Forensic Pathology Experts Disagree On Brain Swelling Time Frame In Murder Trial

ByWendy Ketner, M.D.


Updated on September 3, 2019

Court: United States District Court for the Eastern District of Michigan, Southern DivisionJurisdiction: FederalCase Name: Unger v. Bergh

In this case involving first-degree murder, the court found that it is not necessary for a forensic pathology expert to specify a particular time period to establish premeditation. Rather, in the case that two experts differ in their forensic opinions with regard to time, then cumulative expert testimony is sufficient to establish the element of premeditation.


The petitioner was found guilty of premeditated first-degree murder and sentenced to life imprisonment without the option of parole. The victim was the petitioner’s wife, who was found dead with a head injury in the Lower Herring Lake. The police found bloodstains on the concrete pavement that extended from the boathouse the victim had apparently fallen from, to the wall of the lake. The police also found a white smear on the petitioner’s shoe which was chemically consistent with the paint on the railing of the boathouse deck.

After numerous appeals were denied, the petitioner moved the current motion for a writ of habeas corpus on the grounds that:

  1. The state court unreasonably applied Federal law in holding that the petitioner’s trial counsel provided effective assistance in his handling of expert-witness testimony
  2. The state court’s denial of the petitioner’s claim that trial counsel was ineffective in failing to object to numerous instances of prosecutorial misconduct was both contrary to, and an unreasonable application of, clearly established Federal law.

The petitioner argued that his counsel ineffectively handled the prosecution’s forensic pathology expert witness. According to the petitioner, the forensic pathology expert’s testimony regarding the time interval between the victim’s injury and time of death was paramount to the prosecution’s case.

The Forensic Pathology Expert

A professor at the University of Michigan School of Medicine and chief of the neuropathy section of the department of pathology testified as an anatomical and neuropathology expert. He reviewed the victim’s autopsy report and studied slides of her brain tissue. The expert’s application of several staining techniques showed axonal swelling in the victim’s corpus callosum. The expert testified that axonal swelling does not happen after death, and the victim must have survived for at least ninety minutes after her injury for it to be detected using immunohistological staining. He based this opinion on articles published in peer-reviewed journals and used a Medline search to collect these sources.


On cross-examination, the expert was asked about a 2003 Japanese study which said neuron-specific enolase (NSE) staining could detect axonal swelling as early as 30 minutes after injury. He indicated no familiarity with the study and expressed surprise at the 30-minute timeline.

When he was deposed later during the proceedings to determine custody of the petitioner’s children, he testified that both neurofilament (NF) and NSE staining can show diffuse axonal swelling of corpus callosum and that he was unable to “pin down the time of death”. The expert testified that in his effort to establish the time elapsed between injury and death using a Medline search, he found that “with the NSE stain you could detect diffuse axonal injury 1-1/2 hours after the trauma”.

The defense counsel also questioned the trial counsel’s cross-examination of the expert regarding his 90-minute time frame. They claimed that had he done so, there would have been a reasonable probability of a different outcome. The court rejected this argument, accepting the trial court’s position that the trial counsel’s conduct was not inappropriate, holding it to be the correct application of Strickland. It also noted that even if the expert was not pushed on his 90-minute time frame, the cumulative evidence of the other expert witnesses indicated a 30-minute time frame to the jury, which was sufficient to establish the element of premeditation. The court also dismissed the petitioner’s claim of prosecutorial misconduct because it did not meet the standards set by Strickland.


The court held that the petitioner’s trial counsel had provided adequate assistance and his claim of prosecutorial misconduct did not meet the standard set by Strickland and hence denied him a writ of habeas corpus.

About the author

Wendy Ketner, M.D.

Wendy Ketner, M.D.

Dr. Wendy Ketner is a distinguished medical professional with a comprehensive background in surgery and medical research. Currently serving as the Senior Vice President of Medical Affairs at the Expert Institute, she plays a pivotal role in overseeing the organization's most important client relationships. Dr. Ketner's extensive surgical training was completed at Mount Sinai Beth Israel, where she gained hands-on experience in various general surgery procedures, including hernia repairs, cholecystectomies, appendectomies, mastectomies for breast cancer, breast reconstruction, surgical oncology, vascular surgery, and colorectal surgery. She also provided care in the surgical intensive care unit.

Her research interests have focused on post-mastectomy reconstruction and the surgical treatment of gastric cancer, including co-authoring a textbook chapter on the subject. Additionally, she has contributed to research on the percutaneous delivery of stem cells following myocardial infarction.

Dr. Ketner's educational background includes a Bachelor's degree from Yale University in Latin American Studies and a Doctor of Medicine (M.D.) from SUNY Downstate College of Medicine. Moreover, she is a member of the Board of Advisors for Opollo Technologies, a fintech healthcare AI company, contributing her medical expertise to enhance healthcare technology solutions. Her role at Expert Institute involves leveraging her medical knowledge to provide insights into legal cases, underscoring her unique blend of medical and legal acumen.

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