, her risk of death increased. After a civil trial in Pittsburgh, a jury returned a verdict 10 – 2 in favor of the defendants, finding that the Heddlestons had failed to prove medical malpractice.  On appeal, the plaintiffs argued that the trail court made an error when the judge disallowed expert witness testimony which would have affirmed the Heddleston’s argument that a diagnostic test run in 2009 would’ve caught the breast cancer early.

Judge Grants New Trial with Instructions to Include Expert Witness

During the initial trial, the plaintiffs called Dr. Barry Singer as a medical expert witness, and as part of his testimony was asked if diagnostic testing in 2009 would have caught Maria Heddleston’s cancerous tumor.  Before Dr. Singer could answer, defense counsel objected, arguing that the expert testimony should have been restricted to facts about the standard of care expected by gynecologists and not the doctor’s opinion about the results of a hypothetical diagnostic test.  The trial judge agreed, and the defense successfully argued during closing arguments that the plaintiffs could not prove a 2009 diagnostic test would’ve caught the cancer.

On appeal, Judge Mary Jane Bowes disagreed with the trial court, and held that Dr. Singer’s expert testimony regarding the outcome of a 2009 diagnostic test would speak to gynecological standard of care.  According to Judge Bowes, Dr. Singer’s testimony that a 2009 diagnostic test on Maria Heddleston would’ve identified early stages of breast cancer suggest a failed duty to live up to the standard of care required by treating gynecologists who offer breast feeding consultations.   Dr. Singer did not state during his testimony that such tests are required or even standard, but his information regarding the result of a test would, according to Bowes, give jurors the opportunity to better evaluate the level of medical care Heddleston should have received.

Pittsburgh Woman gets Second Chance at a Medical Malpractice Trial with Expert

Judge Bowes concluded that the Heddlestons deserved a new trial because of the trial judge’s failure to allow the plaintiff’s medical expert witness to theorize on the results of a 2009 cancer diagnostic test which was not conducted.  This ruling demonstrates the fine line that medical malpractice experts walk between a permissible explanation about standard of care practices which medical professionals are expected to follow and impermissible testimony which opines about whether or not that standard has been met.

Medical expert witnesses like Dr. Singer in this case are typically allowed to discuss the standard of care, and then give their expert opinion on the medical care a plaintiff actually received.  It is up to the jury to compare the expected standard of care with the actual care a patient received in order to issue a verdict.  In this case, the appellate judge determined that a medical expert’s opinion the result of an diagnostic test which was not run did not translate to his opinion on the quality of the care the plaintiff received, and was therefore permissible expert testimony.

Dueling Experts Contribute to Mistrial in Case Against Baltimore Officer who Arrested Freddie Gray

A Baltimore area judge has declared a mistrial against the first police officer to face prosecution for the death of Freddie Gray after jurors could not reach a verdict after more than 16 hours of deliberations.  While many factors can contribute to juror deadlock, the emotionally charged case featured several conflicting expert witness statements, none of which was convincing enough to sway the entire jury towards conviction.

First Officer Trial in Freddie Gray Case Ends with Mistrial

Baltimore police officer William G. Porter was the first of six officers charged with the death of Freddie Gray, a suspect who died in police custody in April of this year.  Freddie Gray, who suffered a fatal neck injury while shackled in a Baltimore PD van, earned the national spotlight when protests over his death turned to riots by angry citizens of predominantly black Baltimore neighborhoods who expressed frustration about law enforcement brutality against African American citizens.  Porter, who is also black, denied racially motivated treatment of Gray and maintained that he and his fellow officers were unaware of the seriousness of the 25-year-old injuries at the time of his death.

During the trial, prosecutors called medical expert witnesses in an effort to convince jurors that Officer Porter – along with his colleagues – acted inappropriately by failing to properly secure Gray in the back of the police van, and, more importantly, failing to call for medical help when the victim’s injuries became apparent.  Attorneys for William Porter called counter-experts in police training and medical fields to dispute the prosecution’s position and argue the defendant was not responsible for the tragic accident which took Gray’s life.

