In the 1970’s comedian Flip Wilson made the phrase “The devil made me do it” a household punchline.  It was funny.  A twist on Flip’s humor is now making its way into a Georgia federal courthouse.

Judge W. Louis Sands, presiding over the criminal case against Stewart Parnell, the owner, of the now-defunct Peanut Corp. of America, linked to the 2009 nationwide Salmonella outbreak that sickened over 700 and killed nine, conducted a hearing on March 13, 2014, to determine whether the expert testimony offered as to Parnell’s ability to form the intent to commit the alleged crimes is admissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

According to defense expert Joseph Conley, a clinical psychologist, Parnell has an Attention Deficit Hyperactivity Disorder (ADHD) condition. Defense counsel claims that Conley’s testimony will show that Parnell did not commit the alleged crimes because he did not factually acquire the knowledge necessary to form intent about the actions the government has alleged. Conley would testify that Parnell’s ADHD is so severe that he likely never read, nor understood the significance of, many of the emails on which the government’s case relies.  Emails like:

“Turn them loose,” Parnell had told his plant manager in an internal e-mail disclosed at the House hearing. The e-mail referred to products that once were deemed contaminated but were cleared in a second test last year.

Parnell ordered products identified with salmonella to be shipped and quoting his complaints that tests discovering the contaminated food were “costing us huge $$$$$.”

Parnell insisted that the outbreak did not start at his plant, calling that a misunderstanding by the media and public health officials. “No salmonella has been found anywhere else in our products, or in our plants, or in any unopened containers of our product.”

Parnell complained to a worker after they notified him that salmonella had been found in more products. “I go thru this about once a week,” he wrote in a June 2008 e-mail. “I will hold my breath ………. again.”

In rebuttal, the prosecution filed a report prepared by Johns Hopkins University School of Medicine Professor David Schretlen, who challenges the reliability of Conley’s principles and methods, claiming that he failed to secure sufficient information, including grade school performance and childhood diagnoses, or administer tests that would support the defense’s argument. Schretlen observed that: “both his cognitive test performance and his own written replies show that Mr. Parnell can pay attention to details, think and respond quickly, and grasp the significance of communiqués about product safety. Thus, I do not believe that neuropsychological expertise will help the trier of fact better understand evidence about whether Mr. Parnell had sufficient knowledge to commit the alleged crimes.”

If it were not for the sick and dead, Parnell’s punchline – err, defense – would be funny.  Frankly, it is just pathetic.