Tag Archives: medical expert witness

New Jersey Appellate Court Bans Expert Witness Bootstrapping

A New Jersey court has banned the practice of expert witnesses improperly testifying about the opinion of other experts during trial.  Known as bootstrapping, personal injury lawyers use it to take advantage of expert witnesses’ knowledge of opinions of other experts who are not present at trial, effectively getting in evidence that was not approved prior to the start of trial.  Last week, the New Jersey Appellate Division made an effort to stop bootstrapping by forbidding attorneys from asking experts about other witnesses not on the stand.

Plaintiff Attempts to Bootstrap Medical Expert in New Jersey Car Accident Lawsuit

The ruling against bootstrapping comes from the New Jersey case of James v Ruiz in which William James attempted to collect significant financial damages against Rolinda Ruiz who backed into his vehicle at a toll booth station and allegedly caused a permanent neck injury.  In an effort to highlight the extent of the injuries he suffered, Mr. James called as an expert witness Dr. Stephen Zabinski, a certified orthopedic surgeon, to testify about the extent of the plaintiff’s injuries.  Dr. Zabinski was called to testify about an apparent bulge in James’ neck revealed in a CT scan performed and reported on by Dr. Amerigo Falciani, a radiologist who was not called to testify during the trial.

After asking Dr. Zabinski to point out the disk bulge on the CT scan, James’ attorney asked the expert whether or not his observation was consistent with the report filed by Dr. Falciani.  Defense attorneys objected, and asked the trial judge to omit any mention of an expert witness who would not take the stand during trial.  When a defense expert, Dr. John Cristini, disagreed with Dr. Zabinski’s opinion, James’ attorney again attempted to reference the Falciani report, and was again stopped by the judge who told the lawyer, “You’re not going to back door the radiologist’s opinion into this case. He’s not here to testify.”

The issue came up again when James’ attorney attempted to reference Zabinski’s confirmation of the Falciani report during closing arguments.  Again, Ruiz’s attorney objected and again the judge agreed, this time telling jurors to disregard, “whatever a radiologist might have determined,” before adding, “The radiologist did not testify here. We are talking about the testimony of Dr. Zabinski and the testimony of Dr. Cristini.”  The jury returned a unanimous verdict in favor of the defendant Rolinda Ruiz having found no evidence of a permanent injury caused to Mr. James by the accident.  On appeal James’ lawyer alleged that the trial judge had improperly restricted his expert’s testimony by forbidding all mention of the radiologist’s report.

New Jersey Appellate Court Prohibits Expert Witness Bootstrapping

Judge Jack Sabatino, writing for the majority of New Jersey’s Appellate Division Court, affirmed the trial court’s decision to prohibit the type of expert witness bootstrapping testimony that would have admitted discussion of the non-testifying radiologist’s report.  According to Judge Sabatino, lawyers in New Jersey would no longer be allowed to ask an expert witness called in a civil trial whether or not findings on consistent with a non-testifying expert, “where the manifest purpose of those questions is to have the jury consider for their truth the absent expert’s hearsay opinions about complex and disputed matters.”  Judge Sabatino also disallowed expert witness bootstrapping when the purpose was to impeach credibility by one expert by referencing the work of another.

Judge Sabatino defended the argument by pointing out that having one witness testify about the position of another witness is impermissible hearsay, but courts have allowed the practice for experts as a means of validating testimony.  Although it had become commonplace, Judge Sabatino put a stop to the practice of bootstrapping by disallowing any effort to circumvent hearsay rules, even when attorneys are attempting to reinforce expert testimony by demonstrating consistency with other experts in the field.  Finding that allowing expert testimony “through the proverbial ‘back door’” via bootstrapping was in violation of New Jersey’s rules of evidence, the state appellate division instituted a prohibition on the practice that will largely effect plaintiff attorneys in personal injury cases who frequently employ the tactic.

10th Circuit Dismisses ADA Claim for Lack of Expert Witness

Earlier this month, the U.S. Court of Appeals for the 10th Circuit upheld the dismissal of a lawsuit because the plaintiff failed to provide an expert witness connecting a diagnosed medical impairment to the harm she allegedly suffered.  In its decision, the 10th Circuit clarifies the standard for proving a medical condition in an ADA claim and reinforces the need for medical expert witnesses.

