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A woman convicted of poisoning her two children should not pay $8,500 in sanctions for filing a negligence claim against the state’s expert witnesses, because the claim was not frivolous, the West Virginia Supreme Court of Appeals has ruled. Former nurse Marybeth Davis is serving a life sentence for murdering her daughter with caffeine-laden diet pills and injuring her son with insulin. She claims the prosecution’s doctors failed to meet professional standards in performing tests, preparing for testimony and testifying. Her own experts say her children suffered from genetic diseases. GOOD-FAITH ARGUMENT Without deciding the boundaries of expert witness immunity, the state’s high court said a good-faith argument exists for extending the law in West Virginia to impose liability on experts. Davis v. Wallace, No. 29966. Although fact witnesses enjoy absolute immunity as encouragement to speak frankly, the court noted that some recent cases say the same policy concerns do not apply to expert witnesses, who are hired to testify for a party’s benefit. The state participated as an intervenor because Davis’ suit was against six of its witnesses in the underlying criminal case. Mark Burnette, who handled the case until his term as prosecuting attorney ended last winter, said that “some cases allowed you to sue your own expert if they went south on you, because there’s an implied contract in that relationship. But not a single case in the country allowed a suit against the opposing party’s expert witnesses.” The court’s 3-2 ruling lifts the sanctions against Davis and her attorney, Paul S. Detch, but the negligence claim will not be reinstated because the dismissal was never appealed. In the criminal case, the state theorized that Davis suffered from Munchausen Syndrome By Proxy, a condition where parents harm their children for attention. Davis’ son, Seth, was 6 weeks old in 1981, when he had a seizure. Medical professionals discovered his blood sugar was abnormally low. State experts testified that the infant may have been injected with insulin. But defense experts said Seth’s condition was the result of human growth hormone deficiency; at 16, Seth was only 4 feet, 3 inches tall and 57 pounds, with brain damage. Five months after Seth had his seizure, Davis’ 3-year-old daughter, Tegan, suddenly died. An autopsy pathologist said she found time-released caffeine capsules in the girl’s intestines. Some empty blister packs of a diet drug, which probably contained caffeine, were found in Davis’ garbage. The state’s doctors said Tegan died from a caffeine overdose, but defense experts testified that the girl died from Reye’s Syndrome. “This case is important because the Supreme Court [of Appeals] had the opportunity to provide immunity for expert witnesses, but instead, it said the issue was debatable,” said Detch. “But I wish the court had given more guidance about what recourse criminal defendants might have against unscientific experts.” Burnette said this case has a “dramatic chilling effect. Why would an expert testify for a couple hundred bucks an hour when they could get sued for millions?”

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