Judge asked to strike testimony in Flint manslaughter case

Beth LeBlanc and Leonard N. Fleming
The Detroit News
Attorney John Bursch takes a strong track record before the Supreme Court when he argues on Tuesday that Michigan’s same-sex marriage ban should be allowed to stand.

The lawyers for the state health director charged with involuntary manslaughter in the Flint water contamination prosecution are asking a district judge to strike the testimony of the attorney general’s expert witness.

Without proof from Dr. Joel Kahn that Flint area residents Robert Skidmore and John Snyder died from Legionnaires' disease, the attorney general is unable to sustain a manslaughter charge against Michigan Department of Health and Human Services Director Nick Lyon, defense lawyers John Bursch and Charles Chamberlain wrote Tuesday in a motion to disqualify Kahn’s testimony.

The testimony of Kahn, a nationally known cardiologist from Metro Detroit, is inadmissible because he does not have training in infectious disease, pulmonology or Legionnaires’ disease, though the doctor testified any cardiologist treating Legionnaires’ should consult with “an expert in infectious disease or pulmonology,” the motion said.

The defense lawyers are welcome to lay out whatever arguments they like, but it doesn't mean they are correct, said Andrea Bitely, a spokeswoman for Attorney General Bill Schuette. 

"Twelve people died in Flint from Legionella, children were poisoned by water from their taps," Bitely said in an email. "The lives of families in Flint were forever changed, and the attorney general is pursuing justice for them."

Kahn, a clinical professor of medicine at Wayne State University, testified during Lyon’s preliminary hearing in February that Snyder died of Legionella and pneumonia “rather rapidly” in 2015, and that the Legionnaires “triggered” Skidmore’s death the same year.

Dr. Joel Kahn, a clinical professor of medicine at Wayne State University

In an interview, Kahn said he didn’t understand why Lyon’s attorneys are questioning his qualifications, since 67th District Court Judge David Goggins accepted his testimony after a court debate.

Doctors are required to have medical knowledge outside of their predominant speciality, the cardiologist said.

Both Snyder and Skidmore "had cardiovascular disease and my testimony was quite detailed about the nature of their cardiovascular disease and Legionella was a cause of death," Kahn said. "In Skidmore, it was the only cause of death.”

Lyon is charged with involuntary manslaughter and misconduct in office connected to the 2014-15 Legionnaires’ outbreak that killed at least 12 people and sickened another 79 people in the Flint area. Republican Gov. Rick Snyder did not declare a public warning about the Legionnaires’ cases until mid-January 2016 and has defended Lyon.

Lyon’s preliminary exam to determine whether he will proceed to trial is scheduled to hear closing arguments next week and could be wrapped up by the end of July.

Kahn was asked by Special Prosecutor Todd Flood’s team to review records from Snyder’s two stays at the McLaren Regional Medical Center during June 2015 for myriad ailments that included chronic leukemia, rheumatoid arthritis and heart issues.

Dr. Jeffrey Band, an infectious disease doctor who works at Beaumont Hospital in Royal Oak, contradicted Kahn’s analysis in a March hearing for Lyon. He argued Snyder had died of acute respiratory distress syndrome and Skidmore of progressive heart failure.

Death certificates for Skidmore and Snyder indicate they died from congestive heart failure and health issues associated with pneumonia. But “the certificates say nothing about Legionnaires’,” according to the defense motion filed Tuesday.

Chamberlain and Bursch, a former solicitor general for Schuette who has argued before the U.S. Supreme Court, maintained Kahn "falls flat on every measure" required of an expert witness for the Legionnaires' prosecution. 

"He has never treated a patient for Legionnaires' disease, has never authored a journal article or lectured on the illness, and he has only ever authored articles on endocarditis, an infection not at issue in this case," they wrote.

Bursch said Friday he will be giving the closing arguments in court next week for the Lyon defense team. He hasn’t appeared in court but has helped with Lyon case.

“I’ve argued 11 U.S. Supreme Court cases, 28 Michigan Supreme Court cases, so this is kind of my bailiwick," Bursch told The Detroit News, noting that he has known Lyon for years and has represented the state health department in court.

“I think we need to walk through the elements of each one of the charges and simply explain how there’s a lack of evidence that supports each one of those,” he added. If Goggins agrees that "any one element hasn’t been satisfied on each charge, then that’s the end of the case. I think that’s what the record will show once we are there next week.”

In a Friday filing, Lyon's defense team also asked Goggins to dismiss a misdemeanor charge that  of "willful neglected" to protect the health of Genesee County residents — an accusation that Flood added on Tuesday.

“The prosecutor fails to describe even one specific act of Director Lyon that constituted willful neglect,” according to the defense team’s motion to dismiss the charge, which included Michigan precedents about the proper application of "willful neglect" charges.

The Attorney General's Office could not immediately be reached for comment on the new dismissal motion. 


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