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Video Laryngoscopy Emergency Medicine Expert Witness Discusses Difficult Airway Secured with Video Laryngoscopy and an Endotracheal Tube Introducer

by: Seth Womack, MD, FAAEM , an ALM Listing Expert

CASE:  43-year-old male presents to the ER with chief complaint of vomiting blood and epigastric (upper stomach) pain.   Approximately 1 hour prior to presenting to the ER, he finished dinner with his family of 5; became nauseated and sweaty; and vomited his meal mixed with a large amount of dark red blood.  His wife states that it seemed “like a gallon!”  Pertinent past history included weekly ibuprofen use for chronic knee pain and alcohol use consisting of beer only on the weekends when he is not working.  He injured his knee due to playing frequently with his children.  On exam, he is afebrile (no fever); has blood pressure of 82/44; heart rate of 122; respiratory rate of 28; and oxygen saturation of 96% when breathing room air.  The patient appears pale, sweaty, and has some mild tenderness to palpation over his upper abdominal area.

Immediately, the patient is placed on nasal cannula oxygen with continuous pulse oximetry and telemetry.  This allows him to breath pure oxygen through his nose while the doctor can monitor the oxygen level in his blood and his heart rate and rhythm on a screen similar to a small flat screen TV.  Two 18 gauge peripheral IVs are placed and O negative blood is ordered, stat, from the laboratory to be given through the rapid transfusion warming unit.  Pantoprazole and octreotide boluses and drips are ordered.  Pantoprazole is a medicine given through an IV that reduces acid in the stomach.  Octreotide is a medicine also given through an IV that reduces pressure in the veins of the esophagus.

This patient is in hemorrhagic shock (low blood pressure due to bleeding somewhere in the body).

His blood pressure is 95/54 after two units of packed red blood cells.  His wife brings his children in the room to see him briefly, and the ER doctor walks out to call the gastroenterologist.  The ER doctor has a strong suspicion that the patient has upper GI bleeding from ruptured esophageal varices (veins in the esophagus have burst and are bleeding).

This condition often requires emergent intubation (patient placed on a ventilator or breathing machine) by emergency room physicians in order to protect the patient’s airway from the rapid upper GI bleeding that could be aspirated or sucked into the patient’s lungs.

Minutes later, the ER doctor goes back into the room to report to the patient that the gastroenterologist is on his way in only to find the patient has begun to vomit a copious amount of dark red blood.

The ER doctor decides to secure the patient’s airway to prevent aspiration of blood.  He suspects this will be a difficult airway due to the patient’s obesity and active bleeding into the patient’s airway.  He calls for drugs to sedate and paralyze the patient as well as the video laryngoscope (VL).  After the patient is sedated and paralyzed, the VL is inserted into the patient’s oropharynx (upper airway).  The VL provides a sufficient view of the vocal cords and trachea but only for approximately a 4 second window.  The oropharynx fills up with blood, and the VL has to be removed quickly to be wiped free of the blood that obscures the small camera.  To make the airway even more difficult, the patient has a short neck and jaw with vocal cords in a high, anterior position.  The endotracheal tube (tube through which the patient will have oxygen delivered) stylet that is made specifically for the VL is insufficient to direct the endotracheal tube between the patient’s vocal cords into his trachea in order to secure his airway.  Meanwhile, the patient’s oxygen saturations are falling.  He cannot be ventilated (oxygen being pushed manually into the lungs) and oxygenated back up to life sustaining levels due to blood obscuring his airway and potentially being pushed into the patient’s lung with bag valve mask ventilation (mask and oxygen bag placed over the patient’s face to manually breath for him).  The ER doctor knows he has one last chance and seconds before having to perform an emergent cricothyrotomy (cutting a hole in the patient’s neck and trachea to insert a tube by which to breath for the patient), which is not best for the patient.  With one last chance, the doctor secures the patient’s airway with video laryngoscopy and an ETI (endotracheal tube introducer).

This rigid piece of elongated blue plastic has more likely than not saved this patient’s life.  The ETI has prevented an emergent cricothyrotomy from occurring.

ER doctors would benefit to be familiar with the process of securing a difficult emergent airway by using video laryngoscopy with ETI assistance.

Terminology: 

  • ETI: endotracheal tube introducer, also commonly named “bougie” or “gum elastic bougie” in the emergency room.  Calling the ETI a “bougie” is a misnomer when using it to secure an airway.  Stedman’s defines bougie as a cylindrical instrument, usually somewhat flexible and yielding, used for calibrating or dilating constricted areas in tubular organs, such as the urethra or esophagus; sometimes containing a medication for local application.  Basically, the ETI goes where the endotracheal tube cannot and then provides a pathway for the endotracheal tube to follow.

Equipment:

  • Video laryngoscope
  • Endotracheal tube of appropriate size
  • ETI (endotracheal tube introducer)

Indication: 

  • Failure at securing airway by traditional video laryngoscopy with ETT (endotracheal tube) and accompanying stylet

Technique: (assuming the patient has been correctly prepared for intubation)

  • Bend the ETI to approximately 45 degrees at a point 8 cm proximal to the distal tip and hold it with dominant hand.
  • Hold the VL with non-dominant hand.
  • Have assistant standing at the side of your dominant hand with the ETT.
  • Insert the VL into the oropharynx and obtain clear view of the vocal cords on the video monitor of the VL system.
  • While holding the VL steady, advance the ETI into the oropharynx until the distal end can be seen on the video monitor.
  • Advance the ETI between the vocal cords and into the trachea until mild resistance is felt, then stop advancing. Resistance is usually met at 24-40cm from the teeth.  Make a mental note of the number at teeth or lip level of the patient.
  • While viewing the ETI between the vocal cords and holding both the VL and the ETI steady, have assistant thread the ETT over the ETI until the ETT is at the level of the intubator’s dominant hand.
  • At this point, have the assistant hold the ETI at the point just proximal to the proximal end of the ETT and grasp the ETT with dominant hand.
  • By looking at the video monitor, confirm that the ETI is between the vocal cords. Also, confirm that the ETI is at the previous noted number at teeth or lip level.
  • Gently advance the ETT while the assistant holds the ETI stationary. The ETT may become lodged on the epiglottis (a thin plate of flexible cartilage that protects the airway when swallowing).  This complication is usually overcome by twisting the ETT along the axis of the ETI while advancing the ETT.
  • When the ETT has been advanced appropriately, hold it in place firmly and have the assistant withdraw the ETI.
  • Inflate the ETT balloon and proceed with traditional ETT placement confirmation.

