The L.A. Times notices it in the context of the Phil Spector trial, and concludes that there must be a better way.
Posts Tagged ‘expert witnesses’
Microblog 2008-11-21
- “Forensic Experts Aren’t Team Players. Nor Should They Be.” [Balko, Reason “Hit and Run”]
- Australia high court reverses 2 crim convictions, judge snored loudly a lot (not just your innocent-error naplet) [Lowering the Bar]
- Hear that V-3 hum: preview of 2012 post-bailout car from Congressional Motors [Iowahawk satire]
- California Supreme Court gets a Prop 8 amicus brief from “Divine Queen of the Almighty Eternal Creator” [Box Turtle Bulletin]
- Bristol, CT mulls ban on smoking on public streets [Connecticut Employment Law Blog]
- “Singers Sue Label For Failing To Sue Others For Infringement” [TechDirt; Hall & Oates, Warner/Chappell; h/t @tamerabennett]
- Lawyer must spend half her time deflecting jokes about her name [Sullivan & Cromwell]
Mississippi: “Former state pathologist suing Innocence Project”
“Dr. Steven Hayne, the man who performed most of Mississippi’s autopsies for 20 years, has filed a defamation lawsuit against The Innocence Project.” (Howard Ballou, WLBT, Oct. 30).
Hayne has been criticized because he said he conducted about 1,500 autopsies a year, much higher than the recommended standard [of fewer than 250 — ed.].
His testimony in two murder cases from Noxubee County turned out to be inaccurate and both men convicted in those cases were released from prison earlier this year.
One of the men had spent 15 years on Death Row for a crime he didn’t commit.
A third man has confessed to both slayings.
(“Investigation changes are needed”, Hattiesburg American, Oct. 22). As part of its campaign against Hayne, the Innocence Project sent more than 1,000 pages of material documenting its complaints to the Mississippi state medical licensure board and also denounced him to the national College of American Pathologists. (Jerry Mitchell, “Embattled doc suing Innocence Project”, Jackson Clarion-Ledger, Oct. 31). Radley Balko at Reason has been a longtime critic of Hayne (“Hit and Run”, Nov. 7), as has Lotus @ Folo. On Jun. 6, we reported on charges that Dr. Hayne’s forensic work has been of extensive assistance to plaintiff’s lawyers in Mississippi liability suits.
October 6 roundup
All-blog edition:
- Judges overheard chatting in coffee shop about sweetheart class settlement [WageLaw via Paul Karlsgodt’s weekly class action blog roundup]
- More attempts to sue/uncover anonymous blog commenters: “I was subpoenaed for a discovery deposition about one of my posts on this blog.” [Medblogger Dr. Wes]
- Thoughts prompted by the latest (NYC) round of litigation over “ladies’ nights” at drinking establishments [David Giacalone, f/k/a]
- Head of state (Bolivia’s Morales) to his lawyer: “If it’s illegal, go ahead and make it legal. That’s what you went to school for.'” [Cato at Liberty]
- Everybody run! Perennial Overlawyered mentionee Steve Berman has a blog [Class Action Law Today via his P.R. guy in Kevin O’Keefe comments]
- When infamous NYC lawyer Burt Pugach calls, hang up [Greenfield]
- Colleague described as “a soap opera doctor” elects to spend more time in the courtroom than in the operating room [Throckmorton]
- Dear Interagency Autism Coordinating Committee: “Please resist the efforts of vaccine-injury plaintiffs’ advocates to define themselves as representatives of ‘the autism community.'” [Kathleen Seidel, Neurodiversity]
Ontario forensic pathologist scandal
“Ontario vowed to overhaul its pediatric forensic pathology system yesterday following a highly critical report citing the ‘woefully inadequate’ training of pathologist Dr. Charles Smith and the inaction of his supervisors in the coroner’s office who ‘actively protected’ him despite ‘warning signs’ about errors he made that led to wrongful prosecutions.” A 1,000-page report by Justice Stephen Goudge found that Smith’s testimony blaming child deaths on family members resulted in numerous wrongful prosecutions and erroneous convictions, including that of William Mullins-Johnson of Sault Ste. Marie, who “spent 12 years in prison after he was convicted of murdering his four-year-old niece. The conviction was quashed last year after the expert evidence was dismissed as unreliable.” (Jordana Huber, “Inquiry blasts Ontario pathologist”, Ottawa Citizen, Oct. 2; CBC; ABA Journal; Goudge inquiry website and report).
