DAVID J. WILLIAMS V. COMMONWEALTH OF KENTUCKY — MEMORANDUM OPINION OF THE COURT AFFIRMING

IMPORTANT NOTICE “NOT TO BE PUBLISHED OPINION” THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED” PURSUANT TO RULE OF APPELLATE PROCEDURE (RAP) 40(D). THIS OPINION SHALL NOT BE CITED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE. UNDER RAP 41, UNPUBLISHED OPINIONS OF KENTUCKY APPELLATE COURTS RENDERED AFTER JANUARY 1, 2003, THAT ARE FINAL UNDER RAP 40(G), MAY BE CITED BY A PARTY FOR CONSIDERATION BY A COURT IF THERE IS NO PUBLISHED OPINION THAT ADEQUATELY ADDRESSES THE POINT OF LAW BEING ARGUED BY A PARTY. IF AN UNPUBLISHED OPINION IS CITED FOR CONSIDERATION BY A COURT THE OPINION SHALL BE SET OUT AS AN UNPUBLISHED OPINION IN THE DOCUMENT IN WHICH THE UNPUBLISHED OPINION IS CITED.

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RENDERED: OCTOBER 22, 2026 NOT TO BE PUBLISHED Supreme Court of Kentucky 2024-SC-0244-MR DAVID J. WILLIAMS APPELLANT V. ON APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE DIANE MINNIFIELD, JUDGE NO. 18-CR-01011 COMMONWEALTH OF KENTUCKY APPELLEE MEMORANDUM OPINION OF THE COURT AFFIRMING David J. Williams was convicted by a Fayette County jury on charges of murder and first-degree burglary. He received a total sentence of twenty-five years’ imprisonment and appeals to this Court as a matter of right.1 Having carefully reviewed the record, law, and briefs, we affirm. FACTS AND PROCEDURAL HISTORY On August 5, 2016, Williams broke into the home of Hilda Mae Pike, an elderly woman, choked her, and stabbed her twenty-one times in her chest, back, arms, and legs while she was lying in bed. During the assault, Williams took Pike’s cellphone. She lost consciousness as a result of the attack and managed to call 911 from a different phone when she awoke. Paramedics and 1 KY CONST . § 110(2)(b).

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2 police responded shortly thereafter. Pike was taken to the University of Kentucky Hospital where she was treated for multiple stab wounds, a collapsed lung, and a broken rib. During the course of their investigation, police identified Williams as a suspect. Becky Williams, Williams’ mother, told police that Williams’ grandmother wanted him to have her Buick Century after she died, and Williams was upset the car had been sold instead to Pike. In addition, police determined Pike’s cell phone was pinging around an apartment building on Alexandria Drive in Lexington. Residents told police that Williams had recently tried to sell them a cell phone and had scratches on his neck. Pike’s cell phone was discovered in a dumpster behind the building. A fingerprint found on the cell phone was later determined to match Williams. Police eventually located Williams and took him into custody without incident. The arresting officer searched Williams’ person and found a flashlight, cellphone, and a sharp pencil-shaped plastic rod. Williams told the officer he needed the flashlight because he was homeless and mentioned his grandmother’s car without any prompting. He also stated he was in possession of a crack pipe but had not smoked in a couple of days. At the police station, Williams consented to a recorded interview and told police he had been diagnosed with schizoaffective disorder and had issues with cocaine addiction. He denied any involvement in the assault on Pike and claimed he had been in an altercation at the park with a woman who had scratched him and a man who had stabbed him with a screwdriver. Williams

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3 further stated he went to sleep in a dumpster after the altercation. Police collected saliva from Williams’ mouth for DNA comparison with items collected from Pike’s person and residence. Analysis confirmed Williams’ DNA was present in a sample taken from underneath Pike’s fingernail. On October 2, 2017, Williams was initially indicted on charges of first- degree assault and first-degree burglary. While these charges were pending, Pike died on July 15, 2018. No autopsy was performed. The police and the Fayette County Coroner’s Office consulted with Pike’s family care physician, Dr. William Wittman,2 to determine the cause of death. Pike’s death certificate listed her death as a homicide, and the cause of death as chronic obstructive pulmonary disease (COPD) exacerbated by sharp-instrument injuries. The Commonwealth sought a superseding indictment which was issued on August 18, 2018, charging Williams with murder and first-degree burglary. At trial, Williams’ defense centered on causation. He argued Pike’s complete recovery from the assault had broken the chain of causation that her death was due solely to complications from COPD and pneumonia. To prove causation, the Commonwealth relied primarily on the opinion of Dr. Wittman. Dr. Wittman testified, over Williams’ objection, that Pike never fully recovered from the stabbing and her death was hastened by the assault. The jury rejected Williams’ causation defense and found him guilty of murder and first- degree burglary. The trial court sentenced him to a total of twenty-five years’ 2 Although the parties refer to a Dr. Whitman, the record reflects the correct spelling is Wittman.

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4 imprisonment in accordance with the recommendation of the jury. This appeal followed. LAW AND ANALYSIS 1. The trial court properly allowed Dr. Wittman to testify as to the cause of death. Williams first argues the trial court erred by permitting Dr. Wittman to testify as to the cause of death. Specifically, he contends Dr. Wittman’s testimony was inadmissible because he does not possess specialized credentials and his conclusions were otherwise unreliable. We disagree. Prior to July 1, 2024, and at the time of the proceedings in this matter, KRE3 702 stated as follows: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness’ opinion reflects a reliable application of the principles and methods to the facts of the case. In interpreting KRE 702, we have adopted the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See Miller v. Eldridge, 146 S.W.3d 909, 913 (Ky. 2004) (citing Mitchell v. Commonwealth, 908 S.W.2d 100 (Ky. 1995), overruled on other grounds by Fugate v. Commonwealth, 993 3 Kentucky Rules of Evidence.

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5 S.W.2d 931 (Ky. 1999)). Under Daubert, the trial court performs a gatekeeping role which functions to exclude “unreliable, pseudoscientific evidence[.]” Id. At the outset of the Daubert analysis, the trial court must determine whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. Id. at 913-14 (quoting Daubert, 509 U.S. at 592-93) (footnote omitted). “[T]he cornerstone of the reliability analysis” is application of the “Daubert factors,” which include, but are not limited to: (1) whether a theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether, with respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique's operation; and (4) whether the theory or technique enjoys general acceptance within the relevant scientific, technical, or other specialized community. Id. at 914 (footnote and citation omitted). We review a trial court’s ruling on the admissibility of expert testimony under KRE 702 for an abuse of discretion. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Id. at 581 (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)). More specifically, a trial court’s ruling on the reliability of medical evidence on causation “is reviewed for clear error while the determination as to whether certain testimony assists the trier

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6 of fact is reviewed for abuse of discretion.” Baraka v. Commonwealth, 194 S.W.3d 313, 314 (Ky. 2006) (citation omitted). In reviewing Daubert issues, our precedents consistently extend substantial “deference to the trial court’s factual findings and ruling . . . because the trial court is in the best position to evaluate the evidence.” Bailey v. Commonwealth, 194 S.W.3d 296, 304 (Ky. 2006) (quoting Miller, 146 S.W.3d at 917). Relative to the scientific reliability of medical evidence, we have held conclusions based upon a medical doctor’s examination of the human body and review of medical records and reports pertaining to basic anatomical findings do not constitute “novel scientific techniques or theories” for the purpose of the Daubert analysis. Collins v. Commonwealth, 951 S.W.2d 569, 575 (Ky. 1997). Moreover, the issue of medical causation is “a province whose dominion is reserved to medical doctors alone.” Renot v. Secura Supreme Ins. Co., 671 S.W.3d 282, 291 (Ky. 2023). When medical matters are disputed, non-physician “experts must, by necessity, be required to limit their testimony only to their field of expertise.” Id. By contrast, “the lack of specialized training by a doctor goes only to weight and not to competency.” Arndell v. Peay, 411 S.W.2d 473, 475 (Ky. 1967) (citing Kabai v. Majestic Collieries Co., 170 S.W.2d 357 (Ky. 1943)); Baerman v. Reisinger, 363 F.2d 309, 310 (D.C. Cir. 1966) (“It is settled law that ‘(a) physician is not incompetent to testify as an expert merely because he is not a specialist in the particular field of which he speaks.’”).