Over the last decade, video laryngoscopy has become an invaluable tool to emergency physicians.  VL has made the difficult airway as defined by using direct laryngoscopy (viewing a patient’s airway with just the human eye) not so difficult anymore.  However, a clinician can still encounter a failed airway with the use of VL.  The doctor can reduce his or her chances of failing to intubate a patient by adding the use of an ETI to his or her airway algorithm.

Seth Womack, MD, FAAEM is a Board Certified Emergency Medicine Physician in active clinical practice at a level 1 trauma center.  He is licensed in both Louisiana and Texas.  Dr. Womack’s undergraduate degree is in biomedical engineering.  In addition to his busy clinical practice, Dr. Womack serves as an emergency medicine expert witness. He can be contacted at Seth Womack, MD FAAEM; 16623-C FM 2493, PMB #408; Tyler, TX  75703; womackmd@gmail.com; (414) 218-4310 (Cell).

Leave a Comment May 20, 2016

How Murky Video, Dead Lawyer Won a New Murder Trial

By: Noreen Marcus, Daily Business Review

Now that police dashboard cameras and smart phones are everywhere, it seems incredible that a grainy, silent video can still sway a 1994 murder case.

But it can. Casmir “Casey” Sucharski, one of three homicide victims, had installed a surveillance camera at his Miramar home. The camera captured two men killing Sucharski along with Marie Rogers and Sharon Anderson, friends he knew from his tavern Casey’s Nickelodeon.

With little else connecting defendants Pablo Ibar and Seth Penalver to the gory home invasion on June 26, 1994, the videotape became the state’s Exhibit A.

The case spawned a marathon of five trials. In 2012 a jury acquitted Penalver; on Feb. 4 the Florida Supreme Court gave Ibar a new trial. Ibar has spent 22 years behind bars, almost 16 of them on Death Row.

By a 4-3 vote the court decided his trial lawyer, the late Kayo Morgan, so mishandled his defense as to render ineffective assistance of counsel. The majority said Morgan’s worst failing was not using an expert witness to challenge his client’s identification as one of the men in the video.

“Ibar told Morgan that he wanted a ‘forensic thing,’ but, despite Morgan’s understanding of the critical nature of such evidence, Morgan talked Ibar out of it,” the unsigned opinion states.

“Simply put, we cannot and do not have confidence in the outcome of this trial,” it concludes.

Benjamin Waxman, Ibar’s post-conviction lawyer, said the ruling reflects four justices’ “deep concern that Mr. Ibar may be another innocent person.”

“It all comes down to this blurry, grainy, soundless videotape which was never analyzed for the jury,” said Waxman of Robbins, Tunkey, Ross, Amsel, Raben & Waxman in Miami.

At this point “I can’t imagine Mr. Ibar agreeing to a life sentence,” he said.

Inexpert Defense

Fort Lauderdale-based Morgan cared passionately about his clients but was a rogue within the organized bar. After Morgan died of cancer at 63, his mother said he “got in trouble with judges a lot,” the South Florida Sun Sentinel reported Nov. 21, 2014.

“Morgan’s personal life impacted his practice,” the Supreme Court opinion notes. During jury selection in Ibar’s trial Morgan was charged with aggravated battery on the drug-addicted woman who bore his child. “Morgan was in emotional and physical pain, suffering from extreme duress, and ‘was not there’ mentally,” the opinion recounts.

Knowing he had to attack the video ID’s reliability, Morgan brought in Fort Lauderdale lawyer Barbara Brush as his second-chair and penalty-phase counsel. Morgan delegated to Brush the job of getting a facial identification expert to testify for their side.

Somehow that didn’t happen. The Supreme Court blamed Morgan, finding “Brush acted under Morgan’s direction and it was clear that Morgan was ultimately responsible.”

The majority rested on the expert witness gap to find ineffective assistance, but acknowledged eight other problems with Morgan’s Ibar defense. The justices emphasized they didn’t take Morgan at his word when he testified about his “defective” lawyering at a 2009 post-conviction hearing.

“[W]e do not rely on his admission … but rather on his complete failure to pursue the important defense that Ibar was not the perpetrator of the crime through discrediting the videotape and the state’s evidence as to that identification,” the opinion states. The court reversed Broward Circuit Judge Jeffrey Levenson, who had denied Ibar’s motion for post-conviction relief.

The majority even hinted that the court might have ruled for Ibar a decade ago if an expert had forcefully challenged the video. Instead it upheld his conviction on direct appeal in 2006.

“The video was the foundation of the other testimony and much of that was found erroneously introduced,” Waxman said. Since the video survived unscathed, the high court dismissed as harmless error the jury’s misplaced reliance on video-related evidence that fingered Ibar.

Beyond the Video

To Justice Peggy Quince the case isn’t only about the video and Morgan’s failure to attack it.

She said the jury heard “the proper and compelling trial testimony of Gary Foy,” who saw Sucharski’s vehicle leave the crime scene and made eye contact with the passenger. Foy swore the passenger was Ibar.

The jury saw the video and decided Ibar was one of the killers, even though a T-shirt he allegedly used as a mask didn’t provide a DNA match. Quince clearly trusts the jury system.

“Even if Morgan had secured a different expert, the probability of a different outcome at trial is not substantial,” she wrote in her dissent, joined by Justice Charles Canady. Justice Fred Lewis dissented separately without opinion.

Only the four justices in the majority know whether they were influenced by the acquittal of Ibar’s co-defendant Penalver.

Soon after Ibar’s case arrived at the Supreme Court Waxman tried to interject the acquittal but the prosecution objected and the acquittal discussion disappeared from court filings.

Still the majority took notice. “There are … similarities between Ibar and Penalver’s case,” where the court found Penalver “was denied a fair trial by the prejudicial admission of irrelevant and inadmissible evidence repeatedly elicited by the State over objections,” the opinion says.

The ruling “goes deeper,” Waxman asserted.

Ibar’s conviction survived direct and post-conviction appeals. “It wasn’t until the fourth round of review that the court determined there was error of such magnitude that the conviction could not stand,” he said. “I don’t know any better proof of why we should abandon the death penalty.”

