Question: When an attorney is developing a case in which the

Question:
When an attorney is developing a case in which the opposition is relying on scientific data of questionable scientific
reliability (e.g., internal forces of labor and not overzealous use of traction on the baby's head causes Erb's Palsy)
what are the options available to opposing counsel to manage and/or get fraudulent scientific data precluded?
Submitted by:
Nursine S. Jackson, MSN, RN
Answer:
Expert testimony is subject to the Daubert standard: If the opposing counsel is introducing scientific data that
information either comes in through an expert, a fact witness or through stipulation. The scenario that you
describe appears to be one where an expert is going to testify. If that is the case then read below.
Standard used by a trial judge to make a preliminary assessment of whether an expert’s scientific testimony is
based on reasoning or methodology that is scientifically valid and can properly be applied to the facts at issue.
Under this standard, the factors that may be considered in determining whether the methodology is valid are: (1)
whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to
peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards
controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific
community. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Daubert standard is the
test currently used in the federal courts and some state courts. In the federal courts, it replaced the Frye
standard.
If expert testimony does not meet this standard it can be either stricken from the records or not allowed at all.
From:
Luis O Rivera, CPA, CFE, CFF, CGMA
Copyright © The Forensic Examiner 2014
Answer:
OBGYN who has a large number of deliveries. Who can explain several reasons for occurring Erb's palsy:
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Shoulder dystocia or larger than expected shoulders of the infant for pelvic size during the birth process
Prolonged labor
Position of the infant in utero such as a breech position
During the delivery process there may be some indicated fetal distress in which the infant needs to be
delivered quickly and occasionally the nerves may be inadvertently stretched in order to hasten the
delivery of the infant
Normal passage of the head as it bends to one side as shoulders pass through the birth canal
When a large infant is suspected and a Cesarean section is preformed this lessens but does not always
prevent the possibility of Erb's palsy
The larger percentage fully recover
A very small percentage have a lifetime disability
Greater than 54% are not considered high risk deliveries when Erb's Palsy occurs
Mediline Plus (Oct 9, 2014) Brachial plexus injury in newborns
http://www.nlm.nih.gov/medlineplus/ency/article/001395.htm
American Academy of Orthopedic Surgeons (2014) OrthoInfo: Erb's Palsy
http://orthoinfo.aaos.org/topic.cfm?topic=a00077
Joshua M. Abzug, MD; Scott H. Kozin, MD (2010) Current Concepts: Neonatal Brachial Plexus Palsy. Orthopedics; 3
(6), 430-435.
DOI: 10.3928/01477447-20100429-25
http://www.healio.com/orthopedics/journals/ortho/2010-6-33-6/%7B1f8c5b46-5bb9-4c4b-bf5ce507ff4a6ec8%7D/current-concepts-neonatal-brachial-plexus-palsy
Dr Abzug is from the Department of Orthopedic Surgery, Thomas Jefferson University Hospital, The Philadelphia
Hand Center, and Dr Kozin is from the Department of Orthopedic Surgery, Temple University & Hand Surgeon,
Shriners Hospital for Children, Philadelphia)
From:
Dr. Sue Gabriel EdD, MSN, MFS, RN, SANE-A, CFN, FACFEI, DABFN
Biography:
Sue Gabriel is the Associate Professor at Nebraska Wesleyan University. Sue is a national and international speaker
and workshop presenter on Forensic Nursing, Child Abuse, Sexual Assault, Human Trafficking, and Intimate Partner
Violence. Sue is a guest lecturer at numerous colleges and universities and is a member of various forensic
organizations; including Fellow in the American College of Forensic Examiners and Diplomat in the American Board
of Forensic Nursing (Chair); Board member on the Commission of Forensic Education, Board member of
International College of Behavioral Science for American College of Forensic Examiners; American Academy of
Forensic Sciences(Full Member), which she received the General Section Achievement Award, the International
Association of Forensic Nurses (editorial staff), Sigma Theta Tau (Treasurer), NLN, and the Nebraska chapter of
