At PsychLaw.net we note that another recent mental health case illustrates the cross examiner attacking an otherwise well qualified expert on the basis of “fit”.[1] The Supreme Court adopted terminology used by Judge Becker of the Third Circuit in United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985), where it characterized a Daubert factor as one of “fit”.[2] Essentially, an otherwise well qualified expert may be attacked and/or stricken if his qualifications do not “fit” the issues in a case. As in In re Dru, a well qualified psychologist was disallowed as an expert because he was called to testify on matters pertaining to medication – in a state where psychologists do not prescribe medication. The reviewing court reasoned that as he did not regularly prescribe medications, he could not give a meaningful opinion on the possible harmful effects of any proposed medications.[3]
This past year, two decisions evaluating “fit” came to different conclusions regarding how closely a proposed expert’s area of expertise needs to dovetail with the discrete subject on which they propose to testify. In Delaware, in Freidel v. Osunkoya[4], Mandy Friedel sought treatment from Dr. Amibola Osunkoya for opiate withdrawal, for which Dr. O prescribed methadone. She went back to him about a week later complaining of various discomforts, including chest pain. Dr. O continued her on methadone and prescribed an additional drug for her other symptoms.[5] Five days later, 24 year-old Mandy was dead of cardiovascular and pulmonary arrest, in which her blood level of methadone was thought to be a factor[6]. Mandy’s estate sued Dr. Osunkoya for medical negligence. In his defense, Dr. O sought to call Dr. Bruce Goldberger, a forensic toxicologist to testify. The proposed testimony concerned the levels of methadone found in Mandy’s blood and suggested they were within normal limits. The plaintiffs filed a motion in limine to prevent this testimony from the defendant’s expert on the grounds that although Dr. Goldberger may have been well-qualified as a toxicologist, he was not qualified to offer his opinion on the cause of Mandy’s death[7]. The Court agreed, explaining that,
Clearly Dr. Goldberger has impressive credentials. The issue is whether these credentials and his experience enable him to opine about Friedel’s cause of death…An expert may be highly qualified and competent to offer many opinions. But that expert must be competent to offer opinions in a given specific factual setting[8].
The Court found that the testimony Dr. Goldberger proposed to offer was not within the realm of a toxicologist, but rather a pathologist, and thus granted the plaintiffs’ motion in limine.[9]
We at PsychLaw.net find that as is unfortunately so often the case, where another state got it right, Texas got it wrong. In Menefee v. Ohman[10], a sixteen year old girl was admitted to a psychiatric hospital, where she was prescribed multiple psychoactive medications. When the girl became “confused” and fell down in her room, she was taken to Arlington Memorial Hospital for treatment. At this facility, her mother became concerned at her daughter’s condition, as the girl was “drooling…non-verbal…and her whole body was shaking”.[11] The mother removed her daughter from Arlington Memorial and took her to North Hills Hospital. At this hospital, she was examined by Dr. Ohman, who believed that the girl’s symptoms were reactions to her medication and felt they would dissipate as they wore off[12]. While at North Hills, the girl suffered seizures and brain damage. Mother sued Dr. Ohman, claiming that he had breached the standard of care by not prescribing anti-convulsant drugs for her daughter. Plaintiff mother sought to bring Dr. J. Boswell Tabler, a psychiatrist, to testify regarding the applicable standard of care of Dr. Ohman, a pediatrician consulting in the emergency room. Despite citing to prior caselaw that helpfully explained that, “…there is no validity…to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question…”,[13] the Court reasoned that, “‘there are certain standards of medical care that apply to multiple schools of practice and any medical doctor,’”[14] and found Tabler qualified to offer an expert opinion on the standard of care issue.[15] Where Delaware was right, Texas was wrong again.
We at PsychLaw.net feel that Indiana, on the other hand, got it right. In Bennett v. Richmond,[16] John Richmond was driving his van, minding his own business, when he was rear-ended by a truck driven by Henry Bennett. This collision resulted in injuries to Richmond’s neck, for which he sought medical treatment. A few months later, a work-related back injury caused the issues from the neck injury to flare up again.[17] Richmond underwent a neuropsychological evaluation with a psychologist, Dr. McCabe, to determine whether he had sustained a closed head injury in the car accident. McCabe concluded that Richmond’s symptoms indicated a traumatic brain injury caused by the accident with Bennett.[18] McCabe testified to such at trial over Bennett’s objections.[19] After a jury verdict in Richmond’s favor, Bennett appealed, contending that the trial court had erred in permitting McCabe’s expert testimony on the ground that he was not a physician and thus was therefore not able to testify regarding medical diagnosis.[20] Relying on the record produced by the cross-examiner, the Indiana Court of Appeals agreed, explaining that:
The evaluation of a brain injury, which is within Dr. McCabe’s field of expertise, is distinct from the determination of the medical cause of a brain injury, which is generally exclusively within the purview of medical doctors…Dr. McCabe has not demonstrated that he is qualified to opine on causation in this case.[21]
We at PsychLaw.net believe an excellent example of the court working diligently to sort out the competing claims about specific expertise and the qualifications of a proposed expert can be found in Bado-Santana v. Ford Motor Co.[22] In this matter, newly minted federal district court Judge Gustavo Gelpí in Puerto Rico was faced with competing claims about psychologist Maria Margarida and Mild Traumatic Brain Injury. In this case, Judge Gelpí undertook a detailed evaluation of the proposed expert’s qualifications and the manner in which her credentials and methodology “fit” the facts at issue in the case.
