Wrongful Death Cause of Death Disputes: What Attorneys Need From Forensic Pathology Experts

Every other post in this series has been about a tort: a molecule, a device, a platform, a facility. This one is about a single contested element that cuts across all of them. In a wrongful death case, the plaintiff has to prove that the defendant’s product or conduct caused the death, and the defense almost never concedes that. It concedes only that the decedent died. Then it argues the death was caused by something else: the underlying cancer, the comorbidities, the heart, the sepsis that was already running, the other drug, the age. That fight is won and lost on the death investigation record and on the pathologist who reads it.

The scale of the exposure is worth stating plainly. The September 1, 2026 report of the Judicial Panel on Multidistrict Litigation counted 166 pending MDL dockets holding 206,182 actions, with 716,121 actions filed historically across those dockets.¹ A meaningful share of the highest value claims inside those inventories are death cases, and every one of them turns on a cause of death opinion. The same is true in the single plaintiff work: medical malpractice, nursing home neglect, trucking, and product cases where the decedent died weeks or months after the event at issue.

The Litigation Landscape

Three 2026 decisions show how narrow the path has become for a cause of death opinion.

First, on the standard the opinion must meet. In Commonwealth v. Fitzpatrick, No. 95 MAP 2024, decided January 21, 2026, the Supreme Court of Pennsylvania held unanimously that expert testimony on the manner of a decedent’s death must be stated to a reasonable degree of certainty, the same standard that governs every other expert opinion. The Superior Court had created a lesser rule, reasoning that because a jury can determine manner of death without expert help, an expert opinion on that subject needed only to be probable. The Supreme Court rejected that and reversed, in a case where the forensic pathologist had conceded that his opinion was held only to a more likely than not level.² That is a criminal case, and Pennsylvania law rather than national law, but the opinion is the clearest recent statement anywhere of the distinction civil litigators have to keep straight: cause of death is the physiological process that made the person die, manner of death is the classification of the surrounding circumstances into natural, accident, homicide, suicide, or undetermined, and proof of one is not proof of the other.

Second, on what happens when the reasoning is thin. In Williams v. Leesburg Regional Medical Center, No. 5D2024-1910, decided January 30, 2026, Florida’s Fifth District Court of Appeal affirmed the exclusion of two successive sets of plaintiff causation experts in a malpractice death case involving an alleged delay in administering antibiotics. The trial court found that reliance on general literature recommending early antibiotics did not connect a twelve to twenty four hour delay to this death, and the appellate court affirmed for abuse of discretion.³ The lesson is not that the literature was wrong. It is that a causation opinion has to fit the specific decedent’s record.

Third, on the gatekeeping climate in the mass torts themselves. In the Camp Lejeune water litigation, the court on June 5, 2026 addressed whether experts may build the statutory at least as likely as not burden of proof into their scientific method, and held that where experts premise epidemiological conclusions on a reduced level of methodological rigor because the legal standard is equipoise, the opinion violates Rule 702.⁴ In the talc MDL, the Special Master issued a Report and Recommendation on January 20, 2026 resolving seventeen Rule 702 motions, the parties having been permitted to refile in full because of the 2023 amendment to Rule 702, and describing the task as rigorous gatekeeping on qualification, methodology, and fit.⁵ That docket alone held 69,250 pending actions and 71,935 total on the September 1, 2026 JPML report, the largest in the country.¹ And in the Ninth Circuit, Engilis v. Monsanto Co., No. 23-4201, decided August 12, 2025, affirmed the exclusion of a differential etiology opinion because the expert failed to reliably rule out one alternative cause, the court noting that the proponent must establish admissibility by a preponderance and that there is no presumption in favor of admission.⁶ All of these are allegations litigated under those rules. No finding of liability against any manufacturer is described here.

The Record at Issue

A cause of death dispute is a documents case before it is a medicine case. The materials that decide it are:

The death certificate. Under the federal instructions, Part I records the immediate cause on line (a) and the antecedent conditions on lines (b), (c), and (d), with the underlying cause, the disease or injury that initiated the train of morbid events, stated lowest in the sequence. Part II records other significant conditions that contributed to death but did not produce the underlying cause.⁷ Where the product related condition sits in that structure, Part I line (c) versus Part II, frequently drives the entire defense theory.

The autopsy report, if there is one. There usually is not. The 2020 national autopsy rate was 7.4 percent, the lowest in the period the National Center for Health Statistics tracked, and deaths in hospital inpatient, hospice, and nursing home settings were the least likely of all to be autopsied.⁸ Those are exactly the settings where product and negligence deaths occur.

