Daubert V Merrell Dow

[EricHughes]

This is a power point presentation summarizing my research into the use of expert witnesses in VA claims.

[EricHughes]

humm I can't seam to upload a pptx or pdf file.

[EricHughes]

I converted the .pptx to an rtf file, and pasted it here. Sorry for the confusion.

Questions of Weight

Expert opinion evidence in VA Claims

Federal Rules of Evidence

Frye standard / General Acceptance Test

Overturned

The Federal Rules of Evidence determine admissibility of scientific evidence in a Federal Trial.

Daubert v Merrel Dow 509 U.S. 579 (1993)

Rule 702

Exception to the Exemption

Federal Rules of Evidence

} “Challenges to expert testimony and scientific evidence are analyzed under the Supreme Court’s Daubert factors”

Liquid Dynamics Corp v Vaughn Co., 449 F. 3d 1209 (Fed. Cir. 2006)

Federal Rules of Evidence

} Daubert factors may apply to the testimony of engineers and other experts that are not scientists

Kumho Tire Co. v Carmichael 526 U.S. 137 (1999)

Federal Rules of Evidence

The Federal Rules of Evidence apply to:

◦ United States district courts

◦ District Court of Guam,

◦ District Court of the Virgin Islands

◦ District Court for the Northern Mariana Islands, United States courts of appeals

◦ United States Claims Court,

◦ United States bankruptcy judges

◦ United States magistrate judges

Fed. R. Evid. 1101(a)

Federal Rules of Evidence

} Federal Rules of Evidence are not binding on the CAVC or the Board of Veterans Appeals

} BUT the rules on expert testimony are illustrative to both

Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008)

Federal Rules of Evidence

} Rule 702

◦ If scientific, technical, or other specialized knowledge will assist the Trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if:

the testimony is based upon sufficient facts or data,

the testimony is the product of reliable principles and methods, and

the witness has applied the principles and methods reliably to the facts of the case

◦ Fed R. Evid. 702

Elements of Opinion

Element #1 Qualifications of Experts

Element #1

Qualifications of Experts

} The Department is explicitly and implicitly authorized to use its own employees as experts

Bastien v Shinseki 599 F. 3d 1301 (Fed. Cir. 2009)

38 U.S.C. §§ 5103A(a), 7109(a);

38 C.F.R. § 20.901

Element #1

Qualifications of Experts

} Absent a challenge by the claimant, the VA need not present the credentials for each and every examiner

Rizzo v Shinseki 580 F. 3d 1288 (Fed. Cir. 2009)

Element #1

Qualifications of Experts

} A request for information about an examiners qualifications is not the same as a challenge to those qualifications

} It is assumed that litigants who are told an expert witnesses qualifications frequently may conclude there is no basis for objection

} Bastien v Shinseki 599 F. 3d 1301 (Fed. Cir. 2009)

Element #1

Qualifications of Experts

} Challenges to a VA examiner’s expertise must:

◦ Set forth reasons why the claimant concludes the expert is not qualified

◦ Reasons must be particular

} Absent these,

◦ Trier of Facts can not determine validity of challenge

Bastien v Shinseki 599 F 3d 1301 (Fed. Cir. 2009)

Element #1

Qualifications of Experts

} VA permitted by statute to accept a private physician’s report without further development

} VA not prohibited from ordering an examination when private physician’s report is adequate for rating purposes

}

Gerrieri v Brown 4 Vet. App 467 (1993)

Element #1

Qualification of Experts

} Statements by non-physicians may not be referred to as “Non-Evidence”

} The opinion of a licensed counselor regarding the etiology of a psychological disorder must be considered as evidence and weighted

} Hogan v Peake 544 F 3d 1295 (Fed. Cir. 2008)

} See 38 C.F.R. § 3.159(a)(1)

Element #1

Qualifications of Experts

} Board may not act in an arbitrary or capricious manner in rejecting private medical opinion

Kowalski v Nicholson 19 Vet. App. 171 (2005)

Elements of Opinion

Element #2 Sufficient Facts or Data

Element #2

Sufficient Facts or Data

} Examiner providing the report or opinion must be fully cognizant of the claimant's past medical history.

