Tennessee Court Rules on Discovery of Income from Testifying Expert

This appeal arises from a medical malpractice case that went off the rails when the defense sought to discover financial information from plaintiff’s liability expert.  On further consideration, since the procedural history involves four motions for sanctions, two trial continuances, a denied interlocutory appeal, a dismissal and this appeal, perhaps I should say the case went off the rails, down an embankment into a sewage-filled ditch replete with rats the size of small dogs.   

It all started simply enough.  Defense counel served a notice of deposition for plaintiff’s liability expert, Dr. Evans, and requested financial information.  Specifically, the notice requested documents reflecting the income the good doctor had earned serving as an expert witness including his schedule of charges, all income received from reviewing cases, consulting or testifying for a 10 year period and 1099s and related documents showing his income for the same 10 year period.   No objection was filed to the notice but Dr. Evans failed to bring them to his deposition.  The deposition proceeded nonetheless and Dr. Evans was asked questions related to his income.  Dr. Evans testified he did not know how much he earned annually from his work as an expert witness and could not even give an estimate. While he estimated 15 to 20% of his income was derived from his work as an expert witness, he could not provide any information as to the actual dollar amount. 

Thereafter, a trial date was scheduled and the defense moved to compel production of the documents previously requested as part of Dr. Evans deposition.  Plaintiff urged the trial court to deny the motion as the documents were not in her possession.  Defense counsel insisted plaintiff could obtain the documents from her expert but asked the trial court to grant a motion for out-of-state subpoena if the trial court was inclined to deny the motion to compel.   While plaintiff conceded the financial information was relevant on the issue of bias, plaintiff asked the court to balance the privacy interests of the expert.  Ultimately, the trial court denied the motion to compel since the requested documents were not in the possession of the plaintiff but instructed defense counsel to file a petition for an out-of-state subpoena.  The trial court suggested the scope of the subpoena should be reduced to a five year period instead of ten and also suggested the parties agree to the production of an affidavit from Dr. Evans’ accountant giving the information as opposed to the production of the underlying documents which contained other personal, financial information.

Defense counsel moved for the out-of-state subpoena and supported the motion with information detailing Dr. Evans’ testifying history and arguing the requested documents went to the very core of proving Dr. Evans’s bias.  Specifically, the defense presented evidence that Dr. Evans had been disclosed as an expert in 179 cases in 23 different states and in 96% of those cases he offered testimony on behalf of the plaintiff.  Not surprisingly, the defense argued Dr. Evans was a professional witness and exploration of his financial interest and bias was paramount.  Plaintiff countered Dr. Evans was merely a “seasoned” expert and the subpoena was an invasion of his privacy.  At the hearing on the motion, the parties ultimately agreed an affidavit from Dr. Evans’ accountant would be a suitable means for obtaining the information.  But again, the scope of the disclosure was in dispute.  Plaintiff argued Dr. Evans should only have to disclose the percentage of his income derived from his work as an expert witness but should not have to disclose any income amounts.   The defense insisted income amounts were necessary to fully explore Dr. Evans’s financial interest and bias.

The trial court agreed with the defendant and ordered Dr. Evans accountant to produce the information within two weeks due to the looming trial date.  Before the hearing concluded, plaintiff’s counsel expressed to the trial court her concerns that Dr. Evans would not comply with the order requiring disclosure of his income amount.   The trial court reiterated her order and indicated it would apply to both plaintiff and defense expert witnesses.  She instructed plaintiff’s counsel to provide the affidavit directly to defense counsel rather than file it with the court, and she instructed defense counsel that the affidavit was not to be disseminated beyond the confines of his office.   Finally, the court ordered the affidavit could only be used for impeachment in the subject litigation and only if permitted to do so by subsequent order of the court.

Two weeks came and went.  No affidavit.  Defense counsel filed a motion for sanctions based on the failure to comply with the court order.   The defense reminded the trial court that the information had originally been requested from Dr. Evans on January 15, 2010 and the August, 2012 trial date was looming.  At the hearing, plaintiff’s counsel sought a modification of the order and requested the affidavit be provided directly to the court for an in camera review.   The court directed the parties to return the following day after plaintiff’s counsel had an opportunity to consult with Dr. Evans. 

The following day, plaintiff’s counsel indicated Dr. Evans would provide the affidavit if it was submitted only to the judge for in camera review.  Consequently, the court ordered Dr. Evans’ accountant to produce the affidavit to her.  If the affidavit was consistent with Dr. Evans’ deposition testimony (i.e. 15 to 20 % of his income was derived from expert witness work), then she would retain the affidavit and it would not be provided to defense counsel.   Defense counsel insisted he should be allowed to learn the full amount of Dr. Evans’ expert witness income.  The trial court ruled defense counsel could ask those questions on the stand but she would not require the information in the affidavit.  Plaintiff’s counsel then flatly told the court that Dr. Evans would not answer any such income-related question on the stand.   The trial court warned plaintiff that either Dr. Evans would provide the information or he would not testify at all.   The affidavit was to be provided by July 12, 2012.  Because of the delay occasioned by the discovery dispute, the trial court granted plaintiff’s motion to continue the trial date.

July 12th  came and went.  No affidavit.  A second motion for sanctions was filed.  In response to the second motion for sanctions, plaintiff’s counsel informed the court that Dr. Evans was willing to provide the affidavit provided a more explicit order was entered which (1) allowed Dr. Evans to recuse himself in the event the court found defense counsel was entitled to the affidavit and (2) under such circumstances, provided for the return of the affidavit without further dissemination.  Clearly losing patience, the trial court reminded plaintiff’s counsel that she had previously assured the court on two separate occasions that the affidavit would be forthcoming and she could no longer accommodate Dr. Evans’ demands.  The trial court excluded Dr. Evans finding he had refused to provide his affidavit in violation of a court order. 

Thereafter, plaintiff filed a motion to amend the trial court’s order excluding Dr. Evans.  Plaintiff’s counsel argued Dr. Evans had not refused to provide the affidavit but instead was waiting on the errors in a prior court order to be cured.   Plaintiff’s counsel insisted the order submitted by the defendant had failed to address the safeguards specifically ordered by the court and instead simply incorporated the oral rulings.  

After yet another hearing on the issue, the trial court agreed to set aside the order excluding Dr. Evans but again reiterated that Dr. Evans would have to provide income figures rather than just mere percentages.  However, she permitted the parties the opportunity to brief the issue, and they did.   After reviewing the briefs, the trial court ordered Dr. Evans to produce an affidavit for in camera review.  If the in camera review revealed Dr. Evans earned more than 15 to 20% of his income for expert witness fees (in contradiction to this deposition testimony), the affidavit would be supplied to defense counsel unless Dr. Evans’ elected to withdraw as a witness.  If Dr. Evans withdrew, the affidavit would be returned without disclosure to defense counsel or others.  If Dr. Evans testified at trial, defense counsel would be permitted to ask about Dr. Evans’ income for a limited number of years.

In response, Dr. Evans finally produced the affidavit.  But unfortunately, Dr. Evans was not quite done.  As part of his email to the trial court, he included two notices/conditions to the court opening the attachment containing the affidavit.   The first notice advised the court that if she found the affidavit should be provided to defense counsel then he would withdraw as an expert.  The second notice advised the court that he “definitely” and “absolutely” but yet “politely” would not answer any questions about his income. 

Three days after Dr. Evans supplied the affidavit, plaintiff filed a motion for interlocutory appeal seeking review of the income issue.  Thereafter, the trial court sent a letter to both counsel indicating she had not opened the attachment containing Dr. Evans’ affidavit given his conditions.   In response to all this, the defense filed its third motion for sanctions again asking the court to exclude Dr. Evans as it was “as plain as the fly in the buttermilk” that Dr. Evans would not comply with the court’s orders. 

Another hearing was set and the trial court denied the motion for sanctions “at this time” and granted the plaintiff’s motion for interlocutory appeal.   The Court of Appeals and the Tennessee Supreme Court denied the plaintiff’s application for permission to appeal., and defense counsel filed its fourth motion for sanctions again asking the trial court to give Dr. Evans the boot.   Because of the ongoing issue, the trial court again continued the trial while waiting for plaintiff’s response to the latest motion for sanctions.  Plaintiff responded that Dr. Evans had provided the requested affidavit but conceded he would not answer questions at trial related to his income.  At this point, the trial court had enough and told plaintiff it was time to find another witness.  Dr. Evans was excluded. 

Plaintiff asked for 45 days to find another liability expert.  The trial court gave plaintiff sixty days to disclose another expert or non-suit.  Sixty days came and went.  No new expert.  No non-suit.  The trial court dismissed the case and plaintiff appealed alleging two assignments of error:  (1) did the trial court abuse its discretion in requiring Dr. Evans to disclose his income information; and (2) did the trial court abuse its discretion in excluding Dr. Evans for failing to comply with the trial court’s orders.

The short answer to both questions is a resounding no.  In providing this answer, the Court of Appeals opinion gives us a lengthy and excellent history of the issues surrounding paid expert witnesses.  The Court of Appeals also provides us a summary of various approaches used in different states.  

