“Just Relax, This Will Only Take a Minute”

1. “Just Relax, This Will Only Take a Minute” Daubert and the Doctor Travis J. Rhoades Samuel C. Hall January 11, 2011 (c) Crivello Carlson, S.C. - 2012

2. Hiring the Doctor

3. The Knoxville, TN College of Faith Healing? • Where is Rangoon? • Every Litigator has met a Dr. Nicholas Van Helsing • Doctor hired to play the role of the doctor for the purposes of litigation • Little interest in conducting a scientific analysis of the case • Little effort to buttress opinions with actual research or citations • No demonstrated process of analysis to arrive at his conclusions (c) Crivello Carlson, S.C. - 2012

4. A witness qualified as an expert by knowledge, skill, experience, training, or education…Before February 1, 2011 • Admissibility • “The fundamental determination of admissibility comes at the time the witness is “qualified” as an expert. In a state such as Wisconsin, where substantially unlimited cross-examination is permitted, the underlying theory or principle on which admissibility is based can be attacked by cross-examination or by other types of impeachment”. State v. Walstad, 119 Wis.2d 483, 518-19, 351 N.W.2d 469 (1984) • Exclusion of Expert on Qualifications • The label or title of a witness is not relevant to the determination of whether a witness is qualified to testify as an expert on a given subject. See, e.g ., Karl v. Employers Ins., 78 Wis.2d 284, 297, 254 N.W.2d 255 (1977); Wester v. Bruggink, 190 Wis.2d 308, 319-20, 527 N.W.2d 373 (Ct.App.1994). (c) Crivello Carlson, S.C. - 2012

5. New (to Wisconsin) Statute • Sec. 907.02. Testimony by experts • (1) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case. • (2) Notwithstanding sub. (1), the testimony of an expert witness may not be admitted if the expert witness is entitled to receive any compensation contingent on the outcome of any claim or case with respect to which the testimony is being offered. (c) Crivello Carlson, S.C. - 2012

6. A witness qualified as an expert by knowledge, skill, experience, training, or education…After February 1, 2011 • . . .[A] witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case. • Qualification of Experts to render opinions now tied to • Sufficient facts or data • Reliable principles and methodology • Applications of each reliably to the facts of the case. (c) Crivello Carlson, S.C. - 2012

7. Qualifications of the Doctor • Education • Most Doctors will have graduated from Accredited Medical School • Any post graduate work proper line of questioning • If the Doctor went to the Knoxville,TN College of Faith Healing you might want to explore that a bit (c) Crivello Carlson, S.C. - 2012

8. Qualifications of the Doctor • Training • Careful Examination of Post- Medical School Experience Should Illustrate Whether Doctor has Specific Training to Opine Regarding the Issues of the Case • Residency • Internships • Board certifications • Consolidated Coal Co. v. Director, Office or Worker’s Compensation Programs, 294 F.3d 885 (7th Cir. 2002) • Plaintiff offers 2 B-readers who opine that Petitioner has black lung disease after review of x-rays • Petitioner offers pulmonologist who reviewed CT scan to opine no black lung disease • Argument that CT much more precise and therefore more reliable than x-ray • 7th Circuit Affirms ALJ decision that Plaintiff offered properly qualified B-readers, conducting recognized tests for presence of pneumoconiosis; • Respondent failed to properly qualify pulmonologist—Court held that typical interpreters of CT scans are Radiologists, who are sometimes B-readers: • Respondents expert is neither a radiologist or a B-reader: • Respondent failed to establish that pulmologist had any training or experience: • Reading CT scans for the presence of pneumoconiosis; • Reading CT scans for the purpose of diagnosis (as opposed to treatment) • ALJ held pulmonologist opinions unreliable (c) Crivello Carlson, S.C. - 2012