} Green v Derwinski 1 Vet.App. 121 (1991)

Element #2

Sufficient facts or data

} The medical opinion can be rejected if the history upon which it is based is inaccurate

} Swann v Brown 5 Vet.App. 229 (1993)

Element #2

Sufficient facts or data

} Opinions based on inaccurate factual premises have no probative value

} Hadsell v Brown 4 Vet.App. 208 (1993)

Element #2

Sufficient facts or data

} Review of claims file in not required where it would not change the objective and dispositive findings made during the medical examination

Snuffer v Gober 10 Vet.App. 400 (1997)

Element #2

Sufficient Facts and Data

} A missing C-File at the time of examination is not adequate explanation for assigning the opinion zero weight.

Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008)

Element #2

Sufficient facts or data

} VA Examiner need not specify specifically that the entire exam file was reviewed when it is clear from the report

◦ The examiner reviewed the file

◦ Demonstrates familiarity with the veteran’s history

D’Aries v Peake 22 Vet.App. 97 (2008)

Element #2

Sufficient facts and data

} The examiner need not read all documents in the Case File, provided that the documents not read are not probative to the opinion rendered and relevant to the claim sought

Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008)

Element #2

Sufficient Facts and Data

} Board my rely on private medical opinion that is based on accurate medical history provided by the veteran

◦ i.e. the veteran must present a creditable history

Kowalski v Nicholson 19 Vet.App. 171 (2005)

Element #2

Sufficient Facts and Data

} Private medical opinion may not be discounted solely because the opining examiner did not review the claims file

Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008)

Element #2

Sufficient Facts or Data

} Claimants can not favor medical examinations supportive of their cause, only to discount contemporary examinations that do no support the claimant’s view

Kent v Principi 389 F. 3d 1380 (Fed. Cir. 2004)

Elements of Opinion

Element #3 Product of Reliable Methods

Element #3

Product of reliable methods

} An opinion based upon an inaccurate factual premise has no probative value

Reonal v Brown 5 Vet.App. 458 (1993)

Element #3

Product of Reliable methods

} Opinion must contain not only clear conclusions with supporting data but also a reasoned medical explanation connecting the two

Stefl v Nicholson 21 Vet.App. 120 (2007)

Element #3

Product of reliable methods

} Medical evidence cannot be based on:

◦ General conclusions

◦ Solely based on veteran’s reported history

◦ Unsupported clinical evidence

Black v Brown 5 Vet.App. 177 (1993)

Element #3

Reliability of methods

} Examiner must reconcile previous reports to present a consistent picture

} Green v Derwinski 1 Vet.App. 121 (1991)

Elements of Opinion

Element #4 Reliable Application

Element #4

Reliable Application

} Expert Opinion should state the diagnosis of the veterans' current condition

Green v Derwinski 1 Vet.App. 121 (1991)

Element #4

Reliable Application

} Expert must note what research was conducted and what authorities support the stated theory of causation

} Expert must consider not only direct service connection but also:

◦ Contrary opinions,

◦ Risk Factors

◦ Studies

Stefl v Nicholson 21 Vet.App. 120 (2007)

Element #4

Reliable Application

} Must support its conclusion with an analysis that the board can consider and weigh against contrary opinions

Stefl v. Nicholson 21 Vet.App. 120 (2007)

Element #4

Reliable application

} The Board is obligated to discuss every theory raised by the record.

} To do this the examiner must provide expert opinion on every theory espoused

Robinson v Mansfield 21 Vet.App. 545 (2008)

Element #4

Reliable Application

} The Board must return an exam as inadequate

◦ If the findings on examination do not support the diagnosis

◦ If the findings on examination do not provide sufficient detail

38 C.F.R. § 4.2 (2011)

Element #4

Reliable Application

} “The Board's consideration of factors which are wholly outside the rating criteria provided by the regulations is error as a matter of law.”

