Pennsylvania Record

Sunday, September 22, 2019

Not much good news for company blamed for man's post-arrest, opioid-related death

Federal Court

By Charmaine Little | Jul 11, 2019

Justice Jan E. DuBois

PHILADELPHIA – On June 19, the U.S. District for the Eastern District of Pennsylvania granted in part and denied in part a health group’s motions to exclude expert testimony in a case that involves a man who died from an opioid overdose while in police custody.

The decedent's son, David Wichterman, filed the lawsuit alleging violation of the Fourteenth Amendment, 42 U.S.C. Section 1983, after his father, Daniel Wichterman, died while in a holding cell at the Philadelphia Police Department on June 30, 2015. 

Daniel Wichterman had been arrested and charged with suspicion of driving under the influence of narcotics. The cause of death was determined as an opioid overdose. David Wichterman sued police correctional officers Justin Avery, William Gwalthney and Lavern Joyner along with a nurse at the City of Philadelphia Police Detention Unit, Tairu Wahabu. 

He also sued the City of Philadelphia and claimed negligence against Wahabu and her employer, Corizon Health Inc. Corizon is the party that asked the court to exclude expert testimony from Robert L. Cohen, M.D. and Sarah E. Wakeman, M.D. 

Judge Jan DuBois granted the motions in part and denied the motions in part.

Cohen was an expert on the plaintiff’s side described as a “correctional health expert.” He said in his report that Wahabu violated Corizon’s practices and the standard of care, which led to not properly evaluating Daniel Wichterman when he lost consciousness. 

“Wichterman could have been saved by emergency intervention,” the report explained. Cohen is properly qualified to serve as an expert witness thanks to his history of overseeing medical services for 13,000 prisoners in New York City and managing a staff of roughly 500 doctors, nurses, psychologists and more, the decision said.

DuBois also determined Cohen was reliable.

“Cohen’s conclusions as to causation are based on his experience as a medical doctor working in correctional medicine and on his review of the record, as described above, including the inspection of eighteen depositions, video footage, and exhibits. Cohen’s expertise, applied to the facts of this case, renders his causation opinion reliable,” DuBois wrote.

As for whether Cohen was fit, the court said his report was extremely valid concerning standard of care and causation. But when it came to using the phrase “blatantly indifferent” when speaking on Wahabu’s behavior, the court said it agreed with Corizon that the phrase doesn’t help the jury determine the evidence at issue, and could come across as misleading. Considering this, the motion to exclude Cohen’s testimony was granted in part and denied in part.

With regard to the motion to exclude Wakeman, who’s described as an “addiction medicine expert” for the plaintiff, the court determined she wasn’t qualified to testify, considering she never worked for a correctional facility. But DuBois did say she was reliable enough to depend on her own expertise when it came to developing a professional opinion on the case.

“Wakeman appropriately relied on ... the toxicology test results, autopsy report, mental health records, repots of plaintiff’s forensic pathology expert, and her own expertise in addiction medicine to develop her opinion that Wichterman’s overdose was the result of his pre-arrest ingestion of both opiates and benzodiazepines,” DuBois wrote. “Wakeman’s opinion is based on good grounds.”

But since Wakeman couldn’t properly testify to the standard of care, she also couldn’t speak to Wahabu’s actions that allegedly infringed on Corizon’s policy, causing the testimony to not be a good fit.

In her report, Wakeman said Wahabu’s actions didn’t comply with Corizon’s, and that the evidence shows the overdose was a result of pre-arrest ingestion from opiates and benzodiazepines. He would have been able to survive if he was properly treated, Wakeman said.

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