Expert Witness Profiler

Category: Forensic Pathology Expert Witness

  • Forensic Pathology Expert Was Not Allowed to Opine on the Cause of the Accident

    Forensic Pathology Expert Was Not Allowed to Opine on the Cause of the Accident

    This lawsuit arose out of the death of Vincent McKinney on April 15, 2021, at a U-Haul construction site. Plaintiff disclosed Wayne K. Ross, M.D., P.C., a forensic pathologist as an expert witness. Plaintiff retained Ross “to determine the cause and manner of death and to assess for conscious pain and suffering.” 

    Defendant filed a motion to exclude the testimony of Ross. First, it requested that the Court exclude Ross’ statements about accident causation “because [they are] irrelevant to the opinions Ross was retained to provide.” “Alternatively,” Defendant argued, “the Court should exclude those statements and testimony because Ross is unqualified to give such opinions” “To the extent Ross attempts to rely upon Plaintiff’s engineering expert’s report to form the basis of his accident causation analysis,” Defendant submitted that “Ross failed to disclose that report as material he relied upon.”

    Moreover, Defendant stated that “Ross’ fourth and fifth conclusions contain impermissible legal conclusions and state of mind opinions on the alleged subjective feelings and experiences of McKinney.”

    Forensic Pathology Expert Witness

    Wayne Kenneth Ross, M.D., P.C. is board-certified by both the National Board of Medical Examiners and the American Board of Pathology in Anatomic and Forensic Pathology. He maintains current medical licensure in
    Pennsylvania and has practiced continuously as a forensic pathologist for over three decades.

    Throughout his career, he has conducted thousands of autopsies and
    death investigations involving traumatic injuries, gunshot wounds, blunt force trauma, and other violent deaths where assessing consciousness and pain perception at the time of injury is critical.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Wayne Ross’ expert testimony.

    Discussion by the Court

    A. The Cause of the Accident

    Defendant argued that “Ross’ report included specific statements and testimony regarding the cause of the accident [that] the Court should exclude because it is irrelevant to the opinions Ross was retained to provide.”

    Ross stated:

    “A forklift being operated by Curtis Kennedy was positioning in the forklift on the passenger’s side just prior to the incident. The forks on the forklift were maneuvered under the three (3) passenger side bundles just prior to the incident. The passenger side load was lifted upward but the forks extended too far laterally such that the tips of the forks caught the undersurface of the lower driver’s side load. Thus, as the passenger’s side load was being lifted, the driver’s side load was lifted as well.

    The lifting of the dual load was unstable because the forks were not positioned completely under the driver’s side load, so as a result, the driver’s side load rolled off the truck bed, off of the driver’s side.”

    Plaintiff did not dispute that Ross is not qualified to render an opinion on the cause of the accident. And Plaintiff stated that Ross is not providing an opinion on the cause of the accident; rather, Plaintiff stated that he is simply “giving context for his own opinions regarding McKinney’s injuries and cause of death.”

    But Plaintiff did not explain how this context is relevant to Ross’ opinions. Plaintiff retained Ross “to determine the cause and manner of death and to assess for conscious pain and suffering.” How the bundles fell from the trailer or who caused the bundles to fall are not relevant inquiries to Ross’ analysis of these matters. The Court therefore excluded this portion of Ross’ opinion.

    B. Legal Conclusions and State of Mind Testimony

    Defendant argued that “Ross’ fourth and fifth conclusions contain impermissible legal conclusions and state of mind opinions on the alleged subjective feelings and experiences of McKinney.” In addition, the fifth conclusion, Defendant stated “contains opinions that go beyond an attempt to detail McKinney’s state of mind but acts as an attempt to enflame the jury with verbose and extreme language and should also be excluded under Rule 403 as well.” It argued that “whether or not McKinney ultimately was conscious and experienced any pain and suffering, is a question of fact for the jury to decide.”

    Here, Ross stated that “to a reasonable degree of medical probability or more likely than not” McKinney experienced conscious pain and suffering, and he details such pain. Plaintiff described this testimony as an “analysis of consciousness duration and probable sensory experience.” She later stated that he “uses established scientific methodology to explain, to a reasonable degree of medical certainty, what sensations a person in McKinney’s condition would likely experience in the seconds after the incident.” Defendant did not dispute that this would be proper testimony. And when reading Ross’ full expert report, it did not appear that Ross intended to “unequivocally opine [on] what McKinney was feeling” at trial. To the extent Ross renders such opinions, the Court will exclude him from doing so at trial; however, he was allowed to testify about what a person in McKinney’s condition would have experienced.

