The Expert: Dr. Mark Shuman, a Florida pathologist testifies for the defense on what is typically needed to diagnose smoking-related lung cancer. The defense contends there is insufficient evidence to link smoking to the cancer underlying the case at issue.
In this 2019 product liability case out of Palm Beach County, Florida, the plaintiff maintained that the defendant tobacco company, and indeed the tobacco industry, had schemed to conceal the dangers of smoking and hook young smokers on cigarettes, including the plaintiff’s mother who died at age 42 from cancer. Although the plaintiff claims the smoker’s tobacco use led to her cancer, Dr. Mark Shuman, a Miami forensic pathologist, supported the defense view that this could not be proven.
The patient had died in 1992 from tumor metastasis to the brain. However, the records were not readily available to the expert and an autopsy had not been performed. As such, the doctor’s retrospective review of the case was hindered by the lack of clear identification of the type of tumor that metastasized, its origin, or even X-rays that would support the plaintiff’s contention.
The expert distinguishes between how a treating physician would handle this case as she attempts to discover, characterize, and ultimately treat the disease process, as opposed to his investigation, which would determine simply what the disease process was and how the patient died. In this case, “there was very little information available” from 1992 for the pathologist.
As a medical examiner, Shuman has testified in over 100 past criminal cases (mostly homicides), but also has wide experience testifying in civil cases such as medical malpractice or wrongful death cases. Twice he has testified at trial regarding tobacco companies, but has given 10 depositions outside of trial on this same subject.
He emphasizes that in this case most of what he usually reviews to make a judgment was not available to him, including X-rays, CT scans, or their reports. Pathology tissue would also be reviewed ordinarily, but neither the tissue nor the reports were available for his review. Since all of this critical information is missing, the doctor could not say at this time where the tumor initially arose.
Under questioning, Shuman addresses the death certificate. This was signed by a hospice doctor who had no part in the patient’s care, so the accuracy of its statements is not entirely reliable. Specifically, when a doctor fills out a death certificate, this only serves the purpose of declaring the patient dead for legal reasons, but any suppositions regarding pathologies that were present or the actual cause of death are not determined by the declaring hospice doctor. The pathologist is ultimately the specialist who puts the physical and pathological history together to determine the actual cause of death. While Shuman agrees that there were brain metastases, he cannot say where the pathology originated based upon the information he has seen, so he cannot relate them indisputably to tobacco use.
Finally, Shuman describes the basic principles in performing an autopsy. Taking into account the lack of documentation, pathology slides, or an autopsy addressing the tumor’s origin in 1992, the doctor emphasizes that it is impossible in this case to say where the tumor arose or to be sure what type of tumor it was.
The jury concurred, rendering a verdict for the defense.
Gary Gansar, MD, is residency-trained in general surgery. He served as Chief of Surgery and Staff at Elmwood Medical Center and on the Medical Executive Committee at Touro Infirmary and Mercy Hospital in New Orleans, LA. Dr. Gansar was Board Certified in general surgery while in active practice. He joined AMFS in 2015 as a Physician Medical Director.
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