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Defense medical expert OK’d to testify in Flight 3407 fatality

A medical expert for the defendants in the last of the Continental Connection Flight 3407 lawsuits can testify about what caused the death of Douglas C. Wielinski if the case goes to trial, a judge ruled Thursday.

But whether the plaintiffs’ two medical experts can testify on the same issue will depend on how State Supreme Court Justice Frederick J. Marshall rules after holding a hearing on a defense motion to bar them from testifying.

The Wielinski family has sued Colgan Air, which owned and operated the plane, as well as its parent, Pinnacle Airlines, and Continental Airlines, which contracted with Colgan.

The defendants contend that Wielinski died instantly from multiple blunt-force trauma when the twin-engine turboprop plane crashed into his Clarence Center home shortly after 10:15 p.m. Feb. 12, 2009, killing him and all 49 people aboard the plane.

They cite the Erie County medical examiner’s report and autopsy to back their contention.

The plaintiffs say the 61-year-old victim did not die immediately but survived the impact and experienced excruciating pain before he died from the heat as the house burned.

More than 40 lawsuits were filed after the crash; all except the Wielinski suits have been settled.

The trial had been set to begin this week with jury selection but was postponed for a settlement conference, following Marshall’s decision last week granting a defense motion to dismiss the Wielinskis’ claims for punitive damages.

Marshall found that the conduct of the pilot, Marvin D. Renslow, and co-pilot, Rebecca L. Shaw, and the defendants did not meet the requirements for punitive damages.

He said the crash was the result of pilot error and not “the result of any conduct by the defendants that manifested spite or malice, fraudulent or evil motive or a conscious and deliberate disregard of the interests of others.”

The trial will focus on the remaining claims for compensatory damages for Wielinski’s wrongful death, his pain and suffering, his family’s injuries and their pain and suffering. A second trial, to be held right after the first before the same jury, will focus on liability.

Karen F. Wielinski, the victim’s wife, and Jill M. Hohl, their daughter, were in the home at the time of the crash and were injured.

The Wielinskis’ attorneys asked the judge to hold a hearing on whether to allow the testimony of Dr. James R. Gill, the defendants’ medical expert, who agrees with the medical examiner that Wielinski’s death was instantaneous and that it was due to blunt-force trauma from the crash.

They contend that Gill’s opinion is not based on scientific methods that are established and accepted in the field of forensic pathology – a requirement for such a hearing.

Timothy Hudson, one of the family’s attorney, said their medical experts’ analysis of Wielinski’s tissue samples from the autopsy found edema or fluid in the lungs, which they say indicates Wielinski was still alive after the crash. He also cited their finding that Wielinski’s lungs were heavier than normal due to the fluid.

Hudson noted that Gill disputed the edema finding, because Gill said it was not mentioned in the medical examiner’s report and no soot was found in Wielinski’s respiratory system.

The attorney challenged Gill’s contention that it is impossible to have edema in the lungs without soot in the airways, citing a 2008 Federal Emergency Management Agency report on the subject.

Marshall denied the request for a hearing, saying the plaintiffs had failed to prove that Gill’s findings were not based on accepted scientific methods.

He said the plaintiffs’ medical experts disagree with Gill’s findings but do not contend that they are a departure from accepted scientific methods.

The judge noted that the plaintiffs brought their motion for a hearing on Gill’s testimony only after he issued a decision last week granting the defendants’ motion to hold a hearing on whether the plaintiffs’ medical experts – Drs. Joseph L. Burton and William R. Anderson – should be allowed to testify at trial about their opinions on the cause of death.

The judge ordered the hearing because he said Anderson’s opinion that Wielinski had edema in the lungs, when there is no such finding in the autopsy and when no irritant was found in the victim’s airways, represents “a departure from any accepted medical practice or methodology in forensic pathology following autopsy.”

Marshall also granted the defendants’ motion that Anderson be precluded from testifying at trial about the plaintiffs’ contention that Wielinski suffered pre-impact terror, noting that he had dismissed that claim.

The judge has not yet ruled on the defendants’ motion to dismiss the plaintiffs’ claim that Wielinski was still alive after the crash and experienced pain and suffering before he died.