Practice Tip: Dead in the Water?

The jurisdiction and responsibilities of medical examiners and coroners are established by individual state statutes. Although medical examiners and coroners often share similar duties ' they both investigate the causes and circumstances of deaths ' the distinction between the two positions should not be overlooked. A coroner does not necessarily have any medical training, whereas a medical examiner is generally required to be a physician.

This distinction is critical because cause of death determinations require some familiarity of medical concepts and procedures. Specifically, “cause of death” is understood to mean “[t]he underlying disease or injury responsible for setting in motion a series of physiologic events culminating in death.” Forensic Autopsy Performance Standards 19 (Nat'l Ass'n of Med. Exam'r 2005). Therefore, because coroners do not necessarily have any medical training, their testimony concerning cause of death may face more evidentiary hurdles than that of a medical examiner on the same topic. A coroner who lacks medical training, however, may be permitted to testify as to the manner of death which is “a system for classifying deaths based largely in part on the presence or absence of intent to harm, and the presence or absence of violence,” and include categories such as natural, accident, homicide, suicide, undetermined and unclassified.

Barring Medical Examiner or Coroner Testimony As Unreliable

Opinions of coroners and medical examiners about cause of death may be given great weight by juries. In certain circumstances, however, these opinions should not be admitted into evidence because the coroner or medical examiner does not have sufficient knowledge of the medical conditions at issue in the specific case to render an expert opinion. The conclusions of a coroner or medical examiner also should be precluded when the coroner or medical examiner lacks expertise in a specific scientific field or employs unreliable methodologies.

In Verzwyvelt v. St. Paul Fire & Marine Ins. Co., 175 F. Supp. 2d 881 (W.D. La. 2001), Steven Verzwyvelt became ill and eventually died after eating a sausage meat product, which his wife had purchased at a local Wal-Mart store. The coroner conducted an autopsy on Verzwyvelt and initially concluded that he died from an unknown bacterial infection. The coroner later received a telephone call from Verzwyvelt's wife, informing him that the sausage manufacturer had issued a recall for some of its meat products due to contamination with the bacteria listeria. She also informed him that Verzwyvelt exhibited symptoms similar to those exhibited by individuals who have consumed meat contaminated with listeria.

The coroner reviewed some literature on listeria, and then had an unopened pack of sausage from Verzwyvelt's freezer tested for the bacteria, which came back positive. The corner also requested that the Centers for Disease Control (CDC) conduct tests on tissue samples from Verzwyvelt's body. Although the tests by the CDC did not reveal the presence of listeria, the coroner concluded in his final autopsy report that Verzwyvelt had an underlying hematological neoplasm and died from an overwhelming bacterial infection, probably caused by listeria.

In the product liability action against the sausage manufacturer's insurers, the court precluded the coroner's opinions about listeria because they did not satisfy the Daubert requirements. The court noted that the coroner conceded that he had little or no scientific knowledge concerning listeria or listeria infections, and that he did not find any evidence of listeria in Verzwyvelt's body at the time of the autopsy. Furthermore, the court concluded that, aside from the results generated from the testing of the unopened packet of sausage, the coroner's opinions related to listeria infections had no scientific basis.

Similarly, in Petersen v. Cordes, 2003 U.S. Dist. LEXIS 19930 (N.D. Ill. Nov. 6, 2003), James Petersen had died 10 days after having knee surgery at a Chicago hospital. In Petersen's death certificate, the coroner identified the following three causes of death: 1) Cerebral Anoxia; 2) Stacked Pulmonary Emboli; and 3) Deep Veinous Thrombus [sic]. The plaintiff, the special administrator of Petersen's estate, initiated a medical malpractice lawsuit against the defendant, the doctor who performed the surgery. At trial, the defendant filed a motion in limine to preclude the coroner from offering his opinions as to Petersen's cause of death.

The court concluded that the coroner's opinions as to Petersen's cause of death were unreliable, and granted the defendant's motion. First, the court noted that the coroner, who had owned and operated a refrigeration business before becoming coroner, was not a physician and had not taken any special courses or received any training in determining cause of death, but rather only held a certification as an emergency medical technician. Accordingly, the court concluded that the coroner did not have sufficient knowledge, skill, experience, training or education to determine the cause of death of the decedent in this case and the mere fact that he worked as a coroner was insufficient without more.

