“For those affected, the tangled web of claims procedures can be a nightmare in itself. Plaintiffs are required to submit to the ‘independent medical exam (IME)’ performed by the physician of the defendant’s choice.”
Oh, like this is some abusive and bizarre way of investigating bodily injury claims? There’s absolutely positively no way this reporter could possibly know the first thing about how BI claims are routinely handled. Why does this sort of nonsense appear in an insurance industry publication? What is the editorial staff smoking?
This statement is not much better: “Plaintiffs are then reportedly faced with the one sided, predetermined opinion: that their injuries were not caused by exposure to the mold.”
The notion that mold causes brain injuries was nothing more than junk science last time I checked. That the LA court is letting anyone testify otherwise is absolutely ridiculous. And that is all that is worthy of being reported here.
The law speaks louder than your ignorant response. In your case ignorance isn’t bliss! The court’s ruling is based on a long line of California Supreme Court Decisions, that have simply been overlooked by the meda and other attorneys. I have enclosed my winning brief of the issue for your edification.
Please also be advised that our Jury Pannel has been sworn in and we are set to begin the jury trial on March 14, 2005.
II
Legal Argument
A. THE CALIFORNIA SUPREME COURT MAKES NOT DISTINCITON BETWEEN A PSYCHIATRIST OR A PSYCHOLOGIST IN PERMITTING EXPERT TESTIMONY AND THEREFORE, B & P CODE SEC. 2033 AND 2034 DO NOT LIMIT THE SCOPE OF THE PROPOSED TESTIMONY OF DR. JUAN M. GUTIERREZ, PH.D.
In People v. Ward, 71 Cal.App.4th 368 the court, concisely summarizes the point regarding the admissibility of expert psychiatric or psychological testimony at time of trial. [1] In addition to his constitutional challenge, defendant attacks the requirement of the SVP Act that two mental health professionals determine [71 Cal.App.4th 372] whether a criminal defendant is likely to reoffend. Section 6601, subdivision (d), requires a potential sexually violent predator to be evaluated by two psychiatrists or psychologists or a combination of a psychologist and a psychiatrist.
The court stated in pertinent part:
We also reject defendant’s criticisms of the qualifications and methods of the People’s two experts. Again, we defer to the trial court’s decision to admit their testimony. (People v. Chavez, supra, 39 Cal.3d at p. 828.) Both doctors had extensive experience in making psychological and psychiatric [71 Cal.App.4th 375] evaluations. Their expertise in diagnosis and treatment was closely related to the opinions they formed. Both doctors also applied accepted diagnostic techniques in reaching their conclusions. Whether they used clinical or actuarial models and whether they specifically followed the DMH (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)) handbook are not reasons to exclude their testimony. Even if a difference of opinion exists among professionals on these matters, the experts were not restricted to one methodology or another. To repeat the statement taken from the California Supreme Court (Justice Mosk) Stoll, we cannot dictate the expert’s journey into a patient’s mind. (People v. Stoll, supra, 49 Cal.3d at p. 1154.) Instead the jurors could make their own judgment about the qualifications of the experts and the value of their opinions.
The threshold question is whether expert psychiatric or psychological testimony in this case is scientific evidence subject to Kelly-Frye. We hold it is not. California distinguishes between expert medical opinion and scientific evidence; the former is not subject to the special admissibility rule of Kelly-Frye. (People v. McDonald (1984) 37 Cal.3d 351, 372-373 [208 Cal.Rptr. 236, 690 P.2d 709, 46 A.L.R.4th 1011].) Kelly-Frye applies to cases involving novel devices or processes, not to expert medical testimony, such as a psychiatrist’s prediction of future dangerousness or a diagnosis of mental illness. (37 Cal.3d at pp. 372-353; People v. Mendibles (1988) 199 Cal.App.3d 1277, 1293-1294 [245 Cal.Rptr. 553].)
Similarly, the testimony of a psychologist who assesses whether a criminal defendant displays signs of deviance or abnormality is not subject to Kelly-Frye. (People v. Stoll (1989) 49 Cal.3d 1136, 1155-1159 [265 Cal.Rptr. 111, 783 P.2d 698].) In the latter case, the court observed: “No precise legal rules dictate the proper basis for an expert’s journey into a patient’s mind to make judgments about his behavior.” (Id., at p. 1154.) It also described a psychological evaluation as “a learned professional art, rather than the purported exact ‘science’ with which Kelly/Frye is concerned ….” (Id., at p. 1159.)
