Malpractice Insurance: Crisis or Stasis?

Medical malpractice insurance rates were flat for the year 2005, according to a new report from Americans for Insurance Reform (AIR). Rates rose 2% in both of the year's first two quarters, and 0% in the last two. This compares with quarterly spikes of 50% or more in 2001-2002. Proponents of malpractice "reform" have contended that runaway increases in claims payments fueled the explosive growth of premiums during that period, but AIR mounts a convincing case that the insurance investment cycle had more to do with the premium "crisis." AIR's evidence includes data showing trends in malpractice insurance premiums tracking the trends for other forms of insurance over the same period.

AIR is affiliated with the Center for Justice and Democracy, whose Board of Advisors comprises various academics from the progressive side of the spectrum, as well as such cultural icons as Erin Brockovich and Michael Moore. The "tort reform" crowd will say the study is biased on that account. They will also say that even if premium increases have run their course for the time being, premiums remain at "crisis" levels. The terms of political debate, that is, will simply adapt to fill whatever empirical space may remain available. All the same, the "malpractice reform" contingent seems to be losing argumentative elbow room with each new set of data.

We learned of the AIR report from a post at HealthLawProf Blog, which has more.

How Blogs Saved the Planet

From the year 2014, a chronicle of how the internet came to the rescue.

Massachusetts High Court Rules on Applicability of Daubert-Lanigan to Medmal Testimony on Standard of Care

This past week, the Massachusetts Supreme Judicial Court was called upon to decide whether the state's Daubert-Lanigan standard for expert testimony applies to experts testifying on the standard of care in medical malpractice cases. Its answer? Yes and no. From the opinion:

We agree with the plaintiffs that expert testimony concerning the standard of care generally need not be subject to a Daubert-Lanigan analysis. Such testimony is based on the expert's knowledge of the care provided by other qualified physicians, not on scientific theory or research: "How physicians practice medicine is a fact, not an opinion derived from data or other scientific inquiry by employing a recognized methodology." Cramm, Ascertaining Customary Care in Malpractice Cases: Asking Those Who Know, 37 Wake Forest L. Rev. 699, 725 (2002). However, when the proponent of expert testimony incorporates scientific fact into a statement concerning the standard of care, that science may be the subject of a Daubert-Lanigan inquiry. Because expert opinion about increased risk, like diagnosis and causation, involves the application of science to patient care, Daubert-Lanigan would be applied to that portion of an expert's testimony, requiring the proponent of such evidence, if challenged, to demonstrate its relevance and reliability.

See Palandjian v. Foster, No. 09562 (Mass. Feb. 21, 2006).

Daubert Objection Raised Only at Trial Is Untimely, Says 1st Circuit

The First Circuit has held that a Daubert objection raised only at trial came too late. From the opinion in Feliciano-Hill v. Principi, No. 04-1072 (1st Cir. Feb. 22, 2006):

The district court denied [appellant's] motion both because it was untimely -- [appellant] waited until the moments before [the expert's] testimony to object, even though she had received the doctor's report five months earlier -- and because [the expert's] report and proposed testimony met the applicable standard. The district court was correct on both grounds.

Parties have an obligation to object to an expert's testimony in a timely fashion, so that the expert's proposed testimony can be evaluated with care. [Appellant] did not make a timely motion here and has not offered any reason for her delay. The district court was on firm ground in refusing her motion as untimely.

Would such a rule make a certain amount of practical sense? Perhaps. Is it consistent with Fed. R. Evid. 103, which seems to say that evidentiary objections at trial are sufficient to preserve error? Less clear. Did the objecting party in Feliciano-Hill miss a court-imposed pretrial deadline? Not that the opinion mentions.

Expert Perjury Watch: Industrial Edition

What do you do if the science suggests that your product poses health risks?

You try to make up some new science, of course. Effect Measure has more.

Fourth Circuit Upholds Expert Testimony from Probation Officer on Detectability of Marijuana in Human Body

In an unpublished opinion, the Fourth Circuit has upheld testimony from a probation officer on how long marijuana remains detectable in the human organism. See United States v. Williams, No. 05-4977 (4th Cir. Feb. 17, 2006) (Niemeyer, Michael, & Traxler, JJ.).

Sixth Circuit Upholds Exclusion of Psychological Autopsy

The Sixth Circuit has upheld the exclusion of a psychological autopsy in an employment case. The panel's unpublished decision says the expert relied entirely on anecdotal evidence, failed to review the medical records, and admitted she had never performed a psychological autopsy before. See Halvorsen v. Plato Learning, Inc., No. 05-5325 (6th Cir. Feb. 15, 2006) (Siler, Sutton, & Cook, JJ.).

