PSYCHOPATHOLOGY OF SOME MEDICAL

EXPERTSJoshua Potter, JD

Karen Fukutaki, MD

This presentation will be an attempt to explore the persistent problem of medical expert testimony and reports that are difficult to reconcile with the medical evidence in the case. We hope to offer insight and tools to make you more effective in your trials and appeals.

Expert Testimony: When she was good, she was very very good, but when she was bad, she was horrid . (Henry Wadsworth Longfellow)

A thorough, unbiased and inclusive review of all available records

A personal evaluation of the individual in question when appropriate and a specific disclaimer issued if no personal evaluation occurred

Interviews of ancillary parties when appropriate A concise and thorough summary of the information

gathered and how this information supports the opinion set forth by the evaluator, preferably in written form

Restraint in offering opinions in areas in which one has insufficient expertise

What should your medical expert do?

Individuals form perceptions, hold beliefs, and formulate what they believe to be truths.

History is replete with examples of beliefs held that have been shown not to be truths◦ The world is flat◦ Bathing will cause illness

Calling something a lie implies the person telling the lie knows the truth.

Truth vs. Lie

Overestimation of the scope of one’s knowledge?

Ignorance? Inability to consider one’s opinion might not

be accurate? Financial motivation? Personal bias?

Why isn’t “the truth” told?

“Medical Expert” provides live testimony Rheumatoid Arthritis and Lupus Primary Care physician is rheumatologist “Medical Expert” is pulmonologist with no

clinical practice in rheumatology

Case 1

A written report from State Agency “Expert” -- SAE

Schizophrenia and depression PTP is Psychiatrist SAE is “board-eligible in Psychiatry” and

reviews one treatment note What board and what weight?

Case 2

Written report State Agency “Expert” SAE Hangman fracture with RUE numbness. A

former bull rider with pre-existing RSD in right lower extremity

SAE Reviewed one scan of left knee “Board-eligible” in internal medicine 50 pounds occasional 25 frequently; 6/8

Personal favorite

Let’s roll up our sleeves and find some solutions

We have powerful cases

Blood, sweat, toil and tears?

Daubert v. Merrill Dow Pharmaceuticals 509 U.S.509 U.S. 579 (1992)

Levin v. Dalva Bros, Inc. 459 F.3rd 68 (1st Cir 2006)

Granfield v. CSX Transp.,Inc., 597 F.3d 474 (1st Cir 2010 - read the cross examination

General Electric v Joiner 522 U.S. 136 Playing in a circuit in your neighborhood

The progeny of Daubert

Use your legal search engine.

Over 18,578 cases cite Daubert . The line of cases from Daubert have powerful dicta. Joiner is cited 3,436 times. You will find language on point in your circuit that his highly critical of the in-expert expert.

Don’t be shy

USCS Fed Rules Evid R 702, Part 1 of 2 FEDERAL RULES OF EVIDENCE, Rule 702. Testimony by

Expert Witnesses A witness who is qualified as an expert by knowledge,

skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. ...

Sometimes you just have to cry

Expert evidence can be powerful and misleading. The judge must weigh possible prejudice against probative force under rule 403 Daubert 504 U.S. 595; GE v. Joiner, 522 U.S. 136

Rule 706 allows the court at its discretion to procure the assistance of an expert of its own choosing. Finally, Rule 403 permits the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . ." . Daubert 509 U.S. 579

Big Brain Stuff

Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.  GE v. Joiner, 522 U.S. 136, 146

Ipse Dixit doesn’t live here anymore

Use your new analytical skills Challenge medical opinions Ipse Dixit doesn’t live here any more Remember Testimony beyond the experts

scope of expertise should be excluded. Levin v Dalva Brothers, Inc. 459 F.3rd 68 78-70 ( 1st Cir. 2006)

Time to play with the Big Boys

Dishonest What board? American Board of Internal Medicine American Board of Medical Specialties

AMBS? American Board of Orthopedic surgery American Board of Psychiatry and

Neurology

Board eligible?

If the CE or ME is willing to be dishonest about qualifications what else is “fishy”?

When in doubt, look it up. It’s good for the blood pressure

Be firm

Your speakers