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7 Indeed, the fact that an expert with specialized training and experience in a particular field may be able to formulate a more informed opinion does not necessarily mean that an otherwise qualified expert with less specialized training and experience cannot also offer relevant and reliable testimony. First Tenn. Bank Nat’l Ass’n v. Barreto, 268 F.3d 319, 333 (6th Cir. 2001). Thus, in determining whether a medical doctor is competent to testify outside his or her specialty, a court must focus on the physician’s actual knowledge, skill, and experience, not merely upon his or her credentials. Collins, 951 S.W.2d at 575. For example, we recently held the testimony of an orthopedic surgeon was insufficient to establish the standard of care for a radiologist in a medical malpractice action, not for any lack of specialized training, but instead because the orthopedic surgeon admitted he did not know the applicable standard. Diagnostic X-Ray Physicians, PSC v. Lloyd, - - - S.W.3d - - -, 2026 WL 1839842, at *9 (Ky. June 25, 2026) (“Perhaps [the orthopedic surgeon] was qualified to testify about the standard of care of the Radiologists — he just did not.”). Additionally, in Futrell v. Commonwealth, we concluded a child abuse pediatrician was qualified to opine that a fatal injury was caused intentionally, as opposed to accidentally, and further observed, “an expert’s causation testimony may be based fully or primarily on his or her review of the pertinent scientific literature, provided that the expert is qualified ‘to review the literature and render an opinion’ on the specific matter at issue[.]” 471 S.W.3d 258, 284 (Ky. 2015) (quoting Burton v. CSX Transp., Inc., 269 S.W.3d 1, 8 (Ky. 2008)).

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8 Similarly, in appropriate circumstances, numerous courts have permitted medical doctors to opine on the cause of a person’s death despite the lack of specialized training in the field of pathology. People v. Catlin, 26 P.3d 357, 389 (Cal. 2001) (toxicologist), overruled on other grounds by People v. Nelson, 185 P.3d 49 (Cal. 2008); Weaver v. McKnight, 97 A.3d 920 (Conn. 2014) (obstetrician and gynecologist); Roach v. Union Pac. R.R., 19 N.E.3d 61, 71 (Ill. App. Ct. 2014) (family physician); State v. Sneed, 316 So.2d 372, 378 (La. 1975) (same); Pentz v. Henderschott, 367 N.W.2d 328, 328-29 (Mich. 1985) (general practitioner); State v. Hudson, 680 N.W.2d 603, 615 (Neb. 2004) (doctor of osteopathic medicine); Commonwealth v. Browdie, 654 A.2d 1159, 1165 (Pa. Super. Ct. 1995), aff’d, 671 A.2d 668 (Pa. 1996) (pediatrician); Mulcahey v. New England Newspapers, Inc., 488 A.2d 681, 685 (R.I. 1985) (family physician); State v. Fisher, 805 N.W.2d 571, 580 (S.D. 2011) (pediatrician); State v. Duncan, 698 S.W.2d 63, 68 (Tenn. 1985) (general surgeon); Latimer v. State, 319 S.W.3d 128, 133 (Tex. App. 2010) (pediatrician). Here, the causation issue centers on whether Dr. Wittman could competently and reliably opine that Williams’s attack hastened or accelerated Pike’s death from COPD. Adcock v. Commonwealth, 702 S.W.2d 440, 444 (Ky. 1986) (“The hastening of a death which would not otherwise have occurred at that time is a cause of the death.”); 40 Am. Jur. 2d Homicide § 14 (2026) (“An injury is the proximate cause of death if it materially accelerates the death, although the death is proximately occasioned by a preexisting cause.”). “Even though a person suffers from serious maladies from which he will die sooner or

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9 later, to the extent that the infliction of an injury hastens death and causes it to occur sooner rather than later, the injury is a direct cause of the death at the time it occurred.” Adcock, 702 S.W.2d at 444 (citing Hubbard v. Commonwealth, 202 S.W.2d 634 (Ky. 1947); Hopkins v. Commonwealth, 80 S.W. 156 (Ky. 1904)). Thus, “[i]t is not the law that because a person is afflicted with an ailment, whether the ailment be caused by natural or artificial causes, another may be excused for acts of violence which hasten or contribute to or cause death sooner than it would otherwise occur.” 40 C.J.S. Homicide § 12 (2026). The evidence adduced at the Daubert hearing amply supports the trial court’s determination that Dr. Wittman’s opinion was “not junk science” and was instead based on sound “clinical impressions, clinical evidence, and medicine.” Dr. Wittman testified he obtained his medical degree at the University of Kentucky and worked as a general internist with over thirty-five years’ experience in both inpatient and hospital settings. He treated Pike for over twenty-five years, up to and including the time of her death, and was familiar with her physical condition through direct examination and review of medical records both before and after the 2016 stabbing. Dr. Wittman considered Pike’s COPD condition to be stable and noted that she had been hospitalized only once for lung-related symptoms in the ten years prior to the stabbing but required hospitalization every one to three months thereafter, not including time spent in rehabilitation facilities. He was aware Pike had been stabbed twenty-one times, the most serious of which resulted in the partial

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10 collapse of her left lung, and observed such trauma to a diseased lung and the trauma from the treatment of same resulted in a process of chronic deterioration, including repeated bouts of pneumonia and bronchitis, from which Pike never fully recovered. Dr. Wittman further concluded the stabbing exacerbated Pike’s COPD, hastened her death, and otherwise caused her to die sooner than she would have otherwise. Taken as a whole, Dr. Wittman’s opinion was based on his qualifications and competence as a medical doctor, his personal observation and treatment of Pike, and his review of her medical records. These are simply not the type of novel scientific theories, techniques, or methodologies at which the trial court’s gatekeeping function under KRE 702 and Daubert is aimed. Collins, 951 S.W.2d at 575. Disputes relative to the strength of an expert’s credentials for his or her opinion go to the weight and not the admissibility of the proffered testimony. Daubert, 509 U.S. at 596. Moreover, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Id. Therefore, we can neither conclude the trial court abused its discretion in determining Dr. Wittman’s qualifications as an expert nor discern any clear error in its factual finding of reliability. Baraka, 194 S.W.3d at 314. 2. The trial court properly denied motion for directed verdict. Williams next argues the trial court erred by denying his motion for directed verdict on the charge of murder. We disagree.

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11 The denial of motion for directed verdict should not be reversed unless the appellate court determines “it would be clearly unreasonable for a jury to find guilt.” Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). When confronted with a motion for directed verdict, the trial court must assume the truth of the Commonwealth’s evidence and “draw all fair and reasonable inferences from the evidence in favor of the Commonwealth.” Id. A conviction must be based on “evidence of substance, and the trial court is expressly authorized to direct a verdict for the defendant if the prosecution produces no more than a mere scintilla of evidence.” Id. at 187-88. Moreover, Kentucky law on criminal causation does not require the degree of scientific certainty urged by Williams. Young v. Commonwealth, 718 S.W.3d 698, 707 (Ky. 2025). Under the reasonable doubt standard, “that which a jury may reasonably believe to have been probable is enough to support a finding of guilt.” Timmons v. Commonwealth, 555 S.W.2d 234, 237- 38 (Ky. 1977). KRS 507.020 sets forth the offense of intentional murder in pertinent part as follows: (1) A person is guilty of murder when: (a) With intent to cause the death of another person, he causes the death of such person or of a third person[.] “A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause that

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12 result or to engage in that conduct.” KRS 501.020. In addition, KRS 501.060 provides in pertinent part: (1) Conduct is the cause of a result when it is an antecedent without which the result in question would not have occurred. (2) When intentionally causing a particular result is an element of an offense, the element is not established if the actual result is not within the intention or the contemplation of the actor unless: (a) The actual result differs from that intended or contemplated, as the case may be, only in the respect that a different person or different property is injured or affected or that the injury or harm intended or contemplated would have been more serious or more extensive; or (b) The actual result involves the same kind of injury or harm as that intended or contemplated and occurs in a manner which the actor knows or should know is rendered substantially more probable by his conduct. (Emphasis added). Under Kentucky law, the infliction of an injury which hastens or accelerates a person’s death is deemed to be a direct cause of death, “[e]ven though a person suffers from serious maladies from which he will die sooner or later[.]” Adcock, 702 S.W.2d at 444; Hopkins, 80 S.W. at 156 (“If one unlawfully wounds another, and thereby hastens or accelerates his death by reason of some disease with which he is afflicted, the wrongdoer is guilty of the crime thereby resulting.”). In other words, “if the victim is already in a weakened condition before defendant inflicts an injury and the victim dies, the defendant is still liable.” Leslie W. Abramson, Ky. Prac. Substantive Crim. L. § 2:23 (2025); see also Wayne R. LaFave, 1 Subst. Crim. L. § 6.4(f)(2) (3d ed.).