Furthermore, in a number of other contexts, the law has often permitted mental health experts to discern present or imminent dangerous behavior. [71 Cal.App.4th 374] (Pen. Code, § 1026.5, subd. (b)(1) [extension of insanity commitment]; Pen. Code, § 2962 [mentally disordered offenders]; § 5300 [conservatorship].) These other situations cannot reasonably be distinguished on the basis that they do not involve sex-related offenses.
This was just reaffirmed again by the California Supreme Court in Roberti v. Andy’s Termite & Pest Control, Inc. (2003) 113 Cal.App.4th 893 (VOGEL (C. S.), P. J. -) in reversing the judgment in favor of defendants after a motion in Limine was granted, excluding the testimony of a Neuropsychologist George K. Henry, Ph.D., Mohamed B. Abou-Donia, Ph.D., an Agricultural Chemist and Pesticide Toxicologist, Jack D. Thrasher, Ph.D, and Environmental Toxicologist and Immunotoxicologist and in which each stated the opinion to a reasonable degree of medical or scientific certainty that plaintiff’s injuries and damages were caused by his household exposure to the Dursban used by defendant. The experts based their opinions on plaintiff’s medical records, including results of neuropsychological testing, and in utero and postpartum medical history, as well as on numerous peer-reviewed articles in scientific journals.
Business and Professions Code Sections 2033 and 2034 only relate to the licensing requirements of a medical doctor .
This case stands on all fours with the California Supreme Court’s prior decisions and therefore Dr. Gutierrez, Ph.D. is qualified as an expert and he must be permitted to testify as to causation of Plaintiff’s toxic exposure and her brain related injuries at the time of trial.
Dated: February 16, 2005 Respectfully submitted,
LAW OFFICES OF
SCOTT B. WHITENACK
BY______________________
SCOTT B. WHITENACK
ATTORNEYS FOR PLAINTIFF
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“For those affected, the tangled web of claims procedures can be a nightmare in itself. Plaintiffs are required to submit to the ‘independent medical exam (IME)’ performed by the physician of the defendant’s choice.”
Oh, like this is some abusive and bizarre way of investigating bodily injury claims? There’s absolutely positively no way this reporter could possibly know the first thing about how BI claims are routinely handled. Why does this sort of nonsense appear in an insurance industry publication? What is the editorial staff smoking?
This statement is not much better: “Plaintiffs are then reportedly faced with the one sided, predetermined opinion: that their injuries were not caused by exposure to the mold.”
The notion that mold causes brain injuries was nothing more than junk science last time I checked. That the LA court is letting anyone testify otherwise is absolutely ridiculous. And that is all that is worthy of being reported here.
The law speaks louder than your ignorant response. In your case ignorance isn’t bliss! The court’s ruling is based on a long line of California Supreme Court Decisions, that have simply been overlooked by the meda and other attorneys. I have enclosed my winning brief of the issue for your edification.
Please also be advised that our Jury Pannel has been sworn in and we are set to begin the jury trial on March 14, 2005.
II
Legal Argument
A. THE CALIFORNIA SUPREME COURT MAKES NOT DISTINCITON BETWEEN A PSYCHIATRIST OR A PSYCHOLOGIST IN PERMITTING EXPERT TESTIMONY AND THEREFORE, B & P CODE SEC. 2033 AND 2034 DO NOT LIMIT THE SCOPE OF THE PROPOSED TESTIMONY OF DR. JUAN M. GUTIERREZ, PH.D.
In People v. Ward, 71 Cal.App.4th 368 the court, concisely summarizes the point regarding the admissibility of expert psychiatric or psychological testimony at time of trial. [1] In addition to his constitutional challenge, defendant attacks the requirement of the SVP Act that two mental health professionals determine [71 Cal.App.4th 372] whether a criminal defendant is likely to reoffend. Section 6601, subdivision (d), requires a potential sexually violent predator to be evaluated by two psychiatrists or psychologists or a combination of a psychologist and a psychiatrist.