Prosecution in Freddie Gray Case Calls Expert Witnesses

During the prosecution’s case against Baltimore officer William Porter attorneys for the state argued the six police officials had an opportunity to prevent Freddie Gray’s death by taking better precautions and by responding to Gray’s injuries in a timely manner, but failed on both accounts.  Neither side contests the fact that the van Gray was placed in upon his arrest made a total of 6 stops before officers requested medical attention Gray’s injuries, but what is contested is where along those 6 stops the victim suffered the fatal injury.  Prosecutors argue Gray suffered the injury early in the trip – sometime after the second stop – which would give police officers ample time to respond to his injuries.

To support their case prosecutors called Dr. Carol Allan, the medical examiner who performed Gray’s autopsy, as a forensic expert witness.  Dr. Allan told jurors that her expert analysis of the case concluded Gray was injured sometime between the 2nd and the 4th stop of the van, and believes that the police acted with criminal negligence by failing to recognize the severity of the situation after the 4th stop.  According to Dr. Allan had Gray received prompt medical attention after the 4th stop then he may not have died in the police van, suggesting Porter and his fellow officers failed in their opportunity to request timely medical attention.

Dr. Allan’s testimony was buttressed by Illinois neurosurgeon and medical expert witness Dr. Morris Marc Soriano who told the court that immediate medical attention could have saved Freddie Gray’s life.  A final medical expert for prosecutors was paramedic Angelique Herbert who responded to the scene after Porter and his fellow officers finally called for medical attention.  According to Herbert, by the time she arrived at the scene Freddie Gray was already beyond saving.  Defense attorneys responded to the testimony by prosecution experts with police tactic and forensic expert witnesses who told the court there was nothing Officer Porter could have, or should have, done differently during Gray’s arrest and detention.

Defense Attorneys in Freddie Gray Officer Trial Use Expert Testimony

Early in the defense’s case, attorneys for William Porter called Timothy Longo, a police chief in Charlottesville, Virginia with more than 35-years of experience as an officer, as a police tactics expert witness.  According to Longo, Officer Porter exercised reasonable discretion and good judgment considering the circumstances by detaining a resistant suspect and by informing the van’s driver of the need for medical attention at an appropriate time.  Longo addressed allegations that Porter should have buckled Gray in by saying the arresting officers are required to use circumstance and discretion when faced with orders issued by Baltimore PD requiring detainees be buckled because those rules “don’t create a higher standard in criminal or civil proceedings.  They’re clearly administrative in purpose.”

Longo also told jurors that Officer Porter could have gotten on the radio sooner to request medical attention, but ultimately was acting under the authority of his fellow officer Caesar Goodson who was driving the van and in charge of the operation.  Defense attorneys also called neurosurgeon Dr. Matthew Ammerman as a medical expert witness to tell jurors there is nothing Porter could have done had he called for medical attention right away.  According to Dr. Ammerman’s forensic testimony, Gray’s neck injury was catastrophic and immediately paralyzed his ability to breathe, speak, and move.  Dr. Ammerman said this injury must have occurred after the fourth stop because Gray could still communicate at that time.

Jurors were unable to reach a verdict against Officer Porter after more than 16 hours of deliberations.  The State has an opportunity to retry the officer, but has not announced a decision at this time.  All of the other officers, including Caesar Goodson, will face criminal prosecution in the near future for their role.

Delaware Pill Mill Doctor Convicted with Help from Expert Witness Testimony

Last week a Delaware physician was convicted on more than 100 counts of illegally prescribing narcotics and filing false insurance claims in a high profile pill mill criminal prosecution. Prosecutors presented evidence from a medical practices expert witness who told jurors that suspect bookkeeping and lack of records strongly suggested the defendant was guilty.

Delaware Pill Mill Doctor Charged with Illegal Prescription Sales

Dr. Lawrence Wean, 61, operated a private practice in Chadds Ford, Delaware before being arrested last December for allegedly providing patients with narcotics without properly evaluating them.  Investigators posing as patients were able to receive prescription narcotics such as Percocet and Oxycodone without being examined or asked for a medical history. During trial, the police investigators told jurors that they were given prescription medication in exchange for cash on multiple visits to Wean’s office.