9. Qualifications of the Doctor • Experience • Experience with an Subject Gained by Virtue of Position Can Qualify a Witness to Offer Opinion on Subject not Specifically a Portion of Formal Training or Education • Walker v. SOO Line Railroad Co., 208 F.3d 581 (7th Cir. 2000) • Plaintiff allegedly struck by lightning while working in rail yard tower • Sued SOO under Federal Employer’s Liability Act • Plaintiff Evaluated by the University of Chicago Electrical Trauma Research Program • Evaluation included psychologist examination, battery of tests conducted by technicians • MD that headed the clinical team opined that the Plaintiff suffered Post Traumatic Stress Disorder as a result of the lighting strike • District Court Qualified the Doctor as an Expert on Electrical Trauma BUT her Barred Her Testimony entirety- • Dr. not qualified as a psychiatrist or psychologist; • Her conclusions were founded only on limited physical examination and her review of the work of others on her team • 7th Circuit held that: • Proper for professional in the doctor’s position to rely on work of team members to formulate opinions • “The leader of that team is chosen because of her ability to assess accurately the role that each member of the team ought to play and to reconcile, when necessary, competing perspectives. Walker, at 589 • Dr. might not be able to opine on the diagnosis of PTSD outside the arena of electrical trauma, but she was qualified to make the diagnosis in that limited arena (c) Crivello Carlson, S.C. - 2012

10. Qualifications of the Doctor • A physician must possess some specialized knowledge in the particular field of medicine about which she is to testify. Everett v. Georgia-Pacific Corp., 959 F. Supp. 856, 857 (S.D. Ga. 1996). • The lack of specialization of a physician does not affect the admissibility of the testimony, but rather goes to its weight. Payton v. Abbott Labs, 780 F. 2d 147, 155 (1st Cir., 1985). • The focus is not whether a physician is generally qualified, but rather whether her qualifications provide a foundation for her to answer a specific question. Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010). (c) Crivello Carlson, S.C. - 2012

11. Gayton v. McCoy, 593 F.3d 610, (7th Cir. 2010) • Plaintiff’s decedent dies in Jail from elevated heartbeat coupled with Congestive Heart Failure • Decedent not provided medications • Plaintiff’s expert concludes that : • Decedent would not have died had she been administered her prescribed cardiac medications • Doctor offered no evidence he was specially qualified in either pharmacology or cardiology • No basis for opinion that drugs would have prevented death • No special knowledge as to how the drugs function, or explanation as to how decedent’s irregular use of the medications prior to her incarceration affected her condition • NOT ADMITTED • Decedent’s untreated and uncontrolled vomiting • Effect of vomiting on potassium levels not specialized knowledge outside the scope of Plaintiff’s expert as treating physician • Plaintiff’s Expert Qualified to opine that combination of diuretics and vomiting affects potassium and electrolytes which can lead to tachycardia • ADMITTED • Goes without saying but record must be made for each opinion (c) Crivello Carlson, S.C. - 2012

12. Methodology • Has the theory or technique in question been tested? • Has it been been subjected to peer review and publication? • What are its known or potential error rates? • Do maintenance standards exist controlling its operation? • Has it attracted widespread acceptance within the medical community? • Is the opinion generated independent of the litigation, or expressly for the purposes of testifying? • Is the opinion the result of an illogical or unfounded extrapolation of an accepted medical premise? • Are alternate explanations considered and rejected? • Is the field in which the expert practices known for generating reliably founded opinions? • Has the expert applied the same methodology to her litigation opinion as she does to her non-litigation work? (c) Crivello Carlson, S.C. - 2012

13. Because I Said So • Medical experts not allowed to rely on title and training as the basis of all medical opinion testimony • No More Ipse Dixit Opinions • Physicians can and should be examined vigorously on the information that forms the foundations of their opinions (c) Crivello Carlson, S.C. - 2012