Massy v Brown 7 Vet.App. 204 (1994)

Citing Pretoria v. Derwinski, 2 Vet.App. 625, 628 (1992).

Ipse Dixit

Prohibited opinions

Ipse Dixit

(Because I said so)

} Ipse Dixit:

◦ Something Asserted but not proved

Black’s Law Dictionary 905 (Bryan A. Garner ed., 9^th ed., West 2009)

Ipse Dixit

(Because I said so)

} A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion

Stefl v Nicholson 21 Vet.App. 120 (2007)

Ipse Dixit

(Because I said so)

} “A bare conclusion, even one written by a medical professional, without a factual predicate in the record does not constitute clear and unmistakable evidence sufficient to rebut the statutory presumption of soundness.”

Miller v West 11 Vet. App. 345 (1998)

Ipse Dixit

(Because I said so)

} Ipse Dixit:

◦ “The veteran’s bipolar disorder is service connected”

} Right Way:

◦ In service the veteran was exposed to a flood, and shortly thereafter contracted asthma. He was medically retired for the same. Outside the presumptive period, his asthma condition was treated with high dose corticosteroids. On multiple occasions this coincided with symptoms of mania – a know complication of corticosteroid usage. Therefore, the veteran’s bipolar condition is more likely than not related to his treatment for asthma and is therefore service connected.

Ipse Dixit

(Because I said so)

} Ipse Dixit:

◦ This veteran needs a fiduciary

} Right Way:

◦ On May 23, 2010 the veteran discussed in an EOTH group that he goes to the casino every weekend. A few weeks later he was observed by the clinic receptionist begging for bus fair to go home from group. Then, on July 16, 2010 the veteran complained that he was overwhelmed with credit card debt, and was pan handling for spending cash. In light of the circumstances, it is likely that this veteran has a co-morbid gambling addiction. Until controlled, this veteran needs a fiduciary.

Ipse Dixit

(Because I said so)

} “The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases.”

Dennis v Nicholson 21 Vet.App. 18 (2007)

Ipse Dixit

(Because I said so)

} Examination should state why the expert believes the condition existed during service

Wells v Principi 326 F 3d 1381 (Fed. Cir. 2003)

Ipse Dixit

(Because I said so)

} The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion

Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008)

Ipse Dixit

(Because I said so)

} [T]he Board's conclusions …

◦ "must be justified by a clear statement of reasons or bases and not by the equivalent of 'because I say so.’”

Hood v. Brown 4 Vet. App. 301 (1993)

Weight of Evidence

Weight of Evidence

} The Board may give weight to one opinion over another

Owens v Brown 7 Vet.App. 429 (1995)

Weight of Evidence

} Assignment of Weight is foundation of medical opinion

Kowalski v Nicholson 19 Vet.App. 171 (2005)

Weight of Evidence

} Rational is of primary importance for the lay evaluator to base the assignment of weight upon.

Obert v Brown 5 Vet.App. 30 (1993)

Weight of Evidence

} Probative value of medical opinion based on:

◦ Medical Experts personal examination of patient

◦ The persons knowledge and skill in examining the patient [Credentials]

◦ The medical conclusion the examiner reaches

Guerrieri v Brown 4 Vet.App. 467 (1993)

Weight of Evidence

} Board must provide an explanation for discounting favorable evidence

Gabrielson v. Brown 7 Vet.App. 36 (1994)

Weight of Evidence

} Benefit of Doubt Doctrine does not bar the Board of Veterans Appeals from excluding expert testimony for lack of weight

} The Weighting of evidence is not within the appellate jurisdiction of the Federal Circuit Court of Appeals

◦ Ultimately the weight of evidence falls to the Board and through it the adjudicator