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13 The majority of “jurisdictions recognize that proximate cause can be established even in cases where there is a lengthy gap between act and cause, provided that the two are closely related in causal terms.” Jens David Ohlin, 1 Wharton’s Criminal Law § 6:3 (16th ed.). “So, for example, an actor is guilty of murder if they dispense a poison, but the victim dies years later.”4 Id. The Kentucky Crime Commission/LRC Commentary to KRS 501.060 lucidly explains the basic concept of criminal causation under the Kentucky Penal Code: Once an act is found to be a cause in fact of a result and a substantial factor in bringing about that result, it is recognized as the proximate cause unless another cause, independent of the first, intervenes between the first and the result. And even then the first cause is treated as the proximate cause if the harm or injury resulting from the second is deemed to have been reasonably foreseeable by the first actor. 4 Although the parties have not raised the issue, we note, at common law, Kentucky adhered to the “year-and-a-day” rule whereby proof of murder required a showing that “the death of the injured party from the effects of the alleged wounding [occurred] ‘within a year and a day.’” Fuson v. Commonwealth, 251 S.W. 995, 997 (Ky. 1923). However, with the adoption of modern penal codes, “[t]his rule has now been abandoned[.]” Ohlin, 1 Wharton’s Criminal Law at § 6:3. “[T]he Model Penal Code . . . eliminated the year-and-a-day rule by intentionally excluding it from the criminal- homicide statute.” Emily S. Wilbanks, The Murder Rule That Just Won't Die: The Abolished Year-and-A-Day Rule Continues to Haunt the Florida Courts, 60 Fla. L. Rev. 735, 774 n.100 (2008) (citing Model Penal Code § 210.1 & cmt. n.4 (Proposed Official Draft 1962 & rev. cmts. 1980)). Likewise, “[u]pon the adoption of the Kentucky Penal Code, effective January 1, 1975, common law offenses were abolished and all offenses, including homicides, were thereafter to be defined by statute.” Commonwealth v. Morris, 142 S.W.3d 654, 658 (Ky. 2004). Discerning no mention of the “year-and-a- day” rule in our current criminal statutes, we therefore conclude this “outdated relic” failed to perdure the adoption of Kentucky’s Penal Code. See Rogers v. Tennessee, 532 U.S. 451, 462 (2001).

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14 The concept of “cause in fact” encompasses “any antecedent which contributes to a given result can be said as a matter of fact to have caused that result.” Id. The imputation of criminal liability thus depends on “distinguishing between antecedents which should receive juridical consideration as a cause in penal law and those which should not[.]” Id. To this end, the courts have classified causes as remote and proximate with only the latter sufficing for criminal liability. To be classified as a “proximate cause,” generally recognized as a flexible standard, an antecedent must constitute a “substantial factor” in bringing about the result in issue. Id. The foregoing principles of criminal causation do not permit a murderer to “avoid conviction by pointing out that his act was only one of many causes that concurred to bring about his victim’s death. It is enough if his act was one of the causes—enough therefore if [the] assault made [the victim’s] death more likely and if, but for the assault, she would not have died as soon as she did.” Brackett v. Peters, 11 F.3d 78, 80 (7th Cir. 1993) (citations omitted). Here, we have no difficulty concluding the brutal and repeated stabbing of an elderly woman in her bed during a nighttime home invasion was sufficient to permit a reasonable jury to conclude Williams intended “to cause the death of another person[.]” KRS 507.020(1)(a). Intent may be properly “inferred from the character and extent of the victim’s injuries[,]” and additionally, “may be inferred from actions because a person is presumed to intend the logical and probable consequences of his conduct and a person’s state of mind may be inferred from actions preceding and following the charged

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15 offense.” Ratliff v. Commonwealth, 194 S.W.3d 258, 275 (Ky. 2006) (quoting Parker v. Commonwealth, 952 S.W.2d 209, 212 (Ky. 1997)). Similarly, relative to causation, we perceive no circumstance to exist whereby Williams could not have reasonably foreseen that Pike’s death was “rendered substantially more probable” by his act of repeatedly stabbing her. KRS 501.060(2)(b); see also Adcock, 702 S.W.2d at 444. “A defendant must take the homicide victim as they find them.” 40 C.J.S. Homicide at § 12. Dr. Wittman’s testimony was more than sufficient to support the jury’s conclusion that the stabbing was a substantial factor in the hastening of Pike’s death. Adcock, 702 S.W.2d at 444. In addition, the Fayette County Deputy Coroner testified Pike’s death certificate listed her death as a homicide, and the cause of death as COPD exacerbated by sharp-instrument injuries. Kentucky law “has long recognized that death certificates may be used as prima facie evidence of the facts therein stated.” Bralley v. Commonwealth, 525 S.W.2d 123, 125 (Ky. 1975) (citing Kirkshouse v. E. Ky. Univ., 501 S.W.2d 581 (Ky. 1973)). Thus, there was more than a scintilla of evidence upon which a reasonable jury could determine the existence of proximate cause. While the evidence undoubtedly conflicted on the issue of causation, a court is not at liberty to resolve questions of weight and credibility in adjudicating a motion for directed verdict. Benham, 816 S.W.2d at 187. Viewing the evidence in the light most favorable to the Commonwealth, we conclude there was sufficient evidence for a reasonable jury to find Williams

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16 intended to cause Pike’s death, and did in fact cause same by hastening. Adcock, 702 S.W.2d at 444. 3. Williams’ absence from a pretrial hearing did not amount to palpable error. For his final contention of error, Williams argues the trial court erred by conducting a pretrial hearing on his motion to remove defense counsel in his absence. He concedes this error is unpreserved and requests palpable error review. RCr5 10.26 authorizes an appellate court to review an unpreserved error as follows: A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error. A palpable error is “easily perceptible, plain, obvious, and readily noticeable.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (citation omitted). “To demonstrate manifest injustice, a party must show the ‘probability of a different result or error so fundamental as to threaten a defendant’s entitlement to due process of law.’” Payne v. Commonwealth, 681 S.W.3d 1, 5 (Ky. 2023) (quoting Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006)). “In other words, a palpable error occurs where ‘the defect in the proceeding was shocking or jurisprudentially intolerable.’” Id. (quoting Martin, 207 S.W.3d at 4). 5 Kentucky Rules of Criminal Procedure.

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17 During the pendency of the underlying proceedings, Williams was represented by five different attorneys: two private attorneys and three public defenders. Upon Williams’ request, his fourth attorney, a public defender, was removed by the office supervisor because Dr. Wittman was the long-time physician of the attorney’s father and the attorney himself had seen Dr. Wittman in his professional capacity.6 Williams was then assigned another public defender, his fifth attorney. On June 30, 2023, Williams informed the trial court of his concern that there was still a conflict of interest because the fifth attorney worked in the same public defender’s office as the fourth attorney. The fifth attorney responded that she believed that the conflict was personal to the fourth attorney and could not be imputed to the entire office. At that time, the trial court announced it was making a preliminary ruling that the conflict was not substantial and would not impede the fifth attorney’s representation of Williams. Williams spoke up and stated his belief that the conflict tainted his Daubert hearing. The trial court scheduled another status hearing for July 7, 2023, to allow the public defender and the Commonwealth to determine if there was a true conflict of interest requiring the recusal of the whole public defender’s office. 6 We express no opinion as to whether this connection required the fourth attorney’s removal due to an actual conflict or whether his supervisor simply acted from an abundance of caution given Williams’ stated concerns.