14. Zarecki v. National R.R. Passenger Corp., 914 F.Supp. 1566, (N.D.Ill. 1996) • 1. I have been retained as an expert witness with respect to the above entitled cause on behalf of the Plaintiff, Judy Zarecki. • 2. I make this Affidavit in opposition to the Defendant National Railroad Passenger Corporation's Motion for Summary Judgment. • 3. My present business address is 7600 College Dr., Palos Heights, Illinois 60463. • 4. I am duly licensed to practice medicine in the State of Illinois, and I am board certified in orthopaedic surgery in the State of Illinois. • 5. I have examined the Plaintiff in this case, Judy Zarecki. • 6. I have reviewed the medical records of Judy Zarecki. • 7. It is my opinion based upon a reasonable degree of medical certainty that the Bilateral Carpal Tunnel Syndrome sustained by Judy Zarecki, was caused by her work duties as assigned by the Defendant National Railroad Passenger Corporation. • 8. It is also my opinion that the nature of the work duties at the Defendant National Railroad Passenger Corporation was such that it was reasonably foreseeable that Judy Zarecki, could sustain Bilateral Carpal Tunnel Syndrome in her hands or wrist or sustain some other hand/wrist injury. • 9. I make this affidavit upon my personal and professional knowledge and upon my examination of Judy Zarecki, the medical records of Judy Zarecki, and, if sworn as a witness, I can and will testify competently to the facts hereinbefore stated. (c) Crivello Carlson, S.C. - 2012

15. Zarecki v. National R.R. Passenger Corp., 914 F.Supp. 1566, 1574 (N.D.Ill. 1996) • Opinion is not based on any discernable scientific methodology; • Conclusions are subjective beliefs of the expert as to the cause of Zarecki's carpal tunnel syndrome; • None of the Daubert factors support the notion that the opinion constitutes scientific knowledge; • The record is void of any studies or analyses to substantiate conclusions; • Affidavit does not allude to any authorities that support views, nor demonstration that views have gained general acceptance in the scientific community. (c) Crivello Carlson, S.C. - 2012

16. Diagnosis and Cause • Areas in which Methodology Examination is Critical • General and Specific Causation • General causation--is the agent or trauma capable of causing the disease or injury? • Specific causation--did the agent or trauma cause the disease or injury in this particular individual? • Reference on Scientific Evidence 335 (Fed. Judicial Ctr.2000). (c) Crivello Carlson, S.C. - 2012

17. General Causation • Has it been established that the particular trauma or exposure is a recognized cause of the Plaintiff’s injury? • Higher Quality • Epidemiological Reviews • Controlled Trials • Cohort Studies • Lower Quality • Descriptive Studies • Case Studies (c) Crivello Carlson, S.C. - 2012

18. Determining Specific Medical Causation • Differential diagnosis methodology • “ruling in” potential causes to develop a potential-cause checklist; • then “ruling out” potential causes one by one based on objective data and criteria. • Causation is attributed to the last potential cause left on the list, or at least the most probable one of those that remain. Glastetter v. Novartis Pharmaceuticals Corp., 107 F.Supp.2d 1015, 1029 (E.D.Mo.2000). • when it is used in the practice of science (as opposed to its use by treating physicians in the practice of medicine out of necessity) it must reliably “rule in” a potential cause. See Glastetter, 252 F.3d at 989. • If the “ruling in” step is based on too great an analytical leap (or several such leaps), the whole opinion is questionable. (“any step that renders the analysis unreliable ... renders the expert's testimony inadmissible”) See Advisory Committee Notes to 2000 Amendments to Rule 702. (c) Crivello Carlson, S.C. - 2012