In addition to police investigators, patients of Wean’s told jurors that they were able to receive power pain medication with very little effort providing they paid for their medication in cash.  Wean’s employees informed the court that the doctor kept very few records and often had hundreds or thousands of dollars in cash around the office.  In order to pull all the evidence together, prosecutors called an expert in prescription pain medication to inform jurors that Dr. Wean’s behavior was indicative of illegal prescription medicine sales.

Pain Medication Expert Witness Testifies in Pill Mill Prosecution

Before resting their case against Dr. Lawrence Wean, prosecutors called Dr. Eric Lipnack as a pain medication expert witness who reviewed 30 of Dr. Wean’s patient medical files to identify potential bookkeeping discrepancies that would suggest illegal distribution of pain medicine.  On the stand Lipnack told jurors that Wean’s record keeping habits were “disgraceful” and “irresponsible” and evidence of a narcotic distribution system that failed to live up to legally required standards.  Lipnack pointed out pain medication prescriptions being given to patients who did not have medical histories, charts that indicated they had been evaluated by Wean, or regular appointments.  Further, Lipnack pointed to Wean’s practice of repeatedly welcoming patients back who he had previously dismissed for suspected pain medication addiction as evidence that the doctor was running a for-profit pill mill out of his private practice.

Defense attorneys forced Lipnack to admit that he had not spoken to any of Wean’s patients or discussed their pain medication needs, but the prosecution’s expert witness maintained that his review of Wean’s business and medical records was sufficient to notice irregularities.  Telling jurors that when a doctor doesn’t record visits in writing then they didn’t happen, Lipnack testified that lack of written records about patient examinations suggested the defendant didn’t conduct any medical review before prescribing pain medication.  During closing arguments, prosecutors pointed to the testimony of their lead expert witness to argue that Wean’s poor record keeping and lack of written records about patient visits was strong evidence that the defendant was running an illegal prescription pill operation.

Pill Mill Doctor Convicted of Illegal Pain Medication Sales

After three days of deliberations, jurors convicted Wean on 99 counts of illegally prescribing controlled substances, and more than a dozen counts of insurance fraud for claims that the doctor filed with patient insurance companies.  Dr. Lipnack’s pain medication expert testimony helped prosecutors convince jurors that Dr. Wean’s lack of written records was evidence of illegal activity and not simply a case of absent-minded record-keeping as the defendant claimed.  Wean will face a sentencing hearing on December 2nd.

Medical Expert Witnesses Duel in Child Abuse Murder Trial

Expert witnesses in child injury and abuse disagreed with each other on the stand this week as both prosecutors and defense lawyers relied on medical experts in the murder trial of a Madison, Wisconsin man accused of killing his girlfriend’s 5-year-old son.  During the course of this week’s testimony, expert witnesses dueled on the nature of the child’s injuries and the cause of his tragic death.

Wisconsin Man Charged with Killing 5-year-old

Dakota Black, 25, has been charged with first degree reckless homicide in the death of 5-year-old Brayden Turnbill who died from severe brain injury.  According to prosecutors Black was responsible for watching Turnbill, his girlfriend’s son, when the child came home from school, during which time he fatally abused the boy.  Turnbill was found unconscious by his mother when she returned from work, and was unresponsive to efforts to revive him.  He died in the hospital three days later.

After investigating the incident and talking to the medical examiner, prosecutors formally charged Black alleging that he abused the child so severely that Turnbill suffered fatal brain injuries.  In order to support their contention that Turnbill’s injuries were caused by physical abuse by Black instead of an accidental fall as the defendant claimed, prosecutors called a variety of medical expert witnesses who alleged the boy’s injuries were the result of child abuse.

Prosecution Expert Witnesses Testify to Signs of Child Abuse

Early in the Dakota Black homicide trial, prosecutors called to the stand medical examiner Kristin Roman who was responsible for examining Brayden’s body after his death.  According to Dr. Roman, the contusions suffered by the child were not suggestive of an accidental fall, but instead were consistent with signs of child abuse.  Dr. Roman told jurors that Brayden Turnbill died of blunt force trauma that was not accidentally caused.