Among the Clients Allegedly Defrauded by Cyril Wecht: Scott Peterson & Jayson Williams

Prosecutors in the fraud case against high-profile forensic expert Cyril Wecht say that Scott Peterson and NBA star Jayson Williams are among the clients to whom Wecht submitted fraudulent bills, according to a story in the Pittsburgh Post-Gazette.

Second Circuit Upholds Exclusion of Medical Malpractice Testimony

In Kournoukakis v. Dello Russo, No. 05-2927 (2d Cir. Feb. 14, 2006) (Jacobs, Leval, & Straub, JJ.), a Second Circuit panel has upheld the trial court's exclusion of plaintiff's expert testimony in a medical malpractice case. The expert (an M.D./J.D.) was found to be unqualified because he had not practiced medicine since the mid-1990's, did not appear to have a valid medical license, was never trained in the relevant methodology, and did not examine the patient.

The panel's opinion is in the form of an unpublished summary order. The Second Circuit purports to forbid the citation of its summary orders as precedential authority before "this or any other court." See Second Circuit Local Rules § 0.23. We wonder what the Second Circuit believes to be the source of its authority for regulating the citation of its unpublished decisions in other jurisdictions.

Sir Roy Meadow Wins Appeal

A court has overturned the decision by England's General Medical Council striking Sir Roy Meadow from the national medical register, according to the Guardian and other British press sources. The sanction had been issued because Meadow gave inaccurate and misleading expert testimony for the prosecution in the trial of a woman charged with murdering two sons who suffered crib death. Finding that Meadow's testimony was offered in good faith, the court held that Meadow should enjoy testimonial immunity from professional discipline.

We remain disturbed by the repellent zealotry with which Sir Meadow has pursued his testimonial crusade against innocent mothers whose babies have died under tragic circumstances. But as we have said before, we don't think professional discipline is the proper remedy.

Fifth Circuit Upholds Testimony from Admiralty Expert

The Fifth Circuit has published an opinion upholding the admissibility of expert testimony from a master mariner in an admiralty trial. The objecting parties complained that the expert was unqualified to testify to the specific hydrodynamic effects involved in the vessels' collision. But the expert did not in fact testify to any hydrodynamic calculations. He offered only general, qualitative testimony about bow waves, based on his practical experience. See Stolt Achievement, Ltd. v. Dredge B.E. Lindholm, No. 04-20773 (5th Cir. Feb. 14, 2006) (Higginbotham, Wiener, & Dennis, JJ.).

Second Circuit Approves Handwriting Testimony on Plain Error Review

From the summary decision in United States v. Adeyi, No. 05-1722 (2d Cir. Feb. 7, 2006) (Calabresi, Straub, & Wesley, JJ.):

The government's handwriting expert testified to his belief that, based on the handwriting in [defendant's] address book, two of the handwritten slips of paper found in the heroin packages appeared to be authored by [defendant]. Our circuit has not authoritatively decided whether a handwriting expert may offer his opinion as to the authorship of a handwriting sample, based on a comparison with a known sample. We have held, however, that "for an error to be plain, it must, at a minimum, be clear under current law. . . . A reviewing court typically will not find such error where the operative legal question is unsettled." United States v. Weintraub, 273 F.3d 139, 152 (2d Cir. 2001) (internal quotation marks omitted). Because expert opinion as to handwriting authorship is not clearly inadmissible in this circuit, we cannot say the district court committed plain error.

From the footnote to that paragraph:

Although we do not now decide on the admissibility of such evidence, we note that those circuits that have considered the question are unanimous that a properly admitted handwriting expert may, if the factors enumerated in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), are satisfied, offer an opinion as to the authorship of a disputed document. See, e.g., United States v. Prime, 431 F.3d 1147, 1151-54 (9th Cir. 2005); United States v. Crisp, 324 F.3d 261, 271 (4th Cir. 2003); United States v. Mooney, 315 F.3d 54, 61-63 (1st Cir. 2002); United States v. Jolivet, 224 F.3d 902, 905-06 (8th Cir. 2000); United States v. Paul, 175 F.3d 906, 909-12 (11th Cir. 1999). But see United States v. Oskowitz, 294 F. Supp. 2d 379, 384 (E.D.N.Y. 2003) (citing to district court cases that have excluded handwriting expert testimony offering an opinion as to authorship).

Robert Wood Johnson Foundation Issues Report on Malpractice Premiums

Courtesy of Walter Olson, we learn of a January 2006 report from the Robert Wood Johnson Foundation entitled "Understanding medical malpractice insurance: A primer." Authored by Michelle M. Mello, J.D., Ph.D., of the Harvard School of Public Health, the report assesses the relationships between medical malpractice premiums, claims payments, and other factors.