PABLO IBAR, APPELLANT, V. STATE OF FLORIDA, APPELLEE

Case no.: SC12-522

Date: Feb. 4, 2016

Case type: Death penalty

Court: Florida Supreme Court

Author of opinion: Per curiam

Lawyer for petitioner: Benjamin Samuel Waxman, Robbins, Tunkey, Ross, Amsel, Raben & Waxman, Miami

Lawyers for respondent: Attorney General Pamela Jo Bondi, Tallahassee, and Assistant Attorney General Leslie T. Campbell, West Palm Beach

Panel: Chief Justice Jorge Labarga and Justices Barbara J. Pariente, Ricky Polston and James E.C. Perry; Justice Peggy A. Quince (dissent) with Justice Charles T. Canady, and Justice R. Fred Lewis (dissent)

Originating court: Broward Circuit Court

 

 

Leave a Comment February 24, 2016

Tech in Trial: Advancing Techniques Means Increased Preparation

If a Picture is Worth a Thousand Words, Is a Trial Tech Expert Worth $200 an Hour?

Originally published on: The Litigation Daily, November 10, 2015

By: Jenna Greene

 

Andrew Cox, who leads Thompson Hine’s product liability practice, is a Gen Xer, the kind of guy you might think would be all over using technology in the courtroom. He even has a goatee.

But the 43-year-old litigator is distinctly old-school when it comes to presentations in court.

He won a trial in May, a defense verdict in Ohio state court case involving a fatal plane crash.

The plaintiffs used fancy animation—a short video depicting their version of what went wrong.

Cox had a big aerial photo of the airport mounted on a magnetic board. And he had magnets showing where each eye witness was positioned, plus a magnetic airplane he could move across the photo.

“We used it in the opening, our experts used it, we used it in the closing,” he said. “And it was tangible—a Google Earth photo. People knew it was real.”

As for the animation, he said the plaintiffs lawyers were constantly starting, stopping and replaying it, dividing the jurors’ attention between the screen, the expert witness and the tech doing the rewinding.

“I’ve never seen a perfect animation,” Cox added. In this video, a small detail was off: the accident took place in Ohio in March, when the trees are still bare. In the animation, the trees were green and leafy.  It was a subtle reminder that the events depicted weren’t real, he said.

In the end, neither the video nor the magnet photo was probably the deciding factor for the jury. But it’s all part of the bigger task at trial: to tell your client’s story.

The question is, what visual aids will help accomplish that, and which might be glitzy distractions? Do you have the wisdom to tell the difference?

Robb Helt, director of trial technology for Suann Ingle Associates, makes a compelling case that the best reason to hire a tech consultant is not to get “someone sitting behind the scenes putting things on a screen and pushing buttons,” he said. “A monkey with enough bananas can push buttons.”

Rather, trial technology consultants offer experience—the best of them have seen more trials than most lawyers. Helt, for example, has racked up 513 trials, arbitrations and mediations since 1999. Among them: 16 months as Halliburton’s trial technology consultant in the Deepwater Horizon oil spill litigation.

As a result, he said, he’s developed  “a really good feel for what’s worked here and not there.”

Lawyers often “have an idea of what they want, but not what they need” when it comes to using technology to present their cases, Helt continued.

For about $200 to $250 an hour, consultants can help figure that out, design the graphics and make sure it all works seamlessly in court. They can also make sure lawyers don’t “over-egg the pudding” with too many high tech elements, Helt added.

But it’s not the easiest time to be a trial technology consultant. For starters, fewer cases are going to trial. And the technology is getting easier to use—which means more lawyers are bypassing the consultants and doing it themselves.

In large part, credit the iPad and apps like TrialPad, which for about $130 can do nifty things like highlight text, create side-by-side document comparisons and edit and show video clips.

“An iPad not only increases an attorney’s mobility in the courtroom, but it also allows the attorney far greater control over the presentation of evidence to the judge and jury,” wrote Alexander Rusek of White Law in an article  last year for the American Bar Association’s trial evidence committee. “No longer must an assisting attorney attempt to coordinate the presentation of exhibits or highlight or enlarge the exact portion of an exhibit for the presenting attorney.”

Which is great, provided the attorney doing the presenting knows what he or she is doing.

Solo practitioner Carolyn Elefant, who writes the blog My Shingle, last month told of prepping for her first jury trial in more than a decade. She opted to use an iPad for photos, charts and presenting impeachment material to the witnesses. And she learned how to do it 10 days before the start of trial.

She won three six-figure verdicts for her clients.

“While ultimately, it was the strength of the prep, the evidence and fact and expert witnesses and not the iPad that produced the win, the iPad allowed me to present that evidence in a far more professional and seamless a manner than would have been possible at my last trial ten years ago,” she wrote.

Contact Jenna Greene at jgreene@alm.com or on Twitter @jgreenejenna.

Original Source: http://www.litigationdaily.com/id=1202742147525/If-a-Picture-is-Worth-a-Thousand-Words-Is-a-Trial-Tech-Expert-Worth-200-an-Hour?mcode=1202615798744

Leave a Comment November 11, 2015

Forensics in Government Labs: A Dying Breed

by Dennis Ryan, an ALM Listing Expert

Forensics in government laboratories in the United States is undergoing a transformation.  The transformation began within the last ten years and principally involves the comparative science disciplines that were a mainstay in many government labs.  The comparative sciences includes, but is not limited to, impression evidence, paint examination, fiber examinations and questioned document examination.  With declining funding for salaries and equipment, lab administrators have been forced to choose between DNA and the comparative sciences.

Many of the comparative sciences provide investigative leads that otherwise would not be encompassed by a DNA examination.  For instance, a robbery demand note will be processed for DNA rather than be subjected to a questioned document examination for the possibility of indentations.  In a sexual assault case, a fiber examination may assist in placing the defendant at a specific location.  Tape lifts for fiber examinations are collected by rarely if ever subject to a forensic fiber examination.  Anonymous threat letters are also rarely subjected to a questioned document examination.  When is a forensic paint examination conducted on automotive parts left as the scene of an auto accident to determine the year and make of the automobile that left the scene?  It is likely that that evidence will be put in the long term storage of the government evidence vault never to be examined or seen again.

Specialization in forensic science has also contributed to the decline of forensic science in government laboratories.  The days of the trace evidence analyst doing different types of examinations is long gone; one analyst will do the paint examination, while another analyst will do the footwear impression and another analyst will do instrumental analysis.  While specialization is a positive for forensics, the municipality that funds the forensic laboratory has not funded for this specialization and fails to see the need for the additional analysts.  Many forensic laboratories have met the need for specialization by either informing their “customers” that they no longer offer those services (handwriting examination, fiber examination) or subcontracting with an outside laboratory or forensic scientist.  A majority of government laboratories subcontract some, if not all, of their forensic services.  One of the reasons for the subcontracting phenomenon is all about turnaround time.  Many government laboratories have gone from turnaround times of three or four weeks to three or four months.  Many government laboratories work on the premise that they will examine evidence only when needed for court.  A call to the government laboratory from an investigator or prosecutor will be needed in order to put their case in the queue.  The alternative for the investigator or prosecutor is to reach out to an outside contractor, especially if the prosecutor is looking for a short turnaround time.

