Digging Deep to Attack Bias of Plaintiff Experts

Transcription

1 Digging Deep to Attack Bias of Plaintiff Experts John M. Fitzpatrick Wheeler Trigg O Donnell 1801 California St., Ste 3600 Denver, CO (303) fitzpatrick@wtotrial.com

2 John M. Fitzpatrick is a trial attorney with Wheeler Trigg O Donnell LLP in Denver, focusing on high-exposure cases, including catastrophic injury cases in medical malpractice, products, toxic torts and pharmaceuticals. Trial Lawyer of Year for CNA in 2004 and Outside Counsel of Year for GE s Environmental Law Division in 2008, Mr. Fitzpatrick has tried in excess of 200 cases to verdict in 35 states and obtained defense verdicts in more than 140 cases.

3 Digging Deep to Attack Bias of Plaintiff Experts Table of Contents I. Overview...13 A. You and Your Client Are the Evil Empire...13 B. How to Approach Plaintiffs Experts...13 C. Know the Rules of Evidence...14 II. Discredit the Expert Using Their Own Publications/CV...14 A. Example: Kenneth Cohen...14 B. Example: Stephen Minton...15 C. Example: Curtis Baillie (security expert)...15 III. Bias and Money...16 A. Example: Ronald Gabriel, MD Not Admitted Privileges for 15 Years...16 B. Example: Fredrick Harlass, MD...17 C. Example: Richard Pete Stokes, MD...18 D. Example: Barry Castleman...18 E. Example: Harlan Giles, MD...19 F. Example: Lawrence Foreman...20 IV. Conclusion...21 Digging Deep to Attack Bias of Plaintiff Experts Fitzpatrick 11

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5 Digging Deep to Attack Bias of Plaintiff Experts I. Overview A. You and Your Client Are the Evil Empire 1. Plaintiffs Expert witnesses are hired to paint your company or your defendant as Darth Vader you put innocent people at risk & seriously injure, maim or kill all for profit 2. The good (or most popular) expert witnesses make so much money testifying they cannot help but take on cases and topics outside their experience 3. If the expert witness sticks to his/her area of expertise, they will be so overwhelmingly biased that you can attack them IF you do not accept their canned answer a. I do approximately 50% of work for Plaintiffs & 50% for Defendants, maybe 60%/40% in the past couple of years, but I cannot choose who hires or deposes me. B. How to Approach Plaintiffs Experts 1. Preparation, Preparation, Preparation 2. Find and read prior testimony a. Ask other defense lawyers for transcripts b. IDEX is a service that provides prior transcripts c. Westlaw Expert Witness Database has prior transcripts 3. If they wrote a report, carefully read it to determine basis for expert s ultimate opinions (which you know Plaintiffs lawyer generally wrote or spoon fed them) 4. Search for court opinions on Westlaw that have excluded the expert s opinions 5. Google the expert 6. Check w/ state agency or board that licensed the expert to determine if there are any complaints or suspensions 7. Collect literature listed on expert s CV a. Collect all his or her literature NOT on the CV 8. Study expert s qualifications a. Is he/she qualified in correct sub-specialty? b. Ex: Edwin Holstein (Pl. lawyers in asbestos love him because he studied under Irving Selikoff, but only co-authored article on sperm in dairy cattle) 9. Find the money (or make them look absurd in refusing to disclose it) 10. If expert is really qualified in the field w/out significant bias, he will have a number of articles & possibly textbooks on the subject matter at issue a. That literature likely contains numerous scientific or medical propositions that support your theory of the case b. Find, read, and use that literature (even if he is just an editor of the text) (1) Ex: Robert Zimmerman, MD Childrens Philly Digging Deep to Attack Bias of Plaintiff Experts Fitzpatrick 13

6 11. Expert may serve as a peer reviewer on a journal that contains an article that supports your opinion a. The expert won t testify that the Journal publishes junk science and if he does, even better! C. Know the Rules of Evidence 1. Use prior trial & deposition testimony to find out who the expert considers reliable or authoritative 2. Use prior admissions to admit medical or scientific evidence that supports your theory of defense during Plaintiff s case w/ the learned treatise exception to hearsay rule 3. Rule 803(18) permits admission of learned treatises as substantive evidence so long as literature is called to the attention of the expert on direct or cross examination, and literature is established as reliable or authoritative 4. In short, DO YOUR HOMEWORK, and you can: a. Discredit the expert w/ his own publications b. Discredit the expert w/ evidence of their bias or paycheck II. Discredit the Expert Using Their Own Publications/CV A. Example: Kenneth Cohen 1. Published Expert Witnessing and Scientific Testimony a. Emphasizes credibility as an expert s most important asset b. Cautions experts to avoid becoming advocates c. [T]ell the truth! 2. Who is Kenneth Cohen? a. Education (1) BS in Microbiology from San Diego State College (1965) (a) Took 10 Years to Graduate (b) Flunked Out of 5 Previous Schools (c) Failed to Get His Masters after 3 Tries Then Lied (i) According to his transcript from San Diego State College, he withdrew from classes and his only major was Microbiology (no minor) (ii) 1976: Kenneth Cohen s Doctor of Philosophy from Cal Western University (d) Ph.D. From a Diploma Mill (2) Misrepresentations (a) On his 1975 Application to Cal Western University for a PhD, he misrepresents himself as stating he has a B.S. and M.S. from SDSU (b) In his application to become a Professional Engineer, he misrepresents himself by saying he has a M.S. in Microbiology and Chemistry from SDSU and a Ph.D. from a Diploma Mill (California Western University) 14 Product Liability Conference April 2012