    Held

    The Court granted in part and denied in part the Defendant’s motion to exclude the testimony of Dr. Wayne K. Ross.

    Key Takeaway:

    An expert may not offer an opinion on someone else’s subjective beliefs or feelings. State-of-mind testimony is not helpful because “the jury is sufficiently capable of drawing its own inferences regarding intent, motive, or state of mind from the evidence, and permitting expert testimony on this subject would be merely substituting the expert’s judgment for the jury’s and would not be helpful to the jury.” However, in this case, it did not appear that Ross intended to “unequivocally opine [on] what McKinney was feeling” at trial.

    Case Details:

    Case Caption: Perry V. Jenkins & Stiles, LLC
    Docket Number: 3:21cv414
    Court Name: United States District Court, Tennessee Eastern
    Order Date: October 17, 2025
  • Forensic Pathology Expert’s Conclusions About the Cause of Death Admitted

    Forensic Pathology Expert’s Conclusions About the Cause of Death Admitted

    This suit arises from a motor vehicle accident that occurred on September 7, 2018, in Vinton, Louisiana. Plaintiffs alleged that Billy Smith was operating a 2016 Kenworth T880 while traveling westbound on Interstate 10 on that date.

    The vehicle was outfitted with Chinese-manufactured steel belt radial truck tires, distributed by CMA under the trade name “Double Coin tires.” The accident occurred when Smith’s tires suffered a catastrophic tread/belt separation, overturning the vehicle and severely injuring Smith. Smith passed away on September 4, 2021, and his surviving spouse and four adult children were substituted as Plaintiffs. 

    Defendants sought to introduce testimony from forensic pathologist, Dr. Franklin J. Peretti. Plaintiffs filed a motion to exclude that testimony under the standards set forth in Federal Rule of Evidence 702 and Daubert.

    Peretti conducted the only autopsy on Smith. Plaintiffs did not challenge his qualifications but maintained that he lacked a sufficient factual basis for his opinions because he did not have Smith’s complete medical records when he conducted the autopsy.

    Forensic Pathology Expert Witness

    Dr. Franklin Joseph Peretti  is a forensic pathologist with over 30 years of experience.  He has served as associate or assistant medical examiner for the Arkansas State Crime Laboratory, the Baltimore Office of the Chief Medical Examiner, and the Rhode Island Medical Examiner’s Office.

    Discover more cases with Frank J. Peretti as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    Peretti admitted at his deposition that he was not given any medical records or history at the time of the autopsy. Since that time, and before his deposition, he reviewed the death certificate provided by Calcasieu Parish coroner Dr. Terry Welke (who performed a limited post-mortem examination in lieu of an autopsy), the report of Plaintiffs’ treating neurologist Dr. David Weir (who did not examine Smith after his death), and the report and deposition of Plaintiffs’ consulting neurologist, Dr. Ian Hood (who never examined Smith). 

    He admitted that all of the information with the exception of Hood’s report was only provided to him on the morning of his deposition. He also admitted that it was “sort of an unfair autopsy” because he lacked any information at the time, including the death certificate.

    Because of the lack of medical history, he did not fix the brain in formalin and perform a neuropathic examination. He advised, however, that he was not adverse to changing his opinion on a cause of death if provided with sufficient evidence. He found no basis in the reports provided to do so.

    Analysis

    Drs. Hood, Weir, and Welke came to a different conclusion on Smith’s cause of death, and will be able to defend that conclusion at trial based on their familiarity with the alleged progression of Smith’s neurological injury if properly qualified. But Peretti is a qualified forensic pathologist and performed the only autopsy in this matter.

    He examined Smith’s brain and, even after reviewing the relevant medical opinions, found no basis to change his conclusion. Plaintiffs may cross-examine him as to the sufficiency of his autopsy and what findings he might have missed without a neuropathic examination. The Court held, however, that they failed to show that his conclusions were so unfounded as to provide no aid to the jury under Rule 702.

