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Summary: Ex Parte communication with a court appointed Child Custody Expert Witness ruled inappropriate.

Background: In the Matter of Kenneth C. v. Delonda R., 2006 NY Slip Op 50026(U) [10 Misc 3d 1070(A)], the court address the question of whether a parties communication with a court-appointed Child Custody Expert Witness is unethical, and whether such ex parte contact interfere with the expert witnesses neutrality.

During the course of the trial, the attorney for the mother in the child custody case sent letters to the court appointed Forensic Psychology Expert Witness.  He also including copies of investigations concerning the alleged medical neglect allegation against the father.  The family law attorney further offered to meet with the Child Custody Expert Witness to discuss the case.  The letter ended with a request the expert witness reconsider the previous child custody recommendation.  The court appointed expert witness did not respond to the letter.

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Cardiology Expert Witnesses are often called to testify.  The American College of Cardiology Foundation (ACCF), wrote a statement on the subject of Expert Witnesses some years ago.  In it, they state that a Cardiovascular Expert Witness has the obligation and duty as a doctor, as a member of society, and as a member of the cardiology profession, to act as an expert witness in litigation where cases involve her or his experience, training, or knowledge.  The ACFF believes that such expert witness testimony is required to see that the correct result occurs for all parties.

The ACCF acknowledges while some doctors do cause injury to patience as a result of malpractice, that is not always the case.  Our society, and that of the cardiology profession, is best served when unbiased expert witness, and sound scientific testimony is available to all parties in medical malpractice litigation.  The ACCF suggest that medical schools offer classes to instruct cardiologists on the skills and qualifications needed for a doctor to testify as an expert witness.

Indeed, the American Medical Association supports the use of cardiologists as expert witnesses.  Expert testimony is effectively part of the practice of medicine.  The expert should not be an advocate.  They should give an honest and impartial opinion, not based on who is paying them.  One of the best statements by a doctor working on a case was as follows: “I don’t work for the plaintiff or the defendant.  I work for the patient. Did they receive the proper care?  That is the essential question.”

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Expert Witness Summary: Breast Surgery Expert Witness was allowed to testify despite his opinion was based entirely on clinical experience and not from other studies.

Discussion: In Cross v. Wyeth Pharmaceuticals, Inc., U.S. District court, Middle District of Florida, 2011 (Case 8:06-cv-429-t-23AEP) the plaintiffs in this filed a motion to exclude all expert witness and testimony that combination hormone therapy does not cause breast cancer.

Under the Federal Rule of Evidence, 702, expert witness testimony is admissible if the expert is qualified to testify about the issues she or he is called upon to opine, the methodology the expert uses to reach her or his conclusions is sufficiently reliable as mandated by Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), and the testimony is helpful to the trier of fact to understand the evidence through specialized, scientific, or technical expertise. Whichever side would like that testimony must demonstrate that the witness is qualified, that his or her opinions are based on scientific and sound methods, and such testimony will assist the judge or jury. It is not necessary to prove that the opinion is correct, only that the evidence is reliable.  The judge must made the determination as to whether or not the expert witness testimony is reliable.

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Summary: Defendant is guilty of murder despite Psychiatry Expert Witness diagnosis of his schizophrenic condition.

Facts: MATTHEWVAISE V. STATE OF MARYLAND, Case No. 2205, Sept. 2018 involved the death of Stephen Vaise.

The victim was found shot dead in his home in Maryland in January 2015. Stephen’s son Matthew Vaise was charged with 1st Degree murder, and for use of a gun in a crime of violence.

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Summary: A Human Resources Expert Witness was not qualified to testify in a race discrimination case because he lacked expertise beyond that of a layperson.

Facts: In MIFAB Inc., v. Illinois Human Rights Commission and Clint Towers, First District Appellate Court of Illinois, (2020 IL App (1st) 181098, there was a question as to wether a former supervisor could testify as a Human Resource Expert Witness.

Clint Towers was hired as a warehouse worker for MIFAB, Inc. a plumbing supply business.  He worked overtime, but his hours began to decrease in the fall of 2006.  He was fired in November, 2006.

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Summary: A Psychology Expert Witness testified that because of defendant’s low IQ, he was not able to understand his Miranda Rights.