19. Lennon v. Norfolk and Western Railway Co., 123 F.Supp.2d 1143 (N.D.Indiana, 2000) • Plaintiff falls at work and hits head on concrete • One year later, complains of headaches and feelings of spaciness • Referred to a Neurologist (Romain) who diagnoses him with Multiple Sclerosis, and opines that the MS was triggered or exacerbated by the fall • Opinion supported by limited review of published materials, most of which support his contention, a group of case reports in support of his diagnosis, as well as his experience in treating MS patients and his attendance of conferences at which the relationship was discussed • General Causation • Court reviewed medical literature regarding trauma’s relationship to MS • Dr. Douglas Goodin, The role of trauma in causing MS or in triggering relapses or flares is not yet established or refuted. But preponderance of the evidence supports no association between physical trauma and either MS onset or exacerbation. • Dr. Charles Poser published a study in 1994 criticized the efforts in the scientific community to study the role of Trauma in MS, but making no definitive • Court reviews several articles dating back to the 1950s and earlier elated to the relationship between Trauma and MS • Concludes that “the overwhelming weight of the authority suggests the notion that there has been no conclusive showing demonstrating a link between trauma and the onset or exacerbation of MS.” • Limited review is the antithesis of the scientific method • Limited review might not be fatal to admissibility IF the expert’s opinion followed the overwhelming weight of the evidence (c) Crivello Carlson, S.C. - 2012

20. Lennon v. Norfolk and Western Railway Co., 123 F.Supp.2d 1143 (N.D.Indiana, 2000) • Specific Causation • Plaintiff also argues that Dr. Romain’s causation opinion is based on a clinically supported differential diagnosis • Differential diagnosis does not by itself prove the cause, even for the particular patient. Nor can the technique speak to the issue of general causation. • Differential diagnosis assumes that general causation has been proven for the list of possible causes it eliminates: • The process of differential diagnosis is undoubtedly important to the question of “specific causation.” If other possible causes of an injury cannot be ruled out, or at least the possibility of their contribution to causation minimized, then the “more likely than not” threshold for proving causation may not be met. But, it is also important to recognize that a fundamental assumption underlying this method is that the final, suspected “cause” remaining after this process of elimination must actually be capable of causing the injury. That is, the expert must “rule in” the suspected cause as well as “rule out” other possible causes. And, of course, expert opinion on this issue of “general causation” must be derived from scientifically valid methodology. Hall v. Baxter Healthcare Corp., 947 F.Supp. 1387, 1413 (D.Or.1996) (quoting, Cavallo v. Star Enterprise, 892 F.Supp. 756, 771 (E.D.Va.1995) aff'd. on this ground, rev'd on other grounds 100 F.3d 1150 (4th Cir.1996)). (c) Crivello Carlson, S.C. - 2012

21. Lennon v. Norfolk and Western Railway Co., 123 F.Supp.2d 1143 (N.D.Indiana, 2000) • Plaintiff Expert Neurologist Dr. Schreiber Opines that Plaintiff suffered neurological trauma as a result of his fall • White Matter Lesions cause by shearing forces to the brain which caused nerve demyelinization from Review of repeated CT scans • Objective signs of neurological symptoms including thought disorder, memory deficits and left-sided sensory deficits • Dr. Schreiber relied on his own experience as a board certified neurologist • On his review of neurological journals which support relationship between head trauma and white matter lesions • On Textbook DIAGNOSTIC NEUROLOGY, which clearly sets forth relationship between severe trauma and white matter lesions • On case study of a Dr. Nevin, with 40 participants with head injuries and varying degrees of white matter changes • Defense Doctor relies on a Lancet study that suggests that only major trauma can cause White lesions • Plaintiff's fall was minor fall • Could not be the cause of the White Lesions • No specific definitive study correlating falls like the Plaintiff’s to White Matter Lesions • BUT • All studies submitted suggest that trauma is a recognized cause of White Matter Lesions • Dispute is a over whether the trauma was sufficient • Issue Ripe for Jury determination and not a matter of admissibility (c) Crivello Carlson, S.C. - 2012