The report is sure to annoy rabid ideologues of every stripe. That is to say, its conclusions seem pretty reasonable, on the whole. The report notes that partisans on both sides of the controversy over malpractice insurance rates often stress their own pet explanations to the exclusion of others. Physicians and proponents of "tort reform" emphasize claims costs. Lawyers and consumer groups point to the recent fate of insurance company investments and other structural industry factors. The truth, according to the report, is probably that both sets of causal factors are in play to some degree. Rising claims costs (driven by an increase in average payouts, not claim frequency) "have contributed to rising premiums," says the report, "but do not explain the sudden spike in premiums around 1999-2000."

Objecting Party Has Initial Burden to Call Reliability of Expert Testimony into Question, Says Nebraska Supreme Court

The Nebraska Supreme Court has clarified that under Nebraska's Daubert/Schafersman test for expert testimony, the initial burden falls on the objecting party to call the reliability of the testimony into question. Only then does the burden of establishing the reliability of the evidence shift to the propounding party. See State v. Mason, 271 Neb. 16 (2006). Apparently, under Mason, a general challenge that fails to specify the allegedly unreliable aspects of the testimony does not satisfy the objecting party's burden.

Kansas Supreme Court Rejects Polygraph Evidence in Civil Commitment Proceedings Under Sexually Violent Predator Act

In Kansas (a Frye state), the Supreme Court has ruled that polygraph evidence is inadmissible in commitment proceedings under the Kansas Sexually Violent Predator Act (KSVPA). See In re Foster, No. 91,324 (Kan. Sup. Ct. Feb. 3, 2006). The state argued that because proceedings under the KSVPA are civil in nature, polygraph evidence should be permitted, just as it is in Kansas probation revocation proceedings. The Foster court rejected that argument. In probation revocation hearings, a preponderance standard applies under Kansas law, and the issue is tried to the court. KSVPA cases, by contrast, are tried to a jury, and the standard of proof is beyond a reasonable doubt.

Connecticut's High Court Rejects Invitation to Adopt Kumho Tire

The Connecticut Supreme Court has upheld the admissibility of expert testimony on the psychological and behavioral characteristics of "preferential" sex offenders from Kenneth Lanning, a former FBI agent who frequently appears as an expert witness on the subject. See State v. Sorabella, No. 17215 (Conn. Sup. Ct. Feb. 7, 2006).

Under State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), Connecticut subjects testimony based on novel scientific principles to a Daubert inquiry, but the Sorabella court held that no such hearing was required in Lanning's case, because his testimony did not purport to be scientific. The defendant-appellant urged Sorabella court to adopt Kumho Tire and require Porter hearings for all expert testimony dependent on specialized knowledge, whether scientific or otherwise, but the court declined to do so, on the stated ground that the defendant failed to raise the issue at the trial court level.

"Ethics" or "Witness Tampering"? (Part 3)

Part 1 posited four theses about medical society rules governing expert testimony and selected a test case. Part 2 sketched the directions that the argument in support of the four theses will take. Part 3 will begin to address some legal basics about witness tampering.

18 U.S.C. § 1512

The federal criminal statute governing witness tampering is 18 U.S.C. § 1512. It does not apply to proceedings in state court, where most expert evidence implicated by medical society rules on expert testimony would be offered. State law governs witness tampering in state proceedings, and it may differ in points of detail from the federal regime, and from jurisdiction to jurisdiction. We are mainly concerned, however, with the general policies animating both state and federal legislation in this category, and with the means typically employed to promote those policies. Section 1512 will therefore serve as a suitable exemplar.

Relevant provisions from section 1512 include subsections (b) through (f).

Subsection (b)

Pertinent language from subsection (b) includes the following:

(b) Whoever knowingly uses intimidation, threatens or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to –

(1) influence, delay or prevent the testimony of any person in an official proceeding; [or]

(2) cause or induce any person to –

(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding; . . .

shall be fined under this title or imprisoned not more than ten years, or both.

Certain of the terms used in subsection (b) are defined in 18 U.S.C. § 1515. The term “official proceeding” includes civil litigation in federal court. The term “corruptly persuades” does not include “conduct which would be misleading conduct but for a lack of a state of mind.”

The AAEM rules on expert testimony are manifestly implicated by this provision, inasmuch as the rules exist entirely for the purpose of “influencing” testimony in civil proceedings (or preventing it altogether, at least in the case of witnesses not meeting the rules’ criteria on qualifications). Whether the AAEM rules also satisfy the statute’s criteria for “intimidation,” “threat[s],” “corrupt[] persua[sion],” or “misleading conduct” will be addressed later – as will the question whether measures taken in abstract contemplation of future, unidentified cases should count as involving any “official proceeding” for purposes of triggering the statute.