7 (c) In his 1975 application to the American Board of Industrial Hygiene, he states he has a M.S. in Microbiology and Chemistry (d) In 1979, he was included in the Biographical Directory of the American Public Health Association, claiming to have an M.S. in Microbiology and a Ph.D. from California Western University b. Failed the C.I.H. Exam 7 Times ( ) c. In 1985, ABIH wrote Kenneth Cohen a letter regarding the fact that he failed to complete his M.S. (1) In response, Cohen stated he was unable to finish his thesis and does not claim a Masters degree d. Still Misrepresents Himself as a C.I.H (as of 2008) (1) 2004: ABIH write Kenneth Cohen a letter stating he is not authorized to use CIH or CIH(Ret) (2) Kenneth Cohen responds with a letter stating he will remove Retired certified industrial hygienist from his letterhead (3) April 2005: He still claimed to be a certified industrial hygienist (voluntarily retired June 2003) (4) K. Cohen, CIH appeared on Plaintiffs exhibit list in a case in 2008 B. Example: Stephen Minton 1. Lied on his CV a. Credentials (1) Community Neonatologist (2) No faculty appointments (3) Published article but no name on it (4) Chapter in textbook Lied (a) Hypotension in Pregnancy (2003) (i) When he was confronted about this in court, he stated he had submitted the chapter, but it was withdrawn at the last minute (ii) Remained on his CV b. Medical/Legal (1) Hasn t testified in Court in 20 years (2) But making up for it now (a) 15 hrs + 50 hrs = 65 x $500 = $32,500 (b) 2 $4,000 = $8,000 (c) $40,500 for this case C. Example: Curtis Baillie (security expert) 1. Who is Curtis Baillie? a. Specializes in Retail Security & Loss Prevention (shoplifting) Digging Deep to Attack Bias of Plaintiff Experts Fitzpatrick 15

8 b. Currently provides consulting services to: (1) Retailers; Attorneys c. Previously provided services to: (1) Department & Grocery stores (2) Horse & Greyhound racetracks (3) Private investigator for attorneys (4) Never worked with hospitals 2. Opinion in a recent case: a. Since Curtis Baillie had never heard of the security drill in question at least in his capacity as a shoplifting expert the security drill must be wrong (1) The exercise conducted by Hampton Hospital on 12/24/07 was not a security drill it was an experiment or test (2) A worker such a Ms. Perry (Plaintiff) would not be expected to be subjected to such a realistic drill such an event is not a fact of life of industrial employment b. Curtis Baillie, an expert, proceeded to look for help by asking about hospital security on an internet forum III. Bias and Money A. Example: Ronald Gabriel, MD Not Admitted Privileges for 15 Years 1. Bias: Medical/Legal a. Testified extensively last 40 yrs; 90% for Plaintiffs last 15 yrs; 40+ states; greater than 500 deps & 200 trials b. Reviews 1-3 cases/mo. probably more; same w/ deps; 3-5 Trials/Yr; works 200 hrs/mo. w/ 15% or more for medical legal c. Income (1) Charges $400 hr; $1500 w/2 hr min for dep (2) 20 +hrs $20K+ for this case (3) Claimed he does not know how much he made last or any other year for medical/ legal work (a) 30 hrs/month - $12K/month: $144K/yr (b) Depositions 24 depositions x $1500: $34K (c) 3 Trials x $20K: $60K $235K/yr (e) 24 cases/yr x 20 hrs/case - $192K; deps - $34K; trials - $60K. Total - $286K/yr 2. Credibility in Courts a. Testimony to Courts to Support his Novel Theories been Excluded Numerous Times (1) plays fast and loose with facts and literature.has no credible evidence...junk science... (US Ct of Claims x 3) 16 Product Liability Conference April 2012