Laboratory accreditation has also contributed to the transformation of the government forensic laboratory.  Cases that used to take an hour or two hours are now taking double that time.  This contributes to the backlog of cases in the laboratory.  While accreditation is a positive factor, many administrators of government laboratories have not “wrapped their head” around the whole accreditation issue.  Many administrators are taken aback when faced with regulatory control from an outside accreditation body.  There are other administrators who look at the accreditation body and react by letting the accreditation body “drive the train” and set the goals and objectives for the government laboratory.  Accreditation should be a cooperative effort between laboratory personnel and the accreditation body.

There are efforts from many different fronts to increase the funding to forensics and forensic laboratories.  Only time will tell if it is too little too late, or if the transformation will yield a better, more effective structure of the government laboratory.

Leave a Comment September 22, 2015

Defendant Gets New Hearing After $8M Elevator Verdict

Originally published on: New Jersey Law Journal, August, 31,2015

By: Charles Toutant

A New Jersey appeals court has reversed judgment in an elevator injury suit in which the plaintiff was awarded $8 million after an earlier $4 million award was reversed.

In Tufaro v. Headquarters Plaza, the case was remanded a second time for the judge below to reconsider the Schindler Elevator Company’s request for a new trial or remittitur. The trial judge was also instructed to review the jury’s $8 million award in accordance with the state Supreme Court’s May 2011 ruling in He v. Miller, which provides a framework for considering requests for remittitur.

Appellate Division Judges Carmen Messano and Mitchel Ostrer ruled that Morris County Superior Court Judge Edward Gannon’s failure to address the jury’s award in light of comparable verdicts cited by both the plaintiff and defendant was grounds for remand.

Plaintiff Richard Tufaro was a carpenter who was working at Headquarters Plaza in Morristown on Aug. 19, 2005, when he entered the service elevator to descend to the parking garage, according to court documents. As the elevator descended, it shook and then came to an abrupt stop, causing his upper body to strike an elevator wall. In subsequent months, he complained of neck and back pain, as well as pain in his left knee and right shoulder. He also gained 60 pounds due to his inactivity and was diagnosed with hypertension and diabetes. In addition, he reported erectile dysfunction and said he could no longer have intercourse with his wife.

In the first trial, before Morris County Superior Court Judge Donald Coburn, the plaintiff was awarded $2.8 million in noneconomic damages and his wife received $950,000 on her per quod claim, but that award was reversed on appeal, according to court documents.

In the second trial, before Gannon, the jury found that the elevator malfunction was the result of Schindler’s negligence and was the proximate cause of Tufaro’s injuries. It awarded $5.5 million for pain and suffering, $2.25 million per quod and $250,000 in medical expenses.

On appeal, Schindler claimed two experts for the plaintiffs, orthopedic surgeon James Dwyer and mechanical engineer James Filippone, gave net opinions, but the appeals court disagreed. Schindler also claimed that Gannon’s decision to bar testimony from defense witness Monica Lynch, an expert in biomechanics, and restrictions on testimony from two others, elevator mechanic John DeLorenzi and neurologist Elliot Grossman dictate reversal, either singly, collectively or in combination with the admission of testimony from Dwyer and Filippone.

The appeals court agreed that some restrictions placed on DeLorenzi were improper but said that the errors did not materially prejudice Schindler or render the trial unfair.

Deciding the issue of remittitur, Gannon asked the parties to name other cases where parties had similar damages, noting that the focus of the case was the plaintiff’s erectile dysfunction and the impact it had on his life and his wife’s life. The parties cited a case reported in New Jersey Jury Verdict Review and Analysis, as well as He v. Miller, an automobile injury case where the plaintiff and her husband testified that her injuries diminished their sexual relations.

In that case, the jury awarded her $1 million for pain and suffering and $100,000 for her husband’s loss of consortium. The trial judge in He reduced the awards on remittitur to $200,000 for pain and suffering and $20,000 for loss of consortium and the Supreme Court affirmed that ruling.

Gannon said the Supreme Court requires an analysis of comparable verdicts, but he said there were no comparable verdicts. The appeals court reversed and remanded the case based on a finding that the judge failed to conduct the proper analysis before deciding the motion.

The He case calls for judges deciding remittitur motions to create an opportunity for litigants to be heard and for a record to be created, the appeals court said. The motion judge must “identify with as much precision as possible the particular basis on which the court has made its decision,” and the record “must include a recitation of the reasons that explain why some of the cases offered by the parties were persuasive and others were not.”

In addition, the judge deciding the motion must articulate with care and precision his or her observations on “the feel of the case,” the panel said.

In the present case, Gannon failed to explain why the cases cited by the parties, some of which involved sexual disfunction, were dissimilar, the appeals court said. He also failed to address the great disparity between the first and second verdicts, the panel said.

Andrew Fraser of Laddey, Clark & Ryan in Sparta, who represented the plaintiff, said he was pleased with the ruling because it eliminated appellate issues other than the judge’s need to perform a more thorough analysis of the remittitur motion.

“This is about as good as it could get. We’re very pleased. We look forward to the judge’s analysis,” Fraser said.

The lawyer for Schindler, Ronald Riccio of McElroy, Deutsch, Mulvaney & Carpenter in Morristown, declined to comment on the ruling.

Contact the reporter at ctoutant@alm.com.
Original Source: http://www.njlawjournal.com/id=1202736080212/Defendant-Gets-New-Hearing-After-8M-Elevator-Verdict#ixzz3lkZdmc3f

Leave a Comment September 14, 2015

Legaltech News: Digital Forensic Testimony 101

A panel of forensic investigators and expert witnesses gathered to discuss pitfalls and tips in testifying.

Originally published by: Legaltech News

By: Sean Doherty

Digital forensic investigators get their day in court but it may never end for some who regularly testify as expert witnesses. At CEIC (Computer Examinations and Investigations Conference) in Las Vegas on May 19,  a panel of forensic investigators and expert witnesses gathered to discuss some of the pitfalls to avoid and tips for navigating the hot seat between judge and jury.

The panel entitled “Forensic Evidence in Court,” was moderated by Suzanne Widup, senior analyst at Verizon Enterprise Services, and included David Cowen, partner at G-C Partners; James Vaugh, managing director at Intelligent Discovery Solutions; Jonathan Rajewski, director at Senator Patrick Leahy Center for Digital Investigation; and Sheryl Falk, partner at Winston & Strawn.

