Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘expert witnesses’

Coaching medical witnesses

An instruction sheet for doctors providing defense-side “independent” medical exams in injury cases reads in part as follows:

# Point out whatever findings or claims are not related [to the sued-over incident]. Otherwise be silent on causal relationship.

# If prognosis appears good, then state that – otherwise be silent

# If you can state that plaintiff can participate in all normal activities, do so. If not, be silent

Eric Turkewitz, who brings this story to public attention (Feb. 12), wonders what ethical questions might be posed for both lawyers and doctors when expert witnesses are coached in this way to give partial and incomplete (to say no more) testimony. I don’t know what New York legal and medical authorities would do, but in the mother of all witness-coaching scandals in recent years — the inadvertent release of Baron & Budd’s “Preparing for Your Deposition” memo in asbestos litigation in Texas — nothing at all wound up being done by established authorities to discipline or punish the plaintiff’s lawyers involved. In fact, even more incredible, Baron & Budd succeeded in hiring more than one well-known academic ethics specialist to sign affidavits attesting that the coaching practices were in no way objectionable — details here and here (see pp. 161 et seq. of Brickman’s Pepperdine article). So if Integrated Risk Services, Inc., of Long Island, New York, which bills itself suggestively as a firm providing “Attorney Managed Independent Medical Consultation Services”, finds itself in hot water, perhaps it should give Prof. Silver in Austin a ring.

P.S. Jane Genova at Law and More doubts it works well before juries — though of course persuasiveness to a jury might not be the only objective for those who engage in coaching.

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January 14 roundup

  • Professors debate fourth-amendment implications of Supreme Court’s use of videotape evidence. Orin seems to have the better of it by my eyes, but perhaps that’s just my confirmation bias. [Kerr @ Volokh; Kahan/Hoffman/Braman; Youtube; Concurring Opinions] (And update: rejoinder by Braman @ Concurring Opinions)
  • Repeat after me: medical errors or complications are not always medical malpractice. [Dr. Wes; Medical Progress Today]
  • NC court speaks out for judicial restraint before creating new cause of action. [Beck/Herrmann]
  • California proposes allowing government to remotely set your thermostat [Walter Williams; Cafe Hayek]
  • Old problems not getting any better: “a New York Times article in 1897 (!), which reported that The Committee for Remedial Legislation in Regard to Expert Testimony called for all physician witnesses to be paid by the county.” [PlasticSurgery101]
  • Remember Lionel Tate, the 12-year-old who murdered a 6-year-old, and then provoked outrage when he was sentenced to life at the age of 14? His sentence was reversed, he was given probation, and promptly violated it by committing armed robbery, it seems. Now he wants to blame his lawyer for the resulting 30-year-sentence. [ABA Journal]

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Cross median into bus’s path, it’s bus owner’s fault

A jury has ordered the owners of an Oklahoma charter bus to pay $2.8 million to country singer Toby Keith and other members of his family after a 2001 accident in which Keith’s father, H.K. Covel, was killed after his truck crossed the median on Interstate 35 into the path of the bus. The family’s lawyer had produced an expert witness to testify that the bus’s brakes should have been in better repair and that the driver should have been better trained. Covel’s truck had been bumped by another vehicle and the family said it filed the suit to establish that the accident wasn’t his fault. (“Jury rules Toby Keith’s father not at fault in crash that killed him”, AP/KTEN, Dec. 24).

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Medical expert cops plea deal

Miami surgeon Dr. Alex Zakharia was indicted by a federal grand jury last year on perjury, mail fraud and wire fraud charges in connection with his testimony in a Michigan medical malpractice case (KevinMD, Dec. 2). Now Zakharia has pleaded guilty to contempt of court and admitted false statements as part of a plea deal to resolve the charges. Reports the Ann Arbor News (Sept. 18):

Authorities said he testified as an expert witness in 2002 on behalf of a plaintiff charging a doctor at the VA with medical malpractice in connection with a coronary artery bypass graft.

He admitted that during the deposition, he falsely bolstered his credibility as an expert by creating the impression that he was the lead surgeon for numerous coronary artery bypass grafts – when he never conducted such surgeries, officials said.

More: Miami Herald; Expert Witness Blog; U.S. Attorney press release (PDF).

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July 23 roundup

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The Wall Street Journal on “Do it Yourself Tort Reform”

In today’s Journal, an article by the people behind Medical Justice:

In 2002, we launched Medical Justice, a membership-based organization designed to complement tort reform and to head off frivolous lawsuits. ….

Our service has two principal components. First, we look at the quality of so-called expert-witness testimony. Behind every frivolous lawsuit there is an “expert” — usually a physician skilled in testifying before juries and often compensated to the tune of $10,000 dollars a day. Put bluntly, many of these “experts” are frauds, as this newspaper has repeatedly shown in cases regarding asbestosis and silicosis claims….

Medical Justice’s second tool is a patient-physician contract. That contract states that in a legitimate dispute, both sides will utilize only those experts who belong to such societies and who strictly follow their code of ethics. This limits the list to reputable and accountable physician experts, thus precluding the use of hired guns or medical “witnesses having other rational explanations” — better known by their acronym.

