DCYF's Courtroom Tricks of the Trade

Good news for the First Amendment and Article 22 of the NH Constitution! The legislature has finally said that one can discuss what goes on in Child Abuse and Neglect hearings as long as the person(s) involved aren't identified. See http://gencourt.state.nh.us/rsa/html/XII/169-C/169-C-25.htm

I've resisted the urge to put some of the more interesting pleadings on the web page, worried about those darned Professional Conduct Complaints. I have good reason to worry, since the PCC just found me in violation of the rules for disclosing "confidential information" that isn't even on the state's list of what can't be disclosed! However, perhaps with the new rule, it will be a lot tougher to hang the lawyer. I can't possibly get a page together with all the nasty things that have happened over the course of my legal career, so this page will grow slowly. Come back and visit once in a while. In absolutely no particular order:

[Non] Expert Witness Trick

One case I had involved a possible case of Osteogenesis Imperfecta, also known as "OI." The Division had grabbed legal custody of the child at the preliminary hearing, before it was statutorily authorized. Without legal custody, the mother was hampered in her effort to seek medical care for the child that wasn't already biased against her. The Division had originally called the state's medical examiner, Thomas Andrew, for information on where to have the child tested for OI, and he recommended Dr. Moechler at Dartmouth-Hitchcock Medical Center in Lebanon. All of the child's medical care was subsequently handled by others. It's normally a bad idea to seek medical care from the medical examiner anyway. However, when the Division couldn't come up with a decent expert on Osteogenesis Imperfecta, they called on Thomas Andrew. I objected, stating that he wasn't an expert in OI, and his knowledge of the facts was extremely limited. DCYF told the court he would be a "fact witness." He then offered his opinion some cheery, but medically incorrect testimony that the primary feature of OI was "osteopenia.," which means visible thinning of the bones on x-ray. The judge had denied our motion to have Colin Paterson, MD, and Osteogenesis Imperfecta expert come from England to testify, even though his fee was about 1/4 of what was quoted from a doctor with similar qualifications in Massachusetts, so we wound up with no expert. I cross examined Dr. Andrew correctly, and showed him numerous medical journal articles that disputed his claim, but after a trial that took over 18 months in the District Court, we lost anyway, and appealed to the Superior Court for the mother's statutorily required "trial de novo."

Fortunately, DCYF just gave up and dropped the petition, since it was an expensive petition, and they knew I'd rip the medical examiner apart in the second trial. (It was pretty tempting to do it physically as well after his misleading, and medically incorrect testimony!) It ended in a standstill. We couldn't prove the child had Osteogenesis Imperfecta, the state couldn't prove he didn't, and in any case, there was no evidence that the mother was at fault if he didn't have it. Most of these cases do NOT end this way!

Post-script, November, 2002. I have a new, medically complicated case. The DCYF attorney has informed me that they'll probably be calling Thomas Andrew again to testify on something he has absolutely no expertise in.


Contact Paula Werme, Esq. or return to Law Practice home page.

Last updated 2002 November 17.