International Association of Identification. Sue graduated from the University of Nebraska Medical Center College
of Nursing with a BSN; Southeast Community College with a Certificate in Forensic Science; Nebraska Wesleyan
University with a Masters in Forensic Science, and a Masters in Nursing; and received her Doctorate in Health Care
Education from the College of Saint Mary’s in Omaha NE. Sue is a practicing, board certified, sexual assault nurse
examiner (SANE-A),member of a city wide SART team, and a member of the Sexual Assault Prevention and
Response Committee for the Nebraska Air and Army Guard, a board certified forensic nurse (CFN), and a member
Copyright © The Forensic Examiner 2014
of the Disaster Mortuary Response Team, Region VII (DMORT). Sue is a reviewer of numerous nursing texts, and
professional journals, contributor to Forensic Investigation and Management of Mass Disasters text by Cyril Wecht
& Matthias Okoye 2007, Lawyers and Judges Publishing, co-author of an entry level forensic nursing text, Forensic
Nursing: A Concise Manual(2010) CRC Press, and has published in the Journal of Forensic Nursing.Sue has also
developed forensic learning modules, and has written seven chapters for an upcoming eight volume text on
forensic science. As an associate professor, Sue teaches in classes of Forensic Nursing, Pediatric Nursing, and a
general education class which she developed on Violence in Society, Research, Transcultural Nursing, Curriculum
Development, along with Community Health Nursing. Sue loves working with students, networking with
colleagues, and has a passion for Forensic Nursing and children.
Answer:
The national standard that must be met at trial for scientific evidence is governed by the Daubert ruling. One can
read about it here:
http://www.law.cornell.edu/supct/html/92-102.ZS.html
If the scientific studies that opposing counsel is using does not meet the criteria set out in Daubert, it can easily be
excluded.
From:
Susan P. Robbins, Ph.D., LCSW
Biography:
Susan P. Robbins, Ph.D., is a professor at the University of Houston Graduate College of Social Work. She holds
licenses as an advanced clinical social worker (LCSW) and licensed chemical dependency counselor (LCDC) in Texas,
Diplomate in Clinical Social Work from NASW and ABSWE, certification as a Master Forensic Social Worker and a
Diplomate in Forensic Social Work from the American Board of Forensic Social Workers. From 1978-1980 she
coordinated a Criminal Justice program at Dominican College in New Orleans. She is the Editor in Chief of the
Journal of Social Work Education and a well-published author whose articles appear in the Encyclopedia of Social
Work, the Social Workers' Desk Reference and in Families in Society: The Journal of Contemporary Human Service.
Copyright © The Forensic Examiner 2014
Answer:
Find an expert(s) who can refute the fraudulent data.
From:
E. Franklin Livingstone
Answer:
In order to answer the question it is necessary to address some issues with the question:
1.
Where did the data emerge from?
2.
What or who claimed that the data was unreliable?
3.
Are experts involved?
4.
Is their expertise specific to the case?
5.
Has an “In Limine” challenge been presented to the presiding judge?
From:
John Daab
Copyright © The Forensic Examiner 2014
Answer:
File a Daubert motion
From:
Cyril H. Wecht, M.D., J.D.
Biography:
Cyril H. Wecht received his M.D. degree from the University of Pittsburgh, and his J.D. Degree
from the University of Maryland. He is certified by the American Board of Pathology in anatomic, clinical
and forensic pathology, and is a Fellow of the College of American Pathologists, the American Society of
Clinical Pathologists, and the national Association of Medical Examiners. Dr. Wecht is a Charter
Diplomate of the American Board of Disaster Medicine and has served as Vice Chairman of that Board.
He is a Charter Diplomate of the American Board of Legal Medicine and has served as Chairman of that
Board.
Dr. Wecht was formerly the Chairman of the Department of Pathology for 25 years and served
as President of the Medical Staff at St. Francis Central Hospital in Pittsburgh. He is actively involved as a
forensic pathologist, and as a medical-legal and forensic science consultant, author, and lecturer. He served as the elected Coroner of Allegheny County from 1970 – 1980 and from 1996 – 2006.