Ultimately, the Court of Appeals makes clear that in Tennessee the jury can consider an expert’s bias or financial interest in determining the weight to give to the expert’s testimony.   Evidence suggesting bias is permissible under Tennessee Rule of Evidence 616.  And, Tennessee Rule of Evidence permits cross-examination on any matter relevant to the case including credibility.  

As to Dr. Evans, the Court of Appeals found the trial court had exercised the “patience of Job” in trying to fashion a “reasonably tailored and minimally intrusive” compromise for the parties’ competing interests.  Further, the Court of Appeals rejected plaintiff’s argument that the 2011 amendments to the Tennessee Rules of Civil Procedure precluded the forced disclosure of an expert’s income.  While the new rule requires the parties to provide “a statement of the compensation to be paid for the study and testimony in the case”, the Court of Appeals concluded this language was simply to facilitate the exchange of basic information and was not intended as “a ceiling on the amount of information to be discovered” 

Finally, the Court of Appeals expressly indicated its holding was limited to the facts of this particular case and their opinion was not intended to establish broad guidelines regarding financial disclosures by experts.  In fact, the Court of Appeals noted a bright line rule would not be practical.  Instead, trial courts are vested with broad discretion on discovery , the scope of cross-examination and controlling their dockets and the trial court did not abuse its discretion on any of these issues with respect to Dr. Evans. 

While the Court of Appeals expressly limits its holding to the facts of this case, if you have an issue regarding an expert’s financial interest or bias, you should read this case as it does a nice job of laying out the issues and the law.  And, as you do that, try to figure out why plaintiff's counsel made the admissions he did and why he stuck with this expert after being given the opportunity to get another.

Click on the link to read the opinion in Laseter v Regan, No. W2013-02105-COA-R3-CV  (Tenn. Ct. App. July 24, 2014).

7th Circuit Finds Expert Testimony for Plaintiff Admissible in Products Liability Claims

The 7th Circuit Court of Appeals has upheld a plaintiff's verdict in a products liability case notwithstanding the defendant's assertion that the plaintiff's expert should have been excluded under Daubert.

In Lapsley v. Xtech, Inc., No. 11-3313 (7th Cir. July 27, 2012) Industrial grease was propelled in a jet with enough energy to penetrate and pass through  the  human  body  like  a  bullet. That  jet hit and disabled plaintiff Leonard Lapsley.  The jury found that the accident occurred because defendant defectively designed the piece of equipment that propelled the grease.

Defendant challenged the admissibility of plaintiff's expert witness, arguing that he lacked a scientific basis for his testimony.  The trial judge permitted the witness to testify, and the defendant challenged that ruling on appeal after a jury found it liable for Lapsley's injuries.

The 7th Circuit Court of Appeals said this in affirming the trial court's ruling:


We do not require experts to drop a proverbial apple each time they wish to use Newton’s gravitational constant in an equation. Similarly here, the  burden of proof at trial, and certainly the guideposts of reliability attached to the Daubert inquiry, did not require Dr. Hutter to try to recreate the binding up of a ten thousand pound spring to produce a potentially deadly jet of industrial grease. Xtek was free to raise the lack of physical tests of the accident with the jury, and to attack any aspect of  the mathematical model that was used in place of physical re-creations. The district court, however, did not abuse its discretion by allowing Dr. Hutter to testify to the results of his mathematical simulations.


There is more.  Here is what the court said on the issue of whether the expert was properly permitted to testify on the foreseeability of the event:


Unlike the opinions discussed above, no  one needs to understand physics to counter design evidence effectively or to criticize it  as dependent on hindsight bias. “Vigorous 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.”  Daubert, 509 U.S. at 596. “These conventional devices, rather than wholesale exclusion  under an uncompromising "general acceptance’ test, are the appropriate safeguards where the  basis of scientific testimony  meets the standards of Rule 702.” Id.
And, in concluding the opinion, the court said this:
The accident that disabled Leonard Lapsley appears to  have  been unprecedented, and fortunately it has not been repeated with other millwrights. The uniqueness of an accident can weigh against jury  findings of foreseeability and lack of reasonable care  in design, but that is a matter for the jury to decide. The jury here accepted Dr. Hutter’s uncontradicted expert opinion that  a reasonable designer would have considered the danger of the powerful spring being bound up unexpectedly and releasing its energy so as to act like a ram on the grease in the spindle assembly. Rule 702 provides a test of reliability, not of ultimate merit. District courts  acting as gatekeepers of scientific, technical, or specialized knowledge evidence retain significant discretion  under the flexible  Daubert inquiry. The district court here did not misapply Daubert, and Xtek has identified no compelling reason to disturb the court’s exercise of its discretion.
This opinion is a great resource for plaintiff's lawyers looking to admit expert testimony in cases involving one-of-a-kind incidents.  


Tennessee Court Waives Compliance With "Contiguous State" Rule for Expert Witness in Medical Malpractice Case

Tennessee has a goofy rule concerning expert witnesses that, to my knowledge and belief, exists in no other state.
Tenn. Code Ann. § 29-26-115(b) requires any expert witness in a medical malpractice state to practice in Tennessee or a border state unless the trial court “determines that the appropriate witnesses otherwise would not be available.”
The alleged purpose of the contiguous state rule is to increase the likelihood that the witness will know the applicable standard of care.  The actual result of this rule is to make it more difficult to find expert witnesses, particularly in specialty medical areas or when the defendant is well-known.  
In Marsha McDonald v. Paul F. Shea, M.D. and Shea Ear Clinic, No. W2010-02317-COA-R3-CV (Tenn. Ct. App. February 16, 2012),  Plaintiff moved for waiver of the contiguous state rule supported by an affidavit from Plaintiffs’ counsel. The affidavit explained that Plaintiff originally had an expert, but the expert developed health concerns that required him to decline to testify. Plaintiffs’ counsel then spoke with more than a dozen experts from Tennessee and border states, all of whom stated that Plaintiff had a meritorious case but they would not testify for fear of retaliation by
Defendant Doctor’s father, a prominent physician in the area. The trial court granted Plaintiff ’s motion.
Defendant contested the waiver, asserting that Plaintiff ’s difficulty in obtaining an expert from Tennessee or a border state was akin to a patient unable to find a testifying expert because no malpractice occurred. The parties and the Court of Appeals looked to Rose v.
H.C.A. Health Servs. of Tenn., 947 S.W.2d 144 (Tenn. Ct. App. 1996) for guidance:

In Rose v. H.C.A. Health Servs., the plaintiffs  searched unsuccessfully in Tennessee and bordering states for an expert in hospital risk management and quality assurance. Plaintiffs’ counsel submitted an affidavit stating that health care professionals in these areas would talk to him only if they were not identified. The affidavit expressed counsel’s belief that the size of defendant H.C.A. would make it difficult to find a witness in Tennessee or a contiguous state. The plaintiffs asked the trial court to waive the contiguous state requirement, and this request was denied. The plaintiffs appealed. The appellate court found no abuse of the trial court’s discretion, holding that the difficulties described by plaintiffs’ counsel in that case were “generalized and unspecific,” and reflected “only a cursory effort to find an appropriate expert.”Additionally, the plaintiffs’ counsel cited only a conversation with a single hospital administration in support of his assertion that the large size of the defendant corporation would make it difficult to find an expert without a conflict of interest. [Citations omitted.]

The Court of Appeals distinguished Rose because the appellate court in Rose merely affirmed a trial court’s denial of the waiver request under the circumstances; the Rose Court did not state that the circumstances mandated denial of the waiver request. In this case, the Court of Appeals
found the evidence submitted by Plaintiff ’s counsel sufficient to make waiver by the trial court “within the range of acceptable alternatives,” and therefore affirmed the trial court’s decision.
Plaintiff's counsel put in the extra effort that made a record to save the case.  This effort should not be necessary and the contiguous state rule should be abolished.  However, given the current composition of the Tennessee Legislature, that is not going to happen and Tennessee lawyers would be wise to follow the example set forth by the lawyer for the plaintiff in this case.

Tennessee Court Discusses Whether Expert is Qualified to Speak to Defendant's Standard of Care Under Locality Rule

Tennessee law requires that the plaintiff present expert proof that the defendant violated the standard of care applicable in the community in which the care was given at the time the care was given.  Proof of the standard can come from an otherwise qualified expert who knows the standard of care in that community or in a similar community.  This rule is codified in Tenn. Code Ann. § 29-26-115(a). 

In Marsha McDonald v. Paul F. Shea, M.D. and Shea Ear Clinic, No. W2010-02317-COA-R3-CV (Tenn. Ct. App. February 16, 2012),  the Court of Appeals engaged in a lengthy discussion of whether Plaintiff ’s expert was qualified to testify under Tenn. Code Ann. § 29-26-115(a). The court’s reasoning was guided by the recent Tennessee Supreme Court case of Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011). In Shipley, the Supreme Court rejected the notion that an expert must have personal, first-hand knowledge of the standard of care by actually practicing in a community. The Supreme Court also held that “expert medical testimony regarding a broader regional standard or a national standard should not be barred, but should be considered as an element of the expert witness’ knowledge of the standard of care in the same or similar community.”

These two holdings in Shipley gutted the majority of Defendants’ objections to the competency of Plaintiff ’s expert in this case.