The next medical expert witness to testify for the prosecution was Dr. Barbara Knox of the American Family Children’s Hospital Child Protection Program who testified that Brayden was likely unconscious at the time of his injuries and did not have a period of awareness between the time his head trauma occurred and his injury.  Dr. Knox, who was present for surgery that attempted to save Brayden’s life, told jurors that the nature of his injuries suggested the brain damage occurred immediately after he suffered a physical blow to the head.  The timing of Brayden’s injuries is critical because defense attorneys for Black allege that the boy could have suffered the trauma at any time – including the period before Black had sole responsibility for watching him.  In response to questioning about the possibility that Brayden’s injuries could have happened before a traumatic event, Dr. Knox held firm and reiterated that in her expert medical opinion the nature of the boy’s injuries precluded a lucid interval between the blunt force and his brain damage.

Finally, prosecutors called to the stand Dr. Wilbur Smith, a pediatric radiologist who is an expert in blunt force trauma.  Dr. Smith, who has testified as an expert witness in over 100 child abuse trials across the country, told jurors, “This was a very major injury, so it would have taken a lot of force to cause this injury.”  Going further, Dr. Smith said that it was highly unlikely that the force required to cause Brayden’s injuries was accidental because it was so severe.

After the prosecution closed its expert witness heavy case, defense attorneys for Dakota Black mounted a response with an expert witness to counter the assertion that Braydon’s injuries were definitely caused by child abuse.

Defense Uses Expert Witness to Counter Claims of Child Abuse

Defense attorneys for Dakota Black began their case by calling Dr. John Plunkett to the stand to counter prosecution experts who told jurors it was highly unlikely that Brayden Turnbill’s injuries were accidental.   Dr. Plunkett, an experienced expert witness in the field of forensic pathology who has testified in more than 150 trials, told jurors that Brayden could have died from an accidental fall and questioned the validity of the prosecution experts’ conclusions.

Dr. Plunkett directly contradicted testimony from Dr. Knox and told jurors that it was possible Brayden experienced a lucid interval between the trauma that caused his injury and the severe brain damage that he suffered.  Under Plunkett’s theory, Brayden could have been injured at any time – even the time before Black had sole responsibility for the boy’s care.  Dr. Plunkett further testified that the boy could have had a latent injury in his brain that was aggravated by significantly less force than other expert witnesses said was required for Braydon’s fatal injury.  Although Dr. Plunkett did not hypothesize about a cause of death, he told jurors that it was reasonable to doubt conclusions that Braydon Turnbill died of intentionally caused blunt force trauma.

Boston Nanny Freed After Expert Witness Report Disputes Cause of Infant’s Death

An Irish woman in Boston who was accused of causing the death of a child under her care earned relief last week when prosecutors dropped all charges against her due to medical expert witness reports that cast doubt on the infant’s cause of death.  Although the child’s death was initially ruled a homicide by medical examiners, expert witness analysis cast sufficient doubt into the cause of death determination that the defendant was released from custody and cleared of wrongdoing.

Irish Nanny Jailed for Causing Death of Infant

Aisling Brady McCarthy, now 37, was arrested in January, 2013 for allegedly causing the death of a one-year-old Rehma Sabir who was under her care.  McCarthy, an Irish national living in the US, was the girl’s nanny when the child died of apparent head injuries shortly after her 1st birthday.  According to prosecutors, the girl suffered from hemorrhaging and swelling of the brain and had evidence of multiple bone fractures.  Police also found blood stained baby wipes, blankets, and pillows in the child’s bedroom during the course of their investigation.

McCarthy was jailed immediately after her arrest, and has spent the past two years behind bars awaiting trial for murder.  Shortly after the investigation into Sabir’s death, a Massachusetts medical examiner examined the evidence and ruled the child was a victim of homicide.  According to the examiner, Sabir showed signs of shaken baby syndrome – which pointed police and prosecutors to her nanny.  McCarthy was arrested and formally charged with murder despite her insistence of innocence.

