Slicing and dicing away in the Magnolia State

By all accounts Dr. Steven Hayne of Mississippi worked his butt off. For a period of almost 20 years, Dr. Hayne performed about 1700 autopsies a year as a contract medical examiner for the state. According to a New York Times article, for a long period of time, if a body were discovered in Mississippi, the odds were 4 in 5 that Dr. Hayne would be doing the cutting.

Now there are questions about the good doctor's work. It seems that while he was collecting his $500 per autopsy, he created some theories of his own about what he observed. Questions have also been asked about his workload - on average, Dr. Hayne performed more than 4 autopsies a day (some seven times the recommended work load), in addition to the work he performed in his private practice.

In 2008 the State of Mississippi cut off Dr. Hayne's gravy train after several murder convictions supported in large measure by his testimony and report were overturned.

Dr. Hayne made out like a bandit even though he wasn't board certified in forensic pathology.

But still he kept cutting up dead bodies, writing reports, testifying at trial and collecting checks.

A physician and pathologist, Dr. Hayne, now 71, began performing autopsies in Mississippi in the late 1980s. He served briefly as interim state medical examiner though he was not, as state law required, board certified in forensic pathology. From 1989, when he left the interim post, to 2010, the office of medical examiner was unfilled for all but five years. Dr. Hayne, working as a private contractor, almost single-handedly picked up the slack. 

By his own count, he performed as many as 1,700 autopsies some years, in addition to having his own pathology practice. Dr. David Fowler, the chief medical examiner in Maryland and a former chairman of the standards committee for the National Association of Medical Examiners, called the number “beyond defensible.”

Dr. Hayne is just the latest example of the ways in which our courts have failed in their role as gatekeepers to scientific and expert testimony. Junk science (and theories that are but flights of fancy) finds its way into our courtrooms because judges don't understand the science before them. It finds its way into our courtrooms because judges love witnesses who have a bunch of letters after their names. It finds its way into our courtrooms because we have failed to do our job as defense attorneys.

Juries love to have someone tell them how to decide a case - it beats sitting back in that jury room arguing back and forth for hours about whether the state has proven its case beyond all reasonable doubt. Just bring in a witness with a bunch of letters after his name and a folder full of certificates printed on fancy paper and let him tell the jury that the defendant is guilty.

They will rarely question his opinion because he's an expert. Hell, they don't understand what he's up on the stand talking about. The prosecutor knows it. We all know it. And once those magic words "In my expert opinion..." come out of his mouth it's all over.

It's not until years down the road when the so-called expert has a track record on paper and transcripts that anyone can put together the errors, lies and fictions he created out of whole cloth. It's not until someone has the money to bankroll the research that the extent of the injustice is exposed.

We will never know how many innocent folks ended up behind bars in Mississippi because of Dr. Steven Hayne. Worse yet, there are hundreds of mini-Dr. Haynes out there that will never be exposed.

And in conclusion...

A civil suit filed by a family alleging that benzene in an old San Antonio landfill caused their daughter to develop leukemia may have have implications in drunk driving prosecutions in Texas. The family won a judgment against the city based largely on the testimony of oncologist Dr. Mahendar Patel who testified the child's cancer was the result of her mother's exposure to benzene while pregnant.

Dr. Patel based his opinion on the testimony of the family's other expert witness and on several studies of cancer rates in workers exposed to benzene. He testified that he had never conducted any research on the cancer-causing effects of benzene. The studies upon which he relied were based on workers' exposure to concentrations of benzene more than 200 times the concentration found in the family's yard.

The city claimed Dr. Patel's testimony was conclusory and legally insufficient to support a judgment in several motions for directed verdict after the plaintiffs had rested their case, after the city rested and again after the verdict was rendered (motion for judgment n.o.v.). The city never objected to the admission of the evidence while Dr. Patel testified.

On appeal, the Texas Supreme Court held that a party may complain on appeal that conclusory expert testimony is insufficient to support a judgment even if the party did not object to the admission of the testimony at trial. However, if the objection is that the basis for the expert opinion is unreliable, the failure to object at trial is fatal.

Bare, baseless opinions will not support a judgment even if there is no objection to their admission in evidence. -- City of San Antonio v. Pollock, 284 SW3d 809, 816 (Tex.2009).

The Court went on to say that:

even when some basis is offered for an opinion, if that basis does not, on its face, support the opinion, the opinion is still conclusory. -- 284 SW3d at 817.

The implications for DWI defense are quite clear. If the state's expert offers a conclusory opinion, you have not waived the issue for appeal by failing to object at trial.

Take retrograde extrapolation as an example. The state's expert will take the stand and testify what the defendant's alcohol concentration would have been at the time of driving based solely on a breath or blood test result and the bastardization of the Widmark equation. The state's expert doesn't know what the defendant had to drink, when the defendant drank it, over what period of time the defendant drank it, what the defendant had in her stomach at the time she drank it, what the defendant's weight is, what the defendant's blood-breath partition ratio is or whether the test results are accurate.

The state's expert's opinion may have some basis behind it -- but does that basis support the opinion? In reality, all the state's expert has done was take the breath test result and add .015 for every hour that elapsed between the time of the stop and the time of the breath test. The entire basis for his opinion is the breath test result and he cannot prove that the result was accurate.

A faulty opinion, I conclude.