The Court of Appeals then reviewed the testimony of Plaintiff ’s expert relied upon to establish that Los Angeles, where Plaintiff ’s expert practices, is similar to Memphis, where Defendant Doctor practices.  Here is the testimony from the expert:
Since I was not asked to do so during my deposition, I am providing such a comparison now. The Los Angeles and Memphis medical communities, though somewhat different in scale because of the difference in population, are nevertheless similar communities. They are both homes to university-based medical centers and university-based medical training programs. They both have community and specialty hospitals. They both offer a large number of medical specialties, including otology. Adjusting for the difference in population, Memphis and Los Angeles also have a comparable number of health care facilities and beds. In summary,  there is really no appreciable difference in the medical communities of Memphis and Los Angeles. At a minimum, they are similar communities. The medical and physiological considerations involved in the determination of whether to use transtympanic perfusion therapy on a patient, and whether to use Gentamycin or Streptomycin as the medication of choice in such a procedure, are not influenced any geographic differences between the Memphis and Shelby County, Tennessee community or the Los Angeles, California community. Physicians practicing otology in both of these communities have access to the same medical information concerning transtympanic perfusion therapy and whether to use Gentamycin or Streptomycin as the medication of choice in such a procedure. Further, the diagnosis of Ménière’s does not change from community to community. The diagnostic criteria are well understood within the specialties and do not change based on geographic location. All of this is true no matter the specialty nor [sic] location, but it is particularly true in sophisticated medical communities such as Los Angeles and Memphis. For consideration of all the issues that pertain to this case, it is my personal and medical belief that Los Angeles and Memphis are similar medical communities. This is not a situation where a community is impaired in its ability to deliver services because of lack of financial commitment, resources, information, or ability to provide services. In every way a patient presenting such as Marsha McDonald did to the Shea Clinic in July of 2004, should be subject to the same standards of care whether in Los Angeles, Memphis, or many other similar communities. Having pointed out the many similarities between the Los Angeles and Memphis medical communities, I can think of absolutely no differences between them for the purposes of this case other than the proportionally commensurate larger number of doctors and nurses in Los Angeles.
The Court of Appeals rejected Defendants’ argument that Los Angeles and Memphis are dissimilar per se because of the difference in population size, regardless of the testimony by Plaintiff ’s expert. The Court of Appeals acknowledged the trial court’s role as a gatekeeper, assuring the expert meets the minimum competency criteria and then letting the opposing party challenge the expert’s qualifications and testimony on cross-examination.
The Shipley  opinion did a fine job of elevating substance over form in the preparation and trial of health care liability actions in Tennessee.
Note:  some of you might ask why a doctor from California was permitted to testify in Tennessee, given the fact that ordinarily such experts must come from Tennessee or a contiguous state.  This portion of the opinion will be addressed in the next post.


Evaluation of Expert Witnesses in Tennessee and the Sixth Circuit

The 6th Circuit Court of Appeals has sent a clear signal on what the federal courts in Tennessee and the other states that comprise the 6th Circuit should look at when reviewing a Daubert challenge to expert testimony.

In Newell Rubbermaid, Inc. v. The Raymond Corporation, No. 10-3912 (6th Cir. April 3, 2012), the plaintiff corporation filed a subrogation against defendant seeking recovery of monies plaintiff paid to plaintiff's employee who was injured while using a forklift manufactured by defendant.  

The Plaintiff's expert was Benjamin T. Railsback.  The Court explained that "Railsback, a forensic engineer with no experience in driving a Raymond forklift and only limited experience in driving forklifts from other manufacturers, opined that the Dockstocker was defectively designed because it did not have a rear guard door to prevent the operator’s feet from accidentally leaving the operator compartment. Raymond moved to exclude Railsback’s testimony."

The district court concluded that ' did not have sufficient training or experience with forklifts to qualify him as an expert witness, that his testimony was not relevant because it involved different models of forklifts than the one at issue in the present case, and that his methods of extrapolating from anecdotal evidence and his failure to test his proposed alternative designs rendered his opinion unreliable."  The court then granted the defendant summary judgment, holding that in the absence of expert testimony there was no proof of defective design.

The  6th Circuit affirmed, first setting forth this test for expert testimony in Tennessee and the other courts in this circuit:

A district court’s task in assessing evidence proffered under Rule 702 is to determine whether the evidence “both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). One key consideration is “whether the reasoning or methodology underlying the testimony is scientifically valid.” Id. at 592-93. The inquiry is “a flexible one,” and “[t]he focus . . . must be solely on principles and methodology, not on the conclusions they generate.” Id. at 594-95. An expert who presents testimony must “employ[] 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).

Although there is no “definitive checklist or test” for meeting this standard, Daubert set forth a number of factors that typically “bear on the inquiry.” 509 U.S. at 593. These include whether the theory or technique in question “can be (and has been) tested,” whether it “has been subjected to peer review and publication,” whether it has a “known or potential rate of error,” and whether the theory or technique enjoys “general acceptance” in the “relevant scientific community.” Id. at 593-94 (internal quotation marks omitted). Red flags that caution against certifying an expert include reliance on anecdotal evidence, improper extrapolation, failure to consider other possible causes, lack of testing, and subjectivity. Best v. Lowe’s Home Ctrs., Inc., 563 F.3d 171, 177 (6th Cir. 2009). In addition, if a purported expert’s opinion was prepared solely for litigation, that may also be considered as a basis for exclusion. Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 434 (6th Cir. 2007). 

The 6th Circuit found that the district court "identified at least four red flags in Railsback’s methodology: anecdotal evidence, improper extrapolation, failure to consider other possible causes, and, significantly, a lack of testing. These concerns have been deemed sufficient to warrant exclusion in prior cases. See, e.g., Best, 563 F.3d at 177-78; Brown, 432 F.3d at 647-48; Dhillon, 269 F.3d at 869-70.

The appellate court gave the plaintiff a solid bitch slap with the following:  "

Newell argues on appeal that the only evidence available to Railsback was anecdotal in nature. Perhaps this should have been an indication to Newell that it needed a different expert. In any event, Newell has not attempted on appeal to clarify Railsback’s testing methodology or the evidence supporting his position that a rear guard door would have prevented the injury here. In addition, Newell does not dispute Raymond’s assertion that Railsback’s expert opinion favoring a rear guard door runs contrary to industry standards.



Expert Witness Qualifications in Tennessee Medical Malpractice Case

The Sixth Circuit Court of Appeals has reversed a district court's finding that an expert witness was not qualified to testify on behalf of a plaintiff in a health care liability action, relying on Shipley v. Williams, 350 S.W.3d 527 (2011). 

In Bock v. University of Tennessee Medical Group, Inc., No. 10-5534 (6th Cir. March 26, 2012), the court ruled that Shipley required a remand but also made it very clear that merely determining a witness to be competent to give expert testimony did not end the inquiry.  After competency is determined, case law and evidence rules in federal court still require application of the  FRE 702 as interpreted by Daubert.  The record was such that the court could not make the determination of these issues and thus a remand was appropriate.

The case includes a helpful discussion of the interaction between the Erie rule and the Federal Rules of Evidence and how the 6th Circuit has addressed the issue.  Surprisingly, the United States Supreme Court has never directly addressed the issue.

Shipley does not open the door to permit anyone to qualify as an expert witness in a medical malpractice case.  However, Shipley does put some degree of common sense back into the discussion of whether the proposed expert is competent to testify.


New Expert Witness Background Search Service

Robert Ambrogi has shared the existence of a fascinating service concerning expert witnesses.

The service, called Expert Witness Profiler, checks into the expert's background, testimonial history, social media profile, and more.  Here is what the profile includes:

  • Testimonial history.
  • Challenge (Daubert/Frye) history.
  • Disciplinary history.
  • Licensing and certifications (including verification).
  • Educational background (including verification).
  • Professional background.
  • Associations and memberships.
  • Personal information.
  • Publications.
  • Teaching and research.
  • Patents, trademarks, and copyrights.
  • References in news, blogs and social media.

Purchasers of the profile receive a booklet covering the items listed above. Hyperlinks within the document take you to relevant cases, orders, and other documents. The service will also include transcripts, motions and briefs relating to the expert or to challenges to the expert.  The company's website includes this sample profile.

Therates for this service run from $450 for turnaround in 10 business days to $900 for a 1-day turnaround.  Volume discounts are available.

One of the founders of this service also runsDaubert Tracker and thus the Daubert Tracker information is also available. 

Many of us do this type of research on our own, but this service deserves a close look.  The price is reasonable enough, particularly if you plan ahead and pay only $450 per search.   Of course, it also gives you an opportunity to check out your own expert and attempt to avoid a surprise that could really hurt your case.


The Scope of Expert Testimony in Tennessee

The Tennessee Bar Journal has published an article I wrote concerning the permissible scope of expert testimony.    The article discusses the decision of the Tennessee Court of Appeals in Holder v. Westgate Resorts Ltd..  Here is the majority opinion and here is the concurring / dissenting opinion of Judge Susano.