Facts: In State v. Bobby Willson 20020 IL App (1st) 162430 No. 1-16-2430 Filed March 26, 2020 Fourth Division, 16 year old Bobby Wilson was found guilty of first degree murder and sentenced to 37 years in prison.

The defendant appealed the case on the theory that (1) the trial court was in error by denying Wilson’s motion to suppress statements made to the police because he lacked the ability to fully understand his Miranda rights given by the police officer, (2) the State did not present enough evidence to prove his guilt based on its theory of accountability, (3) he was denied him a fair trial because of the trial court’s refused to give a jury instruction on the concept of “mere presence”, especially after the jury gave a question showing confusion on the law of accountability,  (4) the defendant is entitled to a new sentencing hearing because the trial court failed to take into account mitigating factors for a 16 year old, and (5) his sentence was against the constitution.

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Summary: Plaintiff’s failure to name a Wound Care Expert Witness to support his claims lead to the court granting defendants’ motion for summary judgment.

Facts: In Jenkins v. Karl HC LLC dba Villa Angela Care Center, 2020-Ohio-1137 (March 26, 2020), Plaintiff William sued the Villa Angela Care Center skilled nursing center and other doctors for allegedly poor care.  Plaintiff was a resident at the nursing home during 2014 and 2015.  During that time he was also under the care of Dr. McEldowney among other health care providers.

Plaintiff received outside treatment in December 2014 for wounds on his legs.  After that treatment, the plaintiff returned to the nursing home, and claimed that his wounds became worse as a result of the defendants’s failure to provide adequate care.  He also claimed that the nursing home and their doctors did not follow the advice and orders of his wound care doctor, Anthony Cozzolino.  Plaintiff Jenkins’ wounds on his legs became so bad that eventually his leg had to be amputated.

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Summary: Product Liability Expert Witnesses on disagree on whether an electric stove was defective and unsafe for use.

Facts: In Astacio v Birdie 141 Broadway Assoc., 2020 NY Slip Op 31074(U), Supreme Court, New York County, plaintiff lived in an apartment in New York.  In early 2014, the gas service to her building was stopped, and she could not use her gas stove.  Defendant provided residents with a two burner electric stoves.

The plaintiff acknowledged that she had used many different electric stoves, as the gas service to the building was consistently interrupted.  The plaintiff testified that she used many electric stoves during this time, as they would stop working.  Each time she was provided with a new one.  She denied ever damaging the units.

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Summary: A Daubert Hearing was unnecessary for a Firearms & Ballistics Expert Witness testifying regarding a bullet comparison.

Facts: In Walters v. Kentucky (Commonwealth of Kentucky Court of Appeals), the court affirmed a judgment of the circuit court sentencing the defendant to ten years imprisonment for various criminal offenses, including home invasion

Two masked men with guns entered a residence owned by Lillian and Gary Ballman.  They demanded drugs and money. A fight ensued, and shots were fired.  The victims gave the men a safe containing drugs, money, and jewelry.

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Summary: A conviction for assault with a deadly weapon with intent to do bodily harm and assault causing serious bodily injury was vacated, and the case was remanded for a new trial.  The court ruled that defendant should have been allowed to have his Forensic Psychology Expert Witness  testify, which would have allowed defendant to present his insanity defense to the jury.

Facts: In U.S v. Ray (U.S. Court of Appeals for the Ninth Circuit), two defendants, Patrick Bacon and Daniel Ray, were convicted of assault with a deadly weapon.  Bacon and Ray were both jailed in Victorville Federal Prison in California when they coordinated a stabbing of multiple correctional officers.  Security cameras recorded the attacks.

After a grand jury indicted Bacon and Ray, they were sent to trial.  Prior to trial Bacon gave notice, pursuant to Federal Rule of Criminal Procedure 12.2, that he would put forth an insanity defense.  The government filed a motion in limine to preclude Bacon’s Forensic Psychology Expert Witness Dr. Karim from testifying.  Dr. Karim had opined in a report that Bacon suffered chronic mental illness throughout his life, that he was on a downward spiral, and as a result, it would be reasonable to conclude “with a high degree of clinical certainty” that he would have had difficulty understanding the nature of his actions at the time of the assault.

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