ADA Plaintiff Alleges Injury Caused Failure to Work

In Felkins v City of Lakewood, Plaintiff Cynthia Felkins, formerly an employee for the City of Lakewood, Colorado, claimed that a medical condition called avascular necrosis caused two significant injuries that prevented her from working for long stretches during the early part of 2009.  In late 2008, Felkins suffered from a broken femur causing her to miss over 466 hours in the first 10 months of her job as an emergency call-center dispatcher.  After being fired in early April of 2009, Ms. Felkins filed a discrimination lawsuit with the Equal Employment Opportunity Commission (EEOC) that alleged the City of Lakewood failed to accommodate for her disability of avascular necrosis.

The City responded that Ms. Felkins had failed to demonstrate that she had a disability that qualified her for a claim under the Americans with Disabilities Act (ADA).  Arguing that Ms. Felkins had not provided documentation or testimony from a medical expert as is required by the ADA, Lakewood attorneys requested the case be dismissed.  The trial court agreed with the City and dismissed the claim because Ms. Felkins’s only proof of her disability was her own testimony, which was not sufficient to prove that her avascular necrosis was the cause of the injuries that kept her from working.

10th Circuit Requires Expert to Prove Medical Condition in ADA Case

On appeal, the 10th Circuit affirmed the trial court’s dismissal after finding that Ms. Felkins’s own testimony that her avascular necrosis caused her injuries was insufficient to prove an ADA claim.  A necessary component to winning an ADA lawsuit is demonstrating the existence of a physical or mental impairment that “substantially limits one or more major activities.”  Throughout her complaint, Ms. Felkins argued that her avascular necrosis created abnormal cell growth and blood flow that prevented her from lifting, walking, and standing normally, and, most importantly to her lawsuit, caused her a long-term injury that kept her away from her job.

Despite repeated insistence that her avascular necrosis led to her medical impairment, Ms. Felkins did not provide any professional medical evidence from an expert witness that the condition affected her major life activities.  Citing relevant case law, the 10th Circuit opinion found the Plaintiff’s allegations that she suffered from an ADA qualifying impairment unconvincing due to lack of an expert.  Writing, “[W]here injuries complained of are of such character as to require skilled and professional persons to determine the cause and extent thereof, they must be proved by the testimony of medical experts,” the Court pointed to the need for an expert to verify Ms. Felkins’s claims that her avascular necrosis caused her injury.

Without an expert witness proving her condition caused limitations that the City of Lakewood needed to consider, the 10th Circuit could not allow the case to proceed on Ms. Felkins’s personal testimony alone.  The case serves as a reminder that, while there is a place for lay-testimony, the word of an expert witness is required when medical conditions are the center of debate in ADA claims.

Medical Expert Witnesses in ADA Claims

While lay-testimony such as Ms. Felkins’s declarations is admissible to describe symptoms of a disease or medical impairment, the 10th Circuit reminded plaintiffs that an expert witness is required to not only diagnose a medical condition but also identify the illness as a cause of limitation on major life activities.  Although the ADA was amended in 2008 to loosen the burden of proving the existence of an ADA qualifying injury, the 10th Circuit found that plaintiffs are still required to connect symptoms and other evidence of impaired life activity to a diagnosed medical condition.

In this case, Ms. Felkins case failed because she could not demonstrate that her alleged avascular necrosis caused her physical limitation.  Without evidence of the necessary cause, she could not demonstrate that she qualified for an ADA claim.  Plaintiffs reading the Felkins case can note that a medical expert witness should be part of any ADA claim in order to connect a diagnosed condition to limitations that require accommodation by employers.

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Expert Witnesses Participate in Infant Murder Trial

Last week a Chicago criminal court declared a mistrial in the murder case of Jessica Cruz, who has been accused of killing her baby moments after it was born and disposing of the body in a trash can in Salvation Army store restroom.  During the trial, which left jurors hopelessly deadlocked, two forensic pathologist expert witnesses offered contradictory reports as to whether or not the infant was alive after the birth at all.

Jessica Cruz Accused of Murdering Infant

Jessica Cruz was arrested in November of 2011 after police connected the body of a newborn that employees of the Chicago-area Swiss Army store found to the then 19-year-old woman. Jessica, now 22, was charged with first-degree murder and concealment of a homicide for allegedly killing her infant shortly after giving birth.  Prosecutors sought life in prison for what the state called, “exceptionally brutal or heinous behavior indicative of wanton cruelty.”

Crucial to the Cruz trial was the question of whether or not the baby was alive at the time of his birth.  According to authorities, Cruz gave birth to living baby boy then put the baby into a garbage bag, tied the bag around his neck, put his body into a garbage can and covered him with paper towels.  She attempted to clean up the restroom before leaving to clean herself in another store nearby the Salvation Army outlet.