This is an excerpt of the article, titled "That's (Not) a Fact, Jack:"

The majority opinion in Holder has grave implications for the trial of cases involving experts. It has the potential for injustice to plaintiffs and defendants. Fortunately, the Tennessee Supreme Court accepted review of the case. In the view of this writer, the court should send a clear message that the proffered testimony in this case was properly excluded and that otherwise inadmissible facts, data and opinions should not normally find their way to the fact finder merely because an expert witness wants to testify about them.

The Tennessee Supreme Court heard oral arguments on the case during the week of May 9.  A decision in the case is expected this year.

Tennessee Supreme Court Agrees To Hear Important Case Concerning Expert Witnesses

The Tennessee Supreme Court will hear oral arguments on May 11, 2011 in Holder v. Westgate Resorts, Ltd.,  E2009-01312-SC-R11-C (Tenn. Ct. App. 2010).

Here is the summary of the opinion prepared by the Court of Appeals:

Plaintiff sustained personal injuries resulting from a fall on defendant's premises
and brought this action for damages, which resulted in a jury verdict in favor of plaintiff for damages against defendant. Defendant appealed, and asserted that the Trial Judge erred when he refused to allow defendant's expert to testify to his conversation with a third party. On appeal, we hold that the Trial Court erred in refusing to allow the proffered testimony, but the error was harmless. We affirm the Judgment of the Trial Court.
The "third party" referenced in this summary was in fact an another expert.  That's right - the defense expert wanted to testify that he had talked with another expert who agreed with his view of the issue.  Of course, the second expert wasn't available for cross-examination.  This case will give the Court its first opinion to rule on the meaning of a language recently added to Rule 703, which provides that "[f]acts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect."
I wrote my column in the Tennessee Bar Journal about this case.  It will be published in May, 2011. I will write a post about the column as soon it is released to the public.
In the meantime, you can get a good view of the issues by reading the majority and minority opinions.

Pigeon Poop Expert

A plaintiff in a slip and fall case in New York was permitted to testify as an expert on pigeon droppings.

The plaintiff in Stewart v. New York City Tr. Auth.  2011 NY Slip Op 01593  (NY 1st App. Div. Mar. 3, 2011) slipped and fell on pigeon poop at a subway station.  The opinion says this about pigeon poop:


There was nothing manifestly untrue or incredible about plaintiff's testimony that he often observed pigeon droppings on the subway stairs that he used every day and that he was caused to slip because of the presence of pigeon droppings on the very same set of stairs. Indeed, the station cleaner similarly testified that he had "experience on a daily basis with pigeon [droppings] and having to clean it from these steps," and that he was taught to put sand over the pigeon droppings because they were slippery.
At trial, plaintiff testified that he always saw pigeon excrement all over the station, that he often saw it on the stairs where he fell, that he had complained repeatedly to station workers, that he saw it 14 hours before the accident, and that he saw it again at the time of the accident.  The station cleaner agreed that pigeons often left their droppings throughout the station, and while he denied seeing accumulations of droppings on the steps, he also stated that he had experience cleaning the droppings on a daily basis from the steps. He also testified that part of his duties included cleaning the steps of the droppings, and while he denied that the droppings were slippery, he also stated that he was trained to put sand over the droppings because they were slippery, and to then clean them off the steps. In addition, he maintained that he did not work on the day of the accident and thus could not dispute plaintiff's account of the condition of the steps on that day. 
There was sufficient evidence from which the jury could infer that defendant had actual knowledge that pigeons regularly left their droppings on the stairway which were regularly permitted to remain for an unreasonable period of time.

The New York Injury Cases Blog claims to have inside information about the case, including the following:

As a result of his doorman and porter jobs, Stewart claimed he'd become a bit of a self-taught expert on pigeon excrement, having seen and cleaned a considerable amount over the years. He was allowed to testify as to color and texture differences between newly deposited and older droppings and what the defendant should and could have done to rid the area of pigeons.

The appellate court affirmed a significant verdict for the plaintiff, obviously rejecting the strenuous argument of the defendant that the plaintiff didn't know shit about poop.


Discovery Of an Expert's Income From Testifying

The Appellate Division of the Superior Court of New Jersey has ruled that an expert should not be required to reveal details about his income from testifying as an expert witness.

In Gensollen v. Pareja,  No. A-0401010T3, (N.J.A.D. 11/19/10), doctor who examined the plaintiff in a personal injury case admitted in a deposition that over 95% of his litigation work was for defendants.  He also testified that testified that he conducted an average of eight to nine IMEs per week. He also testified that his two doctor orthopedic firm charges a fee of $895 per exam, but would impose additional charges depending on the extent of records and x-ray or MRI studies reviewed in a given case.

Plaintiff wanted more data to show bias, and the trial judge ordered defendant to produce, at his own cost, (a) documentation indicating the percentage of the firm's findings in the past five (5) years that supported the premise that plaintiff suffered no type of permanent injury, (b) documentation indicating the percentage of the firm's work that is defense related and the percentage of his work that is plaintiff related; and (c) documentation indicating what monies in the past five (5) years have been paid by defense attorneys to the firm for conducting medical exams.

In an effort to persuade the trial judge to reconsider the order, the expert revealed that 

he had 'performed approximately 1600-1800 independent medical examinations' in the prior five years; [his partner] Dr. Friedenthal had performed the same number and 'possibly even more' in the prior five years; and to comply with the first paragraph of plaintiff's request he would 'have to locate and review each and every IME report authored by Dr. Friedenthal or me over the last five years,' and then 'actually compile the results of my post hac analysis into a new document that otherwise would not exist.' He estimated 'it would take . . . approximately fifteen minutes per IME report, or a total of between 800 and 900 hours, to actually perform the analysis and compilation' called for by the first paragraph of plaintiff's document request. He also explained the similar difficulties he would encounter if compelled to comply with the other two paragraphs of plaintiff's document request.

The appellate court said that "party may also ask for an estimate of the extent to which the expert has rendered opinions for plaintiffs or defendants. And a party may obtain an approximation of the portion of professional time the expert devotes to providing services in litigation. In the vast majority of cases, truthful responses to those inquiries will likely provide all the information necessary for the party to argue that the expert possesses a positional bias and will be sufficient to terminate any further inquiry into the expert's private business and financial matters."  The court re-affirmed a prior holding that an expert's business records, files and 1099s should only be provided under "the most unusual or compelling circumstances."

The court made clear what it had not decided, noting that "we have not been presented with a case in which the requesting party contends, with sufficient supporting proof, that the expert has failed to provide accurate estimates" of the time devoted to litigation matters.  In this case the court decided that given the information shared by the expert the additional information would add little to the claim of bias  and would be burdensome on the doctor.

The Pennsylvania Supreme Court wrote about this issue almost five years ago and I discussed it in this blog post.

The data shared by the defense expert in this case, particularly after he sought reconsideration of the trial judge's ruling, gives the plaintiff a lot to work with.  While all of us get frustrated by doctors hired by insurance companies to conduct so-called "independent medical exams," we must also recognize that some limit must be placed on discovery of non-party witnesses, even those who knowingly inject themselves into the litigation process by accepting employment as experts.  At the end of the day, the data the plaintiff has is more than sufficient to demonstrate bias on the part of the defense expert and it is hard to say that the ruling of the appellate court was unfair or unwise.

Plaintiff's lawyers who think otherwise might choose to remember that black letter law principle of "what is good for the goose is good for the gander."

AAP Issues Expert Witness Policy

The American Academy of Pediatrics has issued a Policy Statement titled "Guidelines for Expert Testimony in Medical Malpractice Litigation.  

After reviewing the role of the expert witness in medical malpractice litigation, the Guidelines begin the "recommendations" section of the paper with this statement:

The AAP recognizes that physicians have the professional, ethical, and legal duty to testify as called on in a court of law in accordance with their expertise. Physicians serving as expert witnesses have an obligation to present complete and unbiased information with which the trier of fact can ascertain whether the defendant was medically negligent and whether, as a result, the plaintiff suffered compensable
injury and/or damages. At this time, the best strategies for improving the quality of medical expert witness testimony are strengthening the qualifications for serving as a medical expert and providing more specific guidelines for physician conduct throughout the legal process.
The recommendations include the following:
To meet that obligation, physicians agreeing to testify as experts in medical negligence cases should conduct themselves as follows:
1. Regardless of the source of the request for testimony (plaintiff or defendant physician), expert witnesses should lend their knowledge, experience, and best judgment to all relevant facts of the case.
2. Expert witnesses should take necessary steps to  ensure that they have access to all documents used to establish the facts of the case and the circumstances surrounding the occurrence.
3. Relevant information should not be excluded for any reason and certainly not to create a perspective favoring the plaintiff or the defendant.
4. The expert witness’s opinion should be fair and objective. The expert witness should be comfortable with his or her testimony regardless of whether it is to be used by the plaintiff or defendant.


Tennessee Supreme Court Issues Proposed Rules for Public Comment

The Tennessee Supreme Court has asked for public comment on proposed changes to the rules of procedure and evidence.  The Order asking for public comment can be viewed here.  

I serve on the Court's Advisory Commission on the Rules of Practice and Procedure and I am happy to report that the Court has accepted (at least for purposes of public comment) each of the rule changes proposed by the Commission.  

