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Dr. Fred Hochberg

Expert in false testimony

Court issues $20,000 judgment against expert witness: Neurologist misled jurors

Dr. Fred Hochberg

A Massachusetts General Hospital neurologist has been ordered to pay more than $20,000 in legal fees after a judge in Lawence ruled this week that he deliberately misled a jury in a malpractice case, forcing her to order a new trial.

The unusual ruling, legal analysts said, will probably send a warning to expert witnesses who stretch the truth in medical cases across the country.

Superior Court Judge Diane M. Kottmyer found that expert witness Dr. Fred Hochberg committed "fraud on the court" in his defense of a doctor who did not provide emergency drugs to a stroke victim that might have reduced the neurological damage she suffered. Hochberg argued that the patient wasn't a good candidate for the drug, called t-PA, because she had just finished treatment for breast cancer.

“Judge doesn't just suggest he is a liar
... says it”

The defense succeeded with a jury, but Kottmyer ruled that Hochberg knowingly mischaracterized a major study of t-PA's effectiveness. She said he "deliberately created the false impression" that he had reviewed research materials connected with the study that he had never seen. The judge also disputed Hochberg's claim that he had consulted with a researcher who helped prepare the t-PA study.

"The judge doesn't just suggest this guy is a liar; she says it outright," said David Yas, publisher of Boston-based Lawyer's Weekly, a national newspaper for lawyers. "This is the type of opinion that is getting faxed to lawyers not just in Massachusetts, but across the country."

On Tuesday, Kottmyer ordered a new trial for the family of Sherry Wojcicki, who was confined to a wheelchair after the stroke until her death in 2001. The judge ordered Hochberg to pay her family $17,355 in lawyer's fees and expenses and to pay another $2,950 to the state for the cost of mounting a new jury trial. Finally, the judge required the defendant, Dr. Joan E. Caragher of Anna Jaques Hospital in Newburyport, to pay Wojcicki's family $68,380 in legal costs, but suggested that Caragher might recover the money from Hochberg.

Hochberg's attorney, William J. Dailey Jr., said he was disappointed in Kottmyer's decision. He said the judge did not question Hochberg's opinion that people with active cancers shouldn't take t-PA. She just questioned the evidence that he used to reach it.

"This is an event that no physician would want to have occur and it's a chilling event to anyone who provides or is thinking about providing any expert testimony," said Dailey, who said he would appeal the ruling.

David Gould, the lawyer for Caragher, also promised to appeal, saying, "I can't stress how strongly I disagree with the judge's decision."

Lawyers routinely attack the opposing experts in civil lawsuits, but usually the dispute comes down to differences of expert opinion, rather than fact.

Michael E. Mone, a former president of the Massachusetts Bar Association who has practiced civil law in Boston for more than 30 years, said he had never seen a similar ruling on the credibility of an expert witness in Massachusetts or any other state. Normally, he said, lawyers can't find information that is definitive enough to prove an expert is deliberately lying.

"What you have is a combination of a very courageous lawyer . . . and the judge who was very courageous to do what she did," Mone said.

Officials at the state Board of Registration in Medicine, who license the state's doctors, said they don't normally punish doctors for misleading testimony since it is not technically the practice of medicine. However, spokesman Russell Aims said the board could punish Hochberg if it determined that his testimony "undermines public confidence in the practice of medicine."

Caragher, an emergency room doctor, prevailed in the original jury verdict last November. But the Wojcickis's attorney, Marc L. Breakstone, was troubled by Hochberg's testimony regarding a 1995 study that brought dramatic change in the care for people who suffer the most common type of stroke. The study found that t-PA, if given within three hours of the start of symptoms, can significantly reduce neurological damage from a stroke by dissolving the clot that caused it.

Hochberg said during testimony that the study excluded cancer patients, so conclusions about the benefits of t-PA wouldn't apply to them. Breakstone learned after the trial that 59 of the 600 patients in the study had suffered from cancer and Barbara C. Tilley, the biostatistician in the project, said cancer patients were not excluded.

After a posttrial hearing to allow Hochberg to explain, Kottmyer ruled that Hochberg had deliberately given the jury a false impression that his claims were based on a personal review of the computer files from the study that provided medical information about each of the study participants. At the hearing, Hochberg conceded that he had not reviewed the files but said his claim that cancer victims were left out of the research was based on a phone conversation with Tilley in her South Carolina office.

But Kottmyer did not believe Hochberg, saying in this week's ruling that Tilley had no recollection of speaking with Hochberg and that Hochberg could only produce telephone records of a 30-second conversation. Also, the judge found that on that day, Tilley was travelling in California and not at her office.


