October 24, 2017 Practice Points

Expert Witness Found Not Credible in Wrongful Death Suit

Appeals court will not second guess trial court’s credibility determinations

by Michael R. Lied

Phillip Madden suffered from a number of medical conditions, including morbid obesity. On December 28, 2007, Madden had an outpatient visit. His lab results were abnormal, which led to his admission to a V.A. hospital. Hospital staff allowed Madden to sit in a wheelchair because he had difficulty lying in bed. A few days later Madden was found unresponsive in his wheelchair. To insert an endotracheal tube to resuscitate him, the staff transferred Madden from the wheelchair to the floor. It took 25 minutes to resuscitate him, but Madden never regained consciousness. He died on January 8, 2010.

Madden’s estate filed a wrongful death suit against the Department of Veterans Affairs under the Federal Tort Claims Act. See Madden v. United States Department of Veterans Affairs, __ F. 3d __, 2017 WL 4640088 (7th Cir. 2017). Each party tendered a medical expert witness. Madden’s estate designated Dr. Syed Husain and the United States called Dr. Mindy Schwartz. The trial court found that Dr. Schwartz was a credible witness but that Dr. Husain was not. The court found for the defendant and Madden’s estate appealed.

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