Significant proposed changes to the rules of civil procedure  include changes to clarify Rule 3 and 4 concerning the need to serve a summons and complaint promptly after filing of the complaint and issuance of the summons, Rule 5 concerning the electronic service of pleadings, motions and other documents, and Rule 26 concerning the discovery of insurance policy limits.  The most significant change to the rules of evidence is new Rule 502 concerning the inadvertent waiver of the privilege.


Rule of the Week - T.R.C.P. 37.03(1)

Rule 37.03(1) of the Tennessee Rules of Civil Procedure is the rule that provides for sanctions for the failure to provide complete answers to interrogatories and other discovery.  Here is the text of the rule:


A party who without substantial justification fails to supplement or amend responses to discovery requests as required by Rule 26.05 is not permitted, unless such failure is harmless, to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court on motion may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses (including attorney fees) caused by the failure, these sanctions may include any of the actions authorized under Rule 37.02(A), (B), and (C) and may include informing the jury of the failure to supplement or amend.

As you can see, the default sanction for failure to supplement or amend is a bar to the use of the evidence.  

This rule is particularly effective when your opponent fails to give complete answers to expert witness interrogatories.  Judges should prohibit a party who fails to disclose opinions of an expert or the bases for those opinions from testifying to those matters at trial.  

It can also be used when your opponent fails to disclose a fact witness or fails to turn over documents that were covered by a Rule 34 document request.

Of course, if you do a shoddy job of answering expert interrogatories you will have a hard time complaining about the incomplete answers of your opponent.  But, if you follow the rule, the judge should require your opponent to do the same, and should enforce the default sanction.

Sometimes a person who intentionally or carelessly does a poor job answering expert witness interrogatories will say that the movant could have learned the additional information if he or she had taken the expert's deposition.  That's right: the argument is that it is the movant's fault for not spending thousands of dollars to get information that was supposed to be provided by answers to expert witness interrogatories.  Your response to that argument is that you have no duty to spend your time and money to determine if your opponent has followed the rules of procedure and that you had a right to rely on the interrogatory answers in determining what the expert was going to say at trial.

If you decide not to depose your opponent's experts, this language in a letter to your adversary after you receive answers to the  expert witness interrogatory will help you with your trial judge.

I have your answers to expert witness interrogatories.  I assume that the answers are complete and that I have been provided with all information required under Rule 26.  If the answers are incomplete in any way, or if supplementation of the answers is required by Rule 26.05, please do so as soon as possible.

Based on your answers, I have elected not to depose your experts.  However, please be advised that in the event that your expert attempts to testify to any substantive matter not included in your answers to expert witness interrogatories I will ask the Court to exclude such testimony under Rule 37.03(1).

This rule is relatively new and judges in some areas of the state need to be educated about it.  Lawyers should not be permitted to sandbag opponents by giving shoddy expert witness disclosures or withholding documents.  




Suggestion for Expert Witness Disclosure Language in Scheduling Orders

         One of the battles in the preparation of scheduling orders is the deadlines for disclosure of expert witnesses. The defense always wants the plaintiff to go first, and wants an additional 30 or 60 or even 90 days to disclose its experts. Sometimes, the defense wants to depose the plaintiff’s experts before disclosing its own experts, a ridiculous position that should be rejected by every trial judge. Simultaneous disclosures are rarely ordered by judges in Tennessee.

          I am involved in a case in federal court in West Virginia and learned that it has an eminently fair way of resolving the problem of the timing of expert witness disclosures. Here is the language used in the West Virginia judge’s scheduling orders:

The party having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ___________. The party not having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ______________.

       Thus, because a plaintiff ordinarily has the burden of proof on liability, causation, and damages, plaintiff will have to disclose expert witnesses on these issues first. However, to the extent that the defendant asserts an affirmative defense (and thus assumes the burden of proof on that issue) the defendant has will have to disclose expert(s) on the affirmative defense at the same time the plaintiff discloses experts.

Continue Reading...

Depositions of Expert Witnesses

What is your opponent going to do to prepare for your expert's deposition?  This article,  "The Opponent's Expert: Preparing for the Most Important Deposition in the Case,"  59 Fed'n Def. & Corp. Couns. Q.145 (2008), answers that question.

Sixth Circuit Issues Opinion of Expert Testimony

The Court of Appeals for the Sixth Circuit has issued an opinion upholding the admissibility of an medical doctor's opinion on causation based on application of traditional differential diagnosis theory.

In Best v. Lowe's Home Centers, Inc., (No. 08-5924) , _ F.3d _ (6th Cir. April 16, 2009)  the court reversed a trial judges opinion to exclude a doctor's conclusion that the plaintiff's loss of smell was caused by a chemical spill at defendant's store.

The court said

“A medical-causation opinion in the form of a doctor’s differential diagnosis is reliable and admissible where the doctor (1) objectively ascertains, to the extent possible, the nature of the patient’s injury, see [In re Paoli Railroad Yard PCB Litigation, 35 F.3d] at 762 (“A physician who evaluates a patient in preparation for litigation should seek more than a patient’s self-report of symptoms or illness and . . . should . . . determine that a patient is ill and what illness the patient has contracted.”), (2) ‘rules in’ one or more causes of the injury using a valid methodology, and (3) engages in ‘standard diagnostic techniques by which doctors normally rule out alternative causes’ to reach a conclusion as to which cause is most likely. Id. at 760. In connection with the third “rules out” prong, if the doctor “engage[s] in very few standard diagnostic techniques by which doctors normally rule out alternative causes,” the doctor must offer a “good explanation as to why his or her conclusion remain[s] reliable.” Id. Similarly, the doctor must provide a reasonable explanation as to why “he or she has concluded that [any alternative cause suggested by the defense] was not the sole cause.” Id. at 758 n.27.”

The court also noted that

“Lowe’s has pointed to several potential problems with Dr. Moreno’s expert opinion. But our function is not to determine whether the opinion is airtight and conclusively proves the cause of Best’s anosmia. Rather, the court’s role as gatekeeper is to decide whether Dr. Moreno performed his duties as a diagnosing physician to the professional level expected in his field. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). In light of this standard, we conclude that Dr. Moreno’s differential diagnosis testimony meets the threshold level of admissibility under Daubert.”

As the court explained,

“[a]n ‘overwhelming majority of the courts of appeals’ agree, and have held ‘that a medical opinion on causation based upon a reliable differential diagnosis is sufficiently valid to satisfy the first prong [reliability] of the Rule 702 inquiry.’” Best, _ F.3d at _ (quoting Westberry v. Gislaved Gummi AB, 178 F.3d 257, 263 (4th Cir. 1999) (collecting cases from the First, Second, Third, Ninth, and D.C. Circuits)).

Read a more complete summary of the opinion at Federal Evidence Review, an excellent site that I rely on to keep current with major developments in the law of evidence in the federal courts.

For a copy of the opinion click here.

Yet Another Opinion on the Law of Expert Testimony

The Tennessee Supreme Court has issued another opinion about expert testimony, this one concerning the ability of a family practice doctor to testify about a criminal defendant's ability to form the required mental state to commit a crime.  The Court ruled that the expert was qualified to give such an opinion and that it was error to exclude his testimony.

The case is State v. Ferrell, No. M2005-02552-SC-R11-CD   (Tenn. 1/29/09).  Read about last opinion of the Court on expert testimony here.

New Tennessee Supreme Court Opinion on Admissibility of Expert Testimony

The Tennessee Supreme Court has just released an opinion reversing the ruling of a trial judge who excluded the testimony of a sleep expert in a criminal case.  The defendant alleged that he did not have the criminal intent to commit sexual acts with his stepdaughter because he was asleep at the time and was not aware of what he was doing.   The expert diagnosed the defendant with sleep parasomnia.

The opinion contains a comprehensive summary of the law of admissibility of expert opinion testimony in Tennessee.  Of course, it will be important in future criminal and civil cases.

The case is State v. Scott,  M2007-02024-SC-S09-CO  (Tenn. 1/23/09).  The opinion was authored by Justice Koch.  Read it here.

Oregon Supreme Court Addresses Expert Testimony in Medical Malpractice Cases

The Oregon Supreme Court has released a fascinating opinion on expert testimony. 

The Court stated that the Plaintiff

experienced symptoms of pain, swelling, and discoloration in her left hand immediately after injection of a chemical called gadolinium; her pain and the discoloration have continued.  At trial, plaintiff proffered the testimony of a medical expert that the gadolinium, instead of going into the vein, went into an area of her hand outside the vein, a circumstance known as "extravasation."  As a result, according to the expert, the toxicity of the gadolinium caused both her immediate and her ongoing symptoms.  Defendants objected to the expert's proffered testimony, and the trial court ruled that the testimony did not meet the legal standard for scientific validity.  The Court of Appeals affirmed.

A majority of the Court of Appeals excluded the testimony on this basis:

[T]the expert had failed to identify a scientifically valid cause of the injury -- one that linked plaintiff's exposure to gadolinium to the vasospastic disorder that she experienced.  In particular, the court noted that the expert had failed to show, either through studies showing a high degree of correlation between gadolinium exposure and the kind of injury that plaintiff had suffered or through a scientifically demonstrable mechanism of causation, that the gadolinium extravasation could have caused plaintiff's vasospastic disorder.