Subsection (c)

Subsection (c) provides:

(c) Whoever corruptly –

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

For present purposes, the distinction between subsections (b) and (c) would seem subtle. Almost by definition, one who has influenced testimony in a proceeding by intimidating, threatening, or corruptly persuading a witness (as subsection (b) already proscribes) has also “corruptly” obstructed, influenced, or impeded the proceeding itself (as subsection (c) forbids). Subsection (c)(2), however, also sweeps in conduct that corruptly obstructs, influences, or impedes a proceeding, even if that conduct would not count as intimidating, threatening, or corruptly persuading a witness.

Subsection (d)

Pertinent portions of subsection (d) provide:

(d) Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from –

(1) attending or testifying in an official proceeding; . . .

or attempts to do so, shall be fined under this title or imprisoned not more than one year, or both.

This sweeps “harassment” into the arena of prohibited conduct, insofar as the harassment involves an intentional attempt to hinder, dissuade, or prevent a witness from testifying.

Subsection (e)

Subsection (e) provides:

(e) In a prosecution for an offense under this section, it is an affirmative defense, as to which the defendant has the burden of proof by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant's sole intention was to encourage, induce, or cause the other person to testify truthfully.

Subsection (e) makes purity of intent a defense. Mere professions of innocent intent, however, obviously do not confer immunity. Whether the “sole intention” of the actor’s conduct was to promote truthful testimony is a question of fact, and one to which the surrounding circumstances and the actor’s methods may be relevant.

Subsection (f)

Subsection (f) provides:

(f) For the purposes of this section –

(1) an official proceeding need not be pending or about to be instituted at the time of the offense; and

(2) the testimony, or the record, document, or other object need not be admissible in evidence or free of a claim of privilege.

Under subsection (f)(1), it is not a defense that no proceeding was pending or imminent at the time of the offense. From a policy standpoint, this is eminently sensible. It has no less deleterious an effect on the administration of justice, if potential witnesses are threatened or intimidated before judicial proceedings are even in preparation. Indeed, witness tampering at that early stage may exert especially pernicious effects, by successfully preventing the subject matter of potential proceedings from ever coming to light in the first place. The statute’s mens rea requirements may demand that the actor have undertaken his conduct with the potential for official proceedings in view. But that is another matter.

A “harmless tampering” defense might also be imagined, in which the offender seeks exoneration on the theory that the evidence he sought to suppress would not have been admissible in any event. Subsection (f)(2) bars such a defense. Thus if a criminal defendant threatens to break the knees of the prosecution’s polygrapher if the polygrapher testifies, the defendant has violated the witness tampering statute even though the trial court may well exclude the polygrapher’s testimony anyway for want of reliability under Daubert.

Arthur Andersen LLP v. United States

Last year, the Supreme Court shed some light on section 1512(b)’s “corruptly persuades” language, and on the sort of nexus required between the offender’s conduct and “official proceedings,” in Arthur Andersen LLP v. United States, 125 S. Ct. 2129 (2005). We will turn to that topic in part 4.

Foolproof Lie Detection

Peter Tillers has come up with a method that never fails.

Judge Excludes Plaintiff's Causation Testimony in Vioxx MDL Trial

As Newsday and other sources are reporting, U.S. District Judge Eldon E. Fallon has issued a ruling excluding causation testimony from one of plaintiff's experts in a forthcoming Vioxx MDL trial. Here's a copy of the opinion in In re Vioxx Prods. Liab. Litig., MDL No. 1657 (E.D. La. Feb. 2, 2006).

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Nothing to See Here

Just updated our parent site. Seven appellate decisions in January. Not a reversal among them. Not a published decision among them either.

Too Speculative for Fire Expert to Blame Dog, Says 3d Circuit

In a subrogation action against the manufacturer of a halogen lamp suspected of causing the fire that burned the insured's house to the ground, the Third Circuit has upheld the district court's ruling excluding testimony from the subrogee's fire expert. The expert's theory was that the insured's dog knocked over the lamp, igniting the drapes. But blaming the dog was pure speculation not founded on any discernible methodology, said the Third Circuit panel. And once there was nothing to bring the lamp in contact with the drapes, the rest of the expert's causation testimony would not have been helpful to the trier of fact. See State Farm Fire & Cas. Co. v. Holmes Prods., Inc., No. 04-4532 (Jan. 31, 2006) (Barry, Ambro, & Aldisert, JJ.) (unpublished).