The histology and retained tissue, the toxicology panel and the specimen source, the medical examiner or coroner investigative file, the scene and decedent records, the treating chart and imaging, and in many cases the terminal event nursing notes. When no autopsy was performed, the opinion has to be built from the clinical record, and the defense will say so.

The Science Behind the Claims

Four bodies of published evidence do most of the work in these disputes, and they cut both ways.

Clinical diagnosis is frequently wrong about why the patient died. The systematic review in JAMA in 2003 pooled 53 autopsy series over 40 years and found a median major error rate of 23.5 percent and a median class I error rate, meaning a missed diagnosis likely to have affected outcome, of 9.0 percent. Adjusting for case mix and autopsy rate, the authors estimated that a contemporary United States institution could still see major error rates between 8.4 and 24.4 percent.⁹

Death certification itself is error prone. A retrospective review of 179 autopsied cases at an academic center, published in Clinical Medicine and Research in 2019, found that 85 percent of death certificates completed by non pathologist physicians contained at least one error when compared with the cause and manner ultimately determined at autopsy, with more severe errors in 23 percent, and no certificate in the study period was amended after the autopsy was finalized.¹⁰ An independent check in a fully autopsied cohort of 268 former nuclear workers, published in PLOS ONE in 2024, found that death certificates identified the correct ICD-10 chapter for the underlying cause in 74.6 percent of cases, with under classification reaching 47.4 percent for respiratory disease, and that the odds of agreement were 3.4 times higher when the certificate was completed using autopsy findings.¹¹ Counsel on either side should stop treating the certificate as a finding and start treating it as a hearsay opinion formed by whoever happened to sign it.

Postmortem toxicology numbers are not antemortem numbers. A 2024 review in the Journal of Analytical Toxicology catalogued the factors that change drug levels after death: postmortem redistribution, diffusion, site to site variability, bacterial activity, genetic polymorphisms, tolerance, resuscitation efforts, and whether the case involved single or mixed drug toxicity. It concluded that compiled tables of therapeutic, toxic, and fatal concentrations do not provide reliable reference values for postmortem work, and that the heart blood to peripheral blood ratio is an anatomic site difference that may or may not reflect redistribution.¹² Any opinion that reads a femoral level off a table and calls it an overdose is vulnerable, and so is any defense opinion that does the reverse.

Pathologist to pathologist agreement is imperfect and depends on context. A study published in Forensic Science, Medicine and Pathology on May 11, 2026 asked 23 forensic pathologists and trainees to assess 59 cases of sharp force injury to the extremities from body maps alone, with contextual information stripped out. Agreement measured by Fleiss kappa was moderate at best, sensitivity was 0.656 for suicides and 0.535 for homicides, and specificity exceeded 0.85 for both. Seniority improved specificity but not sensitivity.¹³ The practical implication for civil work is that context and the completeness of the record drive reproducibility, which is precisely why the defense asks what your expert did not have.

The governing practice standard is the National Association of Medical Examiners Forensic Autopsy Performance Standards, most recently approved by the general membership on October 20, 2025. It defines cause of death as the underlying disease or injury responsible for setting in motion the series of physiologic events culminating in death, sets minimum standards for case selection, performance, ancillary testing, and interpretation, and requires that the rationale be documented where a limited internal examination is performed.¹⁴ A deviation from those standards in the original autopsy is often the most productive line in the case.

Why Expert Witnesses Are Critical

Forensic pathology. The core witness. A board certified forensic pathologist is the only expert who can reconstruct the sequence from the autopsy protocol, the histology, the toxicology, the investigative file, and the clinical chart, state which condition initiated the train of events, and explain why a competing condition did not. In mass tort death cases this expert is also the one who can testify that the certifying physician never saw the autopsy, or that no autopsy was done at all and what that does and does not permit. On the defense side, the same specialty supplies the rebuttal opinion that the death is fully explained by natural disease.

Anatomic and clinical pathology, including neuropathology. Where the dispute is about tissue rather than about the chain of events, the fight moves to slides: tumor type and site of origin, fiber or particle identification, evidence of infection versus contamination, ischemic timing, diffuse axonal injury. Re-reading retained blocks and slides is often the single highest yield step available late in a case.

Forensic toxicology. A separate discipline from forensic pathology, and increasingly the decisive one. Board certification in forensic toxicology signals someone who can testify about specimen source, collection interval, redistribution, and why a table value is not an answer.

The treating specialty. Cause of death opinions fail on fit, as Williams shows. Geriatric medicine, internal and hospital medicine, oncology, cardiology, critical care, or infectious disease, matched to the actual terminal course, is what converts a general mechanism into a specific causal chain in this decedent.