The court stated in pertinent part:
We also reject defendant’s criticisms of the qualifications and methods of the People’s two experts. Again, we defer to the trial court’s decision to admit their testimony. (People v. Chavez, supra, 39 Cal.3d at p. 828.) Both doctors had extensive experience in making psychological and psychiatric [71 Cal.App.4th 375] evaluations. Their expertise in diagnosis and treatment was closely related to the opinions they formed. Both doctors also applied accepted diagnostic techniques in reaching their conclusions. Whether they used clinical or actuarial models and whether they specifically followed the DMH (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)) handbook are not reasons to exclude their testimony. Even if a difference of opinion exists among professionals on these matters, the experts were not restricted to one methodology or another. To repeat the statement taken from the California Supreme Court (Justice Mosk) Stoll, we cannot dictate the expert’s journey into a patient’s mind. (People v. Stoll, supra, 49 Cal.3d at p. 1154.) Instead the jurors could make their own judgment about the qualifications of the experts and the value of their opinions.
The threshold question is whether expert psychiatric or psychological testimony in this case is scientific evidence subject to Kelly-Frye. We hold it is not. California distinguishes between expert medical opinion and scientific evidence; the former is not subject to the special admissibility rule of Kelly-Frye. (People v. McDonald (1984) 37 Cal.3d 351, 372-373 [208 Cal.Rptr. 236, 690 P.2d 709, 46 A.L.R.4th 1011].) Kelly-Frye applies to cases involving novel devices or processes, not to expert medical testimony, such as a psychiatrist’s prediction of future dangerousness or a diagnosis of mental illness. (37 Cal.3d at pp. 372-353; People v. Mendibles (1988) 199 Cal.App.3d 1277, 1293-1294 [245 Cal.Rptr. 553].)
Similarly, the testimony of a psychologist who assesses whether a criminal defendant displays signs of deviance or abnormality is not subject to Kelly-Frye. (People v. Stoll (1989) 49 Cal.3d 1136, 1155-1159 [265 Cal.Rptr. 111, 783 P.2d 698].) In the latter case, the court observed: “No precise legal rules dictate the proper basis for an expert’s journey into a patient’s mind to make judgments about his behavior.” (Id., at p. 1154.) It also described a psychological evaluation as “a learned professional art, rather than the purported exact ‘science’ with which Kelly/Frye is concerned ….” (Id., at p. 1159.)
Furthermore, in a number of other contexts, the law has often permitted mental health experts to discern present or imminent dangerous behavior. [71 Cal.App.4th 374] (Pen. Code, § 1026.5, subd. (b)(1) [extension of insanity commitment]; Pen. Code, § 2962 [mentally disordered offenders]; § 5300 [conservatorship].) These other situations cannot reasonably be distinguished on the basis that they do not involve sex-related offenses.
This was just reaffirmed again by the California Supreme Court in Roberti v. Andy’s Termite & Pest Control, Inc. (2003) 113 Cal.App.4th 893 (VOGEL (C. S.), P. J. -) in reversing the judgment in favor of defendants after a motion in Limine was granted, excluding the testimony of a Neuropsychologist George K. Henry, Ph.D., Mohamed B. Abou-Donia, Ph.D., an Agricultural Chemist and Pesticide Toxicologist, Jack D. Thrasher, Ph.D, and Environmental Toxicologist and Immunotoxicologist and in which each stated the opinion to a reasonable degree of medical or scientific certainty that plaintiff’s injuries and damages were caused by his household exposure to the Dursban used by defendant. The experts based their opinions on plaintiff’s medical records, including results of neuropsychological testing, and in utero and postpartum medical history, as well as on numerous peer-reviewed articles in scientific journals.
Business and Professions Code Sections 2033 and 2034 only relate to the licensing requirements of a medical doctor .
This case stands on all fours with the California Supreme Court’s prior decisions and therefore Dr. Gutierrez, Ph.D. is qualified as an expert and he must be permitted to testify as to causation of Plaintiff’s toxic exposure and her brain related injuries at the time of trial.
Dated: February 16, 2005 Respectfully submitted,
LAW OFFICES OF
SCOTT B. WHITENACK
BY______________________
SCOTT B. WHITENACK
ATTORNEYS FOR PLAINTIFF
Sincerely yours.