Second, the court concluded that the coroner had employed an unreliable methodology in reaching his conclusion. The court found that the coroner relied on unverified information concerning Petersen's health provided by Petersen's wife and some unknown person on the team harvesting Petersen's organs. The court also found troubling that neither the coroner nor anyone else performed an autopsy on Petersen.

TASER Int'l, Inc. v. Chief Medical Examiner of Summit County, Ohio, a.k.a Dr. Lisa Kohler, M.D., 2009 Ohio App. LEXIS 1334 (Ohio Ct. App. March 31, 2009), arose outside of the context of civil litigation, but involved the same type of analysis regarding the admissibility of a medical examiner's opinions, with clear implications for potential product liability litigation. There, the Ohio Court of Appeals affirmed in part the order of the lower court directing the county's chief medical examiner, Lisa Kohler, M.D., to change her determination of the cause, manner, and mode of death with respect to three decedents. The court concluded that the cause of death determinations were unreliable, not only because of the medical uncertainties underlying the determinations, but also because of the lack of understanding concerning the product alleged to have contributed to death.

In TASER, each of the decedents died while in the custody of various law enforcement agencies and, in each situation, law enforcement officers deployed TASER devices during their encounters with the decedent. Two deputy medical examiners, both of whom held medical degrees, performed autopsies on the decedents and listed various causes of death.

TASER initiated an action to remove all reference to any TASER electronic control device or electrical pulse incapacitation causing or contributing to the cause of death in the decedents' death certificates. The trial court entered judgment in favor of TASER, and Kohler appealed, citing several errors. Among these errors, Kohler argued that the trial court erred by ordering the amendment of the cause of death in each case, and, more specifically, that the trial court neglected the presumption that attaches to the coroner's determination of cause of death, improperly required medical, scientific or electrical evidence to support her office's determinations, and incorrectly evaluated the evidence.

The court rejected Kohler's claims and summarized the uncertainty underlying the conclusions reached by Kohler and her deputies. The court noted that one of the deputy medical examiners concluded that the cause of death for the first decedent was electronic pulse incapacitation in concert with drug intoxication. This deputy admitted, however, that he “did not have an opinion, to a reasonable degree of medical certainty, regarding the 'specific mechanism' through which the TASER device contributed to ' death.” As to the second decedent, this same deputy concluded that chemical burns on his face and airway in combination with electrical restraint led to death by asphyxia. The deputy testified, however, that he did not know when, during the events prior to death, a TASER device was employed by law enforcement and he was unaware of any scientific evidence anywhere showing a TASER device ever contributing to asphyxia. A second deputy conducted the autopsy on the final decedent and concluded that deployment of a TASER device contributed to death. She later testified, however, that this was her first autopsy involving the subject of a TASER deployment, that prior to the autopsy she had done no research into TASER devices, and that she did not know how a TASER device operates.

The court then compared this testimony with the testimony provided by TASER's experts, whose fields of expertise included anatomic pathology, emergency medicine, cardiovascular medicine, electrophysiology and forensic pathology. These experts rejected the cause of death conclusions reached by Kohler and her deputies, exhibiting a more reasonable degree of medical certainty in their opinions. Concerning these claims of errors, therefore, the court concluded that the trial court did not abuse its discretion in ordering the changes to the decedent's death certificates because Kohler and her deputies did “minimal investigation into the issues presented by the ' deaths,” and they “could not opine to a reasonable degree of scientific certainty the mechanism through which TASER deployments contributed to the deaths.”

Conclusion

Lawyers defending product liability cases involving opinions by either a medical examiner or coroner regarding the cause and manner of death should evaluate carefully the qualifications of that expert to form such opinions, the expert's familiarity with the product at issue, and the factual bases for his or her opinions.

James H. Rotondo, a member of this newsletter's Board of Editors, is a Partner in Day Pitney LLP's Hartford, CT, office. He is co-chair of the firm's Commercial Litigation Department, and represents a broad range of corporate clients in product liability, negligence, insurance coverage, and commercial litigation matters. Michael P. Pohorylo is a member of the firm's commercial litigation group in the same office. His practice focuses on product liability and negligence matters.

Coroners and medical examiners make determinations regarding the cause and manner of death. In a product liability lawsuit involving a death, a coroner's or medical examiner's conclusion as to the cause or manner of death may be critical to the jury's determination of liability. The admissibility of a coroner's or medical examiner's conclusions should not be assumed, however, because their conclusions may not satisfy the Daubert or applicable state court standard.

