A forensic pathologist whose work on infant autopsies came under fire earlier this year has had a wide footprint in Montana.
Dr. Thomas Bennett of Billings was thrust into the limelight because of his flawed autopsies on children.
However, his work in Montana extends far beyond those autopsies and autopsy reviews he conducted at the behest of county coroners.
A newly restructured State Medical Examiner's Office in Missoula will no longer require the services of contracted pathologists such as Bennett. The Montana Attorney General's Office made the change after the resignation in April of the longtime, Missoula-based state medical examiner – and the subsequent departure in July of his deputy.
Both resignations were linked to Bennett.
Last week, the new state medical examiner was continuing to implement changes to revamp the office.
Bennett's future in Montana isn't clear. The doctor closed out his contract work for county coroners with a marred record, and with his expert testimony on the witness stand called into question.
A criminal law professor at the University of Montana said it's possible old cases may be compromised as a result, but the state generally has relaxed rules for the admission of expert testimony — and allows testimony many consider "junk science."
Meanwhile, coroners in eastern Montana have sought after Bennett's pathology services. Greg Kirkwood, president of the Montana Coroners Association, said coroners valued Bennett's efficient work, and he will recommend the doctor's private services to families.
Kirkwood said Bennett delivered results much faster than did the State Medical Examiner's Office in Missoula.
An independent review of six of Bennett's infant autopsies requested by the Montana Attorney General's Office in April cited errors in each case, but Kirkwood said experts are often paid to seek particular conclusions.
"He's always been very professional. He always, in my opinion, did quality work," said Kirkwood, president of the coroners association.
Bennett did not respond to requests for an interview. Earlier, however, he said the Attorney General's Office did not provide the reviewer with complete information on the autopsies in question.
Records show the Billings pathologist testified on behalf of both prosecutors and defendants in the state, and in civil and criminal trials.
Since 2006, the Office of the State Public Defender paid Bennett and his practice in Billings nearly $160,000 for work across Montana. Chief public defender Bill Hooks earlier said he believed Bennett had provided the bulk of the expert testimony for his office over the years.
"There aren't a lot of forensic experts available in Montana," Hooks said.
From roughly 2007 through 2012, the doctor offered forensic testimony in Montana court cases more than 100 times, including nine federal disputes, according to a list of his appearances. The list was provided to the Missoulian by a lawyer who requested it of Bennett during a deposition.
In March, former state medical examiner Gary Dale signed an affidavit that said he believed Bennett had "testified falsely under oath."
UM professor Jeff Renz, who has called on the Attorney General's Office to widen its review of Bennett's autopsies beyond those on infants, said if the lie is material to the outcome, the prosecutor must disclose it to the defense in future cases.
However, he also said just because someone lies in one case doesn't mean they lied in an earlier case. And he said the subject at hand must be material to a case in order for it to be reopened.
"If you take away Bennett's testimony and can't say there's proof beyond a reasonable doubt, that is a scenario for reopening a past conviction," Renz said.
That scenario also may be rare.
Hooks declined to address whether he believed any of the public defender's cases might be compromised because of Bennett's testimony.
Even if outlandish, testimony that professionals offer as experts in court is admissible in Montana and other states. Renz said Montana lets juries sort out differing theories, and in doing so, it lets parties pay the price.
"When you keep the bar so low, you get trials, civil trials that are simply battles of experts. And it's expensive," Renz said.
Federal standards are higher and, according to Renz, set more appropriately.
In a recent case in Georgia, Bennett testified in a deposition that a toddler killed in a fiery car crash died of a rare injury – diffuse axonal injury – before the flames reached his body, according to court documents in Walden v. Chrysler.
Witnesses, though, including a woman who tried to rescue the boy from a car window, saw the child waving his arms, and heard him screaming and crying.
The defense never put Bennett on the stand because he was not a credible witness, said lawyer Jim Butler, who represents the Walden family.