9 (a) Gabriel: A bunch of government lawyers didn t like me (Judges) (2) slants his testimony; uses unreliable scientific data to support novel theories; cannot testify (Michigan Courts) (b) Gabriel: They have reversed it I think but have nothing to prove that 3. Wrote a book: 410 Shotguns 4. No Board Certification a. Neuroradiology - Reading brain scans- not a pediatric neuroradiologist like Dr. Ward head of Children s Hospital in New Orleans b. Can t officially read a scan in a hospital no privileges; can t write an order c. Long history of disagreeing with board-certified neuroradiologists and local MDs (in legal matters) (1) Never met a scan he didn t like Sees things no one else can B. Example: Fredrick Harlass, MD 1. Who is Fredrick Harlass, MD a. OB/GYN b. Vast majority of Medical/Legal: Plaintiff (1) Reviews 1-2 cases/month; 15 depositions/year; 2-3 trials/year (2) Makes in excess of $125K - $170K/year last 5 years (3) Needs money to pay 7 women in his office doing their nails c. Published 1 article on VBAC 20 years ago doesn t mention rupture; not mentioned by any subsequent paper missed by ACOG d. Not on staff at any major medical institution e. Limited experience in VBACs hasn t done once since 2003 because risk of being sued (testimony in defense case in 2004 where baby died in hospital) f. Makes decisions on patients based on info received from residents and nurses without seeing patient No Standard of Care Violation g. Stopped doing inductions & augmentations for VBAC in 2001 because increased rupture risk h. 2 nd trial no criticism on consent for VBAC just discharge on the 27 th (1) But in 1 st deposition and written report criticized lack of consent she s from Africa; she doesn t know the time of day yet alone the risk of rupture; she s from Atresia, Otteresia, S. Africa something in Africa (2) Then Dr. Figueroa is deposed and language line is discussed oops (3) Multiple profanities : SOB, GD, what the hell, sh*& who hasn t been sued i. Prior depositions of defense expert on same topic are devastating: (1) High Risk downplay that because I can t tell what is high vs. medium vs. low risk? (2) Is 1 percent high risk don t know? As much risk of having a baby with HIE delivering vaginally so is that high risk? Digging Deep to Attack Bias of Plaintiff Experts Fitzpatrick 17

10 (3) I use EFM to avoid lawsuits fraught with so many problems (but in this case questions every blip on strip) C. Example: Richard Pete Stokes, MD 1. Who is Richard Pete Stokes? a. Published nothing; no major medical institution b. 95 percent of work for plaintiff; reviews yearly - 25 cases; 16 depositions; 2-3 trials c. For years refused to admit how much money he made just doesn t know, my wife my accountant maybe $50K/year someday I ll show you to shut you up. d. Court Order in 2009 forced him to produce tax records - $200K/year e. Prior transcripts: (1) Refers to doctors and nurses as idiots or DTDS (2) Calls lawyers dumb sons of bitches oops, he meant dumb sons of WITCHES yet didn t file an errata sheet until after he was called out in trial D. Example: Barry Castleman 1. Who is Barry Castleman? a. CREDENTIALS (1) Chem. Eng. Johns Hopkins 68 (2) Masters, Env. Eng. Johns Hopkins (3) ScD (like a PhD)-Environmental Health Policy-Johns Hopkins (a) Funded by Plaintiff Lawyers - Improve Credibility b. WORK HISTORY (1) Hercules Chem. 68 (Draft Deferment) (b) Fired within 1 Year -Whistleblower? (2) Hitchhiked to Foreign Countries Canada vs. Vietnam (3) Baltimore County Public Health Fired/Resigned (4) DC Public Int. Group Resigned within 1 Year (5) American Pub. Int. Group College Student Body President dispute Fired within 9 Months (6) 1975: Approached by Asbestos Plaintiff Lawyers (7) : Research Asst. to Asbestos Plaintiff Lawyers - Fred Baron & Ron Motley (8) : 95 percent of Income From Testifying for Asbestos Lawyers Because No Other Job/Consultation Pays Anything For My Credentials 2. Medical/Legal Bias a. 1975: Legal Research Assistant to Plaintiff Lawyers b. 1979: Begins Testimonial Career as Plaintiff s Expert c : Plaintiff Lawyers Help Finance ScD Degree to Increase Credibility d. 1985: Doctor s Thesis: Chapters Sent to Plaintiff Lawyers for Review / Edits / Approval 18 Product Liability Conference April 2012

