Court issues $20,000 judgment against expert witness
Neurologist misled jurors
A Massachusetts General Hospital neurologist has been ordered to pay more than $20,000 in legal fees after a judge in Lawence ruled this week that he deliberately misled a jury in a malpractice case, forcing her to order a new trial.
The unusual ruling, legal analysts said, will probably send a warning to expert witnesses who stretch the truth in medical cases across the country.
Superior Court Judge Diane M. Kottmyer found that expert witness Dr. Fred Hochberg committed "fraud on the court" in his defense of a doctor who did not provide emergency drugs to a stroke victim that might have reduced the neurological damage she suffered. Hochberg argued that the patient wasn't a good candidate for the drug, called t-PA, because she had just finished treatment for breast cancer.
The defense succeeded with a jury, but Kottmyer ruled that Hochberg knowingly mischaracterized a major study of t-PA's effectiveness. She said he "deliberately created the false impression" that he had reviewed research materials connected with the study that he had never seen. The judge also disputed Hochberg's claim that he had consulted with a researcher who helped prepare the t-PA study.
"The judge doesn't just suggest this guy is a liar; she says it outright," said David Yas, publisher of Boston-based Lawyer's Weekly, a national newspaper for lawyers. "This is the type of opinion that is getting faxed to lawyers not just in Massachusetts, but across the country."
On Tuesday, Kottmyer ordered a new trial for the family of Sherry Wojcicki, who was confined to a wheelchair after the stroke until her death in 2001. The judge ordered Hochberg to pay her family $17,355 in lawyer's fees and expenses and to pay another $2,950 to the state for the cost of mounting a new jury trial. Finally, the judge required the defendant, Dr. Joan E. Caragher of Anna Jaques Hospital in Newburyport, to pay Wojcicki's family $68,380 in legal costs, but suggested that Caragher might recover the money from Hochberg.
Hochberg's attorney, William J. Dailey Jr., said he was disappointed in Kottmyer's decision. He said the judge did not question Hochberg's opinion that people with active cancers shouldn't take t-PA. She just questioned the evidence that he used to reach it.
"This is an event that no physician would want to have occur and it's a chilling event to anyone who provides or is thinking about providing any expert testimony," said Dailey, who said he would appeal the ruling.
David Gould, the lawyer for Caragher, also promised to appeal, saying, "I can't stress how strongly I disagree with the judge's decision."
Lawyers routinely attack the opposing experts in civil lawsuits, but usually the dispute comes down to differences of expert opinion, rather than fact.
Michael E. Mone, a former president of the Massachusetts Bar Association who has practiced civil law in Boston for more than 30 years, said he had never seen a similar ruling on the credibility of an expert witness in Massachusetts or any other state. Normally, he said, lawyers can't find information that is definitive enough to prove an expert is deliberately lying.
"What you have is a combination of a very courageous lawyer . . . and the judge who was very courageous to do what she did," Mone said.
Officials at the state Board of Registration in Medicine, who license the state's doctors, said they don't normally punish doctors for misleading testimony since it is not technically the practice of medicine. However, spokesman Russell Aims said the board could punish Hochberg if it determined that his testimony "undermines public confidence in the practice of medicine."
Caragher, an emergency room doctor, prevailed in the original jury verdict last November. But the Wojcickis's attorney, Marc L. Breakstone, was troubled by Hochberg's testimony regarding a 1995 study that brought dramatic change in the care for people who suffer the most common type of stroke. The study found that t-PA, if given within three hours of the start of symptoms, can significantly reduce neurological damage from a stroke by dissolving the clot that caused it.
Hochberg said during testimony that the study excluded cancer patients, so conclusions about the benefits of t-PA wouldn't apply to them. Breakstone learned after the trial that 59 of the 600 patients in the study had suffered from cancer and Barbara C. Tilley, the biostatistician in the project, said cancer patients were not excluded.
After a posttrial hearing to allow Hochberg to explain, Kottmyer ruled that Hochberg had deliberately given the jury a false impression that his claims were based on a personal review of the computer files from the study that provided medical information about each of the study participants. At the hearing, Hochberg conceded that he had not reviewed the files but said his claim that cancer victims were left out of the research was based on a phone conversation with Tilley in her South Carolina office.
But Kottmyer did not believe Hochberg, saying in this week's ruling that Tilley had no recollection of speaking with Hochberg and that Hochberg could only produce telephone records of a 30-second conversation. Also, the judge found that on that day, Tilley was travelling in California and not at her office.
Scott Allen can be reached by email at allen@globe.com. 