Dr. Wecht is a Clinical Professor at the University of Pittsburgh School of Medicine and Adjunct
Professor at the Graduate School of Public Health; an Adjunct Professor at Duquesne University Schools
of Law, Pharmacy, and Health Sciences; Distinguished Professor of Anatomy and Pathology at Carlow
University; Professor of Law at Aristotle University School of Law; and Chairman of the Advisory Board of
the Cyril H. Wecht Institute of Forensic Science and Law at Duquesne University of Law. He has served as
President of the American College of Legal Medicine and the American Academy of Forensic Sciences,
and also as Chairman of both the Board of Trustees of the American Board of Legal Medicine and the
American College of Legal Medicine Foundation. He is also Chairman of the Executive committee and
the Forensic Medicine committee of the American college of Forensic Examiners International.
Dr. Wecht is the author or co-author of 575 professional publications; an editorial board
member of 16 national and international medical-legal and forensic scientific publications; and the
editor or co-editor of 46 professional books, including a 5 volume set, FORENSIC SCIENCES ( Matthew
Bender), and two 3 volume sets, HANDLING SOFT TISSUE INJURY CASES and PREPARING AND WINNING
MEDICAL NEGLIGENCE CASES (Juris Publishing Co.); and co-author of 8 books dealing with famous cases
in which he was personally involved.
Dr Wecht has organized and conducted Postgraduate Medical-Legal Seminars in more than 50
countries throughout the world in his capacity as Director of the Pittsburgh Institute of Legal Medicine.
He has personally performed approximately 18,000 autopsies, and has supervised, reviewed, or been
consulted on approximately 38,000 additional post-mortem examinations, including cases in several
foreign countries.
Copyright © The Forensic Examiner 2014
Dr. Wecht has testified in more than 1,000 civil, criminal, and workers’ compensation cases in
state and federal courts in more than 30 states, and also in several foreign countries.
Dr. Wecht has appeared as a frequent guest on numerous national TV and radio shows,
discussing various medicolegal and forensic scientific subjects, including medical malpractice; alcohol
and drug abuse; assassinations of President John F. Kennedy, Senator Robert F. Kennedy, and Reverend
Martin Luther King; death of Elvis Presley; Sam Sheppard case; O.J. Simpson case; JonBenet Ramsey
case; Diallo case; Chandra Levy death investigation; Jayson Williams and Laci Peterson. These cases, as
well as those involving Mary Jo Kopechne, Sunny von Bulow, Jean Harris, Dr. Jeffrey McDonald, the
Waco Branch Davidian fire, Rob Brown, Vincent Foster, O.J. Simpson, Drew Peterson, Anna Nicole Smith,
Daniel Smith, Casey Anthony, Michael Jackson and many others are discussed from the perspective of
Dr. Wecht’s own professional involvement in his books, Cause of Death, Grave Secrets, Who Killed
JonBenet Ramsey?, Mortal Evidence, Tales from the Morgue, A Question of Murder, and From Crime
Scene to Courtroom, Final Exam.
Dr. Wecht and his wife, Sigrid, have four children and eleven grandchildren, all of whom reside
in Allegheny County. He has received numerous awards and honors from various professional,
community, and governmental organizations, including County Detectives Association of Pennsylvania,
Deputy Sheriffs’ Association of Pennsylvania, Vectors, New York Society of Forensic Sciences, American
college of Legal Medicine, National Junior Chamber of Commerce, the American legion, and the
Pittsburgh Shriners.
He has been invited as a Distinguished Professor to lecture in several foreign countries, and is an
Honorary Life Member of the National Academies of Legal Medicine of France, Spain, Begium,
Yugoslavia, Mexico, Columbia, and Brazil.
Dr. Wecht has lectured at numerous medical, law, and other graduate schools, as well as many
colleges and universities, numerous professional organizations and governmental agencies, including
Harvard Law School, Yale Medical School, Georgetown Medical School, the FBI Academy, and the
Medical Division of the CIA. In September, 2010, he received the “Distinguished Forensic Scientist”
Award from the Dr. Henry C. Lee Institute of Forensic Science. In October, 2010, the Allegheny County
Medical Examiner facility was officially designated as the “Cyril H. Wecht Institute of Forensic Science”.
Copyright © The Forensic Examiner 2014