11 (1) Corporate Knowledge (2) Cancer e. 1985: Book Dust Cover: great book for Plaintiff Lawyers to Prosecute Case and Anticipate Defenses Told Publisher to remove it embarrassing f. 2008: $300/hour Testimony/Depositions (1) By April 10 th 6 Trials; 20 Depositions (2) Trials; Depositions g. 2005: $250,000 Pretty Consistent for Last 10 Years h. Approx. $3 Million Since 1995 (1) 95% of Income (2) 100% for Plaintiff 3. Opinions a. They used Weasel Words (Merewether, Dreesen, Drinker) b. They Were Better on Smoking Not Asbestos (ACI) c. I Have Issues with Him (Sir Richard Doll Knighted for Smoking Research) d. He was a Pioneer, Most Respected Authority on Asbestos But He Made Mistakes (Selikoff) e. I Don t Know How He Could Arrive at Those Conclusions (Prof. Phil Drinker - Harvard, Iron Lung) f. But the Germans in 1939 and 1942 Had Good Studies Alerted the World? g. Mesothelioma: No SECRET to Navy in early 60s; No SECRET to World in 64 and 68 (Selikoff Conference) E. Example: Harlan Giles, MD 1. Who is Harlan Giles? a. OB Expert b. Reviewed cases since mid-1970s c. Reviewed in excess of 3,000 cases averaging cases/year; depositions/year; 4-5 trials/year d. 95% or more for Plaintiff (doesn t keep a list) almost every state e. $450hour/review; $3,000 half day for depositions; $6,000/day for trial f. 3-4 hours/week $85k/year; 20 depositions - $60K; 4 trials - $24K so $160K/year to $300K/year g. Made Millions testifying against obstetricians, nurses, family practice physicians, neonatology, anesthesiology, general surgeons, pediatricians, emergency physicians, internists h. No publications since articles claimed in CV not really an author i. Not on any Medical School faculty j. Locum Tenuns from Pittsburgh goes to El Paso to deliver babies on occasion. Digging Deep to Attack Bias of Plaintiff Experts Fitzpatrick 19

12 k. Gives Talks to Plaintiff Lawyers at Meetings on Birth Trauma even flown to Europe for them 2. ACOG/AAP Green Book 2003 a. In Litigation as Plaintiff Expert against Searle eye opener when he saw documents that showed increased rupture risk for low dose b. Risk known years before Searle put out disclosure in 2002 (1) But didn t tell ACOG; didn t publish; didn t go to FDA; didn t tell anyone although claims he testified in deposition and trial 3. What s the Truth? a. When asked on cross - if he brought anything with him to show the jury: I couldn t carry them I couldn t the weight of the materials p 66 b. When asked on redirect (1) Q. First of all, let me ask you, were you under a confidentiality agreement as an expert for the Searle documents in that case? (2) A. That were given to me for review, yes. And I had to return them, p 80 F. Example: Lawrence Foreman 1. Who is Lawrence Foreman? a. Plaintiffs Life Care Expert b. Testifies in deposition or trial 99% for plaintiffs appears at conferences for Plaintiff lawyers in birth trauma Maximize Your Recovery c. Makes $350 - $500K/year d. No medical degree of any kind e. Created life care plan blatantly disregards opinions of child s MDs and therapists. Disagrees with: (1) Dr. Brown (Pediatric Neuro): capable of ADLs, no attendant care (2) Dr. Cohen (Physical Med & Rehab) capable of ADLs (3) Experts at Gillette Children s Hospital (4) Pat Williamson (Speech Therapist); Lisa Tubbs (Physical Therapist); Sherry Blake (Occupational Therapist) (c) See child several times a week since 8 months old (over 160x each) (d) In contrast, Forman saw child 3-4 x for 1-2 hrs (e) All 3 therapists: Continues to improve & believe: (i) Child is very, very bright (ii) He is determined & his intellect will be an enormous help in overcoming any physical problems (iii) He will be able to do ADLs & largely take care of himself, run, drive a car, function as an adult (may need help to clean roof gutters & move heavy furniture most people do) 20 Product Liability Conference April 2012

13 (iv) Original plan: $6.4M (calling for full-time adult care w/ live-in ) plan reduced by $2.3M (v) $500K for housekeeper and case manager??? (vi) Use regular over-the-counter Pepcid Complete reduce plan by another $225K (vii) $500K in lost earning capacity? With child s intellect - NO INDICATION he will suffer reduced earning capacity (viii) Eliminating some big items cuts cost of plan drastically cars, house additions; counseling, Horseback riding (ix) Enormously inflated life care plan from a guy who appears at Plaintiffs lawyers seminars, teaching others how to maximize damages (as opposed to preparing a fair, realistic plan) IV. Conclusion A. Don t fight the fight you cannot win the expert may crush you in their field of expertise B. Use prior deposition & trial transcripts to attack credibility of expert diffuse sympathy C. Win at trial in catastrophic injury case is a discredit Plaintiffs expert witnesses on liability, causation & damages 1. Know more about their prior testimony, prior publications, background, and bias than they do Digging Deep to Attack Bias of Plaintiff Experts Fitzpatrick 21

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