22. DECIDED PRIOR TO DAUBERT—INCLUDED FOR COMPARISON / CONTRAST OF COURT’S INQUIRY PRE AND POST-DAUBERTCella v. U.S., 998 F.2d 418 (7th Cir. 1993) • Plaintiff alleges he suffers from Polymyositosis from trauma suffered aboard Navy vessel • Plaintiff claimed four separate incidents of physical injury during the trip: • injured his lower back downloading of four pallets of stores from the dock onto the ship; • burned his hand when he lifted a twenty-quart pot filled with spaghetti sauce and the simmering sauce spilled onto his hand (because the pot's handle was coated with melted butter); • struck his head twice and fell when the vessel broke the mooring lines tied to the dock; and • injured his lumbar spine while lifting approximately ninety pounds of pot roast out of the oven after other crew members refused to help him. • Plaintiff also claimed threats for physical violence arising out of racial tensions on the ship • Dr. Romain, Neurologist with 22 years experience • Complete medical history of the plaintiff, • Full neurological examination, • Conducted a series of tests to rule out various possible diagnoses, • Directed two muscle biopsies to be taken and sent out for laboratory analysis. • Repeated testing revealed that certain of Cella's muscle enzymes were greatly elevated. • The biopsy results suggested that the plaintiff suffered from focal chronic interstitial myositis. • After reviewing these test results in light of his examination and history of Cella, Dr. Romain was convinced that Cella suffered from polymyositosis (c) Crivello Carlson, S.C. - 2012

23. DECIDED PRIOR TO DAUBERT—INCLUDED FOR COMPARISON / CONTRAST OF COURT’S INQUIRY PRE AND POST-DAUBERTCella v. U.S., 998 F.2d 418 (7th Cir. 1993) • The generally-accepted medical dogma identified polymyositis as an idiopathic disorder, • Dr. Romain had heard of cases of polymyositis being secondary to trauma and believed that Cella's polymyositis-like condition might have been brought on by the events that occurred aboard the Hess. • From his extensive medical literature search, Dr. Romain concluded: • that cases of polymyositis are heterogeneous in origin; • that among the documented cases there was always a consistent but somewhat low percentage of cases in which some type of severe emotional or physical stress seemed to have etiological importance. • Dr. Romain further believed that an experimental model with marathon runners which revealed a link between physical stress and elevated enzymes supported his conclusion that physical stress and trauma caused Cella's polymyositis condition.3 • In addition to citing the occasional incidence of trauma, the medical literature considered by Dr. Romain addressed genetic factors, viral infections, vaccinations, certain tropical diseases, and systemic lupus erythematosus as other possible causes of polymyositis. • Through his physical examination of the plaintiff, extensive neurological testing of the plaintiff, and careful review of the plaintiff's medical history, Dr. Romain was able to exclude each of these factors as the potential cause of Cella's condition. • Through his elimination of these other possible causes and his medical literature research revealing a causal relation between trauma and documented polymyositis cases, Dr. Romain concluded that the plaintiff's polymyositis-like condition was caused by the trauma arising from the events aboard the Hess. • He prescribed prednisone treatment and physical therapy, which apparently stabilized the plaintiff's condition. (c) Crivello Carlson, S.C. - 2012

24. DECIDED PRIOR TO DAUBERT—INCLUDED FOR COMPARISON / CONTRAST OF COURT’S INQUIRY PRE AND POST-DAUBERTCella v. U.S., 998 F.2d 418 (7th Cir. 1993) • Defendant challenges foundation of Dr. Romain’s opinion under FRCP 907.03, arguing the Court Identifies two studies from among Dr. Romain’s reliance materials that provide “substantial epidemiological support” for the relationship between certain elevated enzymes and polymyositosis • Articles acknowledge relationship between extreme stress, physical injury or combination of both stress and injury and conditions like polymyositosis • Facts of the case suggest factors applied to experience aboard the ship • “Although the complete etiology of all polymyositis has not been definitely proven, the plaintiff's expert medical witness has testified that, based on his examination and testing of Cella, his review of Cella's full medical history, his research of medical literature, and his analysis of documented case studies of polymyositis, it is his opinion within a reasonable degree of medical certainty that trauma was the cause of this plaintiff's polymyositis.” Cella at 429. (c) Crivello Carlson, S.C. - 2012