During the past two years, attorneys for McCarthy have worked to gather expert witness analysis of Sabir’s death in an effort to convince prosecutors that the infant suffered from severe medical complications that suggest the cause of death was accidental rather than intentional. 

Prosecutors Drop Case against Boston Nanny after Reviewing Expert Witness Reports

After more than two years of investigation, the office of the Massachusetts medical examiner was provided with expert witness reports submitted by medical experts who reviewed Sabir’s death and cast doubt on the conclusion that the child died by the defendant’s actions.  According to the expert witness report, Rehma Sabir had a history of bruising and was prone to easy bleeding when exposed even to relatively minor trauma.  The expert medical report submitted to prosecutors and the state examiner suggested the child may have had an undiagnosed disorder which caused her death.

After reviewing the expert reports, the medical examiner words were included in the prosecutors statement to the press, “Given these uncertainties, I am no longer convinced that the subdural hemorrhage in this case could only have been caused by abusive/inflicted head trauma, and I can no longer rule the manner of death as a homicide … I believe that enough evidence has been presented to raise the possibility that the bleeding could have been related to an accidental injury in a child with a bleeding risk or possibly could have even been a result of an undefined natural disease.”

Given the medical examiner’s change of opinion on Rehma Sabir’s death, state prosecutors dropped all charges against Aisling McCarthy.


Michigan Man Granted New Murder Trial After Attorney Failed to Use Expert Witnesses

The Michigan Supreme Court has granted a new trial to a man convicted of the death of a child under his care because his trial attorney failed to call expert witnesses in his defense.  During the initial trial in 2012, prosecutors used a handful of expert witnesses to suggest the defendant had abused the child, but the defense attorney did not respond with any experts who would propose an alternative theory of the injuries.

Michigan Man Receives New Murder Trial

Defendant Leo Ackley, 28, was convicted in 2012 for the 2011 death of 3-year-old Baylee Stenman, his girlfriend’s daughter who was left in his care.  Baylee died of subdural hematoma caused by head trauma that prosecutors believe was inflicted by Ackley while he was looking after the toddler.  Ackley, who has maintained his innocence throughout his imprisonment, argues that the girl fell off of her bed during a nap, and the death was a tragic accident instead of an act of child abuse.  During trial, prosecutors called five forensic and medical expert witnesses to the stand in order to explain the likely cause of the injuries that killed Baylee, but Ackley’s defense attorney did not provide a single expert to refute the testimony.

According to a unanimous ruling by the Michigan Supreme Court, the failure to call a single rebuttal expert witness to support the defendant’s theory of the crime qualified as ineffective assistance of counsel.  Given the failure of Ackley’s defense to consult an expert witness when medical expertise was critical to the outcome of the case, the Michigan Court granted a new murder trial to be conducted with a different attorney, giving Ackley the opportunity to fully explain his position in a court of law.  The decision was welcomed by Ackley’s family and his new attorney, Andrew Rodenhouse, who said that the Court was sending a message about the importance of incorporating expert witnesses into a complete defense.  Rodenhouse told reporters, “That’s really what the court is saying … telling trial attorneys, defense attorneys who do these things that you got to do a little more than just show up on the day of the trial. You got to actually do your homework and be prepared.”

Michigan Supreme Court Focuses on Use of Expert Witnesses in New Trial

In vacating Ackely’s conviction and remanding the case for a new trial, the Michigan Supreme Court emphasized the importance of expert witnesses during trials where the source of a victim’s injury were a point of contention.  Writing that expert testimony would have been “critical in this case to explain whether the cause of the child’s death was intentional or accidental,” the court found that the attorney’s failure to consult an expert, “fell below an objective standard of reasonableness, and there was a reasonable probability that this error affected the outcome of the trial.”

The Court went on to explain the importance of an expert in Ackley’s original trial, ““Counsel’s failure to engage expert testimony rebutting the state’s expert testimony and failure to become versed in the technical subject matter constituted a constitutional flaw in the representation, not reasonable strategy. Given the centrality of expert testimony to the prosecution’s proofs and the highly contested nature of the underlying medical issue, counsel’s single error of failing to consult an expert who could meaningfully assist him constituted ineffective assistance.”  Ultimately, because at the case involved an “unexplained and unwitnessed” death of a child, a complete defense necessitated expert witness involvement and the attorney’s failure to produce such evidence constituted a failure that warrants a second trial to correct.