In another recent “fit” illustration, a plaintiff complained of injuries when a falling piece of wood struck her head while she was shopping at the defendant’s business. The plaintiff received treatment for her injuries from physicians and a psychologist. She also received case-management advice from one Michael Davis, a “brain injury specialist”.[23] At trial the judge allowed Davis to testify as a fact witness, but excluded a portion of his testimony relating to the plaintiff’s competence. The plaintiff attempted to qualify Davis as an expert based on the fact that he was certified as a “brain injury specialist” and attended numerous seminars, conferences, symposia, and classes on brain injuries. While is was clear that Davis had experience working with people suffering from brain injuries, the cross examiner brought out that his work has been limited to case-management services like coordinating benefits, finding rehabilitation experts, and assisting brain-injury sufferers in retaining appropriate legal counsel. The cross examiner demonstrated that Davis did not diagnose or provide therapeutic treatment to his clients. In fact, the cross examiner made a record that Davis had no formal education or experience in any medical field. In sustaining the trial court’s refusal to allow Davis to testify as an expert, the panel pointed out that while a degree is not a per se requirement, the experience or specialized knowledge the witness has must “fit” the field about which the witness proposes to testify.[24]
We at PsychLaw.net point that an excellent example of the court working diligently to sort out the competing claims about specific expertise and the qualifications of a proposed expert can be found in Bado-Santana v. Ford Motor Co.[25] In this matter, newly minted federal district court Judge Gustavo Gelpí in Puerto Rico was faced with competing claims about psychologist Maria Margarida and Mild Traumatic Brain Injury. In this case, Judge Gelpí undertook a detailed evaluation of the proposed expert’s qualifications and the manner in which her credentials and methodology “fit” the facts at issue in the case.
Cross examiners in Minnesota attacked the “fit” of an otherwise well qualified expert in Noske v. Friedberg,[26] and succeeded in blocking his expert testimony. In this case James Noske had a few beers and decided that the folks in the cabin across the highway were probably drug dealers. Mr. Noske went after them with his gun and was charged and convicted of second degree assault. Thereafter, both the district court and the state court of appeals denied postconviction relief. Years later, Noske petitioned the federal district court for a writ of habeas corpus. The federal district court ruled that attorney Friedberg’s assistance was constitutionally deficient and found that the introduction of a self-defense theory to the jury would have had a reasonable probability of altering the outcome of the case. Noske had thus been “denied his Sixth Amendment right to effective assistance of counsel and was prejudiced thereby”[27]. The federal district court granted habeas relief, vacated Noske’s conviction, and authorized the state to retry Noske on the criminal-assault charge, which the state declined to do. Noske then filed a legal-malpractice action against Friedberg in state district court.[28]
At trial, Noske presented Michael Scherschligt, a Hamline University School of Law professor, as an expert. The trial court barred Scherschligt as an expert reasoning that a proposed expert must “make a substantial showing of qualification in the particular field of inquiry”[29]. Analyzing Professor Scherschligt’s experience on the basis of “fit” the court reasoned and the appellate panel agreed: experts should also have practical experience in the particular matter at issue. In this matter the court discovered that Scherschligt taught primarily torts and professional responsibility. The district court ruled that it was unlikely that Scherschligt, who had no practical or academic experience in criminal law and had only academic experience on issues of professional responsibility, could provide admissible expert testimony at trial[30]. Another proposed expert stricken on the basis of “fit”.
We at PsychLaw.net find that in another federal analysis of “fit”, the Third Circuit examined New Jersey District Judge Alfred J. Lechner Jr.’s error in exclusion of behavioral science testimony[31]. In a carefully crafted opinion, the Third Circuit describes how the District Court’s analysis should have proceeded. In Mathis, the defendant was identified by both a police officer as one of the men the officer saw fleeing from a New Jersey bank robbery. He was also identified by Steven Gantt, a man who pled guilty to the same robbery and rolled over on the defendant on eleven previous bank jobs. At trial, District Judge Lechner ruled that the testimony of the unindicted co-conspirator (Mr. Gantt) was admissible against the defendant.