25. Evidence-Based Medicine • Evidence Based Medicine requires physicians to use the best evidence available in determining treatment by placing more value on well-designed and well executed clinical investigations and less value on expert opinion and uncontrolled observational studies, like case reports and case studies. • Sear, John, “Effective Use of Evidence-Based Medicine to Challenge Causation Testimony,” LJN’s Product Liability Law and Strategy, Vol. 30, No. 2, August 2011 • Of particular interest is the fact that the American Academy of Orthopedic Surgeons has recognized Evidence Based Medicine principles, and contains its own hierarchy of qualitative medical evidence, with Randomized Control Trials at the top and Personal Observation of the physician at the bottom. (c) Crivello Carlson, S.C. - 2012

26. Considerations for Depositions Preparation – Best Practices Key Testimony to Obtain Use of Follow-up Discovery Common Fallacies to Exploit (c) Crivello Carlson, S.C. - 2012 (c) Crivello Carlson, S.C. - 2012

27. Preparation – Practices • Prepare: Have a Plan • Individual Comfort Level • Research: Resources Online and Offline • Prior Deposition or Trial Testimony and Reports • Prior Decisions Related to the Expert AND Opinion • Expert’s Websites, Social Media, Blogs, etc. • CV – Publications Legitimate? (c) Crivello Carlson, S.C. - 2012 (c) Crivello Carlson, S.C. - 2012

28. Key Testimony to Obtain • Whether the opinion or theory has been subjected to peer reviewed publication. • The known of potential rate of error and the existence of standards controlling in the subject area. • The extent to which the expert’s methodology, technique and opinions are generally accepted within the expert’s community. (c) Crivello Carlson, S.C. - 2012 (c) Crivello Carlson, S.C. - 2012

29. Key Testimony to Obtain • Keep in mind that “expert intuition” is insufficient: “A witness who invokes ‘my expertise’ rather than analytic strategies widely used by specialists is not an expert as Rule 702 defines that term. [The expert] may be the world’s leading student of [the topic], but if he could not or would not explain how his conclusions met the Rule’s requirements, he was not entitled to give expert testimony. As we so often reiterate: ‘An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process.’” Zenith Electronics Corp. v. WH-TV Broadcasting Corp., 395 F.3d 416, 419 (7th Cir. 2005) (citations omitted). (c) Crivello Carlson, S.C. - 2012 (c) Crivello Carlson, S.C. - 2012

30. Key Testimony to Obtain CHECKLIST • Expert Report Completed? • Compensation / Amount of Time to Reach Opinions • Current CV? • List of Prior Testimony • Prior Challenges to Admissibility of Expert’s Testimony • Qualifications of Witness: Education, Training, Experience, Skill • How did Expert Reach Opinions: Reliable Methods? • Basis for Each Opinion • What Facts or Records Relied On • Any Independent Research? • Have the Methods or the Opinions Referenced in Peer Reviewed Publication? • Alternative Explanations? • Was the Doctor as Careful as he/she Would be in Practice? (same methodology?) (c) Crivello Carlson, S.C. - 2012 (c) Crivello Carlson, S.C. - 2012

31. Deposition Testimony Examples Engineer or Meteorologist? Q: In terms of your education, have you studied meteorology formally? A: Well I took it as a technical elective in college, but other than that, no. Q: You took one course in meteorology as an elective back when you were obtaining your bachelor’s degree? A: Right. Q: So that would have been in the early to mid 1960’s? A: Right. Q: Besides that one course, have you had any other formal training in meteorology? A: No (c) Crivello Carlson, S.C. - 2012 (c) Crivello Carlson, S.C. - 2012