Surprisingly, there is a paucity of reported cases regarding the admissibility of opinions of coroners and medical examiners. This article reviews a few recent decisions relating to this topic, which help to identify issues that counsel need to consider when defending these cases.

Initial Distinctions Between Medical Examiners and Coroners

The jurisdiction and responsibilities of medical examiners and coroners are established by individual state statutes. Although medical examiners and coroners often share similar duties ' they both investigate the causes and circumstances of deaths ' the distinction between the two positions should not be overlooked. A coroner does not necessarily have any medical training, whereas a medical examiner is generally required to be a physician.

This distinction is critical because cause of death determinations require some familiarity of medical concepts and procedures. Specifically, “cause of death” is understood to mean “[t]he underlying disease or injury responsible for setting in motion a series of physiologic events culminating in death.” Forensic Autopsy Performance Standards 19 (Nat'l Ass'n of Med. Exam'r 2005). Therefore, because coroners do not necessarily have any medical training, their testimony concerning cause of death may face more evidentiary hurdles than that of a medical examiner on the same topic. A coroner who lacks medical training, however, may be permitted to testify as to the manner of death which is “a system for classifying deaths based largely in part on the presence or absence of intent to harm, and the presence or absence of violence,” and include categories such as natural, accident, homicide, suicide, undetermined and unclassified.

Barring Medical Examiner or Coroner Testimony As Unreliable

Opinions of coroners and medical examiners about cause of death may be given great weight by juries. In certain circumstances, however, these opinions should not be admitted into evidence because the coroner or medical examiner does not have sufficient knowledge of the medical conditions at issue in the specific case to render an expert opinion. The conclusions of a coroner or medical examiner also should be precluded when the coroner or medical examiner lacks expertise in a specific scientific field or employs unreliable methodologies.

In Verzwyvelt v. St. Paul Fire & Marine Ins. Co. , 175 F. Supp. 2d 881 (W.D. La. 2001), Steven Verzwyvelt became ill and eventually died after eating a sausage meat product, which his wife had purchased at a local Wal-Mart store. The coroner conducted an autopsy on Verzwyvelt and initially concluded that he died from an unknown bacterial infection. The coroner later received a telephone call from Verzwyvelt's wife, informing him that the sausage manufacturer had issued a recall for some of its meat products due to contamination with the bacteria listeria. She also informed him that Verzwyvelt exhibited symptoms similar to those exhibited by individuals who have consumed meat contaminated with listeria.

The coroner reviewed some literature on listeria, and then had an unopened pack of sausage from Verzwyvelt's freezer tested for the bacteria, which came back positive. The corner also requested that the Centers for Disease Control (CDC) conduct tests on tissue samples from Verzwyvelt's body. Although the tests by the CDC did not reveal the presence of listeria, the coroner concluded in his final autopsy report that Verzwyvelt had an underlying hematological neoplasm and died from an overwhelming bacterial infection, probably caused by listeria.

In the product liability action against the sausage manufacturer's insurers, the court precluded the coroner's opinions about listeria because they did not satisfy the Daubert requirements. The court noted that the coroner conceded that he had little or no scientific knowledge concerning listeria or listeria infections, and that he did not find any evidence of listeria in Verzwyvelt's body at the time of the autopsy. Furthermore, the court concluded that, aside from the results generated from the testing of the unopened packet of sausage, the coroner's opinions related to listeria infections had no scientific basis.

Similarly, in Petersen v. Cordes, 2003 U.S. Dist. LEXIS 19930 (N.D. Ill. Nov. 6, 2003), James Petersen had died 10 days after having knee surgery at a Chicago hospital. In Petersen's death certificate, the coroner identified the following three causes of death: 1) Cerebral Anoxia; 2) Stacked Pulmonary Emboli; and 3) Deep Veinous Thrombus [sic]. The plaintiff, the special administrator of Petersen's estate, initiated a medical malpractice lawsuit against the defendant, the doctor who performed the surgery. At trial, the defendant filed a motion in limine to preclude the coroner from offering his opinions as to Petersen's cause of death.

The court concluded that the coroner's opinions as to Petersen's cause of death were unreliable, and granted the defendant's motion. First, the court noted that the coroner, who had owned and operated a refrigeration business before becoming coroner, was not a physician and had not taken any special courses or received any training in determining cause of death, but rather only held a certification as an emergency medical technician. Accordingly, the court concluded that the coroner did not have sufficient knowledge, skill, experience, training or education to determine the cause of death of the decedent in this case and the mere fact that he worked as a coroner was insufficient without more.