Does it work? Yes. After five years of collecting data, we know that Medical Justice plan members are sued at a rate of under just 2% a year. The average doctor is sued at a rate of 8%-12% per year. And the company is top heavy with physicians in “high-risk” specialties.
…

Private law saves the day? Perhaps — but how long before the plaintiffs’ bar fights back with legislation?

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June 21 roundup

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Damned if you do, damned if you don’t files: Cynthia Haddad v. Wal-Mart

Pharmacist Cynthia Haddad, when she left the pharmacy unattended, allowed a technician to use her computer security code to issue prescriptions, including a fraudulent prescription for a painkiller, something that could have exposed Wal-Mart to enormous liability if someone had been injured by the illegally dispensed drugs. So Wal-Mart fired Haddad. Haddad sued, claiming that the real reason Wal-Mart fired her was because she had asked for a raise to a manager-level salary, though she did not perform manager-level duties such as budgeting, and that it was thus sex discrimination. (Haddad claims that Wal-Mart “never” fired a male manager for her infraction, which seems implausible at best; Wal-Mart says it did fire male pharmacists for this. Why is this even a factual dispute for decision for a jury? This seems like a matter that merits a partial summary disposition to prevent one side from out-and-out lying.) This somehow got to a jury, which awarded $2 million, including $1 million in punitive damages. Among the questionable procedures used to railroad Wal-Mart at trial was permitting Haddad to present an attorney to testify as an expert witness on human resources procedures. Wal-Mart indicated it disagrees with the jury’s decision and is studying whether an appeal is worthwhile. Massachusetts courts are not a friendly place for defendants. Wal-Mart’s attorney did not comment to the press, permitting the plaintiffs’ lawyer to generate rather one-sided press coverage. [Berkshire Eagle June 19; Berkshire Eagle June 20; Reuters/USA Today; Massachusetts Lawyers Weekly]

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A Milberg medical miracle

Here’s a free tip for trial lawyers out there: if you’re going to engage hired-gun experts witness to tell the court what you need it to hear, make sure you first tell the experts what you need the court to hear.

We’ve been covering the ongoing scandal in which class action law firm Milberg Weiss is accused of paying kickbacks to its clients in class action lawsuits (see, e.g. May 2006 and links from there). In addition to the firm, prosecutors have been going after the clients who accepted kickbacks (Feb. 2007, Jun. 2005). One of those clients, Seymour Lazar, has been trying to escape prosecution by claiming to be ill, trotting out doctors to testify to a “litany of ailments,” including “heart disease, stroke, cancer, diabetes, and gout.” But there’s more: he also claimed to be suffering from a “mental condition [that] could make following significant events of the trial impossible,” as well as “major depression, memory loss, and fatigue.” And, he’s mentally incompetent.

That was two weeks ago… Now he’s all better. Turns out that if he were mentally incompetent, the prosecution could lock him up for up to four months to determine whether he would become competent in the future. Whoops! That wasn’t what defense attorneys wanted. So they had to repudiate their own expert’s testimony:

A psychologist who testified that a defendant was not competent to stand trial in a federal criminal case against a leading class action law firm now says that assertion was mistaken.

[…]

“I believe that I testified in error when I stated that he is not competent,” the psychologist retained by the defense, William Jones, wrote in a declaration filed Monday in federal court in Los Angeles.

Yes, or maybe, like the Monty Python peasant who claimed to have been turned into a newt, Lazar mysteriously “got better.”

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More fen-phen fun

We’ve recently discussed the Kentucky fen-phen scandal, in which the plaintiffs’ lawyers are accused of stealing tens of millions of dollars from their clients; there’s another brewing scandal involving fen-phen lawyers in New York.

Napoli Kaiser Bern (now known as Napoli Bern) represented more than 5,000 plaintiffs who had opted out of the larger class action suit against manufacturer AHP; a whistleblower, or disgruntled ex-employee (take your pick) alleged that Napoli Bern manipulated the amounts of the settlement to be paid to each plaintiff — giving more to its own direct clients — so that Napoli could maximize its own profits at the expense of other law firms.

More important is the allegation that Napoli Bern lied to its clients (and to its own expert witness on ethics) in making them think that the amounts allocated to each plaintiff had been determined by AHP and reviewed by a special master appointed by the court; in fact, it appears that Napoli Bern may have decided unilaterally how much to offer each plaintiff. Yesterday, a New York state judge ruled that the allegations had sufficient merit to reopen the settlement and send the allegations against Napoli Bern to trial.

The stakes are high here; the total amount of this settlement — confidential, but reportedly at least a billion dollars — is not at issue, but the distribution of that money among the lawyers and plaintiffs is. As the judge noted, in theory the penalty could be as severe as requiring Napoli Bern to forfeit all fees earned in the case. (Isn’t mass tort litigation fun? Billions of dollars of Other People’s Money floating around, waiting for lawyers to figure out how to distribute it.)

(Previously covered on Overlawyered: Feb. 2005, Dec. 2001)

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