Butler wrote the following in a court document: "Bennett regularly testifies on behalf of automobile manufacturers that victims of fuel-fed fires were killed not by the fires but by 'DAI' before the fires reached them."
The lawyer grew disgusted with the antics and has grilled Bennett in depositions to reveal his background.
In Walden, the jury awarded the family $120 million for the full value of life and $30 million for pain and suffering, Butler said. The trial judge reduced the verdicts to $30 million for the value of life and $10 million for pain and suffering.
The case is being appealed.
Yellowstone County Attorney Scott Twito said he doesn't anticipate old cases in Montana being reopened due to one individual's work. In Billings, he said, it's common practice to get a second opinion in cases, and law enforcement officers don't rely on one pathologist's opinion but on multiple professionals.
"And I've probably done as many homicides as anybody in the state," Twito said in an earlier interview.
The vast majority of autopsies Bennett did in Yellowstone County were on adults, he said, and he believes the pathologist did good work and generated reports quickly.
At the same time, Twito said he's pleased Attorney General Tim Fox has reorganized the State Medical Examiner's Office with a deputy examiner who will work in Billings, a hub for the region. He described the change as "a long time coming."
"Oftentimes, what gets lost in all of this is our state is gigantic as far as geography. But we are also over a million people now, and that's a lot of autopsies and suspicious deaths occurring," Twito said.
The National Association of Medical Examiners has cited a "significant shortage" of certified forensic pathologists across the country.
With a population of roughly 1 million, Montana should have four full-time, board-certified forensic pathologists "to optimize opportunities for public health and public safety," said NAME president Marcus Nashelsky.
"NAME recommends an individual forensic pathologist’s annual autopsy number not exceed 250, with 325 as an upper limit of acceptable," Nashelsky said in an email. "In my opinion, 250 is the right number for best practice.
"At some point, one person performing too many autopsies will degrade the excellence of each examination."
Dr. Jaime Oeberst, Montana's new head medical examiner, said she anticipates the caseload at the office to be well within accreditation standards, the ratio recommended by NAME, once all staff are hired.
Ultimately, the office will be comprised of three pathologists and two assistants, she said. Of those, one pathologist and one assistant will work in Billings.
One pathologist will begin work in Billings in December, and another candidate has been offered the job as the second pathologist in Missoula. She anticipates the office will be fully staffed by January.
"I think that's the first and biggest step to getting the system started," Oeberst said.
Drs. Gary Dale and Walter Kemp, the forensic pathologists and former state examiners whose concerns catalyzed the change in the State Medical Examiner's Office, have stayed mostly mum since their departures. Their letters of resignation and other correspondence revealed the issues they raised.
Time will tell if more fallout is in the offing because of the work of one pathologist. In a city outside Billings, one family believes the 2012 death of their 41-year-old loved one may not be suicide, and they are pursuing a private investigation (see related story).
In the autopsy report, Bennett described the man's head wound as consistent with being self-inflicted, and he is among numerous county and state law enforcement officials who reviewed the case.
The Montana Attorney General's Office has not directly addressed whether it will widen its review of Bennett's work to include adult cases.
"The Attorney General's Office would review individual medical cases whenever it's deemed necessary," Anastasia Burton, deputy communications director, said in an earlier statement. "We will continue to take all steps we believe to be appropriate and necessary, and work to implement our plan for accountability, quality, and improved stakeholder community in state autopsy services."
According to a deposition, Bennett also does work for coroners in Idaho, Wyoming, North Dakota and South Dakota.
In an earlier letter, he defended his work, and said conclusions among experts may differ based on evolving medical theories. He also said he had performed numerous autopsies for the Shodair Children's Hospital, St. Vincent HealthCare, and Billings Clinic.
Last week, a spokeswoman from Shodair said Bennett did not do work for the Helena hospital. A representative from the Billings Clinic said the clinic used his "non-forensic autopsy" services on a limited basis.
St. Vincent did not respond to requests for comment.