Loads of coverage of health matters in recent weeks over at our sister website, including: liability fears and emergency room admissions; New Jersey bans “retaliating” against expert witnesses over testimony they give, no matter how untrue it may be; Ted on one lawprof’s grossly misleading use of med-mal statistics, and a second round of the same; pain medication in nursing homes (and more on nursing homes); two doctors pick up stakes; Australian med-mal rates fall after reform; same thing in Texas; HHS introduces a distinctive “early offers” program for medical malpractice claims involving its clients; please don’t let him grow up to be an M.D.; Pennsylvania hospitals’ bill; MICRA and Prop 103; the March of Dimes wants Bendectin back; federal judge Loretta Preska in Manhattan throws out a major Dickie Scruggs case against the non-profit health sector; and a must-read article on defensive medicine. To explore all this and much more, follow the links provided or visit the site’s topical page on medicine and law.
Posts Tagged ‘expert witnesses’
Welcome Forbes readers
We’re honored for this website to have such a prominent place in a column in the latest Forbes. (William Baldwin, “Seventh-Amendment Follies”, Apr. 11). Links to the stories mentioned: $27 million Ford Escort verdict; $49 million punitive damage Dodge Caravan verdict and follow-up; $4.9 billion Chevy Malibu verdict. You may also be interested in our related site, Point of Law, which has a more academic focus, including a section on the issue of science and the courts.
The latest issue of Forbes also has an excellent story about the junk science behind mold litigation. Dr. Gary Ordog travels the country, diagnosing just about every conceivable illness as being caused by exposure to mold.
A California judge once said Ordog “lacks credibility completely” after he testified that he was chief toxicologist at Henry Mayo Newhall Memorial Hospital in Santa Clarita, which has no such department; that he’d published “hundreds” of scholarly articles, when a search of the PubMed database turns up fewer than 70, almost all of them dealing with gunshot wounds and trauma; and that former President Bill Clinton called him personally to run a special mold commission for the Environmental Protection Agency, even though an EPA spokesman says the agency’s authority doesn’t include indoor air quality. Ordog “is completely abusing the system,” says James Robie, a defense lawyer with Robie & Matthai in Los Angeles who has cross-examined Ordog several times. “He is possibly the most dishonest man I have ever met.”
(Daniel Fisher, “Dr. Mold”, Apr. 11). For more on mold litigation, see May 26 and links therein.
Update: Joshua Flax/Chrysler verdict
More press coverage on the $105 million collapsing seat verdict (Nov. 24). The Fulton County Daily Report spells out the plaintiff’s case, without much attempt at balance. A press release from the plaintiffs’ lawyers claims that Chrysler experts admitted that a “stronger” seat would not have collapsed and that other Chryslers have “stronger” seats–but leaves it ambiguous whether the first “stronger” is referring to something different than the second “stronger.” The artful phrasing in the release (instead of a straightforward statement about whether Chrysler’s experts admitted Joshua Flax would not have been hurt if he had been in a Mercedes), combined with the improbability that Chrysler would go to trial with such a fact pattern, suggests that this is sophistic equivocation. (R. Robin McDonald, “Partner Wins $105 Million Verdict Against Chrysler”, Fulton County Daily Report, Dec. 1; Butler Wooten press release, Nov. 23). The Detroit News has extensive followup coverage, featuring a photo of the totaled minivan from which five people walked away, and an interview with a NHTSA spokesman who notes that “If you merely increase seatback strength, you may be trading one set of injuries for another. These seats did exactly what they were designed to do.” (Jeff Plungis, “Trial puts spotlight on safety of car seats”, Dec. 19).
In the Detroit News article, Clarence Ditlow complains that there’s an increase in collapsing front seats hitting children in the rear seats–but that’s surely a result of fewer children being seated in the front, where they were in danger of passenger-side airbag injuries. (Airbag-child fatalities have declined from 60 in 1995 to 10 in 1999.) Indeed, as the Washington Post notes, notwithstanding their headline, child deaths per mile traveled is down, as is the long-run trend of total child deaths. The Post article also suggests areas where we will see future auto litigation as new safety features transition from optional to standard. I’ve worked defending an auto company in shift-interlock litigation, for example. (Greg Schneider, “Kids, at Risk and Neglected”, Washington Post, Dec. 5).
Also at Point of Law
All sorts of other stuff is going on at our sister website:
* An all-new featured discussion on medical liability has just begun, proceeding from the publication of an important new empirical study by Stanford prof Daniel Kessler;
* Legal ethicist and law prof Lester Brickman has a commentary on a Manhattan judge’s questioning of legal fees in 9/11 cases;
* The Manhattan Institute is seeking applications for a research fellowship on legal issues;
* Law prof Michael DeBow, familiar to many readers for his guest postings here, is joining the Point of Law blog as a regular contributor, with comments already on flu vaccine, the dismissal of a charity hospital suit, FDA jurisdiction over tobacco, and a new antitrust blog;
* Ted Frank contributes items on malpractice by expert witnesses and on a new study suggesting that experts suffer from some of the same biases as lay observers in high-damage cases, on whether much “pro bono” litigation really helps the public, and on “Robin Hood” school-finance suits;
* Jim Copland welcomes a new and improved website, LegalReformNow;
* I’ve got posts on sanctions for wrongful litigation (did you know federal judges liked the sanctions in their old, stronger form?), collective business guilt, ski slope disclaimers, Sarbanes-Oxley, Judge Posner’s view that both Sherlock Holmes and law reviews are much overrated, liability’s burden on small businesses, and insurance broker scandals (posts in progress). Much more, too; bookmark the site today.