Ackley is currently serving a life sentence for his conviction, and will likely remain in prison during the course of his new trial.  Prosecutors have expressed confidence that they are able to earn a second conviction on the strength of the evidence, but without question Ackley’s defense team will present at least one forensic medical expert witness to contend that Baylee’s tragic death was the result of an accident and not child abuse.

Medical Experts Debate ALS Caused Mental Illness in Murder Trial

The murder trial of a former sheriff deputy in Dane County, Wisconsin featured testimony from two medical experts this week who debated whether the defendant’s claim that he suffers from a mental illness due to his ALS diagnosis is legitimate.  Andrew Steele, 40, has pled guilty to the murder of his wife and sister-in-law, but argues that his ALS, a terminal muscular disease known as Lou Gherig’s disease, affected his mental state at the time of the killings.  Expert witnesses representing both sides testified to the validity of the defendant’s position.

Wisconsin Sheriff Deputy Pleads Guilty to Murder

On August 22nd, 2014 Andrew Steele killed his wife Ashlee Steele, 39, and his sister-in-law Kacee Tollefsbol, 38, in his Wisconsin home. Steele, who resigned his position as a sheriff’s deputy after being diagnosed with ALS, initially denied his involvement but later pled guilty and conceded that he had killed his wife and sister-in-law due to a mental defect associated with his terminal illness.  As jurors consider whether Steele will spend the rest of his life in prison or in a facility run by Wisconsin’s Department of Health Services, they were shown images of the crime scene that indicated Steele attacked the women and strangled them with zip ties affixed around their neck.  Tollefsbol was also the victim of a gunshot wound, and both women were handcuffed after an apparent struggle that carried on throughout the house.

Police investigators found a note on Steele’s phone suggesting that the three had a suicide pact, and the defendant has stated that his ALS diagnosis impaired his ability to recognize his behavior was wrong or illegal.

Defense Expert Witness Testifies ALS Diagnosis Could Create Mental Illness

First to testify on the impact of Steele’s ALS diagnosis on his mental state was Dr. Doug Tucker, a medical expert hired by Steele’s defense team to support his claim that ALS influenced his state of mind.  According to Dr. Tucker, Steele suffered from a serious mental disease caused by his terminal illness.  Dr. Tucker testified that Steele’s cognitive ability to control his behavior was so strongly impaired by his ALS that he was unable to act in accordance with the law.

Dr. Tucker’s expert testimony spoke directly to the key elements of a legal defense in favor of hospitalization over imprisonment by informing jurors that Steele’s condition eliminated the requisite mental state required to commit an act of murder under the law.  If Steele’s neurocognitive processing was so distorted that he could not tell right from wrong, then jurors will be permitted to consider sentencing him to institutionalization rather than incarceration.

Prosecution Expert Witness Rejects ALS Mental Illness

In response to Dr. Tucker’s expert witness testimony, prosecutors called a medical expert of their own to analyze Mr. Steele’s mental state at the time of the murder.  Dr. Paul Barkhaus, director of the amyotrophic lateral sclerosis program at the Medical College of Wisconsin in Milwaukee, analyzed Steele’s medical records and testified that had there been any indication that he suffered from a neurocognitive disorder as a result of his ALS then he would have been referred to a neuropsychologist for further evaluation.

Although Dr. Barkhaus declined to speak directly to Dr. Tucker’s testimony because the prosecution expert is not a neuropsychologist, he testified that Steele’s ability to drive a car in traffic and interact with his family indicated that his mental state was not so deteriorated that he could not follow the law.  According to Dr. Barkhaus’s testimony Steele would have likely displayed other violent tendencies if his ALS effected his cognitive processes, indicating to jurors that the defendant’s argument was not medically plausible.

The case is expected to continue through the week before jurors determine the former sheriff deputy’s fate.