The format for the panel was entirely interactive. Widup had a list of questions for the panelists posed via email and questions were presented from the audience.

QUESTION AND ANSWER

Attendee: How do you get qualified on the stand as an expert?

Cowen: That, probably, is the easiest part. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), layed down three foundations: qualified by education, experience, or by training. You don’t have to have all three. You only need one. The important thing when you’re doing it is that you’re an expert in your field. They will go through your background and experience to understand what it is that fits the criteria that you are in fact an expert in the field. In the legal world expert is a pretty vague word. It’s anyone who knows more than the layman.

Attendee: What are the differences between a testifying and a consulting expert?

Vaugn: Hired as a consultant. Later you may become an expert. Or you can be hired as the expert and you will do some expert consulting. The difference there being what’s discoverable from the beginning vs. what’s not. What are you going to put in emails vs. not. Everything from the time you become a consultant is arguably discoverable.

Cohen: I think you’re going to hear the word discoverable, a lot.

Attendee: Do any of you have any experience with the Office 365 litigation hold feature and is it sufficient on the court to do discovery on mailboxes in litigation hold after the fact? Although it preserves all user data, it may or may not preserve all system data.

Vaugh: I would love to hear what Sheryl has to say as a lawyer, but I want to respond as a technical consultant. The fact is that there is no tool that is perfect. It is what is available, does the tool work, has the tool been validated, have you tested the tool, can you replicate the results, and if so, does it meet the standard of reasonableness. That’s really what your faced with, it’s not perfection. And there is a difference in collecting for electronically stored information and forensics.

ADVICE

Do not bring a computer to a deposition unless there is a request to image it at the deposition.

Eye contact: Making eye contact is a big thing. Whenever you answer a question, try to make eye contact with the judge or jury because they are the only people who matter when you testify. When you make eye contact with the judge or jury, you add to your credibility. It does you no good to look at the lawyer when answering questions.

Judge: If you have any questions on the judge’s preferences, ask the lawyer. He or she will know all about the judge.

Notes: follow your standard practice in using notes to write reports. If you use notes, use fact-based notes and make sure your attorneys know. And if there is no request for notes from the opposing party, and you incorporate the contents of your notes into reports, then there’s no reason to keep the notes.

Plain talk: The art of testimony is being able to address your audience. You have to be able to beak down technical concepts and use simple analogies, while still technically true, describe what you are going to do in a way they can understand. Keep testimony simple and concise.

Preparation: To better prepare yourself, meet the lawyer and know what he or she will ask you ahead of time; or give them a list of questions to use. If you have to read from your report on the stand, you will lose credibility.

Yes-or-No. In a deposition don’t allow yourself to be limited to a yes or no answer. For example, Question: “Isn’t it true that you did this?” Answer: “Well, it sounds like you’re asking me a hypothetical, so I am going to give you a hypothetical answer” or “While that’s possible, it’s not plausible, and I’d like to explain to you why it’s not plausible.”

 
Original Source: http://www.legaltechnews.com/id=1202727360710/Digital-Forensic-Testimony-101#ixzz3bLTBauEc

 

Leave a Comment May 27, 2015

CHOOSING A FORENSIC PSYCHIATRIC EXPERT— The Difference Between Treating Clinicians and Forensic Psychiatric Experts

 by Mark I Levy, an ALM Listing Expert

Forensic psychiatry is a medical subspe­cialty of psychiatry. Its focus is the inter­face between the law and behavioral medicine. Like the law, forensic psychiatry is divided into various sections. Accord­ing to the American Board of Psychiatry and Neurology (ABPN): Forensic psychiatry is a subspecialty that involves a psychiatric focus on interrelationships with civil, criminal and administrative law, evaluation and specialized treatment of individuals involved with the legal system, incarcerated in jails, prisons, and forensic psychiatry hospitals.

Like all medical specialty boards, the ABPN offers subspe­cialty board certification in this field. However, in order to qualify even to take this subspecialty board examina­tion, a candidate must have completed a four-year resi­dency in psychiatry, been examined and attained board certification by the ABPN in psychiatry, and undergone a rigorous one-year, full-time postresidency fellowship in law and psychiatry.

There currently are thirty-three forensic psychiatric train­ing programs in the United States that are accredited by the Accreditation Council for Graduate Medical Educa­tion (ACGME). Accredited programs have demonstrated that they meet the standards for forensic psychiatry train­ing programs established for departments of psychiatry by the ACGME. Graduates of these one-year full-time fellowships then are eligible to take the board examina­tion offered by the ABPN. Passing the exam provides the candidate with the additional “Certification in the Sub­specialty of Forensic Psychiatry.”

At this time, fewer than two thousand of the approxi­mately thirty-five thousand board-certified or eligible psychiatrists within the United States are also board certi­fied in forensic psychiatry.

Nevertheless, many psychiatrists who are neither foren­sically trained nor board certified in forensic psychiatry continue to offer themselves to attorneys as forensic psy­chiatric “experts.” Too often, such untrained “experts” do not have a clear understanding of the significant role dis­tinctions between functioning as treating clinicians and as independent forensic psychiatric experts. Therefore, all too easily they may unwittingly slip into the clinician’s role of advocate, as if their relationship to the forensic examinee is identical to the relationship they may have with a patient whom they are treating. As a result, it is crucial that any trial attorney intending to retain a forensic psychiatric expert understand the important differences between clinical psychiatrists and trained, board-certified, independent forensic psychiatric experts.

The Distinction between Treating Clinicians and Independent Forensic Psychiatric Experts—The Problem of Wearing Two Hats

Too often, a plaintiff’s treating clinician is retained by plaintiff’s counsel to serve as the plaintiff’s so-called fo­rensic psychiatric independent expert and to offer opin­ions that will be cross-examined at deposition and trial. Although this usually is done in order to avoid the cost of retaining a genuinely independent expert, it is a strategic error that may end up winning the battle and losing the war. Here’s why. Despite the fact that most experienced forensic psychiatric experts also treat patients clinically, trained experts understand that they should never com­bine and confuse these two distinct roles.

Not only does such role confusion cause ethical and in­terpersonal conflicts within the therapeutic relationship, it also leaves so-called expert opinions offered by the plaintiff’s treating psychiatrist highly vulnerable to cross-examination. This is why: The roles of treating clinician and forensic psychiatric expert differ markedly in mission, method, and ethical duty.