Radiology group expels member over testimony
“For the first time in its history, the American College of Radiology has expelled a member for giving inaccurate expert testimony. Dr. E. James Tourje, a neuroradiologist at Cedars-Sinai Medical Center in Los Angeles, was expelled [last month] for violating the ACR code of ethics, which states that expert testimony should be nonpartisan, scientifically correct, and clinically accurate.” Dr. Tourje had testified on behalf of the plaintiff in two malpractice cases, both of which resulted in defense verdicts. (“‘Expert’ witness gets booted from ACR”, Diagnostic Imaging Online, Jul. 8; Arati Murti, “Stat Read: Election-Year Politics Push Medical Liability Skirmishes to Trenches”, Imaging Economics, Aug.).
In a case several years ago, Judge Richard Posner of the Seventh Circuit gave impetus to the then-nascent trend toward professional self-regulation of expert testimony, writing in an opinion that “this kind of professional self-regulation furthers rather than impedes the cause of justice. More policing of expert testimony is required, not less.” (Russell M. Pelton, “Professing Professional Conduct: AANS Raises the Bar for Expert Testimony”, AANS Bulletin, Spring 2002. In the latest ABA Journal, Terry Carter discusses the controversy and in particular the formation of the Coalition and Center for Ethical Medical Testimony to promote efforts by associations to act against what Peter Huber has called malpractice by mouth. (“M.D. With a Mission”, ABA Journal, Aug., reprinted at CCEMT site)(PDF). The organized plaintiff’s bar is completely apoplectic about the trend: for its views, see Stephanie Mencimer, “The White Wall”, Legal Affairs, Mar-Apr.; Steve Ellman, “Code of Silence”, Miami Daily Business Review, Jun. 25, 2003.
“Asbestos X-rays rechecked”
“A new look at X-rays used to help win billions of dollars for asbestos victims detected abnormalities in only 4.5 percent of the X-rays — not in 96 percent, as medical experts intitially testified. The study by Johns Hopkins University radiologists found that medical experts who testified on behalf of plaintiffs in asbestos suits almost always found something suspicious on their X-rays, whether it was asbestos dust or a likely malignant tumor.” The study appeared in this week’s Academic Radiology, a scientific journal. (Bill Scanlan, Rocky Mountain News (Denver), Aug. 5; Reed Abelson, “Study Raises Questions of Witnesses”, New York Times, Aug. 4). See, among many other entries on this site, Jan. 21. More: the journal Nature weighs in (Emma Marris, “Asbestos study suggests bias in experts”, Aug. 5). Yet more: GeekPress, MichMedMal.
Cerebral Palsy Turn Around
Michigan’s Supreme Court overturned a $21 million verdict in the kind of case that made John Edwards the man he is today. The Court ruled 6-1 that the basis of the jury’s decision in the original 1997 trial was faulty, because the expert witness testimony was faulty. Not that this means that the courts now recognize that cerebral palsy is rarely caused by birth injuries. Rather, the lower court failed to allow the defense an opportunity to object to the admission of the expert’s testimony. (An expert that they maintained had “novel” theories about the origin of cerebral palsy.) Still, it might be a step in the right direction toward correcting much that’s wrong with today’s malpractice litigation – “experts” who aren’t really experts.
An expert witness’s fibs
What does it take to convict an expert witness of perjury? I ask that question this morning in a posting over at PointOfLaw.com, proceeding from a Ninth Circuit case handed down last week which demonstrated that some doctors, at least, fare well in court these days.
Massachusetts tobacco fees: “Greed on Trial”
“The question before the jurors was not whether legal fees amounting to $7,700 an hour were ‘unreasonable.’ It was whether the lawyer-plaintiffs should get $1.3 billion more.” Detailed account of tobacco-fee buccaneering and the resulting courtroom antics (complete with “trained-seal” expert witnesses) in one state. When contemplating the tobacco crusade, the chief of litigation at Brown Rudnick said, “I had dollar signs in my eyes, even back at that early stage. And I know that they were large dollar signs.” (Alex Beam, The Atlantic, Jun.). For our coverage of Massachusetts tobacco fees, see Nov. 4 and links from there.
Update: second cardiologist sued over alleged fen-phen fraud
“A second doctor was accused of fraud [earlier this month] in a federal lawsuit filed by the AHP Settlement Trust, the entity created to process claims related to the $3.75 billion fen-phen settlement.” (see Sept. 21, Sept. 25). The new suit alleges that a New York City cardiologist conspired with an unnamed law firm to submit medically unreasonable claims of heart valve injury, resulting in the payment of millions of dollars in claims. “Compensation was a motivating factor in the fraud, the suit alleges, noting that for each VHD [valvular heart disease] certification, Mueller allegedly received an immediate payment of $500 over and above the $900 he received for interpreting the echocardiogram. The suit alleges that Mueller received another payment of $1,500 following compensation to the claimant, earning more than $1 million.” Contingency fees for expert witnesses are not necessarily prohibited as such in American courtrooms, though they have been widely viewed with distaste by ethics authorities. (Shannon P. Duffy, “Fen-Phen Settlement Trust Sues Second Doctor for Fraud”, Legal Intelligencer, Nov. 17).