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.