32. Engineer or Meteorologist - Continued Q: You’re not able to testify as to what moisture content would be required in order to form snow that would have been wet enough to stick to the side of the building, correct? A: Well, perhaps within these limits, a snowfall where the water equivalent is such that ten inches of snow would constitute one inch of rainfall or more would generally be considered a wet snow that could stick to the building. Q: And this theory of yours of one inch of rainfall to make ten inches of snow, where does this theory come from? A: That would be an interpretation that I have used before. It’s something that I have heard meteorologists in this area talk about. We all listen to what the weather people tell us on television. Q: Are you aware of any peer-reviewed, published literature that supports your position? A: I’m not, but there may be some out there. (c) Crivello Carlson, S.C. - 2012 (c) Crivello Carlson, S.C. - 2012

33. Example Testimony - Continued Doctors Against Obesity Q: Can you testify to a reasonable degree of medical probability that this incident caused the rotator cuff tear? A: The way I visualize it is that, from his description, which wasn’t great: He gets hit by the thing, by the forklift, and he falls back. And he tries to catch himself. I mean he’s got some velocity, and he’s fat, so he tries to catch himself. Heavy. Excuse me, I shouldn’t use the word fat. Although I am to the point where I don’t care anymore. * * * Q: A little bit ago you mentioned about truck drivers and said something to the effect that its hell on their shoulders. What did you mean by that? A: Lets set the scenario: Truck drivers are rarely in very good physical condition. Okay? They sit in a truck all day long. They don’t work out. They smoke. Whatever. They got to haul themselves up into the cab; they got to haul themselves down. They actually have to haul themselves up because they’re fat. (c) Crivello Carlson, S.C. - 2012 (c) Crivello Carlson, S.C. - 2012

34. Example Testimony - Continued Medical Examiner Q: When you say sudden death during struggle and restraint, what is the exact mechanism of injury that leads to a death in that situation? A: I don’t think it’s well known. Q: So the fundamental question is what…caused the cardiac arrest? A: Well it started with the struggle and restraint; but all of the physiological changes that occurred between then, yes, we don’t really know. Q: Is that to mean independently you don’t think that any of these individually [the physiological changes] by itself would have caused death in this case? A; No, I can’t separate it. (c) Crivello Carlson, S.C. - 2012 (c) Crivello Carlson, S.C. - 2012

35. Example Testimony - Continued Medical Examiner, Cont. Q: Would the exertion that you indicated, would that alone, absent the fear and panic, absent the position [the decedent] was in, absent the pressure on the torso, the restraint, the use of an ECD, would that exertion alone, absent all those factors, would that have caused death? A: I can’t say. Q: And that’s true of all of these? A: Yes. I don’t think we can unbundle the package. I mean I really don’t think you can. It’s just not doable. Q: But you believe that the combination of all of the factors combined to cause the death? A: I believe that they each provided some input into the death. (c) Crivello Carlson, S.C. - 2012 (c) Crivello Carlson, S.C. - 2012

36. Example Testimony - Continued Medical Examiner, Cont. Q: Can you say to a reasonable degree of medical certainty what happened inside of [the decedent’s] body mechanically, to cause his death? A; No. (c) Crivello Carlson, S.C. - 2012 (c) Crivello Carlson, S.C. - 2012

37. Subsequent Discovery • Verify New Propositions and Statements • Follow Up with Written Discovery if Necessary • Examples Include: • Claim that Supporting Literature May be Available • Supporting Documentation for Background • Relevant Materials Not Brought to Deposition (c) Crivello Carlson, S.C. - 2012 (c) Crivello Carlson, S.C. - 2012

38. Common Expert Fallacies • Post Hoc Ergo Propter Hoc • Cum Hoc Ergo Propter Hoc • False Dichotomy • Falsum in Uno, Falsum in Omnibus (c) Crivello Carlson, S.C. - 2012 (c) Crivello Carlson, S.C. - 2012

39. Post Hoc Ergo Propter Hoc • “after this, therefore because of this.” • Commonly Seen in Unexplained (or Unexplainable) Death Cases • Also Seen in Evolving Scientific Areas: Although the methodology upon which Dr. Rose based his diagnosis was not articulated in much detail at his deposition, he appears to rely primarily on the temporal relationship between the plaintiff discontinuing her use of Fosamax and her injury healing. In re Fosamax Products Liability Litigation, 2009 WL 4042769 (S.D.N.Y. 2009) (c) Crivello Carlson, S.C. - 2012 (c) Crivello Carlson, S.C. - 2012

