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Summary: Toxicology Expert Witness Mike McCabe of Exigent explains the complexity and consideration required when it comes to Dram Shop litigation.

Serving, drinking, and enjoying alcohol is very much a part of our national culture. In some respects, it’s embedded into Western society, an over-familiarity that feeds into national stereotypes; the French with their love of wine, the British with their love of beer, the Irish and their whiskey, for example. The same cannot be said of any other drug.

With its omnipresence in our society, and the ability to affect our behavior, our choices and our decision-making processes, it is little surprise that alcohol is the cause of thousands of legal cases a year. In the US, one of the more complex legal disputes regarding alcohol is Dram Shop litigation.

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Summary: The court ruled that a Urology Expert Witness will be able to testify in a medical malpractice case.

Facts: In this case (Robert Teel v. United States of America – United States District Court – Northern District of Oklahoma – January 7th, 2020) involves a medical malpractice claim brought by Mr. Teel, a citizen of the Cherokee Nation. Teel was diagnosed with prostate cancer in 2016 and was being treated at the Claremore Indian Hospital.

Tell claims that Claremore Indian Hospital delayed and made his cancer worse by not referring him to a urologist and administering testosterone injections.  Mr. Teel hired a Urology Expert Witness  Dr. Marc Steven Milsten to provide expert witness testimony on his behalf.  The defendant claims that Dr. Milsten’s opinions are not reliable and based on speculation.

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Summary: The Missouri Supreme Court of Missouri rejected a claim that the testimony of four expert witnesses, including a Colorectal Expert Witness, was cumulative.

Facts: In Shallow v. Followell (2018), Supreme Court of Missouri en banc, No SC96901, the Missouri Supreme Court was asked to decide whether the lower court abused its power by allowing four Expert Witnesses to regarding a medical negligence claim.

The defendant performed surgery on the plaintiff to treat an abdominal hernia. After the plaintiff was released, she experienced in her abdomen. She was readmitted to the hospital, and the released.  After more pain, she went back to the hospital, and again was discharged.  When the plaintiff’s condition became worse, again returned to the hospital.  At that time, the doctor’s found that she sepsis due to a severe infection in her abdomen. She later died as a result.

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Summary: The court found that a Chiropractic Expert Witness may not testify regarding non-chiropractic treatment.

Facts:  In GUADALUPE MORENO, Appellant V. C’TARA INGRAM, Appellee on Appeal from the 192nd Judicial District Court Dallas County, Texas Trial Court Cause No. 12-2144, the plaintiff brought suit against the defendant for injuries and damages she sustained as the result of a car crash. The jury ruled in favor of the plaintiff, and judge gave judgment based on the jury’s recommendation.  The defendant argued that the Chiropractor Expert Witness should not have been allowed to testify on the necessity of plaintiff’s non-chiropractic medical injuries and treatment. The trial court ruled that the chiropractor was not qualified to give an expert opinion on the necessity of certain medical care the plaintiff received.

The facts of the case are as follows. The two parties were involved in car crash.  Plaintiff sued for personal injuries and property damage. Before trial the plaintiff also filed documents regarding medical costs and services as result of the accident.  The trial court agreed with the plaintiff regarding the cost, but not necessarily the care that was given.

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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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