Torts Expert WitnessesA case was recently appealed by the estate of a decedent under the Federal Tort Claims Act against the United States from a fatal medical incident he suffered while in the care, custody, and control of a VA Medical Hospital.

The decedent suffered from numerous medical conditions and was admitted to the Hospital several times leading up to his last admission in December 2007. At the time of his admission, the pulmonary consult service described him as suffering from a wide range of medical issues and took the precautionary measure of placing him in respiratory isolation. On the same day, his wife described him as “not being himself,” and requested the presence of a staff member in the room with him at all times, but that request was denied. Throughout his admission, the decedent reported that he was feeling fine, but with shortness of breath. However, one evening, he was found unresponsive. He had suffered a cardiopulmonary arrest. The decedent was transferred to a non-VA facility for long-term care, never regained consciousness, and died.

The estate filed a wrongful death suit and at a bench trial, each party engaged a medical expert witness. The court heard testimony from both witnesses as to the standard of care required for a patient in the decedent’s situation. The judge ultimately found that the United States’ witness (“Dr. A”) was credible, and the decedent’s expert (“Dr. B”) was not. The district court specifically noted that the credentials of the medical experts had no bearing on its decision. Rather, the district court found Dr. A’s opinions were supported by the medical records, relevant literature, data, and studies, and medical explanations. Conversely, the United States successfully impeached Dr. B, exposing his lack of consultation of relevant medical literature and even the decedent’s medical records themselves. Also, the district court detected a sense of bias from Dr. B, stating that it was likely because he was a family friend and was originally approached to provide support to the family before the decedent’s death.

The district court found in favor of the United States. The decedent’s estate challenged the district court’s finding that the United States’ expert witness was credible while its expert witness was not.

Circuit Judge William Joseph Bauer of the Seventh Circuit wrote in his opinion for a panel that a district court’s finding of an expert witness’s credibility is one of fact, and is therefore reviewed for clear error. Great weight is given to the district court’s credibility findings “based on the demeanor of witnesses at trial,” he said. Appellate courts generally have no reason to disturb a court’s evaluation of witness credibility unless the court has credited patently improbable testimony or its credibility assessments conflict with its other factual findings.” Quoting an earlier decision for the Seventh Circuit, Judge Bauer wrote that “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.”

The estate argued the trial court was biased against the plaintiff throughout the entirety of the bench trial, but specifically in finding the United States’ expert witness was credible while its expert witness wasn’t. In this argument, the estate claimed the discrepancies in Dr. B’s testimony the district court relied on were “de minimus matters.” However, Judge Bauer and the panel of the Seventh Circuit disagreed.

The district court found that Dr. B’s testimony proved, if nothing else, his lack of knowledge and familiarity with the decedent’s medical records. In fact, the district court noted that on several occasions, Dr. B’s testimony brought to light his lack of familiarity with numerous sections of the decedent’s medical records. The court also noted that he provided his expert opinion based on facts not supported by the medical records, and his opinions weren’t supported by relevant medical literature, data, and studies. The district court also found the medical expert had an innate bias due to his relationship with the decedent’s family and his involvement with the decedent’s medical situation prior to his death.

In contrast, the district court found that it was clear from Dr. A’s testimony that she reviewed the entirety of the decedent’s medical records, and that her opinions were drawn from her knowledge of the medical records, along with research conducted to present the necessary literature, data, and studies during her testimony.

Judge Bauer said that the district court properly found one expert witness more reliable than the other, and the estate presented no valid reason to change that determination.

With no valid reason to set aside the district court’s conclusion on the credibility of each expert witness, the district court’s findings were affirmed.