Dr. Melinek has indicated in writing that she is available and willing to serve as an expert witness in any future litigation. This is expected and understandable, as she was retained privately to conduct a review of Maxs death over the past 9 months or so. While a quest for understanding and comfort is often the catalyst for retaining such experts, common sense also indicates that there is likely civil litigation being strongly considered, and these experts analyses retained by DS (Bove and Melinek) are part of laying foundation for any potential litigation. It is also logical to conclude that these experts, having performed a collaborative review, would be retained together as experts for DS as a plaintiff, if litigation proceeds.
One of the things I think should be a bit concerning for DS, is Dr. Melineks recent history as a plaintiff expert (both in the Burford case, and the Overton case.) There is a possibility that her testimony may be challenged and disregarded, due to improper inferential leaps. I respect Dr. Melineks credentials. Dr. Melinek has a very celebrated career and a laudable CVshe is a well respected expert by many measures. I cannot, and will not fault any of her career positions or resumeshe appears to be a consummate professional, and legitimately concerned about her clients, from what is available on the internet on cases she has participated in. She is a rock star. So why be concerned that she could potentially have any difficulty as an expert witness? A recent history of improper inferential leaps, and a less than robust written report, that resulted in her testimony being dismissed in the Burford case, and problematic testimony in the Overton case.
Dr. Melineks very laudable CV and notoriety may possibly be interfering with her ability to be an effective expert witness. She may be reaching too far in her opinions. Hard, humble, and intensive work is needed by experts to persuade juries and judges that their opinions are based in hard science, and not
subjective belief, unsupported inferences, or speculation.
Dr. Melinek was retained by plaintiff as an expert in the Burford v Glaxo Smith Kline suit. One can conclude that any case that involves a suit against a manufacturer as large and prominent as Glaxo Smith Kline should have a large chunk of attention by any expert retainedparticularly if one is testifying for the plaintiff. In Jan 2011, the judge in the case, Cynthia M. Rufe, granted the defendants (GSK) request to exclude Dr. Melineks opinion in a civil suit brought by the estate of the plaintiff against the pharmaceutical manufacturer. In this opinion, the judge stated:
Dr. Melinek is a forensic pathologist who is an Assistant Medical Examiner in San Francisco, CA. In a very brief report, the substance of which covers less than two pages, Dr. Melinek opines that Burford suffered a fatal myocardial infarction due to a ruptured atherosclerotic plaque in the coronary artery, and further opines that Avandia was a significant contributing cause of his death. To form her opinion, she relied upon general research on Avandia, package inserts and warnings for Avandia published by GSK, the reports and testimony of other experts, Burford's death certificate and the medical examiner's reports, a hospital autopsy report, and her own analysis of Burford's tissue samples from prepared slides. She also had access to Burford's medical records dated January 3, 1991 through his death on November 21,2006.
The problem for this Court is not that Dr. Melinek fails to identify that Avandia as the sole cause of Burford's myocardial infarction. Rather this Court is troubled by the fact that Dr. Melinek points to nothing more than the epidemiological research to support her opinion that Avandia played a role in Burford's fatal myocardial infarction. Turning to Dr. Melinek's deposition testimony, the Court finds no testimony from which it can conclude that Dr. Melinek used reliable methods to conclude that Avandia was a contributing cause of death in this specific case.
The Court concludes that Dr. Melinek made an improper inferential leap from general causation to specific causation in her report, without any evidence to show that Avandia caused or even contributed to Burford's myocardial infarction. Accordingly, the Court will not permit Dr. Melinek to testify as to her opinion regarding the role of Avandia in Burford's death.
http://www.paed.uscourts.gov/documents/MDL/MDL1871/opinions/Specific causation opinion.pdf
Now, if we compare that recent history (which I would characterize as a professional tongue lashing), and consider Dr. Melineks recent report commissioned by Dina Shacknai, the concerns about the use of sources and references in her opinion, such as a People Magazine article, personal memorial photobooks, multiple discussions from an anonymous, non-professional, (and hate filled) internet chat forum, and Wikipedia articles, becomes rather magnified in significance, IMO.
IMO, Dr. Melineks opinion written for DS would have much more weight, and relevance, if she had referenced even a single forensic text, website, or professional journal article as part of her opinion that an assault happened. We already know that it was Dr. Melineks opinion that an assault may have occurred that shaped and framed the analyses of Dr. Bove.
It appears from these sources (and others with identical wording) that Dr. Melinek completed her review first, and then proposed her scenario to Dr. Bove, the second independent expert retained by Dina Shacknai (DS).
http://wtop.com/209/2457746/Mother-of-boy-who-died-at-mansion-seeks-new-probe-
Bove reported that Melinek proposed a scenario in which the boy was assaulted and "moved or was moved" over the railing, according to the press statement.
http://www.sacbee.com/2012/08/06/4699061/new-information-provided-by-independent.html
Dr. Bove reports, "Dr. Melinek has proposed a scenario in which Maxfield Shacknai was assaulted, which resulted in the facial and forehead injuries sustained by Maxfield Shacknai. In her scenario, as a result of this assault
..
Dr. Bove was directed, imo, in his work to take a speculative inference, and run the numbers until they fit well enough that he said uncle. After several days of reading, I believe he was NOT given complete license to run the numbers on many DIFFERENT scenarios; rather, only the target scenario of the theory of assault. I think it is very noteworthy that Dr. Bove is not willing to say anything intentional happened. He breaks ranks with Dr. Melinek at that point in the process.
So, we are left with the question,
has Dr. Melinek, once again, made an improper inferential leap? To what extent did the People Magazine article, anonymous internet forum discussions, and Wikipedia articles contribute to this improper inferential leap? This is little more than rumor and innuendo. What percentage of Dr. Melineks opinion rests on these sources?
Surely an opposing attorney will ask many, many questions about how she processed and interpreted, and assigned relevance to the anonymous, unsubstantiated internet forum discussions, and Wikipedia and People articles.
Surely Dr. Melinek must understand on some level how
terribly embarrassing that line of questioning would be for her professionally in a deposition or in courtso the question begs, why??
Why include frivolous, unsubstantiated, unreliable, anonymous sources in this report? Why not run the scenario instead past several of her established professional colleagues, and include them by name in her report? I was right there with her in the reportright up until the People magazine citation. From that point on, I was simply baffled that she would even admit that she read or received the blog discussions, Wiki entries, etc. Its like she started writing a scholarly review of the case records, but then digressed into a middle school social studies project.
Its not the caliber and quality I would expect from a professional at her level, IMO. If I were a jury member, Id want to hear a whole lot of explanation about why those sources were somehow better than using established scholarly professional references to support her opinions. It feels like junk sciencethats the best description I can give. An improper inferential leap.