The Supreme Court reversed, saying that the expert could utilize a differential diagnosis analysis to reach a conclusion as to what probably caused the plaintiff's injury.  It explained as follows:

 that differential diagnosis of medical causation often cannot lead an expert to conclude, with certainty, that event "A" caused condition "B." Rather, in many cases, a number of potential causes will be "ruled in," each of which has some percentage of likelihood of having caused plaintiff's condition; then the expert, by physical examination, testing, or other scientifically valid process, eliminates one or more of the potential causes in an effort to identify the actual cause.  Even if the expert is not able to eliminate all alternative causes, the testimony nevertheless may be reliable and admissible if sufficient potential causes are eliminated for the expert to identify one particular cause as the likely cause of the condition.  See Note, Navigating Uncertainty:  Gatekeeping in the Absence of Hard Science, 113 Harv L Rev 1467, 1474 (2000) (courts generally allow admission of differential diagnosis even when technique has not eliminated all alternative causes).  [Footnote omitted.]

It went on to say as follows:

[T]he [intermediate appellate] court disregarded the potential connection between the gadolinium extravasation and plaintiff's injuries, because, in that court's view, that potential cause could not be "ruled in."  Although the court was properly concerned with avoiding the logical fallacy of post hoc, ergo propter hoc (after this, therefore because of this) reasoning, it failed to give appropriate deference to the expert witness's reliance upon plaintiff's sudden, single exposure and her immediate, localized symptoms, as well as to the biological plausibility of the expert's causation theory.  The immediate symptoms that plaintiff experienced in her hand indicate a causal link between the exposure and her symptoms, and her expert's careful differential diagnosis supports that connection.  Moreover, the expert's reliance on studies demonstrating the toxicity of gadolinium provide a biologically plausible basis for his conclusion.  Applying the criteria identified above, we agree with plaintiff that she had made an adequate showing of a scientifically valid basis for "ruling in" gadolinium as a potential cause of her symptoms, as well as for "ruling out" a number of the other possible causes of her injury.  The jury should have been permitted to hear the expert's testimony that, in his opinion, the gadolinium extravasation caused that injury.

There is much, much more to this opinion and those who do medical malpractice work would be advised to read it. 

The case is Marcum v. Adventist Health System/West, SC S055431 (OR. Sept. 16, 2008).  Read it here.

Lawsuit Against Expert Survives Appeal

The Paces, through their lawyer, hired Dr. Swerdlow to testify in a wrongful death case they filed on behalf of their daughter.  Allegedly, Dr. Swerdlow changed his testimony on the eve of trial and caused the court to dismiss their case.

The Paces sued their former expert, alleging that he lied about his credentials, was ill-prepared and changed his testimony because he was concerned that his peers would think badly of him.  They alleged "allege that Defendant committed (1) professional  malpractice, (2) fraud, (3) negligent misrepresentation, (4) breach of fiduciary duty, (5) breach of contract, (6) breach of the implied covenant of good faith and fair dealing, and (7) negligent infliction of emotional distress."  The doctor maintained he changed his opinion because of new information he learned about the case in a deposition taken by the defense. 

The District Court dismissed the case on a causation issue, and the 10th Circuit Court of Appeals reversed in this opinion.  The case has been remanded to determine, inter alia,  whether the expert is entitled to a privilege under Utah law.  The concurring and dissent judge goes into on the non-causation issues and argues that the case should be dismissed on other grounds.  His opinion starts on page 18 of the hyperlinked opinion.  A snippet: "Allowing this claim to march along sends the message to would-be expert witnesses: Be wary – very wary – of changing your mind, even when doing so might be consistent with, or compelled by, the standards of your profession."

The case is Pace v. Swerdlow, 519 F.3d 1067 (10th Cir. March 4, 2008).

Expert Witness Article

The Federation of Defense and Corporate Counsel has a magazine called the FDCC  Quarterly.  There are some good articles in the publication, and I think many of you would enjoy an article in the Spring 2007 magazine called "Scientific and Other Expert Testimony:  Understand It; Keep It Out; Get It In." 

The article is by Robert Kolar, a defense lawyer from Chicago. 

This article is based on federal law, but as you know Tennessee's  standard for admissibility of expert testimony is generally more relaxed than that in federal court.  Nevertheless, the article presents an insight into the minds of defense counsel on the issue of expert testimony.

Read it here.

Eyewitness Reliability Expert Testimony Permitted

The Tennessee Supreme Court has a reversed its previous position and determined that it will permit juries to hear evidence from qualified experts on the reliability of eyewitness identification.  The Court had ruled that such testimony was not admissible in 2000.

Now, in State v. Copeland, the Court has reached a different result.  After reviewing advances in the field over the last few years, the Court said:

"In our view, it is far more likely for the jury to accredit the eyewitness than the expert. If eyewitness identification is a cornerstone of the criminal justice system, the jury is its foundation. It is also our view that the test in McDaniel is sufficient to allow the trial court to properly evaluate the admissibility of expert testimony on the reliability of eyewitness identification. To the extent that Coley holds otherwise, it is overruled. The essential role of the judge, as the neutral arbiter in the trial, is to govern the admission of the evidence within the rules, permitting only that expert testimony which substantially assists the jury in its consideration of the issue. The McDaniel test provides the trial judge with the necessary guidelines to properly exercise his or her discretion."

The Court also ruled as follows:

"In our view, Dr. Brigham’s testimony satisfies the requirements of the McDaniel test in that it is reliable and would have been of substantial assistance to the jury. The proffered testimony was based upon solid empirical data gathered in a scientific setting. The information was subjected to a thorough peer review process. His opinions were formulated from extensive research and would have given the jury a valuable context within which to assess the eyewitness identification. Moreover, the trial judge, who saw and heard the witnesses firsthand, expressed a desire to allow the testimony as particularly helpful under the circumstances of this case."

The Court held that the exclusion of the testimony was reversible error.

The case number is E2002-01123-SC-DDT-DD; it was decided on May 23, 2007.  Read the decision here.

Preparing to Depose an Expert

This article by Betsey Herd and Janabeth Evans (Taylor) provides some helpful information on research that can be done to prepare for the deposition of an opponent's expert.

The Forensic Economist

Here is an interesting article about the admissibility of the testimony of a forensic economist.  The article is written to give guidance to defense counsel about how to exclude such testimony. 

Are Expert Witness Fees Recoverable in the Sixth Circuit?

The Sixth Circuit Court of Appeals has ruled on whether expert witness fees may be taxed as costs in federal court.

FRCP 54(d) permits a successful party to recover costs in federal court  and 28 U.S.C. 1920 permits the recovery of "fees and disbursements for printing and witnesses."  The amount recoverable for witnesses is spelled out in § 1821 and includes $40 per day for an appearance fee, allowable travel expense, and a subsistence allowance when overnight travel is required.

The Court determined that expert witness fees were not recoverable because § 1920 does not provide for them.  However, the prevailing party may recover "as ordinary witness costs for attendance fees, travel expenses, and as a subsistence allowance under § 1821."

The case is L& W Supply Corporation v. Acuity, No. 05-6845 (6th Dir. Jan. 23, 2007).  Read the opinion here.

A Comment From A Doctor

I wrote two posts in the last year (here and here)about doctors who have been attacked by organized medicine for giving testimony on behalf of plaintiffs in medical malpractice lawsuits.  The goal of these efforts is not only to punish the doctors for having the audacity to testify for a plaintiff in a medical malpractice case but also to discourage other doctors from testifying.

This weekend I received this comment to one post :

I'm a physician but I do not want to reveal my real name because this topic is so controversial. In the past I would infrequently give depositions or testify in malpractice cases. I think I worked on a total of 20 cases in about 15 years. I have worked both with defense and plaintiff's attorneys but plaintiff work is easier to get so I did somewhat more of that. When I began to read about the horrendous ordeals some physicians went through when some board picked apart their testimony, I decided to give it up entirely.

I think the current approach, which appears to emphasize suppressing lawsuits, is very misguided. When I signed on to my specialty society, I know I agreed to follow their bylaws but I never dreamed this would subject me to abuse by a "kangaroo court" bent on killing off expert witnesses.

But for me this is simply not a significant enough source of income. I don't have the time, the energy or the resources to fight this, at least not individually. I hope that those who have more of an interest in this subject will campaign against the efforts of the various medical specialists to suppress malpractice cases.

There actually should be a law protecting expert witnesses from this type of abuse. Also, the theory that expert testimony constitutes medical practice is completely preposterous. The AMA and other physician groups should not be allowed to get away with it. I've tried speaking up about this at some medical meetings, but I now have given up. Most doctors are completely convinced that anything that one can do to make life harder for plaintiffs is to their benefit. I think that patients and patient advocates need to speak up and contact their representatives in Congress and the state legislatures or the AMA is going to get it's way.

To the writer:  Thanks for taking the time to express your thoughts on this important subject.  While I agree that patients and patient advocates need to speak out on this issue, I hope that you will do so, too.  As a physician, your observations and opinions will really help motivate legislators to action.

Middle District Expert Rule Criticized - Is It Dead?