40. Post Hoc Ergo Propter Hoc • “Drawing…a conclusion from temporal relationships leads to the blunder of the post hoc ergo propter hoc fallacy. The post hoc ergo propter hoc fallacy assumes causality from a temporal sequence.” McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1243 (11th Cir. 2005). • McClain court generally recognized that expert opinions based on post hoc ergo propter hoc do not pass muster under Daubert. Id. at 1242-1243. (c) Crivello Carlson, S.C. - 2012 (c) Crivello Carlson, S.C. - 2012

41. Post Hoc Ergo Propter Hoc • “[I]n essence, the requirement of adequate documentation in scientific literature ensures that decision makers will not be misled by the post hoc ergo propter hoc fallacy…” Ohio v. U.S. Dep’t. of the Interior, 880 F.2d 432, 472-473 (D.C. Cir. 1989); see also Shafer v. Kal Kan Foods, Inc., 417 F.3d 663, 664 (7th Cir. 2005); Bermundez v. TRC Holdings, Inc., 138 F.3d 1176, 1179 (7th Cir. 1998). (c) Crivello Carlson, S.C. - 2012 (c) Crivello Carlson, S.C. - 2012

42. Cum Hoc Ergo Propter Hoc • “with this, therefore because of this.” • Fallacy that correlation establishes causation • Causation cannot be established simply because certain events occur within a temporal relationship. (c) Crivello Carlson, S.C. - 2012 (c) Crivello Carlson, S.C. - 2012

43. Cum Hoc Ergo Propter Hoc REJECTED EXPERT OPINION: • “I talk about it being mercury toxicity. Again, in terms of myocarditis, I don’t know what the mechanism for that was. It is a finding that is reported in ethyl mercury deaths. I see it here. One and one equals two.” Kolakowski v. Secretary of Health and Human Services, 2010 WL 5672753, Fed. Cl., Nov. 23, 2010. (c) Crivello Carlson, S.C. - 2012 (c) Crivello Carlson, S.C. - 2012

44. Cum Hoc Ergo Propter Hoc • Courts have generally either rejected or disfavored opinions and analysis based on cum hoc ergo propter hoc. Florence v. Board of Chosen Freeholders of County of Burlington, 621 F.3d 296 (3rd Cir. 2010); Bull v. City and County of San Francisco, 595 F.3d 964 (9th Cir. 2010). (c) Crivello Carlson, S.C. - 2012 (c) Crivello Carlson, S.C. - 2012

45. False Dichotomy Fallacy • Often a deliberate attempt by advocates to eliminate middle ground. “You either support us, or you support the terrorists.” “It wasn’t the medicine that cured the patient, so it must have been a miracle.” (c) Crivello Carlson, S.C. - 2012 (c) Crivello Carlson, S.C. - 2012

46. False Dichotomy Fallacy • Generally, courts evaluate this fallacy as an example of basing an opinion on false assumptions. • Such opinions are generally not admissible: • Elock v. Kmart Corp., 233 F.3d 734, 756 n.13 (3rd Cir. 2000); Bradley v. Armstrong Rubber Co., 130 F.3d 168, 177 (5th Cir. 1997). (c) Crivello Carlson, S.C. - 2012 (c) Crivello Carlson, S.C. - 2012

47. Falsum in Uno, Falsum in Omnibus • “False in one thing, false in everything.” • Began in Roman court system: provided that if a witness was proven false in one area of testimony, the witness should be presumed to have provided entirely false testimony. (c) Crivello Carlson, S.C. - 2012 (c) Crivello Carlson, S.C. - 2012

48. QUESTIONS? (c) Crivello Carlson, S.C. - 2012 (c) Crivello Carlson, S.C. - 2012