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18 On the day of the hearing, Williams was unable to appear by Zoom as requested because jail personnel were unavailable to conduct a Zoom hearing while also transporting inmates. The trial court and counsel proceeded to conduct the hearing in Williams’ absence. The fifth attorney and the prosecution expressed their belief that there was no conflict. The trial court made a formal finding that “the current Department of Public Advocacy has no conflict with the continued representation.” The fifth attorney continued to represent Williams for the remainder of the proceedings before the trial court. Williams contends palpable error occurred because he had a right to be present at every critical stage of his trial. While he admits he did not have to be present at a hearing regarding a legal issue, he asserts the error is reversible because “the trial court and parties rushed to the conclusion that there was no conflict without [Williams’] presence or input.” Williams further admits that the record does not reveal an actual conflict but argues that his absence from the hearing “undermined his ability to bring attention to one.” We agree that the entire public defender’s office did not need to be recused just because the fourth attorney may have had a personal conflict under the relevant rules of professional conduct. SCR7 3.130(1.7) provides the standard for when a conflict requires recusal of counsel. SCR 3.130(1.10)(a) explains when such a conflict requires recusal of an entire firm: While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, 7 Rules of the Supreme Court.

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19 unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm. We perceive no indication that Williams’ former attorney’s connection to Dr. Wittman would “present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.” Id. Therefore, removal of the entire public defenders’ office was not required and the fifth attorney properly continued to represent Williams. Although we acknowledge the better practice would have been to reschedule the hearing to ensure Williams’ presence, he had the opportunity to raise his understanding of the potential conflict to the trial court at the previous hearing and had done so. Given the absence of any actual conflict that could potentially prejudice Williams, his absence from the later hearing was harmless and certainly did not rise to the level of manifest injustice. CONCLUSION For the foregoing reasons, the judgment of conviction and sentence of the Fayette Circuit Court is hereby affirmed. All sitting. Lambert, C.J.; Bisig, Conley, Goodwine, Keller, and Nickell, JJ., concur. Thompson, J., concurs in part and dissents in part by separate opinion. THOMPSON, J., CONCURRING IN PART AND DISSENTING IN PART: There is a huge difference between establishing proof of death and proving the causation of that death through expert opinion. While in some circumstances,

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20 these two things follow clearly from one to the other, such as if someone has a gunshot wound through the head and dies immediately thereafter, in other circumstances connecting the dots is a fact-intensive inquiry that requires extensive expertise of how disease, injury, healing, and time interacted in a particular human, combined with objective physical evidence which either confirms or refutes initial hypotheses. The best-suited expert by training and experience to resolve such issues is a forensic pathologist. In this case, Dr. William Wittman, an internist without such training or experience, opined a hypothesis as to Hilda Mae Pike’s cause of death that was neither supported by the clinical evidence nor any physical evidence. Nevertheless, because he was a medical doctor, Dr. Wittman was permitted to opine on the matter without accounting for other causation. A man was convicted of murder solely based on Dr. Wittman’s testimony. I concur with the majority only insofar as I agree that defendant David Williams’s absence from a pretrial hearing did not amount to palpable error and, therefore, Williams’s burglary conviction should be affirmed. As to the remainder of the majority opinion, I would reverse the murder conviction for a dismissal of that charge because I believe Dr. Wittman’s expert opinion testimony on cause of death should have been excluded pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). There are two reasons why Dr. Wittman’s expert opinion testimony as to Pike’s cause of death should be excluded. First, Dr. Wittman’s testimony failed to qualify for admission as expert testimony because under the specific facts

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21 before us, in this difficult-to-determine cause of death circumstance, he was not qualified to opine on Pike’s cause of death. Second, even if Dr. Wittman were qualified to opine on Pike’s cause of death, his testimony should nevertheless be excluded because he did not properly apply appropriate methodology to reject the undisputed documentary evidence that Pike had returned to her baseline health prior to suffering from her first bout of post- injury pneumonia, and it cannot be established that her prior injuries contributed to her death by hastening it. Without Dr. Wittman’s expert opinion provided at trial (and undergirding the cause of death listed on Pike’s death certificate), there is no evidence to establish that Williams killed Pike. Therefore, the trial court should have granted the motion for a directed verdict. The Commonwealth simply did not meet its burden in choosing to rely on the testimony of a physician who had no business opining on cause of death under these complicated circumstances, and who could not provide appropriate justifications for rejecting overwhelming clinical evidence that Pike died of complications of her underlying health conditions. If in fact an appropriately qualified expert could establish that Williams murdered Pike, why did the Commonwealth fail to locate such expert and have such expert testify at Williams’s trial? If Pike’s lung tissue could prove the lasting effects of the assault, why did the Commonwealth fail to exhume her

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22 body and provide the needed proof?8 These questions may never be satisfied, but they are worth asking. I can only conclude that a defendant should not be convicted of murder based solely upon specious expert testimony. Such a conviction is offensive to our whole system of criminal justice and the presumption of innocence that can only be overcome through competent evidence of guilt. I have no doubt in a malpractice trial for wrongful death that Dr. Wittman’s expert testimony would be barred by Daubert. I. OMITTED FACTUAL AND LEGAL BACKGROUND On September 28, 2022, Williams filed a motion for a Daubert hearing. As grounds, the defense explained “the Commonwealth Attorney’s expert opining that an attack by Mr. Williams was the cause of death of the victim is reportedly a medical doctor with a career in family practice. As such, it bears examination of whether his methods for determination of death pass scientific muster.” The Daubert hearing was held on May 15, 2023. The defense stipulated that Dr. Wittman, the Commonwealth’s expert, was a medical doctor and it was not questioning his basic qualifications to treat patients but argued he did not have the necessary expertise to opine on cause of death under these circumstances. 8 The death certificate indicated that Pike was to be buried.

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23 Dr. Wittman testified that, based on his review of Pike’s prior ten years of medical records before she was stabbed and up until her death at age eighty- two, Pike’s cause of death was attributable to Williams’s stabbing her in the lung two years earlier. Dr. Wittman indicated from his record review that Pike, a former smoker, had high blood pressure and chronic obstructive pulmonary disease (COPD). He described Pike’s COPD as being stable, explaining that prior to being stabbed she only required a small amount of nasal oxygen at night, lived independently, and was active. Dr. Wittman testified Pike’s most serious injury was a stab wound to her left chest, which penetrated her left lung and caused a partial pneumothorax.9 Her lung was reinflated with a chest tube and her lung stayed reinflated after the chest tube was removed. Dr. Wittman testified about his theory that this injury to Pike’s lung would have long-lasting impacts, as it would cause lung inflammation, irritation, and scarring. He had no radiological report to confirm this suspicion, or any other testing to support this supposition. Nevertheless, Dr. Wittman further opined that as a result of this unestablished lasting injury, it would be 9 A “pneumothorax” is “[t]he presence of free air or gas in the pleural cavity.” Pneumothorax, Stedman’s Med. Dictionary (updated Nov. 2014). “Pneumothorax is the medical term for either a partial or complete lung collapse.” Learn About Pneumothorax, Am. Lung Ass’n, https://www.lung.org/lung-health-diseases/lung- disease-lookup/pneumothorax/learn-about-pneumothorax (last visited July 16, 2026). “A collapsed lung means air is leaking out of your lung and getting trapped in your chest. This trapped air then squishes your lung, and that makes it hard to breathe.” Id.