Through her attorneys, Cruz has denied the claim that the baby was alive.  According to her story, the infant was stillborn and, because she did not know what to do, she hid the body in a trash can without alerting police or medical personnel.  Both prosecutors and defense attorneys called medical expert witnesses who debated whether or not the baby boy was alive at birth throughout dueling testimony presented during trial.

Medical Expert Witnesses Debate Life of Infant

To support the state’s argument that Jessica Cruz gave birth to a living baby boy before strangling him with a garbage bag and leaving his body in a bathroom trash can, prosecutors called upon the Cook County medical examiner’s office.  The assistant medical examiner who was part of the murder investigation took the stand as an expert witness in order to inform jurors that the baby died of strangulation.  Pointing to x-rays and a float test that indicated the baby boy had taken life, Dr. Ponni Arunkumar testified to jurors that the baby had been alive and strangled in an act of homicide, giving prosecutors the testimony they needed to argue that Cruz had committed murder.

Defense attorneys mounted a spirited counter-attack by calling a separate medical expert witness to cast doubt on the county examiner’s conclusion that the baby was born alive before being strangled.  Dr. Janic Ophoven, a pediatric forensic pathologist, was called as a medical expert witness for the defense to tell jurors that there was not sufficient evidence to prove the boy survived the birth.  Dr. Ophoven countred Dr. Arunkumar’s claim that the boy had taken breath by comparing the infant’s lungs to an x-ray of a stillborn baby in its first or second trimester.  The defense medical expert went on to testify that the alveolar sacs in the lungs were “inconsistent with live birth” and opined that the baby could have asphyxiated while moving through the birth canal.

The competing medical expert witnesses debated the critical question of whether or not the infant boy was alive at the time of birth during testimony to jurors, and both parties pointed to the expert evidence during closing arguments before jury deliberations.

Jurors Unable to Reach Verdict

Ultimately, the jury was not able to agree which evidence was more credible and after three days of contentious deadlock, Judge Bridget Hughes formally declared a mistrial.  While a mistrial is not akin to a conviction, it is evidence that the defense expert witness was able to sway some members of the jury with testimony that the evidence of the infant’s live birth was unconvincing.  Cruz will undergo another murder trial with a new jury, which will unquestionably feature the same, or similar, expert witnesses to once again engage in debate about whether or not the baby boy was alive after his birth.

Expert Witness Testifies to Inadequate Health Service During Jail Lawsuit

Monterey County, California is embroiled in a legal dispute over the condition of its prison systems with plaintiffs alleging that prison conditions and mental health treatment services are well below levels required by federal law.  Last week, a federal judge heard expert witness testimony that argued the inmates filing the lawsuit against Monterey County Jail suffered from substandard conditions that warranted a class-action claim against the prison system.

Monterey County Jail Inmates Sue Prison

The legal troubles for Monterey County Jail and its health contractor California Forensic Medical Group (CFMG) started in May of 2013 when five inmates filed a lawsuit due to allegedly unsafe and poor conditions of their confinement.  Over the last year, the number of inmates joining the lawsuit has risen to 21, and attorneys representing them have joined with the American Civil Liberties Union (ACLU) to request the lawsuit become a class-action on behalf of all current and future inmates.

In a 30-page complaint, attorneys for the aggrieved inmates claimed that Monterey County Jail and CFMG failed to provide adequate inmate medical and mental health care, and that conditions in the prison are not in compliance with the Americans with Disabilities Act (ADA).  Inmates complain of overcrowding and inadequate facilities to handle the prison population’s mental and physical health needs.  To support their legal position that conditions in Monterey County Jail warranted a class-action lawsuit, plaintiffs presented a report by Dr. Mike Puisis, a medical doctor who criticized the Monterey Jail health facilities.

Medical Expert Witness Critical of Monterey Jail

As part of his expert witness report, Dr. Puisis examined medical records of 29 inmates at Monterey County Jail, none of whom were plaintiffs to the litigation.  Dr. Puisis, who was agreed upon as one of four neutral experts by both parties in the early stages of the litigation, presented expert analysis of the medical history of each inmate, and argued that Monterey County Jail committed “egregious missteps” that could result in a harmful situation if not corrected.  In Dr. Puisis’ expert opinion, Monterey County Jail and CFMG fail to provide the most basic level of medical health services as required by law, and inmates in the prison system are in danger of having inadequate care.