Nursing. The terminal decline is usually documented by nurses, not physicians. Wound care, long term care, emergency, and critical care nurse experts establish what was observed, what was charted, what was not charted, and what the gaps mean. In facility death cases this testimony is often what makes the pathologist’s chain credible.

Epidemiology and biostatistics. In product death cases, general causation still has to be proved, and the Camp Lejeune and talc rulings show that the method used to get there is being examined line by line. An epidemiologist who applies Bradford Hill rigorously, and who does not relax rigor because the legal burden is lower, is now a threshold requirement rather than a luxury.

Life care planning and forensic economics. Damages in a death case still require a competent projection of the losses, and in survival claims a period of conscious pain and suffering that the medicine supports.

What Attorneys Should Look For

Insist on board certification in the discipline being offered, not an adjacent one, and confirm it. Ask whether the expert has ever certified deaths themselves, because a pathologist who has signed thousands of certificates testifies about Part I and Part II differently than one who has not. Require a written list of the materials reviewed and the materials requested but not provided. Require an explicit differential, with each alternative cause named and the reason it was excluded stated on the record, because the Ninth Circuit affirmed exclusion for the failure to rule out a single alternative. Confirm the degree of certainty language in the report matches the jurisdiction’s standard before the deposition, not after. Finally, ask whether re-examination, exhumation, or a review of retained tissue is possible, and document the answer.

Authorities That Control Cause of Death Proof Today

How Med Legal Pro Helps

Cause of death is the element most often lost late, after the deposition, when a well credentialed expert concedes that the alternative was never ruled out or that the certainty language was softer than the jurisdiction requires. Med Legal Pro places board certified forensic pathologists, forensic toxicologists, nurse experts, and treating specialty physicians in wrongful death and survival cases, on either side, and prepares them for the record before the report is signed. If you are holding a death case where the defense has not conceded causation, or you need a second read of an autopsy protocol before you commit to a theory, we can tell you within a call whether the record supports the opinion you need.

The Expert for Experts.

Sources

1. Judicial Panel on Multidistrict Litigation, Pending MDL Dockets by Actions Pending, report date September 1, 2026. jpml.uscourts.gov
2. Commonwealth v. Fitzpatrick, No. 95 MAP 2024 (Pa. Jan. 21, 2026) (Wecht, J.).
3. Williams v. Leesburg Regional Medical Center, Inc., No. 5D2024-1910 (Fla. 5th DCA Jan. 30, 2026).
4. Order, In re Camp Lejeune Water Litigation, No. 7:23-cv-00897 (E.D.N.C. June 5, 2026), D.E. 886, at 13, 17.
5. Report and Recommendation of the Special Master, In re Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and Products Liability Litigation, No. 3:16-md-2738, MDL 2738 (D.N.J. Jan. 20, 2026).
6. Engilis v. Monsanto Co., No. 23-4201 (9th Cir. Aug. 12, 2025).
7. National Center for Health Statistics, Instructions for Classifying Multiple Causes of Death, 2024, Section I. cdc.gov/nchs
8. Autopsies in the United States, 2020. National Vital Statistics Reports, Vol. 72, No. 5, May 24, 2023. doi:10.15620/cdc:126588
9. Shojania KG, et al. Changes in Rates of Autopsy-Detected Diagnostic Errors Over Time: A Systematic Review. JAMA. 2003;289(21):2849. doi:10.1001/jama.289.21.2849
10. Death Certification: Errors and Interventions. Clinical Medicine & Research. 2019. doi:10.3121/cmr.2019.1496
11. Misclassification of causes of death among a small all-autopsied group of former nuclear workers: Death certificates vs. autopsy reports. PLOS ONE. May 3, 2024. doi:10.1371/journal.pone.0302069
12. Difficulties associated with the interpretation of postmortem toxicology. Journal of Analytical Toxicology. June 8, 2024. doi:10.1093/jat/bkae052
13. The Forensic Tabula Rasa: Agreement on Manner of Death from Injury Patterns to the Extremities Only. Forensic Science, Medicine and Pathology. May 11, 2026. doi:10.1007/s12024-026-01251-4
14. National Association of Medical Examiners, Forensic Autopsy Performance Standards, 2025 edition, approved October 20, 2025.

Tracy L. Liberatore Esq, PA-Emeritus. Med Legal Pro LLC. This article is general information for attorneys and is not legal or medical advice about any specific case. All claims described in pending litigation are allegations that remain to be proven.