Mr. Mathis’ defense described the unindicted co-conspirator as a liar and focused on the police officer’s fleeting eye-witness identification. The defense called upon Professor Geoffrey Loftus[32] to describe “…memory formation, double identification…post-event information…the relationship between confidence and accuracy, and weapons focus.”[33]
Following a Daubert hearing, Judge Lechner ruled that Loftus was clearly qualified as an expert, but stated: “…I believe this testimony has the probability of confusing and misleading the jury….I decline the invitation to admit.”[34] While the Third Circuit ultimately ruled that Judge Lerchner’s Daubert errors were harmless,[35] the Circuit’s instructions concerning the proper approach to behavioral sciences evidence is informative.
The panel began by describing Professor Loftus’ experience and education, agreeing with their district judge that he obviously qualified under a Daubert analysis.[36] The panel then listed the subject matter of the testimony Loftus proposed to offer:
Dr. Loftus then proffered testimony on four topics concerning the operation of human memory: (i) the preconditions for forming accurate memories, (ii) the confounding impact of “double identification” or “post-event information,” (iii) the relationship between individuals’ confidence in describing memories and the accuracy of such memories, and (iv) potential disruptions caused by “weapons focus.” With respect to memory formation, Dr. Loftus observed that, among other circumstances, the brevity of one’s visual exposure to an object tends to cause an incomplete memory, which might later be especially susceptible to biasing influences. Dr. Loftus described “double identification” as a problem in determining whether one’s memory derives from one of two or more possible visual exposures to an object. According to Dr. Loftus, a witness’s recognizing someone, under circumstances similar to those described by [the police officer], could derive either from the witness’s actually having seen the recognized person or from a previous exposure to that person’s photograph. Dr. Loftus indicated, citing scientific studies, that when one encounters a remembered image along with ‘post-event information’ suggesting a particular context from which the image might be remembered…[37]
Indeed, the numerous pages discussing Loftus’ proposed testimony provide a veritable treatise on the scientific factors which must be considered in eye-witness identification. Next, the panel carefully discussed what Professor Loftus described as the manner in which the relevant research fit the facts of the case. This was the essential point of contention because the panel reasoned that it was in an analysis of “fit” where District Judge Lechner went wrong.[38]
As the Mathis panel further explained:
…[T]he government challenges the fit of Dr. Loftus’s testimony in three respects. First, on the subject of “double identification” and “post-event information,” the government claims that Dr. Loftus’s testimony did not pertain to the present facts because, according to Dr. Loftus’s own theory, [the police officer] viewed Mr. Mathis’s face only once, as part of the suspect materials, before selecting from the photographic array. Thus, the government claims, this case did not involve any “double” identification…The government also argues that there was no post-event information “between the visual identification of Mathis on the day of the robbery and the photo array identification”…Each of these arguments misconstrues the substance of Dr. Loftus’s testimony.[39]
Reminding again and again of the “liberal standard of admissibility mandated by Rule 702”,[40] the panel devoted ten solid pages to a clear explication of the interaction of the rules of evidence and the relevant behavioral science.
Citing to their district judge’s concerns over the “aura of reliability” and the supposed “confusion of the jury”, the panel explained:
We find is difficult to accord the customary degree of deference to the District Court’s discretion in this case… The District Court clearly expressed concern with “[t]he aura of reliability that’s attached to an expert witness”–which is one reason for district courts’ “gatekeeping function” in assessing expert testimony under Rule 702. …There is no suggestion, however, that such an aura of reliability was unwarranted in this case or, to be more precise, that it was unfairly prejudicial. From the record, it seems that Dr. Loftus was an extremely qualified, experienced academic presenting opinion on topics near the heart of his expertise. Moreover, Dr. Loftus’s conclusions seem closely tied to empirical studies whose reliability is not impeached, and he explained the bases for these studies at apparently appropriate length. In short, we see no reason to believe that Dr. Loftus’s aura of reliability reflected anything other than his actual reliability as an expert witness. With respect to the District Court’s concern with “confusing and misleading the jury” and “unfair prejudice”, we are unable to discern from these references, any more than from our own review of the record, how such problems might arise.[41]
After its detailed analysis, the panel stated simply: “We find that, in this case, and on this record, it was an abuse of discretion not to admit such testimony into evidence.” [42]
___________________________________________________________________________________________________________________________
[1] In re Dru G., 369 Ill.App.3d 650, 860 N.E.2d 845, 849 (2006).