The Federal Court for the Middle District of Tennesse has a local rule on  expert witness that has been criticized for decades.   The rule provides as follows

"Expert witness disclosures shall be made timely in accordance with any order of the Court, or if none, in accordance with Fed. R. Civ. P. 26(a)(2). Expert witness disclosure statements shall not be supplemented after the applicable disclosure deadline, absent leave of Court. No expert witness shall testify beyond the scope of his or her expert witness disclosure statement. The Court may exclude the testimony of an expert witness, or order other sanctions provided by law, for violation of expert witness disclosure requirements or deadlines. ..."

Rule 39(c)(6)(d).  Not all of the judges enforced the Rule.

At trial, the Court permitted the expert to read his or her statement.  On cross, the expert had to stay within the scope of his or her statement.

The Sixth Circuit Court of Appeals has reversed a judgment because the Court enforced the rule.  In Thompson v. Doane Pet Care Co.,  No. 05-5377 (Dec. 15, 2006) the Court said that the local rule was inconsistent with the Federal Rules of Civil Procedure, including Rule 89(a)(2),  which provides that "[a] local rule imposing a requirement of form shall not be enforced in a manner that causes a party  to lose rights because of a nonwillful failure to comply with the requirement."

Is the local rule dead?  It should be.  It is one thing to enforce the Rule 26 disclosure rule.  It is another to require everything to to be written out - including definitions of words, etc. - and then require the expert to read from the report which does little more than bore a jury to death.

Read the entire opinion here.

Plaintiff's Expert Excluded in Med Mal Case

Plaintiff filed an affidavit from an expert witness in opposition to a motion for summary judgment in a medical negligence case.  The expert - from UAB in Birmingham - explained that he understood the standard of care in Memphis because of the following:

2. I am familiar with the standard of care for Mohs micrographic Surgeons in communities similar to Memphis, TN.
3. I have become familiar with the standards of care in the Memphis community and throughout the State of Tennessee.
4. I have discussed the standard of care for obtaining informed consent with all the fellowship trained Mohs surgeons in Tennessee. “Fellowship trained” refers to Mohs surgeons who have specialized training in Mohs micrographic surgery for 1-2 years after completing a dermatology or related residency.
5. These fellowships are accredited by the American College of Mohs Micrographic Surgery and Cutaneous Oncology. In the past two years, many of these fellowships have also become accredited by the American Board of Medical Specialties under the newly recognized specialty of Procedural Dermatology.
6. There are sixteen (16) Mohs surgeons in Tennessee including the Defendant. Seven of the Mohs surgeons are partners with the Defendant. Therefore they were not consulted.
7. Besides Dr. Allen and his partners, I consulted with Dr. Malika Tuli of Memphis, Tennessee and was advised that written and oral informed consent are obtained in the Memphis, Tennessee community.
8. I also consulted with the remaining six Mohs surgeons in Tennessee and was advised that the written and oral informed consent are obtained in their community. See attached spreadsheet of my investigation.

Not good enough.  "Defendants assert that knowledge gained by surveying other physicians and not by personal or firsthand experience is not sufficient under § 29-26-115(a)(1). They submit that a non-expert could survey physicians in a community if the mere collection of data could constitute knowledge. Defendants assert the statute requires personal, firsthand, or direct knowledge of the applicable standard by an expert who practices in the community or in a similar community. We agree."

The case is Eckler v. Allen, No. W2005-02501-COA-R3-CV  (Tenn. Ct. App. Nov. 29, 2006); the opinion was authored by Judge David Farmer of the Western Section of the Court of Appeals.  Read it here.

Important Decision on Expert Witnesses

The Florida Supreme Court has released an important decision on testimony by expert witnesses.

Plaintiff's counsel sought an order prohibiting a defendant's expert from testifying that he relied on consultations with colleagues or other experts in forming his opinions.   The Florida high court said  "that such testimony is inadmissible because it impermissibly permits the testifying experts to bolster their opinions and creates the danger that the testifying experts will serve as conduits for the opinions of others who are not subject to cross-examination."  However, the Court made it clear that "our opinion today in no way precludes experts from relying on facts or data that are not independently admissible in evidence '[i]f the facts or data are a type reasonably relied upon by experts in the subject.'”

The Court also said that "[a]llowing qualified experts to testify as to the prevailing professional standard of care under section 766.102(1), Florida Statutes (2005), does not permit experts to conduct a survey of a myriad of other experts or colleagues to derive a consensus on the standard of care."

The dissenter said " the majority’s resolution of the issue . . . as it applies in the instant case to testimony about the standard of care. The very definition of standard of care in section 766.102(1), Florida Statutes (2005), requires proof of what is “recognized as acceptable and appropriate by reasonably prudent similar health care providers.” This obviously requires discussions with similar health care providers. Standard of care is a particularized requirement of medical malpractice litigation. The opinion in this case should be limited to the medical malpractice context and to specific issues which by their nature require knowledge by the expert of what others in a particular profession do under similar circumstances."

The case is Linn v. Fossum,  No. SC05-134   (Florida S.C.  Nov. 2, 2006).   Read the opinion here.

Discovery of Finances of Experts

The Pennsylvania Supreme Court has ruled that a party may conduct discovery into the financial records on a non-party's expert witness "to facilitate an inquiry into bias."  As explained in more detail below,  it is clear that such discovery will not be permitted of every expert.

In Cooper v. Schoffstall, No. 212 MAP 2004 (Sept. 7, 2006), Plaintiff sought to discovery financial information from Dr. Eagle, the physician chosen by Defendant to conduct our equivalent of a Rule 35 examination.  Specifically, Plaintiff sought "copies of federal form 1099 tax records associated with his  performance of services as an independent contractor for calendar years 1999, 2000,  and 2001, in undertaking 'defense-related reports, examinations and depositions.'"  Dr. Eagle resisted the subpoena, saying the discovery was inappropriate. Plaintiff contended that "that Dr. Eagle performed abundant defense medical examinations (on the order of 200 to 400 in some recent years), derived substantial income from this work, and issued written reports containing repetitive, predictable, defense-favored observations and conclusions" and therefore discovery was appropriate to show the existence and depth of his pro-defense bias.

The lower courts permitted the discovery.  On appeal, Eagle maintained that "the personal tax  information, other than records of payments made from defense counsel, is merely a  gratuitous effort to impugn his credibility, disrupt his business, prevent him from ever  desiring to offer medical-legal services again, and bully any potential expert witness from offering similar services."  Plaintiff argued that the discovery sought was appropriately focused and that "[w]ithout the ability to obtain concrete evidence of the alleged pattern of bias, Ms. Cooper projects that impeachment cross examination is likely to be unavailable or ineffective against a skilled, experienced expert who, knowing that he or she is safe from contradiction, may equivocate and prevaricate with impunity."

The Court held that the trial court did not abuse its discretion in permitting the discovery to go forward.  The Court made it clear that such discovery would not be permitted in every case.  Instead, the Court said that "that the appropriate, threshold showing to establish cause for supplemental discovery related to potential favoritism of a non-party expert witness retained for trial preparation is of reasonable grounds to believe that the witness may have entered the professional witness category. In other words, the proponent of the discovery should demonstrate a significant pattern of compensation that would support a reasonable inference that the witness might color, shade, or slant his testimony in light of the substantial financial incentives."

However, the Court said that the tax records themselves did not need to be produced under the facts.  Instead, a deposition by written interrogatories was ordered and the following questions were permitted:  "the approximate amount of compensation received and expected in the pending case; the character of the witnesses’ litigation-related activities, and, in particular, the approximate percentage devoted to specific types of litigation and/or work on behalf of a particular litigant, class of litigant, attorney, and/or attorney organization; the number of examinations, investigations, or inquiries performed in a given year, for up to the past three years; the number of instances in which the witness has provided testimony within the same period; the approximate portion of the witness’s overall professional work devoted to litigation-related services; and the approximate amount of income each year, for up to the past three years, garnered from the performance of such services."

Additional discovery would be permitted if deemed appropriate by the trial judge.

Read the opinion here.

A New Way to Limit Access to the Courts

Ok.  You have heard of damage caps, certificates of merit, and restrictions on fees that one side of a dispute can pay its lawyers (but no cap on the other side).  And you have heard of experts having to know the local standard of care in reading x-rays or determining whether it is appropriate to operate the right leg when a patient has given given consent to operate on the left.  And if you are from Tennessee you know that medical experts have to come from contigious states to be qualified to testify in a medical malpractice case.

But the good folks down in Alabama have come up with a new way to erect a hurdle on litigants.  How?  The Legislature passed a law that says that in  Alabama an engineer who is a witness in a case has to be licensed in Alabama.  Yep.  And that rule was recently upheld by the Alabama Supreme Court in Board of Water vs. Hunter, 2006 WL 2089914 (July 28, 2006).   (Alabama does not post its opinions on a website that has free public access, there being no particular reason to let the people know what is going on in the court system.  Hell, if they read this stuff they might actually turn out and vote.)

The relevant statutes:

Section 34-11-2(a), Ala.Code 1975:

“No person in either public or private capacity shall practice or offer to practice engineering, unless he or she shall first have submitted evidence that he or she is qualified so to practice and shall be licensed by the board as hereinafter provided.”