Coughlin Stoia, AmLaw Daily and Prof. John Coffee, cont’d
Yesterday, updating a Tuesday post, I expressed some annoyance that AmLaw Daily’s coverage of the $688 million Enron fee award extensively quoted Columbia lawprof Jack Coffee in support of the fee’s fairness — even casting him as a “frequent class action critic” whose praise for the fee was more credible because “unlikely” — without informing readers that Prof. Coffee had in fact been hired by the plaintiff’s lawyers to support their fee application, a role he has served in earlier cases as well. Now the publication has “updated [the post] with new information” reflecting that relationship. Journalism professor Mark Obbie of Syracuse’s Carnegie Legal Reporting Program is kind enough to credit my criticism with making a difference.
“The Use of Litigation Screenings in Mass Torts: A Formula for Fraud?”
Lester Brickman has a new must-read paper on an under-reported problem:
Lawyers obtain the “mass” for some mass tort litigations by conducting screenings to sign-up potential litigants en masse. These “litigation screenings” have no intended medical benefit. Screenings are mostly held in motels, shopping center parking lots, local union offices and lawyers’ offices. There, an occupational history is taken by persons with no medical training, a doctor may do a cursory physical exam, and medical technicians administer tests, including X-rays, pulmonary function tests, echocardiograms and blood tests. The sole purpose of screenings is to generate “medical” evidence of the existence of an injury to be attributed to exposure to or ingestion of defendants’ products. Usually a handful of doctors (“litigation doctors”) provide the vast majority of the thousands and tens of thousands of medical reports prepared for that litigation.
By my count, approximately 1,500,000 potential litigants have been screened in the asbestos, silica, fen-phen (diet drugs), silicone breast implant, and welding fume litigations. Litigation doctors found that approximately 1,000,000 of those screened had the requisite condition that could qualify for compensation, such as asbestosis, silicosis, moderate mitral or mild aortic value regurgitation or a neurological disorder. I further estimate that lawyers have spent at least $500 million and as much as $1 billion to conduct these litigation screenings, paying litigation doctors and screening companies well in excess of $250 million, and obtaining contingency fees well in excess of $13 billion.
On the basis of the evidence I review in this article, I conclude that approximately 900,000 of the 1,000,000 claims generated were based on “diagnoses” of the type that U.S. District Court Judge Janis Jack, in the silica MDL, found were “manufactured for money.”
Despite the considerable evidence I review that most of the “medical” evidence produced by litigation screenings is at least specious, I find that there is no effective mechanism in the civil justice system for reliably detecting or deterring this claim generation process. Indeed, I demonstrate how the civil justice system erects significant impediments to even exposing the specious claim generation methods used in litigation screenings. Furthermore, I present evidence that bankruptcy courts adjudicating asbestos related bankruptcies have effectively legitimized the use of these litigation screenings. I also present evidence that the criminal justice system has conferred immunity on the litigation doctors and the lawyers that hire them, granting them a special dispensation to advance specious claims.
Finally, I discuss various strategies that need to be adopted to counter this assault on the integrity of the civil justice system.
Expert Witnesses – The American Rule
Here’s a good article on the American practice of allowing litigants to hire their own experts. Each expert advocates a position favorable to “their” side often rendering the dueling experts’ opinions of limited usefulness to the jury. Other countries implement different mechanisms for engaging expert testimony including having the judge select the expert. That sounds less partisan and cheaper, too. (“In U.S., Expert Witnesses Are Partisan”, The New York Times, Aug. 11).
And, I’m reminded of Ron Coleman’s post where he quotes an article describing hired experts as “witnesses having other rational explanations”. (Try the acronym and you’ll get it).
LA Weekly: The Mold Rush and the case of Sharon Kramer and Bruce Kelman
Welcome LA Weekly readers; this website is mentioned and I am quoted in a less-than-entirely-coherent story about mold litigation in this week’s LA Weekly. The story focuses on Sharon Kramer, who has given up a full-time career to pound the drums over her fight with her insurer alleging mold harms after a remediation; and an unfortunate lawsuit brought by scientist Bruce Kelman against Kramer. Kelman only wants an apology from Kramer for her issuing a press release that falsely claimed he lied under oath; Kramer has refused, and Kelman is still stuck in litigation where he will likely come up with a Pyrrhic victory. (Kelman’s work writing a layperson’s guide to the science of mold for the Manhattan Institute is central to the libel allegations.) Kramer, meanwhile, blames her aging on exposure to mold, rather than, say, turning 56. The story suffers for treating Erin Brockovich as the archetype of a justified plaintiff; Overlawyered readers know better.