Doc fined $88G for deceiving jurors

A judge has slapped a prominent Massachusetts General Hospital neurologist with $88,685 in sanctions for deceiving jurors as an expert witness in a malpractice case last year.

In a stunning reprimand that reverberated through legal circles, Superior Court Justice Diane Kottmyer ruled Dr. Fred Hochberg "deliberately misled the court and the jury" and later lied in a deposition to cover himself.

Kottmyer ordered Hochberg to cough up $70,770 in attorneys fees, $14,965 in expenses and to reimburse the state $2,950 for providing jurors for a second trial.

"It's striking to see a judge call out a witness as sharply as this. It's something you don't typically see," said David Yas, editor of Massachusetts Lawyers Weekly.

Hochberg, an associate professor at the Harvard Medical School and a nationally known neuro-oncology authority, was brought in as an expert witness by lawyers representing a doctor sued for malpractice in the death of an Amesbury woman.

Three months after the jury ruled in favor of that doctor last fall, a judge ordered a new trial on the grounds that Hochberg's testimony was false and misleading. Tuesday's ruling stuck Hochberg with the bill.

"Hopefully this decision will be a warning to any expert who would come into our courts and fabricate testimony," said Boston lawyer Marc Breakstone, who represented the plaintiff.

Hochberg didn't return calls to his office yesterday, but his lawyer, William Daley, said he was disappointed by the ruling.

"The medical testimony that Dr. Hochberg gave was accurate," Daley said, adding, "What the judge is saying is that it's her impression that Dr. Hochberg suggested to the jury that he had reviewed data that he in fact had not reviewed."

Hochberg was suspended from leading research at MGH from 1996 to 1998 after federal auditors found patients getting wrong doses of an experimental drug and other problems with his studies.

It's not clear if Hochberg will now face discipline from the Board of Registration in Medicine.

"In the past, the board has not considered expert testimony to be the practice of medicine," board spokesman Russell Aims said.

However, he added, any conduct that undermines the public's confidence in the practice of medicine could be grounds for action.


Doctor ordered to pay more than $20,000 for misleading jury

A Massachusetts General Hospital neurologist has been ordered to pay more than $20,000 after a judge ruled he misled a jury, forcing her to order a new trial.

Lawrence Superior Court Judge Diane Kottmyer found that Dr. Fred Hochberg committed a "fraud on the court" when he testified in defense of a doctor at Anna Jaques Hospital in Newburyport who didn't provide emergency drugs to a stroke victim.

The victim's family claimed the drugs might have reduced the neurological damage she suffered, but Hochberg testified she wasn't a good candidate for the drug, called t-PA, because she'd just been treated for breast cancer.

The jury ruled for the defense last November, but Kottmyer ruled Tuesday that Hochberg "deliberately created the false impression" he'd reviewed materials connected with a major study of t-PA's effectiveness, even though he'd never seen them. She also disputed Hochberg's claim he'd consulted with a researcher who helped prepare the study.

Kottmyer ordered a new trial for the family of Sherry Wojcicki, who was confined to a wheelchair after her stroke. The woman died in 2001, and Kottmyer ordered Hochberg to pay her family $17,355 in lawyer's fees and expenses and $2,950 to the state to cover the cost of a new trial.

She also ordered the defendant, Dr. Joan Caragher, to pay Wojcicki's family $68,380 in legal costs, but suggested she might recover the money from Hochberg.

Hochberg's attorney, William J. Dailey Jr., said the ruling was a "chilling event to anyone who provides or is thinking about providing any expert testimony."

Dailey said the judge didn't question Hochberg's opinion that people with active cancers shouldn't take t-PA, just the evidence he used to reach it.

Caragher's lawyer, David Gould, said he would appeal.

"I can't stress how strongly I disagree with the judge's decision," he said.

Kottmyer reviewed the case after the lawyer for Wojcicki's family, Marc Breakstone, learned that the study on t-PA didn't exclude cancer patients, as Hochberg had said during testimony.

During a post-trial hearing, Hochberg conceded he hadn't reviewed the study, but said his claim was based on a conversation with the project's biostatistician, Barbara Tilley. But Tilley didn't recall the conversation and Kottmyer found that Tilley was out of her office the day Hochberg claimed he spoke with her.

"The judge doesn't just suggest this guy is a liar; she says it outright," said David Yas, publisher of Lawyer's Weekly. "This is the type of opinion that is getting faxed to lawyers not just in Massachusetts, but across the country."