Section 34-11-1(7), Ala.Code 1975, as amended in 1997, defines “the practice of engineering” as:

“Any professional service or creative work, the adequate performance of which requires engineering education, training, and experience in the application of special knowledge of the mathematical, physical, and engineering sciences to such services or creative work as consultation, testimony, investigation, evaluation, planning, design and design coordination of engineering works and systems, planning the use of land and water, performing engineering surveys and studies, and the review of construction or other design products for the purpose of monitoring compliance with drawings and specifications; any of which embraces such services or work, either public or private, in connection with any utilities, structures, buildings, machines, equipment, processes, work systems, projects, and industrial or consumer products; equipment of a control, communications, computer, mechanical, electrical, hydraulic, pneumatic, or thermal nature, insofar as they involve safeguarding life, health, or property; and including other professional services necessary to the planning, progress, and completion of any engineering services.” (Emphasis added.)

To be fair, this statute works on hardship on defendants in products liability cases, too, each of whom go around the nation testifying in cases but will now have to secure an Alabama licnese to be qualified.   But my guess is that the impact on defendants in some cases is an unintended consequence.

Discoverability of Materials Given to Expert Witnesses

The United States Court of Appeals for the Sixth Circuit has ruled that all material given to testifying expert witnesses must be disclosed, including attorney opinion work product materials.

The circuits have been split on this issue.  In Regional Airport Authority of Louisville and Jefferson County v. LFG, LLC, Case No. 05-5754 (6th Cir. Aug. 17, 2006),  the court clarified the law in the Sixth Circuit.

The precise holding:  "The bright-line approach is the majority rule, represents the most natural reading of Rule 26, and finds strong support in the Advisory Committee Notes. Therefore, we now join the "overwhelming majority" of courts . . . in holding that Rule 26 creates a bright-line rule mandating disclosure of all documents, including attorney opinion work product, given to testifying experts." (Emphasis added.)  Don't try to argue that whatever information you gave to the expert wasn't considered by the expert and therefore is not discoverable; the word "given" was deliberately chosen by the court to void that argument.

Read the opinion here.  The discussion of the discovery issue begins on page 14.

 Thanks to the Sixth Circuit Blog for directing me to the decision.

Expert Witnesses - Discovery of Reports

The ABAs House of Delegates voted 207-137 to recommend adding to Federal Rules of Civil Procedure Rule 26(a)(2) a privilege for draft reports and communications between attorneys and their experts.

A Law.com article on the votes reports that "[t]he proposed change was prompted by varying judicial interpretations of 1993 amendments that expanded permissible expert discovery from "materials relied on" by an expert to "any data or other information considered by an expert" in forming his or her opinion. Some judges protect drafts until experts turn them over to counsel, while others require counsel and experts to turn over all drafts. "

Read the full article here.

Attacked Expert Fights Back - and Wins

Dr. Gary Lustgarten testified the for the plaintiff as an expert in a medical negligence trial in North Carolina. Lustgarten testified that in his medical opinion that certain notes made by one of the defendant's, Jauffman, were inaccurate. After the case settled, one of the defendants filed a complaint about Lustgarten with the American Association of Neurological Surgeons, which yanked Lustgarten's membership. One of the defendants also complained to the State Medical Board, which pulled Lustgarten's license.

Lustgarten appealed the ruling to the Wake County Superior Court, which affirmed. The North Carolina Court of Appeals reversed, saying "we conclude that the superior court erroneously affirmed the board's determination, as the substantial record evidence does not permit an inference that Dr. Lustgarten made an entirely unfounded statement concerning Dr. Jauffman's notes."

This excerpt from the decision tells the story:

"The evidence before the Board tended to show that, at the time of his deposition in the Hardin case, Dr. Lustgarten was of the opinion that the shunt-dependent patient's intracranial pressure had to be elevated. Accordingly, he stated under oath that he had "difficulty believing" Dr. Jaufmann's contrary notation. Dr. Lustgarten's skepticism was based upon CAT-scan results, mood changes in the patient, pain-medication-resistant headaches being experienced by the patient, and the lack of ventricular flow, each of which indicated to Dr. Lustgarten that the patient's intracranial pressure was necessarily elevated. These observations provided a good faith evidentiary basis for Dr. Lustgarten's opinion that Dr. Jaufmann's notation was not credible.
Further, the record is clear that Dr. Lustgarten was content to state no more than his opinion that Dr. Jaufmann's note was faulty. However, a defense attorney representing Dr. Jaufmann in the Hardin case repeatedly asked Dr. Lustgarten whether Dr. Jaufmann was lying. Dr. Lustgarten did not wish to answer this question, but he eventually stated that he was "not going to call [Dr. Jaufmann] a liar" but that, in his opinion, Dr. Jaufmann had "tried to temporize his findings and write a note that was benevolent." Further, when the defense attorney persisted by asking whether Dr. Lustgarten was "accusing ... Dr. Jaufmann of falsifying medical records," Dr. Lustgarten responded that the issue would have to be decided by a jury and again indicated that he had difficulty believing Dr. Jaufmann's note."

This is one of several such cases being fought around the country. I know that there is one in Florida that is working its way through the appellate system.

In each case, the expert who is the subject of the attack testified on behalf of the plaintiff. I know of no case a state medical board attempted to take the license of a person who testified against a plaintiff. If any reader knows of a case where a doctor who testified against the plaintiff has ever been sanctioned by a state medical board or doctor organization please let me know.

Read an Law.com article about the case here. The case itself is In re Lustgarten 629 S.E.2d 886 (N.C.App. 2006); it was decided on June 6, 2006.

Response to Motion in Limine to Exclude Economist's Testimony

This is a brief in response to a defendant's motion in limine to exclude the expert witness testimony of an economist. The economist was disclosed in a wrongful death case arising out of the drowning of a three-year-old boy. The economist is expected to testify about the present value of the child's loss of earning capacity.

Obviously, with a child so young there is very little empirical evidence to establish the child's likely career path. The economist was asked, then, to simply address the likely present value of the child's earnings had he graduated high school and entered the workforce, and alternatively had he graduated college and entered the workforce. We are prepared to prove the child's likely success in life through other witnesses, to let the jury decide his probable earning capacity, and to let the economist explain how to calculate that in today's dollars.

The Defendants moved to exclude the economist's testimony in part because he did not have a sufficient basis on his own for the assumptions of educational achievement. The Defendants also moved to exclude his testimony because the economist's original report did not include a deduction for personal maintenance expenses, which the Defendants' termed as "mandatory" under the Tennessee Supreme Court's holding in Wallace v. Couch. A careful reading of Wallace and Tennessee evidentiary law on expert witnesses demonstrates the Defendants in our case were wrong.

We hope this brief will assist you in addressing similar issues in the future. We have faced this issue several times in the past and the defendant's motion has been denied everytime. We hope that the same thing will occur this time. Indeed, if the defendant is correct, how can one ever prove the economic component of the pecuniary value of the life of a young child? The model described above condemns the child to "average;" should a court deny the jury access to information about the average child?

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Defense Expert May Be Sued for Medical Negligence by Plaintiff

The plaintiff alleged that she had a head injury arising out of a vehicle wreck and filed suit. The defense had her examined by a neuropsychologist under Virginia rules of court and she later sued him.

This is how the Court described Plaintiff Harris' allegations: "Dr. Kreutzer "verbally abused [Harris], raised his voice to her, caused her to break down into tears in his office, stated she was 'putting on a show,' and accused her of being a faker and malingerer. Harris [also] contends that despite his knowledge of her condition, Dr. Kreutzer 'intentionally aggravated her pre-existing condition and her post-traumatic stress disorder and her brain injury.' Further, Harris also contends Dr. Kreutzer breached his duty to her in the conduct of the Rule 4:10 examination because he 'failed to comply with the applicable standard of care within his profession in that he: a. failed to appropriately examine and evaluate the mental status of the plaintiff . . . and d. was deliberately abusive to plaintiff with disregard for the consequences of his conduct.' As a result, Harris claims her mental and physical health 'drastically deteriorate[d].'"

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Suit Against Expert Fails

Plaintiff was injured in a car wreck. She brought an uninsured motorist claim and was subjected to a psychological evaluation at the insistence of her insurer. The evaluator "testified that he believed that Gilbert experienced actual pain relating to the 1994 accident, but that a personality disorder complicated the pain and caused Gilbert to over-report symptoms. He concluded that while Gilbert did not have a major psychiatric disorder, she did have a histrionic personality disorder with narcissistic features that causes her to exaggerate and magnify the degree . . . of pain that shes in and to magnify the degree of disability that she has."

Plaintiff lost that case and then filed one against the evaluator.

The Alaska Supreme Court affirmed dismissal of the suit, holding that the evaluator's testimony was privileged. It said that"[t]estimony in a judicial proceeding, if pertinent to the matter under inquiry, is absolutely privileged, even if given maliciously or with knowledge of its falsity. Even defamatory testimony is privileged, and the witness granted immunity, because of the public policy rationale that the privilege leads to more just trials by (1) encouraging more witnesses to come forward and (2) ensuring that witnesses will be more open and honest in testifying." (Footnotes omitted.)

Read the full decision in Gilbert v. Sperbeck here.