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    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.

    In a bench trial, the judge must act as both gatekeeper and fact finder. The judge must determine both the admissibility of expert evidence under Federal Rule of Evidence 702 and the credibility of the expert witness. According to the appeals court, the district court’s finding of an expert witness’s credibility is one of fact, and is therefore reviewed for clear error. As the court of appeals noted, “in a case of dueling experts, as this one was, it is left to the trier of fact, not the reviewing court, to decide how to weigh the competing expert testimony.”

    Here, the district court found that Dr. Husain’s testimony proved his lack of knowledge and familiarity with Madden’s medical records. The district court also noted that Dr. Husain provided his expert opinion based on facts not supported by the medical records. Moreover, his opinions were not supported by relevant medical literature, data, and studies. The district court also made note that Dr. Husain had an innate bias due to his relationship with Madden’s family and his involvement with Madden’s medical conditions prior to Madden’s death.

    In contrast, it was clear from Dr. Schwartz’s testimony that she had reviewed the entirety of Madden’s medical records. Her opinions were drawn from her knowledge of the medical records, coupled with research conducted to present the necessary literature, data, and studies during her testimony. The district court properly found Dr. Schwartz more reliable than Dr. Husain and Madden’s estate presented no valid reason to quarrel with this determination. The district court was affirmed.

    The takeaway here is that better preparation of the estate’s expert witness might have led to a different result.

    Michael R. Lied is an attorney at Howard & Howard Attorneys PLLC in Peoria, Illinois.

    Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).