The story is worthwhile for one new tidbit of information, the poetic justice facing Ed McMahon for his bogus mold lawsuit:
In 2003, another raft of huge mold news stories broke nationwide, and Kramer paid close attention. The most famous, and strangest, was that of Johnny Carson’s sidekick Ed McMahon, who took a $7.2 million settlement after suing for $20 million in his claim that mold made him and his wife sick — and killed his sheepdog, Muffin. …
In the McMahon case, some see the tragic unraveling of a popular public figure egged on by an attorney, Allan Browne. No hard, scientific evidence was ever made public proving that McMahon or his dog suffered the specific mold allergies and immune-system problems that, in rare cases, can be set off by household mold.
Since then, McMahon has become a sad figure, with a series of new troubles, including his default this year on his palatial 7,000-square-foot home on Mulholland Drive, involving a $4.8 million loan from the infamous lender Countrywide. And he just sued again, bizarrely accusing investment tycoon Robert Day of having in his mansion a poorly lit staircase on which McMahon says he fell during a party last year. McMahon is belatedly alleging he broke his neck but that doctors missed it.
The longtime TV pitchman spent years convincing the courts and the general public that his home contained rampant, poisonous, deadly mold strong enough to fell a large dog. McMahon talked it up for so long that he now faces the daunting task of selling a home he can no longer afford, that people believe is riddled with toxins.
Also interesting to me is the story’s quote of me. I gave an e-mail interview to the author, Daniel Heimpel in February. It’s interesting what gets used and what doesn’t get used, so I am going to attach the entire interview.
Here’s the full February 28 interview:
Breaking: Tennessee Supreme Court reinstates punitive damages in Flax v. DaimlerChrysler
Perhaps we spoke too soon when we commended the Tennessee appellate court for getting it partially right. As we stated in November 2004:
In 2001, Louis Stockell, driving his pickup at 70 mph, twice the speed limit, rear-ended a Chrysler minivan. Physics being what they are, the front passenger seat in the van collapsed backwards and the passenger’s head struck and fatally injured 8-month old Joshua Flax. The rest of the family walked away from the horrific accident. Plaintiffs’ attorney Jim Butler argued that Chrysler, which already designed its seats above federal standards, should be punished for not making the seats stronger — never mind that a stronger and stiffer seat would result in more injuries from other kinds of crashes because it wouldn’t absorb any energy from the crash. (Rear-end collisions are responsible for only 3% of auto fatalities.) Apparently car companies are expected to anticipate which type of crash a particular vehicle will encounter, and design accordingly. The $105M verdict includes $98M in punitives.
We had more details of trial shenanigans in December 2004 and noted the reduction of the punitives by the trial court to a still unreasonable $20 million in June 2005. In December 2006, the intermediate appellate court threw out the punitive damages and the negligent infliction of emotional distress claim, leaving a $5 million compensatory damages verdict to be split between Chrysler and the driver responsible for the accident. An injustice, but at least a smaller injustice.
However, today, a 3-2 vote of the Tennessee Supreme Court made it a larger injustice again, reinstating $13,367,345 of punitive damages over a good-faith dispute over appropriate seatback design, giving no credit to evidence that the design in the Caravan was safer than the plaintiffs’ proposed design, and effectively disregarding Tennessee statutory law that compliance with federal standards creates a presumption against punitive damages. The Court did not mention Exxon Shipping‘s suggestion that punitive damages greater than a 1:1 ratio were possibly constitutionally inappropriate where compensatory damages were substantial and the defendant’s actions were not intentional or done for profit. The Court unanimously affirmed the elimination of the NIED claim; one justice would have thrown out the compensatory damages, as well, because of the volume of inadmissible and improperly prejudicial evidence admitted. (Flax v. Daimler Chrysler (Tenn. Jul. 24, 2008); id. (Wade, J., concurring); id. (Clark, J., partially dissenting); id. (Koch, J., partially dissenting); E. Thomas Wood, “High court upholds $18.4M damage award in DaimlerChrysler case”, Nashville Post, Jul. 24; Kristin M. Hall, AP/Chicago Tribune, Jul. 24). The majority decision relied heavily on the expert testimony of Paul Sheridan, an MBA non-engineer and professional anti-Chrysler witness whom a federal court called “wholly unqualified” to testify on seat back design.