Second, the court concluded that the coroner had employed an unreliable methodology in reaching his conclusion. The court found that the coroner relied on unverified information concerning Petersen's health provided by Petersen's wife and some unknown person on the team harvesting Petersen's organs. The court also found troubling that neither the coroner nor anyone else performed an autopsy on Petersen.

TASER Int'l, Inc. v. Chief Medical Examiner of Summit County, Ohio, a.k.a Dr. Lisa Kohler, M.D., 2009 Ohio App. LEXIS 1334 (Ohio Ct. App. March 31, 2009), arose outside of the context of civil litigation, but involved the same type of analysis regarding the admissibility of a medical examiner's opinions, with clear implications for potential product liability litigation. There, the Ohio Court of Appeals affirmed in part the order of the lower court directing the county's chief medical examiner, Lisa Kohler, M.D., to change her determination of the cause, manner, and mode of death with respect to three decedents. The court concluded that the cause of death determinations were unreliable, not only because of the medical uncertainties underlying the determinations, but also because of the lack of understanding concerning the product alleged to have contributed to death.

In TASER, each of the decedents died while in the custody of various law enforcement agencies and, in each situation, law enforcement officers deployed TASER devices during their encounters with the decedent. Two deputy medical examiners, both of whom held medical degrees, performed autopsies on the decedents and listed various causes of death.

TASER initiated an action to remove all reference to any TASER electronic control device or electrical pulse incapacitation causing or contributing to the cause of death in the decedents' death certificates. The trial court entered judgment in favor of TASER, and Kohler appealed, citing several errors. Among these errors, Kohler argued that the trial court erred by ordering the amendment of the cause of death in each case, and, more specifically, that the trial court neglected the presumption that attaches to the coroner's determination of cause of death, improperly required medical, scientific or electrical evidence to support her office's determinations, and incorrectly evaluated the evidence.

The court rejected Kohler's claims and summarized the uncertainty underlying the conclusions reached by Kohler and her deputies. The court noted that one of the deputy medical examiners concluded that the cause of death for the first decedent was electronic pulse incapacitation in concert with drug intoxication. This deputy admitted, however, that he “did not have an opinion, to a reasonable degree of medical certainty, regarding the 'specific mechanism' through which the TASER device contributed to ' death.” As to the second decedent, this same deputy concluded that chemical burns on his face and airway in combination with electrical restraint led to death by asphyxia. The deputy testified, however, that he did not know when, during the events prior to death, a TASER device was employed by law enforcement and he was unaware of any scientific evidence anywhere showing a TASER device ever contributing to asphyxia. A second deputy conducted the autopsy on the final decedent and concluded that deployment of a TASER device contributed to death. She later testified, however, that this was her first autopsy involving the subject of a TASER deployment, that prior to the autopsy she had done no research into TASER devices, and that she did not know how a TASER device operates.

The court then compared this testimony with the testimony provided by TASER's experts, whose fields of expertise included anatomic pathology, emergency medicine, cardiovascular medicine, electrophysiology and forensic pathology. These experts rejected the cause of death conclusions reached by Kohler and her deputies, exhibiting a more reasonable degree of medical certainty in their opinions. Concerning these claims of errors, therefore, the court concluded that the trial court did not abuse its discretion in ordering the changes to the decedent's death certificates because Kohler and her deputies did “minimal investigation into the issues presented by the ' deaths,” and they “could not opine to a reasonable degree of scientific certainty the mechanism through which TASER deployments contributed to the deaths.”

Conclusion

Lawyers defending product liability cases involving opinions by either a medical examiner or coroner regarding the cause and manner of death should evaluate carefully the qualifications of that expert to form such opinions, the expert's familiarity with the product at issue, and the factual bases for his or her opinions.

James H. Rotondo, a member of this newsletter's Board of Editors, is a Partner in Day Pitney LLP's Hartford, CT, office. He is co-chair of the firm's Commercial Litigation Department, and represents a broad range of corporate clients in product liability, negligence, insurance coverage, and commercial litigation matters. Michael P. Pohorylo is a member of the firm's commercial litigation group in the same office. His practice focuses on product liability and negligence matters.