 The Mission

Like all treating physicians, the psychiatrist who is functioning as a treating clinician accepts his or her mission as being the alle­viation of (emotional) suf­fering, regardless of its cause.

 The Method

The method of the treating clinician is to rely almost ex­clusively on the patient’s subjective account of his or her experience. For example, when a psychiatrist treats symp­toms of depression and anxiety in an adult patient who reports that his father beat him as a child, the treating psychiatrist or psychologist accepts that as a factual state­ment of the patient’s subjective reality. The treating clini­cian does not attempt to determine the objective accuracy of this self-reported statement by, for example, corrobo­rating the claimed abuse by interviewing family members or reviewing old medical records or by any other means.

In addition, there is an implicit treatment contract be­tween clinicians and their patients that the patient is seek­ing treatment from the doctor to alleviate suffering, not to bolster a damages claim in litigation.

Furthermore, with rare exceptions, treating clinicians gen­erally do not obtain psychological testing of their patients, except under several specific infrequent circumstances. These would include situations where there is diagnos­tic uncertainty and making a timely, accurate diagnosis is critical to treatment decisions, or when a child or adult is being evaluated for learning difficulties, or when a patient appears to be cognitively impaired from trauma or a de­generative brain disease, diagnoses that require objective refinement and confirmation.

 The Ethical Duty

Under the Hippocratic oath, the ethical duty of a treating psychiatrist, as it is with all physi­cians, is to act in the best interest of the patient and “above all do no harm (primum non nocere).” Conse­quently, treating physicians are inclined to accommodate the wishes of their patients un­less they believe that doing so would be harmful to their patients. Therefore, when a patient claims to be disabled from employment due to an acutely distressing event, most treating physicians are prone to accede to their patient’s wishes and authorize leave from work unless there are clear factors causing the physician to be more skeptical than usual.

Similarly, when treating clinicians are asked to testify on behalf of their patients, they appropriately function as ad­vocates for whatever they believe is in their patient’s best interest. They do not approach such testimony with the same professional skepticism exhibited by a forensic ex­pert. Furthermore, they have usually relied entirely upon their patient’s self-report to support their diagnoses. Thus, the diagnostic, treatment, and prognostic opinions that may be offered to the trier of fact do not necessarily reflect evidence-based, objective truth.

For example, in more complex employment matters, a patient may report that he or she has been discriminated against by an employer or retaliated against for “whistle-blowing.” When the patient subsequently is terminated, he or she alleges that it was “wrongful,” characterizing any subjective dysphoria as “severe and ongoing emotional distress” allegedly caused by the employer. Although this may be a perfectly true conclusion, to stand, it must be supported by objective evidence substantiating both the suffering and the causation, not simply the assumption that because B follows A, A caused B. However, more often than not, the treating clinician accepts as valid the patient’s characterization of his or her workplace experience and the unsubstantiated “facts” offered to support that conclusion, frequently also accepting presumed motivations of coworkers and employers as reported to them by their patient.

In stark contrast, the mission of the forensic psychiatric expert is to determine as accurately as possible what is objectively true about the plaintiff’s or criminal defendant’s diagnosis from a skeptical point of view. In addition, the forensic psychiatric expert vigorously seeks objective data relevant to determination of diagnosis, treatment, prognosis, and causation. The gold bullion standard for the opinions of a forensic psychiatric expert is the ballistics expert who can opine with reasonable scientific probability that a particular bullet was fired by a particular weapon, or was not, albeit recognizing that determining what is objectively true in behavioral science is far more complex and nuanced than in ballistic science. Nevertheless, this remains the goal for any competent forensic psychiatric expert.

The method of forensic psychiatric analysis is to review all possibly relevant behavioral data. This includes all medical and legal records from time periods both prior and subsequent to the events giving rise to the litigation or criminal prosecution, collateral information from deposition transcripts, other testimony and declarations of key witnesses and from psychological or neurocognitive test data. At Forensic Psychiatric Associates Medical Corporation (fpamed), it is standard practice to obtain psychological testing administered, interpreted, and reported by an experienced and well-trained forensic psychologist in all civil (and some criminal) matters.

Neuropsychologists measure aspects of neurocognitive and psychological functioning through the use of a variety of standardized, valid, and reliable tests. The data yielded by the tests makes possible a statistical comparison of the individual’s functioning to that of other individuals of similar age and educational levels.

The test battery can provide evidence of abnormal functioning that may be the result of injury or disease or that may be related to personality traits and psychiatric disorders. In addition, an assessment is made about the manner in which the individual responds to test questions. This provides a quantitative measure of the magnitude of atypical responses, the degree of effort made by the examinee, as well as the likelihood of the feigning of psychological symptoms or neurocognitive functioning.

Test data is analyzed statistically to compare the ways in which an individual’s pattern of test findings is similar or dissimilar to those of other persons who have suffered comparable injuries, disabilities, or diagnoses. Neurocognitive and psychological testing provides solid, scientific evidence that can be used to form evidence-based opinions about the likely veracity of the plaintiff’s claims regarding loss of cognitive functioning and emotional distress, as well as the plaintiff’s fitness to function at work, at home, or in legal proceedings.

In addition, the forensic psychiatrist conducts an in-depth interview of the plaintiff or criminal defendant. This interview, which requires a minimum of several hours, permits the forensic expert to hear the examinee’s subjective view of events leading up to the legal action firsthand. The interview supplements other data already gathered from the careful and detailed review of medical and legal records, as well as in the psychological test data. Thus, the examinee’s subjective narrative is assessed within a much larger context of clinical evidence than is generally available to the treating psychiatrist.

Finally, the ethical duty of the forensic psychiatric expert is only to the trier of fact. He or she should not be an advocate for either side in a civil or criminal dispute. His or her opinions must be evidence-based, which is the modern standard for best medical practices. It should specifically be understood that the only duty owed by the forensic expert to the retaining attorney is a commitment to professionalism and honesty and a fiduciary agreement regarding payment for expert services. Furthermore, at the time that the expert is retained, she or he should explain, preferably in writing, that after applying the current best principles of scientific data analysis, the expert may reach conclusions that may or may not be supportive of the attorney’s theory of the case.

Psychological testing is regarded as essential to our ability to reach accurate, independent, and evidence-based psychiatric diagnoses. However, just as one would want an experienced radiologist or neuroradiologist to administer and interpret a brain MRI, so is it with psychologists and neuropsychologists. In order to obtain meaningful interpretation of psychological test data for medical legal purposes, it is critical not only that the psychologist or neuropsychologist be well trained and experienced but also that they understand the unique parameters that apply to forensic questions.