[2] Daubert, 113 S. Ct. 2786, at 2796. The expert’s testimony must provide “a valid scientific connection to the pertinent inquiry.” Downing was a human memory and eyewitness testimony case. In Downing, the Third Circuit discussed certain of the rationales advanced by other courts of appeals in prior years for excluding such testimony, including notions that relevant issues could adequately be raised through cross-examination and common sense, that such testimony usurps the jury’s function, and that such evidence would lead to an unduly confusing “battle” of experts. Downing, 753 F.2d 1224 at 1229-30 & n. 4. The Downing panel found those rationales unpersuasive, and disavowed the skepticism concerning such testimony as a matter of principle. The panel then remanded for the district court to apply Rule 702‘s “helpfulness test.” In Downing the panel described this test, as: ‘[A]dmission depends upon the ‘fit,’ i.e., upon a specific proffer showing that scientific research has established that particular features of the eyewitness identifications involved may have impaired the accuracy of those identifications.” Downing, 753 F.2d 1224 at 1226.
[3] Id. Dru was a review of orders for the involuntary administration of
psychotropic medications.
[4] 994 A.2d 746 (Del. Super. Ct. 2010).
[5] Id. at 748.
[6] Id.
[7] Id. at 751.
[8] Id.
[9] 994 A.2d at 751-752.
[10] 323 S.W.3d 509 (Tex. App.-Fort Worth 2010).
[11] Id. at 512.
[12] Id.
[13] Id. at 514, citing to Ehrlich v. Miles, 144 S.W.3d 620, 625.
[14] 323 S.W.3d 514, citing to Blan v. Ali, 7 S.W.3d 741, 746.
[15] 323 S.W.3d at 519.
[16] 932 N.E.2d 704 (Ind. Ct. App. 2010).
[17] Id. at 706.
[18] Id. at 706-707.
[19] Id. at 707.
[20] Id. at 709.
[21] 932 N.E.2d at 709-710.
[22] 482 F.Supp.2d 192 (D. Puerto Rico 2007). Judge Gustavo Gelpí is the youngest United States District Judge for the District of Puerto Rico. He was appointed on August 1, 2006. Previously he served as a United States Magistrate Judge for five years. He is also a former Assistant Federal Public Defender and law clerk to Juan M. Perez Gimenez, his predecessor and now colleague on the federal bench.
[23] Newman v. Farmacy Natural & Specialty Foods, 168 Ohio App.3d 630, 861 N.E.2d 559, 562 (Ohio App. 2006).
[24] Id.
[25] 482 F.Supp.2d 192 (D. Puerto Rico 2007). Judge Gustavo Gelpí is the youngest United States District Judge for the District of Puerto Rico. He was appointed on August 1, 2006. Previously he served as a United States Magistrate Judge for five years. He is also a former Assistant Federal Public Defender and law clerk to Juan M. Perez Gimenez, his predecessor and now colleague on the federal bench.
[26] Noske v Friedberg, et. al., 713 N.W.2d 866 (Minnesota App. 2006).
[27] Id.
[28] Id. The district court dismissed the claim as barred by the statute of limitations. The court of appeals reversed and remanded, and the supreme court affirmed, holding that Noske’s cause of action did not accrue until he was granted habeas corpus relief in 1999.
[29] Id. 871.
[30] Id. 872.
[31] U. S. v Mathis, 264 F.3d 321 (3rd Cir. N.J., 2001).
[32] Professor Geoffrey Loftus is the former research partner and former husband of Professor Elizabeth Loftus, the world renowned scientist and expert on human memory. While a team, the Professors Loftus, carried on many studies and wrote numerous scientific papers on the issues relevant to memory and eye-witness identification.
[33] 264 F. 3d 321 at 340, note seven.
[34] 264 F. 3d 321 at 335.
[35] The evidence from the witnesses in the bank as well as that of the unindicted co-conspirator were seen as overwhelming. 264 F. 3d 321 at 343 – 344.
[36] Curiously, someone transcribed that Professor Loftus earned his doctorate at “Stamford” University, when it was obviously Stanford, in Palo Alto, California. 264 F.3d 321 at 333.
[37] 264 F.3d 321 at 333 – 334.
[38]“ This court has construed Rule 702 as embodying ‘three distinct substantive restrictions on the admission of expert testimony: qualifications, reliability, and fit.’ Elcock v. Kmart Corp., 233 F.3d 734, 741 (3rd Cir.2000). Only ‘fit’ is contested here; the government acknowledges that Dr. Loftus is a properly qualified expert and that his methods, principles, and data are of a sufficiently reliable scientific character. See generally Daubert v. Merrell Dow Pharm., 509 U.S. 579, 592-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (discussing factors that may be considered in assessing scientific reliability); In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 n. 8 (3rd Cir.1994) (same).” 264 F.3d 321, 335.
[39] 264 F.3d 321 at 336 (emphasis added).
[40] 264 F.3d 321 at 335 & 336.
[41] 264 F.3d 321 at 336.
[42] 264 F.3d 321 at 342.