    Held

    The Court denied the Plaintiffs’ Daubert motion to exclude the testimony of Defendants’ expert Franklin Peretti.

    Key Takeaway:

    Peretti did not have Smith’s complete medical records when he conducted the autopsy. He admitted as much. However, Peretti examined Smith’s brain and, even after reviewing the relevant medical opinions, found no basis to change his conclusion. Peretti is, after all, a qualified forensic pathologist and performed the only autopsy in this matter.

    Rejection of expert testimony is the exception rather than the rule, and the court’s role as gatekeeper “does not replace the traditional adversary system and the place of the jury within the system.”

    Please refer to the blog previously published about this case:

    Tire Expert’s Impact Damage Theory Admitted

    Case Details:

    Case Caption: Smith V. China Manufacturers Alliance LLC Et Al
    Docket Number: 2:19cv1111
    Court Name: United States District Court, Louisiana Western
    Order Date: July 02, 2025
  • Forensic Pathology Expert Witness’ Expertise did not Extend to Prison Operational Procedures

    Forensic Pathology Expert Witness’ Expertise did not Extend to Prison Operational Procedures

    Shonnica Anderson, representing the estate of her son Marcus Hayes, who died by suicide in a Georgia prison, sued prison officials for Eighth and Fourteenth Amendment rights violations and the Georgia Department of Corrections (GDC) for negligence. A key point of contention arose over the expert testimony of Defendants’ medical examiner expert Dr. James Claude Upshaw Downs.

    Downs, a forensic pathologist, provided expert opinions that included:

    • Hayes died from ligature self-strangulation.
    • He detailed the time frame in which Hayes would have lost consciousness.
    • Crucially, he asserted that Hayes had “little hope of survival” due to “multiple temporal barriers” to rescue, rendering a successful rescue “highly unlikely.”

    Forensic Pathology Expert Witness

    James Claude Upshaw Downs has been a Medicolegal Consultant & practicing Forensic Pathologist/Medical Examiner for over 31 years. His medical practice includes serving as the Medical Director of the Physician Assistant Program at Charleston Southern University. Downs also serves as Associate Medical Examiner for Gwinnett County Georgia and as a Forensic Pathologist for the Charleston County SC Coroner’s Office. His service work includes the Cold Case foundation, examining unresolved complex cases.

    Get the full story on challenges to James Claude Upshaw Downs’ expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    Anderson’s legal team challenged Downs’ qualifications and the reliability of his testimony, specifically targeting his conclusions about the likelihood of a successful rescue.

    Qualifications

    The core argument focused on Downs’ lack of expertise in prison operations, suicide intervention, and correctional officer standards. His own deposition revealed he had no formal training or experience in these areas.

    The Court agreed, stating that determining the likelihood of rescue required expertise in how prisons “ordinarily, if functioning properly, operate.” Since Downs lacked this, his opinions on the probability of a successful rescue were deemed inadmissible.

    Reliability

    The Court focused on the portions of the experts testimony that stepped outside of his known expertise. The portions of his expert opinion that dealt with the medical aspects of the case where allowed, those portions that attempted to give expert opinion on the operation of the prision where not allowed. The Court did not throw out the entire testimony, but only the parts that where outside of his area of expertise.

    The Court emphasized that while Downs was qualified as a forensic pathologist, his expertise did not extend to prison operational procedures. It stressed that exclusion of expert testimony is the exception, not the rule, and determined that the the wholesale exclusion of his testimony was not required.

    Held

    The Court granted Plaintiff’s motion to exclude as to Dr. James Claude Upshaw Downs’ sixth conclusion and those parts of his seventh conclusion concerning the likelihood of a successful rescue.

    Key Takeaway:

    Just because an expert is qualified in one area (e.g., forensic pathology) doesn’t automatically qualify them to testify on all related matters (e.g., prison operations). Courts carefully scrutinize an expert’s qualifications to ensure they align with the specific topics they address. Determining the likelihood of a successful rescue in a prison setting requires expertise in prison operations, not just medical knowledge.

    Case Details:

    Case Caption: Anderson V. Georgia Department Of Corrections Et Al
    Docket Number: 1:21cv2585
    Court: United States District Court, Georgia Northern
    Order Date: February 27, 2025