Fagan v Shinseki 573 F. 3d 1282 (Fed. Cir. 2009)

Weight of Evidence

} The presumption of sound condition is given exceptional weight

◦ Exceptions

Infirmity specifically noted upon entry into service

Clear and mistakable evidence demonstrates that the disease or illness existed before acceptance and enrollment and was not aggravated by such service

} 38. U.S.C. § 1111

Weight of Evidence

} Death Certificate and medical Records are more persuasive than the speculative opinion of a private examiner*

Tirpak v Derwinski 2 Vet.App. 609 (1992)*

*Pre-Daubert opinion

Author information

} Eric Lee Hughes is a 2011 paralegal graduate from Brown Mackie College-Cincinnati, Ohio

} At the time of writing he was not an accredited agent or service officer

[carlie]

Eric,

As far as most of this goes - when it comes to VBA, just throw it out the door

and stick to UCS 38 and CFR 38.

The VA can have a PA or a Nurse do most C&P exams - and yes - it is legal.

JMHO

[Berta]

I am printing off and saving your legal citations from the VA as they are very good ones.

However I dont see the connection to the court case you cited re:

"Questions of Weight

Expert opinion evidence in VA Claims"

I agree with Carlie- use 38 CFR, 38 USC, and also M21-1MR. I have a fairly good legal background myself but that means nothing to the VA.

If a vet or widow/widower needs an expert opinion to overcome an inaccurate VA C & P-whether from a VA PA, doc, nurse, etc.....

they should go to a real doctor and get an Independent Medical Opinion from an expert in the field of disabilty.

I succeeded in a FTCA case all by myself-against the VA --- no independent docs and no lawyers- but years later when I re opened the claim the VA would not accept my lay medical evidence or lay diagnosis even though they did years before that at VA Central and OGC level.

When I reopened and they started this BS that I was not qualified to diagnose and render a med opinion on the more recent claim-I certainly knew I could succeed but

I got 3 IMOs this time to prove them wrong.

One was a very brief freeby email from a former VA doc and it took me over 8 months to find him.My other INMO doc incoroated his statement into his 2 IMOs and had him send the same email statement to me on his formal medical letterhead.

It was expensive but I saw it as an investment.

My IMOS concurred with my more recent claim anyhow.

It was a 4 thousand buck investment but it reaped a large high 5 figure award.

Do I think that is fair that any vet or widow should have to obtain a costly IMO?

It is Not fair at all.

But these days it is often the only way to garner an award.

Your VA cited cases are excellent and I can appreciate the time that involved.

Those cases can be used to support an appeal with VA and you might succeed if you have the medical evidence to back your claim up.

Many here have overcome lousy C & P results themselves.

Still often a vet must consider getting an IMO because the VA can reject lay medical evidence by saying the claimant is not 'qualified' to render medical opinions.

[EricHughes]

The assignment of weight deals with the situation when the VA C&P examiner and the Independent Medical Opinion are in disagreement. Rather than allowing the VA to remand the claim for a new VA C&P examiner, the case law I cited can be used to compel the VA to weigh the evidence in favor of the IMO.

As for Lay Evidence, nothing in this power point applies. The reason is that lay evidence is a "Fact Witness" not an "Expert Witness".

[Berta]

If VA already knocked down the IMO-

the IMO doc might have to rebutt them with a new IMO.

Don't forget-when VA weighs the evidence , the VA also owns the scale they use.

Also,in spite of my 3 IMOs (and I even paid for a 4th one I didnt need because the award came before the docs IMO did)

the BVA ordered another C & P for my claim-on remand and I rebutted the exam results myself because I didnt have the 4th IMO yet.

When the BVA considered all the evidence of record they then completely disregarded the last C & P exam.Said it was too speculative and did not comply at all with the remand order so it had no value. I got some of my IMO money back for the 4th IMO that never arrived prior to the award letter.