Michael Freeman, an attorney for the plaintiffs, reinforced the need for a class-action lawsuit citing Dr. Puisis’ testimony, saying, “This is not a theoretical case, this is not a made up case, these are not inmates seeking luxuries for the jail. This is about serious failings in the medical and mental health care system there and the consequences of people being seriously injured, including death.”  Defense attorneys, however, disagreed and argued that Dr. Puisis’ expert testimony was developed to push an agenda rather than provide relevant evidence in the lawsuit against Monterey County Jail.

Defense Attorneys Object to Prisoner’s Expert Witness

Attorneys representing Monterey County Jail and CFMG objected to the use of Dr. Puisis’ expert witness report because of the way in which he gathered his data and articulated his opinions.  At primary issue were the medical records of the 29 non-plaintiff inmates that Dr. Puisis relied on in generating his report.  Defense attorney Peter Bertling argued the report was filled with factual errors, but in order for the defense to attack those errors it would need access to confidential patient personal health information that would prejudice CFMG.

Pointing to inconsistencies between Dr. Puisis’ report and a report by Dr. Robert Cohen, another expert cited by the plaintiffs, Bertling also found Puisis’ expert opinion unconvincing, saying, “Dr. Puisis is effectively interjecting his personal preferences as the governing framework for correctional medicine in lieu of Title 15. He entirely disregarded this assignment and seized the opportunity to impose a personal agenda with his review.”  Arguing that Dr. Puisis’ expert report not only inappropriately relied on confidential health records, but was also not relevant to the case, Bertling and the Monterey County defense team requested Judge Paul Sing Grewal exclude Puisis’ testimony from the trial.

Judge Grewal will make a ruling on the admissibility of Dr. Puisis’ expert witness testimony and whether or not to grant the plaintiffs’ request for a class-action sometime in the next week.

High Profile Cyanide Poisoning Murder Trial will Feature Expert Testimony

A high profile murder case of a former University of Pittsburgh medical researcher who is accused of poisoning his wife will feature opposing expert witnesses who will debate the circumstances of the case.  Dr. Robert Ferrante will be tried for the April 2013 death of his wife who he allegedly killed with cyanide, and, with medical evidence key to the outcome, the trial figures to be a battle of expert testimony.

Medical Researcher Accused of Cyanide Poisoning

Dr. Ferrante is charged with killing Autumn Marie Klein, his 41-year-old wife who was carving a path for herself as a leader in the field of neurology and obstetrics, by administering a fatal dose of cyanide mixed into an energy drink.  Dr. Klein collapsed in her home on April 17th, 2013, from an apparent stroke, but further investigation by police and medical examiners uncovered evidence that suggested her death was not accidental.

Upon being transported to a local hospital, the treating doctors noticed Dr. Klein’s blood was bright red, which is consistent with the fatal effects of cyanide poisoning.  With blood tests raising suspicions, police were keyed to Dr. Ferrante when it was revealed that he made a purchase of over 1 pound of cyanide with his University of Pittsburgh research account – an unusual transaction for someone in Ferrante’s position.

Between the blood tests and the unusual cyanide purchase, police connected the dots to Ferrante, and arrested him in July of 2013 while he was traveling home from a conference in Florida.

Prosecutors Look to Medical Experts to Point to Cyanide Poisoning

Prosecutors have summoned several expert witnesses to comment on the presence of cyanide in Dr. Klein’s blood, and whether or not Dr. Ferrante, who is a leading researcher on ALS at University of Pittsburgh, would have any reason to use the toxin during the course of his work. The crux of the prosecution’s case will center on connecting the cyanide in Dr. Klein’s blood to: 1) the cause of her death, and 2) Dr. Ferrante.

In addition to the blood tests conducted at the hospital where Dr. Klein was admitted, prosecutors will call toxicology expert witness Christopher Holstege who plans to narrate a presentation examining the sound of Dr. Klein gasping for air in the background of Ferrante’s 911 call.  Holstege’s expert testimony will connect the noises Dr. Klein made while fighting for life with the sound of someone suffering from cyanide poisoning.  Other experts will be used to tell jurors that Dr. Ferrante’s work did not require cyanide toxin, helping prosecutors connect the dots from Ferrante’s behavior to Klein’s unexpected death.

Defense Strategy Relies on Expert Witnesses

Although the defense team representing Dr. Ferrante has not made public a strategy to respond to the allegations against him, given the medical evidence mounting, the defense will need to look to expert witnesses for assistance.  Law professor John Burkoff, who has become an expert on the Ferrante case, told the Associated Press, “If the defense doesn’t have some credible medical evidence to dispute the prosecution’s evidence, they’re in pretty bad shape. The biggest thing that makes me curious is what expert testimony the defense will have on the cyanide evidence. If you find there’s a substantial amount of cyanide in her system, and that he had access to cyanide, well, that’s pretty much it.”