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24 harder for Pike to breathe as deeply and cough to clear secretions, leading to pneumonia. He further reasoned that due to her COPD, each bout of pneumonia would cause scarring, and each time she got pneumonia the scarring would worsen. Dr. Wittman testified that three months after the stabbing, Pike was hospitalized with pneumonia in her left lung, she never fully recovered from that bout of pneumonia, she had chronic deterioration from further bouts of pneumonia and subsequently required a pressurized mask at night and sometimes was forced to use oxygen twenty-four hours a day. Dr. Wittman admitted that Pike’s lung may have fully healed before she developed pneumonia as indicated by the radiologist’s report. Dr. Wittman admitted that a radiologist would be in a better position to opine as to whether Pike’s lung had fully healed before she developed pneumonia than he would be. Dr. Wittman also admitted that he was aware that Pike hit her head on a medicine cabinet and fell prior to developing the pneumonia. He failed to remember that Pike had spent three days in bed after this incident. Forensic pathologist Dr. Kent Harshbarger, the defense’s expert, testified he is licensed in multiple states and had personally conducted more than 5,000 autopsies. He testified that, based on the available evidence, it was impossible to attribute Pike’s death to her prior lung injury. He concluded that her death was the natural result of her COPD. Dr. Harshbarger explained that to determine Pike’s cause of death, the natural disease burden (the effect her preexisting COPD had on her health) would have to be compared to the trauma

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25 burden (what effect any scarring from being stabbed had on her health), and based on his review of the clinical records, Pike’s lung had fully healed prior to her developing pneumonia, meaning there was no evident trauma burden. Dr. Harshbarger testified he based his opinion on documented follow-up visits Pike had regarding her lung injury before she developed pneumonia, which indicated to him that she had returned to her prior pre-injury state of health. During this time frame, Pike’s lung was x-rayed and the accompanying radiologist interpretation indicated she had fully healed from her prior lung injury. Clinical reports from Dr. Wittman indicated Pike had progressed to once again only requiring oxygen at night. Dr. Harshbarger opined that based on his review of her records, Pike was back at “baseline” by late August or September of 2016 as her lung injury had fully healed by that time, which broke any causal chain from the stabbing. He noted that Pike fell in October of 2016, and her pneumonia occurred after she remained in bed following the fall. Dr. Harshbarger testified that based on Pike’s clinical records alone, it was impossible to determine that the stabbing caused her death. He explained that separating out the progression of Pike’s COPD, as exacerbated by pneumonia, from any trauma caused by the stabbing (thus establishing a causal link between her stabbing and ultimate death) was impossible without anatomic findings. He testified that her manner of death was natural, and her cause of death was COPD.

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26 Dr. Harshbarger further testified that while it was not impossible to link an injury to causing a delayed death two years later, those cases were limited to situations where tissue damage does not heal, such as brain damage. He disagreed that Pike’s delayed death could be attributed to her stab wound because her lung fully healed before she developed pneumonia. He testified that given Pike’s clinical history, an autopsy would have needed to be conducted to establish that she had lasting damage to her lung from the stabbing to overcome the evidence that her death was the result of the natural progression of her COPD. At the conclusion of the hearing, the trial court orally concluded that Dr. Wittman could offer an expert opinion as to Pike’s cause of death because he relied on sufficient facts, data, and reliable principles and methodology in forming his opinion. The trial court explained that even the defense expert testified he could determine Pike’s cause of death from clinical findings in this case, and therefore, so could Dr. Wittman.10 The trial court concluded that whether Pike’s condition was exacerbated by the stabbing was a question for the jury. On May 16, 2023, a written order was entered in which the trial court stated that the Daubert motion was overruled, “based on the evidence and arguments presented before the Court.” 10 This conclusion of course ignores the fact that Dr. Harshbarger testified that no one could determine that the stabbing caused Pike’s death based upon the clinical evidence.

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27 During the jury trial, in his motions for directed verdict, Williams preserved his arguments that he could not be guilty of Pike’s murder because the causal chain between his act and her death was broken where the evidence was undisputed that she fully regained her previous health before she sickened and died from another cause. As to the murder charge, the jury instructions allowed the jury to find Williams guilty of intentional or wanton murder. The jury was not instructed as to any lesser included offenses. Similarly, regarding the burglary charge, the jury was only instructed on first-degree burglary. II. ANALYSIS A. Dr. Wittman Could Not Properly Opine on Pike’s Cause of Death Pursuant to the Daubert Standard. Williams argues pursuant to Daubert, Pike’s family doctor, Dr. Wittman, did not possess the necessary expertise to testify about Pike’s cause of death, and the trial court erred by allowing such testimony in which Dr. Wittman offered an improperly supported opinion attributing Pike’s death to the prior assault. 1. Dr. Wittman Did Not Possess the Necessary Medical Expertise to Provide an Opinion on Pike’s Cause of Death. The trial court should have excluded Dr. Wittman from testifying that Pike’s death was caused by the stabbing. Dr. Wittman was not qualified to offer such an opinion in this complicated case, which was outside his area of medical expertise, and his opinion was fatally flawed because it was speculative rather than supported by a valid analysis of Pike’s clinical records.

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28 I do not disagree with the general statements the majority provides about the needed Daubert analysis or that generally medical doctors are qualified to opine as to cause of death. I do not disagree that “conclusions based on a medical doctor’s examination of the human body and review of medical records and reports pertaining to basic anatomical findings” can properly be admitted and “in determining whether a medical doctor is competent to testify outside of his or her specialty, a court must focus on the physician’s actual knowledge, skill, and expertise, not merely upon his or her credentials.” What I do disagree with is how the majority has applied the relevant standards in this case, given this unusual set of circumstances where determining cause of death was especially challenging. In this limited circumstance, I conclude that this particular physician was not qualified to opine as to Pike’s cause of death. The question before us is whether Dr. Wittman had the expertise to be qualified to testify regarding Pike’s cause of death “by knowledge, skill, experience, training, or education” and his testimony was based upon “sufficient facts or data . . . [and] reliable principles and methods” which he “applied . . . reliably to the facts of this case.” Kentucky Rules of Evidence (KRE) 702. In determining whether expert testimony is admissible pursuant to KRE 702, the trial court exercises a gatekeeping role in determining whether the proposed testimony is both relevant and reliable. Luna v. Commonwealth, 460 S.W.3d 851, 864 (Ky. 2015). “The objective of [the gatekeeping] requirement . . . is to make certain that an expert, whether basing testimony upon professional

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29 studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). In determining whether an expert’s opinion is reliable, we can properly consider pertinent legal and scientific commentaries. Fugate v. Commonwealth, 993 S.W.2d 931, 934 (Ky. 1999). Doctors are generally qualified to opine on cause of death. For example, in Barrett v. Commonwealth, 497 S.W.2d 433, 434 (Ky. 1973), the doctor who examined the victim at the scene was able to conclude he had drowned; in Bartley v. Childers, 433 S.W.2d 130, 132 (Ky. 1968), a doctor was able to attribute the victim’s cause of death to a gunshot wound at the back of the victim’s head; and in Akemon v. Harlan-Wallins Coal Corp., 313 Ky. 69, 70–71, 230 S.W.2d 97, 98 (1950), doctors who examined the decedent were able to conclude based on his extreme diabetic symptoms at the hospital, that he died from diabetes. However, whether family doctors are qualified to opine on the cause of death in a particular case based on limited data depends upon the nature of the death which occurred. If the cause of death is apparent, such as from receiving devastating injuries from a car accident or from being shot by a gun, an autopsy is not required, and medical testimony may not even be necessary if the layman’s exception applies. See Young v. Commonwealth, 718 S.W.3d 698, 705-07 (Ky. 2025); Alsip v. Commonwealth, 482 S.W.2d 571, 573 (Ky. 1972); Dennis v. Commonwealth, 464 S.W.2d 253, 256 (Ky. 1971); Carter v.