When seeking a forensic psychiatric opinion about the behavioral symptoms of a plaintiff or criminal defendant, no matter how clearly and explicitly you formulate the specific questions that you would like your expert to address, whom you retain to assist you with these issues can be of critical importance to the outcome of your case.

Mark I. Levy is an assistant clinical pro­fessor of psychiatry at the UCSF School of Medicine. A Distinguished Life Fel­low of the American Psychiatric Associ­ation (DLFAPA), he is the founder and medical director of fpamed, a Bay Area firm of board-certified forensic psychia­trists and forensic neuropsychologists.

Dr. Sarah Hall also contributed to this article. Hall, a foren-sic adult and pediatric neuropsychologist and member of fpamed, has taught courses and seminars on various top­ics in neuropsychological assessment to attorneys, graduate students, school psychologists and parent groups and main­tains a private clinical neuropsychological consulting prac-tice in Corte Madera, California.

Leave a Comment March 12, 2015

The Benighted Expert: Professional Literature in Court

Originally published for:  New York Law Journal

By: Timothy M. Tippins

From questions of property values in equitable distribution litigation to the psychological issues in custody cases, the domestic relations courts are awash in expertise, both real and contrived. It falls to the trial advocate to present the information that the court needs so that it can distinguish reliable testimony from the ersatz expertise that too often slithers into the courtroom.

One long-entrenched method of doing so is impeachment by treatise1 which consists of confronting the witness with published writings of respected figures in the field that contradict the expert’s testimony in some respect. Perhaps because this technique has been around for so long it tends to eclipse the broader importance of professional literature in measuring both the admissibility of and the weight to be accorded to an expert’s testimony. This article will examine the central position that professional literature occupies in the psychology expert’s world and its crucial evidentiary role in providing the very basis underlying expert opinions.

Impeachment by Treatise

The impeachment by treatise rule allows the cross-examiner to confront the expert witness with writings of other experts that purportedly contradict the position of the expert on the stand. Before being allowed to do so, however, the cross-examiner must first lay the required foundation by extracting from the witness a concession that either (1) the expert relied upon the work at hand or (2) the texts at hand are “recognized by the profession as standard authorities.”2 This foundational requirement, of course, empowers the witness to frustrate the cross-examination simply by refusing to concede that the writing is authoritative.

This power can be and is abused. Experts at times tender absurd denials of the standing of a respected work to evade proper exploration of their positions. Indeed, books written to assist the expert through the courtroom thicket sometimes suggest that the expert should rarely if ever concede the authoritative status of any text.3 Taken literally this would be equivalent to an evidence professor denying that Wigmore on Evidence is an authority in the field.

Some experts follow this course of action to a fault. One “expert” in infectious disease apotheosized this artifice when he testified “that he did not consider any books or articles in the field of infectious diseases ‘authoritative.’”4 Absorb that statement for a moment. It is tantamount to proclaiming, “I don’t hold with no book-learnin’.” It demands, of course, the next question: If not from the authoritative literature of the field, then from what source did this expert acquire his or her expertise?

Very recently a decision was reported wherein an expert, when asked from what source he derived the methodology that provided the underlying basis of his opinion, answered: from “my head.”5 Leaving aside for the moment the possibility that he was confused as to which anatomical hollow was the true cradle of his expertise, the question such an answer irresistibly invites is how the expert knowledge arrived in his cranial cavity in the first place.

The Basis of Expertise

To appreciate fully the incongruity of such flippant answers, one must consider them in the context of established evidence doctrine. Except in those relatively rare instances where the expert is testifying entirely on the basis of his or her own research, the expertise which he or she purports to bring to court necessarily depends upon the professional literature of the field. Recognition of this fundamental point is precisely why the law tolerates a hearsay basis with respect to the expert’s knowledge of the field. As the celebrated John Henry Wigmore wrote a century ago:

It would be absurd to deny judicial standing to such knowledge, because all scientific data must be handed down from generation to generation by hearsay, and each student can hope to test only a trifling fraction of scientific truth by personal experience.6

Thus, if the expert’s contention that there are no authoritative writings in his field were true, it would be time for him to depart the courtroom without another word spoken.

While some species of expertise can be acquired by experience alone, e.g., an antiques dealer who testifies to value based on decades of first-hand market transactions, others depend upon formal education, degrees, board certifications and the like. Psychology falls into this latter category.

A Scientific Discipline

Psychology defines itself as a scientific discipline. Every Psychology 101 textbook will contain a statement such as: “Psychology is the science of behavior and mental processes.”7 Consequently, to qualify as an expert in psychology one is required to have adequate formal credentials in this scientific field and, once so qualified, is expected to base his conclusions on the scientific knowledge of that discipline. That the expert must predicate his conclusions on the collective knowledge of his discipline is axiomatic. It was acknowledged by the U.S. Supreme Court in its landmark decision in Daubert v. Merrill Dow Pharmaceuticals.

Unlike an ordinary witness, an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation. Presumably, this relaxation of the usual requirement of firsthand knowledge…is premised on an assumption that the expert’s opinion will have a reliable basis in the knowledge and experience of his discipline.8

Reliance upon the collective knowledge of the discipline, i.e., the professional literature, is the sine qua non of expert opinion formulation. It is precisely this that distinguishes an admissible expert opinion from an inadmissible personal opinion. This most fundamental of principles is recognized within the field of forensic psychology:

The defining attributes of an expert opinion relate…to the procedures that were employed in formulating the opinion and the body of knowledge that forms the foundation upon which those procedures were developed. If the accumulated knowledge of the expert’s field was not utilized, the opinion expressed is not an expert opinion. It is a personal opinion, albeit one being expressed by an expert.9

Given that most custody evaluators do not conduct their own research they must necessarily rely upon the studies of others as reported in the professional literature. Therefore, it is against this professional knowledge base that the validity of their testimony must be measured. If the witness has based an opinion on neither first-hand research nor the professional literature of the discipline, the opinion ought to be rejected.

Suppose, for example, that a custody evaluator observes that one of the parents exhibited behaviors “A,” “B” and “C” and from these data-points concludes that the parent suffers from depression. The initial crucial question is whether that conclusion is supported by the empirical research reported in the professional literature.10 If only some idiosyncratically crafted paradigm of the individual witness supports his conclusion, what is at hand is an inadmissible personal opinion, not an expert conclusion. Such idiosyncratic assumptions or methodologies, not having been tested in the field and lacking general acceptance, should not even survive a Frye11 challenge. Even if the threshold issue of admissibility is ignored such an opinion ought to be given no weight.

