Recht wrong to exclude expert witness, Justices say

By Steve Korris | Nov 15, 2007


CHARLESTON – Ohio Circuit Judge Arthur Recht improperly excluded neurosurgeon Peter Sheptak as an expert witness in a trial over a car crash, the West Virginia Supreme Court of Appeals has decided.

Recht had ruled that because he could not separate Sheptak's testimony on the cause of the plaintiff's injuries from testimony on his diagnosis of the injuries, he wouldn't allow Sheptak to testify at all.

In a Nov. 8 opinion, all five Justices agreed that Recht faced a difficult task in drawing a line between causation and diagnosis, but they ordered him to draw it anyway.

The Justices hold high regard for Recht, a former Supreme Court Justice himself. In this case they reversed him but still showed faith in his judgment.

Their decision clears the way for Sheptak to testify for Lambert Jones II, whose Ford Probe rear ended a Lincoln driven by George Naum in 2003.

Naum sued Jones, claiming the collision caused a concussion, headaches, dizziness, confusion and memory problems.

Jones answered that other accidents or unrelated medical conditions caused those conditions.

Jones hired Sheptak, who had testified as an expert in many cases.

Sheptak wrote a letter last year stating that, "... this was an extremely low level impact with no significant discernible damage to either vehicle."

"I find it highly unlikely that the patient suffered a concussion during the impact," he wrote. "I also feel it highly unlikely that he struck his head on the roof as he reported to several physicians."

This March 29, eight days before a scheduled pretrial hearing, Sheptak repeated his conclusions in a deposition.

A day before the hearing Naum's attorney, Jonathan Turak of Moundsville, moved to exclude Sheptak's testimony.

Turak argued that Sheptak could not testify about any change in velocity that Naum experienced because Sheptak was not a biomechanical expert.

At the hearing, Recht initially said Sheptak "is not getting knocked out completely."

Recht changed his mind while trying to limit Sheptak's testimony to medical conclusions without incorporating his opinions regarding the force of the collision.

"It's all part of a fabric of his opinions, which include the biomechanical part of the equation, and he's not qualified to do that," Recht said.

Recht granted the motion to exclude, finding that neurological issues were "inextricably entwined with biomechanical aspects of which he is not qualified."

"It is not possible to demarcate that part of his testimony from the neurosurgery," he said.

For Jones, Thomas Buck and April Wheeler of Wheeling petitioned the Supreme Court of Appeals for a writ of prohibition to block enforcement of the exclusion order.

The Justices granted the writ in an unsigned opinion.

They agreed that Recht "was absolutely correct to exclude testimony regarding his opinion of the biomechanical components of the underlying civil action."

"However, as difficult as it might be to distinguish between Dr. Sheptak's biomechanical opinions and his neurosurgery opinions, such demarcation must be accomplished," they wrote. "Some modified use of the evidence must be achieved to permit the admissible portions of the testimony to be presented to the jury.

"Dr. Sheptak's testimony must be strictly restricted to medical testimony. Issues regarding the force of impact must be redirected to experts qualified in accident reconstruction or biomechanics."

Dropping a hint to the defense, they wrote, "... some of the difficulties may be addressed by the use of hypothetical questions grounded on evidence admissible from other witnesses possessed of the necessary expertise that Dr. Sheptak clearly lacked."

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