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30 Commonwealth, 260 Ky. 538, 86 S.W.2d 290, 292-93 (1935); Hall v. Commonwealth, 819 S.W.2d 39, 40 (Ky. App. 1991). In contrast, where the cause of death is not necessarily clear from the physical evidence, expert medical testimony is critical to establish the cause of death. Baraka v. Commonwealth, 194 S.W.3d 313, 315 (Ky. 2006). When determining cause of death is more challenging, almost invariably the Commonwealth calls as a witness a forensic pathologist11 because this is the expert most suited by training and experience to assist the jury. A forensic pathologist generally relies on autopsy12 findings in forming a medical opinion regarding the cause of death. See, e.g., Futrell v. Commonwealth, 471 S.W.3d 258, 266–67 (Ky. 2015); Pennington v. Commonwealth, 364 S.W.2d 653, 654 (Ky. 1963). When causation for murder in a delayed death needs to be 11 Pathologists seek to understand the nature of diseases, degenerative processes, and injurious agents on the body, and the sequence of events that led to death. Forensic Pathology in Homicide Cases, 40 Am. Jur. Trials 501 §§ 5, 12, & 20 (Originally published in 1990). Pathologists are medical doctors who are uniquely suited to determine cause of death due to their advanced training and experience; after receiving their medical degrees, pathologists typically complete a five-year residency course involving anatomic and clinical pathology, embark on additional specialized training, and pass a comprehensive certification examination. Id. at § 6. Forensic pathologists rely on external and internal examination of the body (through autopsy) in making such determinations. Id. at §§ 13 & 15. 12 The autopsy is a known technique which enjoys widespread general acceptance within the scientific community as a valid way to establish cause of death. See Daubert, 509 U.S. at 594. The autopsy provides key evidence in determining cause of death, and in fact is “[t]he gold standard for determining cause of death in complicated or difficult cases.” Lauren R. Roth, Cause of Death?-It’s Probably Not What’s Reported on the Death Certificate, 29 Lewis & Clark L. Rev. 121, 147 (2025). See generally Medical Issues and Investigation—Autopsies, 2 Litig. Tort Cases § 26:11 (Oct. 2024 update); Analysis and Guidelines—Other Medical Reports or Records, Workers’ Comp. Guide § 5:47 (April 2018 update); Pathology for Litigators, 77 Am. Jur. Trials 407 § 8 (Originally published in 2000).

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31 attributed to the complications of a serious, persistent injury, forensic pathologists are called upon to testify after conducting autopsies. See, e.g. People v. Amigon, 940 N.E.2d 63, 65-70 (Ill. 2010); Brown v. State, 703 S.E.2d 609, 612-13 (Ga. 2010); State v. Sellers, 877 N.E.2d 387, 394-96 (Ohio Ct. App. 2007). Accordingly, a doctor who is not trained in forensic pathology may not be competent to testify as to the specific cause of death in a complicated case where how the death occurred is very much in doubt. See, e.g., United States v. Leveille, 644 F. Supp. 3d 933, 936–37 (D.N.M. 2022). “In those instances where natural and unnatural causes of death intermingle, the determination of manner of death becomes quite complex.” Autopsies, 98 Am. Jur. Proof Facts 3d 87 (Originally published in 2007). “Death is frequently multifactorial, and the identification and degree of contribution by associated factors and often their sequential relationship is ideally elucidated at autopsy.” Pathology for Litigators, supra § 11. An expert witness “must have such skill, experience or knowledge in that particular field as to make it appear that his opinion would rest on substantial foundation and would tend to aid the trier of fact in his search for truth.” Bridger v. Union Ry. Co., 355 F.2d 382, 387 (6th Cir. 1966). Generally, physicians are qualified to testify as experts with respect to their particular area of specialty, that is their area of expertise. Combs v. Stortz, 276 S.W.3d 282, 294 (Ky. App. 2009). 2. In Wrongful Death Cases, General Practitioners Are Not Qualified to Testify as to Cause of Death; a Lesser Standard Should Not Apply in a Criminal Prosecution for Murder.

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32 The general expertise of being a medical doctor, even one highly qualified in a particular area that is relevant to the patient’s condition, does not necessarily mean that doctor is qualified to testify as to causation or answer questions which are outside of that physician’s area of expertise. Kemper v. Gordon, 272 S.W.3d 146, 154 (Ky. 2008) (per curiam opinion); Huggins v. Siegel, 336 So. 3d 58, 61 (Fla. Dist. Ct. App. 2021); Rheinfrank v. Abbott Lab’ys, Inc., 680 Fed. Appx. 369, 381 (6th Cir. 2017); Mathison v. Moats, 812 F.3d 594, 597 (7th Cir. 2016); Higgins v. Koch Dev. Corp., 794 F.3d 697, 704- 705 (7th Cir. 2015); Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 673-74 (6th Cir. 2010); Thomas v. Novartis Pharm. Corp., 443 Fed. Appx. 58, 62-63 (6th Cir. 2011); Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010); Praytor v. Ford Motor Co., 97 S.W.3d 237, 242-43 (Tex. App. 2002). We have previously observed that “a medical degree, standing alone, would not be sufficient qualification to allow a doctor to express an opinion on [a] general causation issue without some showing of expertise in relevant specific areas of study.” Burton v. CSX Transp., Inc., 269 S.W.3d 1, 8 (Ky. 2008). “[G]iven the increasingly specialized and technical nature of medicine, there is no validity, if there ever was, to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question. Such a rule would ignore the modern realities of medical specialization.” Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996). “Medical specialization . . . has become the norm, and it is conceivable that a physician

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33 in one area will have no knowledge of another.” Owensboro Mercy Health Sys. v. Payne, 24 S.W.3d 675, 677-78 (Ky. App. 1999). Even if a doctor is experienced at diagnosing and treating a particular condition, that does not mean that such doctor is necessarily qualified to opine as to its origin, its etiology. Tamraz, 620 F.3d at 673-74; Higgins, 794 F.3d at 705. Therefore, “we must look at each of the conclusions [a physician] draws individually to see if he has the adequate education, skill, and training to reach them.” Gayton, 593 F.3d at 617. In Kemper, our Court confirmed that while an internist “may have been qualified to determine if [a patient’s] cancer should have been diagnosed sooner, and whether she would have been a candidate for treatment, this does not mean he was qualified to testify as to whether [the patient] would have survived.” 272 S.W.3d at 154. In Robertson v. Commonwealth, 275 Ky. 8, 120 S.W.2d 680, 685 (1938), our highest Court upheld excluding the testimony of physicians as to a defendant’s sanity, as they did not qualify as experts in the subject of insanity where they had no specific training or experience in this area. Similarly, in Hall v. Flannery, 840 F.3d 922, 928-30 (7th Cir. 2016), while a pediatric neurologist was qualified to opine as to whether a child suffered a seizure before she died, he was not qualified to offer an opinion that a heart-related issue was the more probable cause of her death. The Seventh Circuit noted that while the doctor had “considerable knowledge about surgery, pediatrics, and neurology,” his trial testimony, expert report, and curriculum

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34 vitae did not indicate that he possessed any specialized education, knowledge, experience, or skill regarding the infant’s specific condition or cardiology and, accordingly, was not qualified to opine about the condition of the child’s heart, despite having reviewed peer-reviewed journal articles on the condition at issue. Id. at 930. The Court concluded admission of his testimony prejudiced the plaintiff because his testimony about an alternative cause of death was a critical issue for establishing liability. Id. at 930-31. Here we have the confluence of four difficult circumstances: while Pike’s injury was serious, she received appropriate medical care; her medical records indicated that she fully recovered from that injury and her death occurred two years after the injury; Pike was elderly and had preexisting medical conditions, including COPD, a condition that is eventually fatal; and there were other potential intervening causes in the form of a fall and remaining in bed which put her at increased risk of pneumonia, a condition made much more serious by her COPD. Although Dr. Wittman is undoubtedly a skilled physician, he simply lacked the expertise to determine Pike’s cause of death where there were myriad factors and causal forces at work, and the complexity of resolving this issue was beyond his medical skill set as an internist with only general medical knowledge as to causation. As a general practitioner, Dr. Wittman’s examination of Pike was naturally limited, and while he could review reports pertaining to the anatomical findings of her condition after she was hospitalized after the stabbing and the radiological reports then and later,