The critical question, therefore, is to what extent are the expert’s conclusions supported by the literature? Perhaps even more fundamentally, to what extent is the witness even familiar with the published writings of the field? The trial lawyer will likely find these lines of inquiry fruitful. Reported research suggests that relatively few experts consider the literature in their practices. In one study, 27 percent of clinicians interviewed stated that “no empirical study had affected their work” and not a single “psychologist was able to identify a specific study or a specific instance of research use.”12 Given psychology’s self-declared status as a science, such a cavalier disregard of the expert knowledge base is nothing short of astonishing.

Custody Evaluators

The professional literature occupies a central position in the proper conduct of a custody assessment. The ethical and practice standards of the mental health profession require custody evaluators to keep current with and to use scientific knowledge in carrying out their forensic assignments.

The American Psychological Association’s (APA) Ethical Principles and Code of Conduct state:

Psychologists’ work is based upon established scientific and professional knowledge of the discipline.13

The APA Guidelines for Child Custody Evaluations state:

Although psychologists take care to acquire sufficient knowledge, skill, experience, training, and education prior to conducting a child custody evaluation, this acquisition is never complete. An evolving and up-to-date understanding of child and family development, child and family psychopathology, the impact of relationship dissolution on children, and the specialized child custody literature is critical to sustaining competent practice in this area.14

Likewise the Association of Family and Conciliation Courts’ Model Standards of Practice for Child Custody Evaluation instruct that:

A child custody evaluator shall have specialized knowledge and training in topics related to child custody work and shall keep abreast of the ever evolving research in the field.15

Clearly, the profession itself recognizes that the scientific literature is the touchstone for the formulation of psychological conclusions. Thus, to properly assess the expert’s conclusions, one must look to the published writings. Significantly, what is not there is as important as that which is because the burden rests upon the expert to offer up the empirical research that reflects general acceptance in the scientific community of the principles or methods upon which each inference rests.16 Such burden placement is consistent with scientific practice:

A basic tenet of science is that the burden of proof always falls squarely on the claimant, not the critic. Consequently, it is up to the proponents of these techniques to demonstrate that they work, not up to the critics of these techniques to demonstrate the converse.17

In other words if the evaluator searches the professional library and, like Mother Hubbard, finds the cupboard bare, then he or she should not opine at all on the particular issue. To disregard the absence of scientific knowledge or to ignore contrary research runs afoul of the ethical and practice standards of the profession and results in the presentation of shoddy, unreliable work-product.

Conclusion

The professional literature of the expert’s discipline must be the anchor of his or her opinions. When expert witnesses deny the respected status of all or virtually all existing literature, such denials raise critical questions as to intellectual integrity of their conclusions. Accordingly, it behooves attorneys to master the literature of that expert’s discipline and be positioned to use it in court both through cross-examination and by presenting expert rebuttal testimony establishing the true status of the texts in question.

Endnotes:

1. People v. Feldman, 299 N.Y. 153, 85 N.E.2d 913 (1949); see also, Hastings v. Chrysler Corp., 273 A.D. 292, 294, 77 N.Y.S.2d 524 (1st Dept. 1948); Ithier v. Solomon, 59 A.D.2d 935, 399 N.Y.S.2d 450 (2d Dept. 1977); Mark v. Colgate, 53 A.D.2d 884, 385 N.Y.S.2d 621 (2d Dept. 1976).

2. People v. Feldman, 299 N.Y. 153, 85 N.E.2d 913 (1949); see also, Hastings v. Chrysler Corp., 273 A.D. 292, 294, 77 N.Y.S.2d 524 (1st Dept. 1948); Ithier v. Solomon, 59 A.D.2d 935, 399 N.Y.S.2d 450 (2d Dept. 1977); Mark v. Colgate, 53 A.D.2d 884, 385 N.Y.S.2d 621 (2d Dept. 1976).

3. Brodsky, S.L., Hendricson, S., “Testifying in Court: Guidelines and Maxims for the Expert Witness,” pp. 119-123 (APA, 1991).

4. Lipschitz v. Stein,10 A.D.3d 634, 636, 781 N.Y.S.2d 773 (1st Dept. 2004) [italics added].

5. Toomey v. MillerCoors, — F.Supp.3d —, 2015 WL 667508 (E.D.N.Y.), NYLJ Feb. 27, 2015.

6. John Henry Wigmore, Greenleaf on Evidence,(16th Ed. Rev.), §430(l), p. 529 (The Lawbook Exchange, 2001).

7. Morris, C.G., Maisto, A.A., “Psychology: An Introduction,” (Prentice Hall, 2002), p. 4 (Italics added)

8. 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (Italics added); This is a fundamental evidentiary principle concerning expert testimony and is not dependent upon whether one is a Daubert jurisdiction.

9. Martindale, D.M., “Cross-examining Mental Health Experts In Child Custody Litigation,” The Journal of Psychiatry & Law, 29/Winter 2001, 483-511

10. Even assuming that the diagnostic conclusion is supported by research the next critical inquiry is whether there is research demonstrating that there is a nexus between the diagnosis and the question of parenting capacity. Without such a nexus, the diagnosis is not relevant.

11. Frye v. United States, 54 App.D.C. 46, 47, 293 F. 1013, 1014 (1923).

12. Cohen, L.H., Sargent, M.M., Sechrest, L.B., “Use of Psychotherapy Research by Professional Psychologists,” American Psychologist, February 1986 Vol. 41, No. 2, 198-206 (1996).

13. Ethical Principles Of Psychologists And Code Of Conduct, §2.04, American Psychological Association, (2002).

14. Guidelines for Child Custody Evaluations in Family Law Proceedings, §4, American Psychologist, December 2010.

15. Model Standards of Practice for Child Custody Evaluation , §1.1, Family Court Review, Vol. 45 No. 1, January 2007 pp. 70–91.

16. People v. Wesley, 83 N.Y.2d 417, 442, 633 N.E.2d 451, 611 N.Y.S.2d 97 (1994); see also, People v. Angelo, 88 N.Y.2d 217, 666 N.E.2d 1333, 644 N.Y.S.2d 460 (1996).

17. Lilienfeld, Lynn & Lohr, “Science and Pseudoscience in Clinical Psychology,” Guilford Press, 2003, p. 3.
Original Source: http://www.newyorklawjournal.com/id=1202719630250/The-Benighted-Expert-Professional-Literature-in-Court#ixzz3TcrbI78D

Leave a Comment March 6, 2015

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