With the need for medical expert witnesses dramatic, Ferrante’s defense team has turned to renowned forensic pathologist, Cyril Wecht.  Dr. Wecht is the 83-year-old former Allegheny County coroner who has consulted on examination of famous deaths including those of Elvis Presley and JonBenet Ramsey. Although what Dr. Wecht plans to say during his expert testimony has not yet been revealed, his presence in the case lends credibility to Ferrante’s efforts to defend himself against the murder charge.

The Ferrante murder trial opens this week, and is expected to carry on for at least a month as both sides hammer it out with physical evidence and medical expert witness testimony.

Ohio Court Dismisses Medical Expert Witness in Asbestos Cancer Lawsuit

Last week, the Ohio Supreme Court dismissed a medical expert witness in an asbestos illness lawsuit because the doctor failed to claim asbestos exposure was the substantial cause of the victim’s fatal cancer.  The plaintiff, filing the claim on behalf of her deceased husband, was granted permission to reinstate her case should she find reliable expert testimony that links asbestos exposure to her spouse’s death.

Plaintiff Alleges Asbestos Caused Cancer

Cleo J. Renfrow filed a lawsuit against Norfolk Southern Railway Company alleging that her late husband, Gerald, was exposed to asbestos while he worked for Norfolk Southern from 1968 to 1992.  Gerald, who died in 2011 from lung cancer, was a long term employee who, according to Cleo’s lawsuit, had worked close to toxic levels of asbestos without being properly protected by Norfolk Southern.  The defendant has argued that Mrs. Renfrow’s lawsuit fails because she was not able to connect asbestos to Gerald’s fatal lung cancer.

Complicating Mrs. Renfrow’s case was Gerald’s 50-year habit of smoking a pack-and-a-half of cigarettes every day.  With cigarette smoking a known cause of lung cancer, the lawsuit faced the difficult task of identifying asbestos exposure as a critical factor to the disease that caused Gerald’s death.  Although Renfrow did not have a written report from her husband’s physician, a lower court determined that she could pursue a claim if she provided Gerald’s hospital records, history of smoking, asbestos exposure, and an expert witness report from a competent medical authority that testified to asbestos’ effect on Gerald Renfrow’s cancer.

Asbestos Plaintiff Retains Medical Expert Witness

To satisfy the requirement of a competent medical authority who could establish that Gerald’s lung cancer was caused by asbestos exposure, Cleo Renfrow hired Dr. Laxminarayana C. Rao.  Dr. Rao argued that asbestos led to Gerald’s illness, but was challenged by Norfolk Southern for not sufficiently connecting the alleged cause with the fatal lung cancer.  In his report, Dr. Rao pointed to Gerald’s long-term asbestos exposure, but, according to Norfolk, his expert witness report fell short of the legal standard required to demonstrate cause.  After reviewing the case and Dr. Rao’s medical expert testimony, the Ohio Supreme Court agreed and dismissed the case.

Ohio Supreme Court Rules Expert Failed to Connect Asbestos to Lung Cancer

Although Dr. Rao opined that asbestos contributed to Gerald’s lung cancer, the Ohio Supreme Court found that he had not gone far enough.  In order for Dr. Rao to be a competent medical authority in an asbestos case, he needed to provide expert testimony that had it not been for the asbestos exposure, the victim would not have contracted cancer.  In a toxic tort case such as Mrs. Renfrow’s, a medical expert witness must argue that the chemical is the predominate and significant factor in causing the disease – a step that Dr. Rao had not fully taken.

Writing for the Ohio Supreme Court, Judge Terrence O’Donnell emphasized, “One of the statutory prerequisites necessary to establish a prima facie tort action alleging an asbestos claim based upon lung cancer requires a person who is a smoker to demonstrate a diagnosis by a competent medical authority that the exposure to asbestos is a substantial contributing factor.”  Without a medical expert witness testifying to asbestos being the primary factor, Mrs. Renfrow’s case fell short of meeting the legal requirements in Ohio.

When dismissing the case, the Ohio Court noted that Mrs. Renfrow still had the opportunity to reinstate her lawsuit if she could find a competent medical expert witness who could establish that asbestos exposure was the predominate cause of her husband’s death.  The Court suggested testimony from Gerald’s treating physician, who would have both credence as an expert witness and direct knowledge of the case.