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35 neither he nor anyone else peered inside Pike’s body after she died to determine whether there were any lasting effects of her stabbing. Besides having no training as a pathologist, he also had no actual knowledge, skill, or experience in determining cause of death, or in determining whether her previous injury could or did lead to her developing pneumonia months later and dying almost two years after the assault. Dr. Wittman’s lack of pertinent expertise is further borne out in that his opinion was not derived from a proper, rigorous scientific inquiry which connected her injury to her death and ruled out other hypotheses. 3. Dr. Wittman’s Opinion should have been Excluded as It Was Not the Result of Reliable Scientific Knowledge Derived from the Scientific Method; Instead, He Offered a Speculative and Untested Theory that Did Not Account for the Clinical Evidence. Even if Dr. Wittman were qualified to offer an opinion as to Pike’s cause of death, the expert testimony he offered did not satisfy the Daubert test. Daubert requires that expert testimony based on “scientific knowledge” must be reliable as determined by “an assessment into the validity of the reasoning and the methodology upon which the expert testimony is based.” Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 578 (Ky. 2000). This means such knowledge must be derived from the application of the scientific method, be based on sound and reliable methodology, be capable of validation, and provide an appropriate explanation for ruling out alternative hypotheses, rather than be the product of subjective belief, temporal proximity, speculation, or unsupported allegations. Daubert, 509 U.S. at 590; Kumho Tire Co., Ltd., 526

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36 U.S. at 153-54; Engilis v. Monsanto Co., 151 F.4th 1040, 1054-55 (9th Cir. 2025); Kirk v. Clark Equip. Co., 991 F.3d 865, 876-77 (7th Cir. 2021); In re Lipitor (Atorvastatin Calcium) Mktg., Sales Prac. & Prods. Liab. Litig., 892 F.3d 624, 644 (4th Cir. 2018); Brown v. Burlington N. Santa Fe Ry. Co., 765 F.3d 765, 770-71 (7th Cir. 2014). Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1342-43 (11th Cir. 2010); Happel v. Walmart Stores, Inc., 602 F.3d 820, 825–26 (7th Cir. 2010); Clausen v. M/V New Carissa, 339 F.3d 1049, 1059 (9th Cir. 2003); Smelser v. Norfolk S. Ry. Co., 105 F.3d 299, 303-04 (6th Cir. 1997).13 “Medical causation must be proved to a reasonable medical probability[,]” Hyman & Armstrong, P.S.C. v. Gunderson, 279 S.W.3d 93, 106 (Ky. 2008), rather than “[m]ere possibility[,]” Mitchell v. City of Warren, 803 F.3d 223, 231 (6th Cir. 2015). When an expert’s opinion as to a possible cause of an injury is too speculative to be reliable, such an opinion must be excluded. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). See Ragland v. Commonwealth, 191 S.W.3d 569, 577-78 (Ky. 2006) (applying Joiner); West v. KKI, LLC, 300 S.W.3d 184, 196 (Ky. App. 2008); Tamraz, 620 F.3d at 670-71. “If this important matter [of resolving the cause of the death] be left in doubt, the foundation of the prosecution is fatally deficient.” Hollin v. Commonwealth, 307 S.W.2d 910, 911 (Ky. 1957). “The presumption of innocence must be overcome, not by mere possibilities, conjectures or suspicious circumstances, but by satisfactory 13 Abrogated on other grounds by Morales v. Am. Honda Motor Co., 151 F.3d 500 (6th Cir. 1998).

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37 evidence.” Id. See Craig ex rel. Craig v. Oakwood Hosp., 684 N.W.2d 296, 309 (Mich. 2004); Tamraz, 620 F.3d at 671. While there are factors set out in Daubert and adopted in Mitchell v. Commonwealth, 908 S.W.2d 100, 101–02 (Ky. 1995)14, which may be considered in determining whether expert testimony may be admitted as reliable, these factors are “neither exhaustive nor exclusive.” Goodyear Tire & Rubber Co., 11 S.W.3d at 578. The key question is whether Dr. Wittman’s methodology in determining cause of death followed the scientific method and was based on the available evidence, including a reasoned rejection of alternative hypotheses, or whether instead his method was subjective and speculative. While Dr. Wittman provided what initially may have appeared to establish a logical mechanism by which Pike being stabbed set off a chain reaction that caused her death, there was a complete lack of data to support his opinion, as there was no autopsy performed to connect Pike’s delayed death to her previous lung injury, and the clinical data indicated that she had returned to her usual state of health. Dr. Wittman acknowledged that the clinical data did not support his position but did not provide satisfactory reasons for rejecting the clinical evidence that Pike’s lung had fully healed before she developed pneumonia, or that her pneumonia was caused by her remaining in bed for a protracted period after injuring herself. 14 Overruled on other grounds by Fugate, 993 S.W.2d at 937.

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38 Although Dr. Wittman was familiar with the progression of COPD—a progressive, incurable, ultimately fatal disease, with a poor prognosis, which is a major cause of death in the elderly as it puts them at risk for additional complications including a high risk of developing pneumonia which causes further damage to their lungs15—he relied on the implicit proposition that there were no other potential causes of Pike’s pneumonia other than her previous injury. His reliance was derived from his personal belief rather than an objective analysis of the data, review of scholarly work, or consultation with other physicians with more expertise. The majority opinion has not provided any explanation for why, even if Dr. Wittman was qualified to offer an opinion as to Pike’s cause of death in this case, his opinion is proper where he did not provide any scientific explanation for why he rejected what both his own clinical data and the data from the radiologist which indicated that: (1) Pike had fully recovered from her stab wound and returned to baseline before she experienced her first bout of pneumonia; (2) Pike’s first bout of pneumonia could have been caused by remaining in bed for a protracted period of time after receiving a head injury; and (3) Pike’s subsequent bouts of pneumonia were traceable to this first bout, a not uncommon outcome where patients with COPD suffer increasing damage 15 Insidious Onset and Silent Progression of COPD, 2 Med. Info. Sys. For Laws. § 8:38 (2d); Chronic Obstructive Pulmonary Disease (COPD), 150 Am. Jur. Proof Facts 3d 293 (Originally published in 2015); Improvements in Treatment of Advanced Emphysema, 2 Med. Info. Sys. For Laws. § 8:42 (2d); Chronic Obstructive Pulmonary Disease (COPD), 2 Att’ys Med. Deskbook § 24:34.10.

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39 to their lungs with each incident of pneumonia, resulting in eventual death. This chain of events more directly leads to Pike’s death than the protracted effects of a stabbing. While I agree with the majority that a valid medical opinion can be offered by a physician which is “based on sound ‘clinical impressions, clinical evidence, and medicine[,]’” Dr. Wittman’s opinion testimony does not appear to be rooted in either his or other physicians’ recorded clinical impressions and/or the available clinical evidence. When a doctor rejects the only available data on his patient’s health, including the clinical records that he himself generated, which indicated that his patient fully healed prior to developing pneumonia, he should have to account for such a rejection and properly justify it. Wittman essentially asked the trial court, and later the jury, to trust that he knew best what was occurring inside Pike’s body when he looked back on her situation years after she died, despite the absence of any clinical findings to support his opinion. I disagree that it is appropriate to allow such expert testimony about cause of death to be admitted, without at least an explanation as to why the clinical records showing a return to baseline ought to be rejected in favor of his expert opinion that Pike had a lasting injury which contributed to her death. I conclude the trial court abused its discretion in admitting Dr. Wittman’s expert testimony about the cause of Pike’s death because he was not qualified to offer his opinion on this matter in this complicated case where he did not have the needed expertise, his opinion was not based on sufficient,

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40 reliable data, and his opinion was not the product of reliable principles and methods applied reliably to the facts of this case. B. Without the Expert Testimony of Dr. Wittman, the Commonwealth Failed to Prove that Williams Murdered Pike and the Trial Court Should Have Granted Williams a Directed Verdict, Thus Resolving his Criminal Prosecution for Murder. Williams argues that the trial court erred in not granting him a directed verdict of acquittal on the charge of murder because there was insufficient evidence to establish causation, that is, that his assault on Pike two years earlier proximately caused her death. I agree. The jury convicted Williams of intentional murder. “A person is guilty of murder when: (a) With intent to cause the death of another person, he causes the death of such person[.]” Kentucky Revised Statutes (KRS) 507.020(1). The majority opinion emphasizes that Williams had the intent to kill Pike and her death from his actions was foreseeable. Intent is not an issue in this case. There was ample evidence to support the jury’s finding that Williams intended to kill Pike when he attacked and stabbed her with a small object. Williams has not challenged the jury’s determination that he intended to kill Pike. The only issue is whether Pike’s death was the result of Williams’s actions. The majority is correct that Williams can be responsible for Pike’s death if his actions hastened her death. But if it cannot be determined whether his actions hastened her death, he cannot be guilty of murdering her, no matter what his intent was and how foreseeable the potential result was.

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41 The penal code provides: “Conduct is the cause of a result when it is an antecedent without which the result in question would not have occurred.” KRS 501.060(1). The 1974 Ky. Crime Comm’n/LRC Comment to KRS 501.060 further clarifies that to establish criminal liability, the conduct at issue must be the proximate cause of the injury and “[t]o be classified as a ‘proximate cause,’ . . . an antecedent must constitute a ‘substantial factor’ in bringing about the result in issue.” A defendant cannot be guilty of a crime if the defendant did not cause the injury, and having the mens rea to commit the crime is insufficient if the defendant’s actions were not the proximate cause of the injury, or if an intervening cause broke any causal chain. See Patton v. Bickford, 529 S.W.3d 717, 730–31 (Ky. 2016); Hubbard v. Commonwealth, 304 Ky. 818, 820-22, 202 S.W.2d 634, 635-37 (1947); Howard v. Spradlin, 562 S.W.3d 281, 288-89 (Ky. App. 2018).16 Here, the prosecution had to establish that Williams’s assault upon Pike caused her death, and that her death “was not the result of accidental or natural causes[.]” Hollin, 307 S.W.2d at 911. “[N]o defendant may be convicted on [circumstantial] evidence if it is as consistent with innocence as with guilt. Suspicion alone is not enough.” Collinsworth v. Commonwealth, 476 S.W.2d 201, 202 (Ky. 1972) (internal 16 Although decided previously to the adoption of our present penal code and KRS 501.060(1), earlier Kentucky cases were still concerned with determining whether conduct by the defendant was antecedent to the victim’s resulting death and are instructive as they took place in an era where it was more difficult to medically establish cause of death.

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42 citation omitted). See Denham v. Commonwealth, 239 Ky. 771, 40 S.W.2d 384, 386 (1931). Therefore, if the cause of death cannot be determined between two possible causes of death (one for which the defendant would be responsible and another for which the defendant would not be) or it cannot be established that the defendant is the cause of the injury rather than only suspected of causing the injury that resulted in death, a directed verdict must be granted. Alexander v. Commonwealth, 277 S.W.2d 17, 19 (Ky. 1955); Witt v. Commonwealth, 305 Ky. 31, 36–38, 202 S.W.2d 612, 615–16 (1947); Hollin, 307 S.W.2d at 911. Witt provides a good example of when a directed verdict of acquittal is required because cause of death cannot be determined, in part because a thorough postmortem examination, which could have perhaps resolved the issue, was never conducted. In Witt, there was evidence that the decedent was extremely intoxicated and that he had been assaulted by the defendants. He was alive when taken home by the defendants and later found to have died. 202 S.W.2d at 614-15. The Court concluded that the defendants’ motion for a directed verdict as to the murder charges should have been granted, explaining: [W]e are constrained to hold that the evidence suggests two possible causes of death, and the selection of one and rejection of the other would call for mere speculation on the part of the jury. . . . . We have evidence of death; we also have evidence that the crime of assault and battery was committed; but we do not have clear and cogent evidence that death was the result of the crime.

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43 Id. at 615–16. As I would conclude that the trial court erred in not excluding Dr. Wittman from testifying as to Pike’s cause of death, I now consider whether there was any other evidence which could allow the jury to properly connect Pike’s death to her previous assault by Williams. The majority opinion emphasizes that there is such evidence in the form of Pike’s death certificate. The majority is correct that “death certificates may be used as prima facie evidence of the facts therein.” Bralley v. Commonwealth, 525 S.W.2d 123, 125 (Ky. 1975). “This statement is subject to certain qualifications, however[,]” and “is subject to certain limitations: such presumption is not created by the testimony of a physician who signed the death certificate without personal knowledge or investigation of the facts contained therein.” Brown v. Am. Radiator & Standard Sanitary Mfg. Co., 346 S.W.2d 713, 714 (Ky. 1961). “It does not follow that a death certificate filled in and signed by attending physicians, often without investigation or without any basis other than mere suspicion, will be admitted as prima facie evidence upon which to determine the manner in which the deceased met his death.” Marion v. Frank R. Messers & Sons, 306 Ky. 743, 751, 209 S.W.2d 321, 326 (1948). “To the extent that such a certificate is based on facts within the personal knowledge of the physician, based upon his examination of a patient, it may be prima facie evidence. To the extent that it is based on information received by the physician from the patient, it would not be.” Id.

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44 There is no indication that the coroner, in completing the Kentucky Certification of Death and determining that the manner of death was homicide because the cause of death, Pike’s COPD, was “exacerbated by sharp instrument injury[,]” conducted an independent investigation and gained personal knowledge of the matter. To the extent that the coroner relied upon information provided by Pike’s physician, Dr. Wittman, it suffers from the same infirmities as his expert testimony, namely that he was not qualified to provide such an opinion and it is not the product of sound scientific inquiry. To the extent that the coroner in completing the Kentucky Certification of Death relied upon Pike’s daughter, Connie S. Rogers, as the “informant” in determining the manner and cause of Pike’s death, this is no better evidence than “information received by the physician from the patient,” which does not create such a presumption. Marion, 306 Ky. at 751, 209 S.W.2d at 326. In such circumstances, the death certificate is not prima facie evidence of anything. The death certificate, thus, cannot salvage this prosecution if Dr. Wittman’s testimony as to cause of death should be excluded. Likewise, Pike’s extensive medical records admitted into evidence did not allow the jury to make such a connection, either, without expert interpretation. The testimony by the only valid expert to opine as to cause of death, Dr. Harshbarger, did not provide such a connection. Instead, he rejected that such a connection could be established based on the available records. Allowing the jury’s conviction of Williams for murder to stand under such circumstances upholds his conviction on mere speculation alone. This we

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45 should not do. See Hubbard, 304 Ky. at 822, 202 S.W.2d at 637 (granting a directed verdict where it was “speculative to say that the act of the defendant in this case was sufficiently proximate to impose criminal responsibility upon him for the unfortunate death”); Lough v. BNSF Ry. Co., 988 N.E.2d 1090, 1096-97 (Ill. App. Ct. 2013). Accordingly, I would reverse because “under the evidence as a whole”, with the exclusion of Dr. Wittman’s improper expert opinion testimony, “it would be clearly unreasonable for a jury to find guilt.” Southworth v. Commonwealth, 435 S.W.3d 32, 42 (Ky. 2014).17 See Bradley v. Commonwealth, 465 S.W.2d 266, 267 (Ky. 1971); Smelser, 105 F.3d at 306. III. CONCLUSION Williams was overcharged by the Commonwealth through the superseding indictment. There was ample evidence before the jury which would have supported his conviction for first-degree assault. It is undisputed that Pike suffered a serious bodily injury in the form of a collapsed lung when Williams stabbed her. This is a reprehensible crime for which he could have properly been tried and convicted. I believe that it is likely that had the jury been offered the option of convicting Williams of first-degree assault as a lesser included charge to murder, he very well may have been acquitted of murder and convicted of first- degree assault. I base such opinion upon the evidence presented at trial and the total sentence the jury recommended. However, due to what appears to be 17 Quoting Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (emphasis added).

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46 strategic choices by both the prosecution and the defense, the jury did not receive an instruction on first-degree assault and was put in the unenviable position of being forced to decide between acquitting Williams of any crime associated with Pike’s assault and convicting him of murder. I would reverse the portion of the Fayette Circuit Court’s judgment which convicted and sentenced Williams for murder, as the trial court should have excluded Dr. Wittman’s testimony as to the cause of Pike’s death. Without such testimony, the Commonwealth could not prove that Williams murdered Pike, and accordingly, a directed verdict should have been granted to Williams. COUNSEL FOR APPELLANT: Steven J. Buck Assistant Public Advocate COUNSEL FOR APPELLEE: Russell M. Coleman Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General

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