Articles Posted in Expert Witnesses

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).

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 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 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.

 

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.

Ouch.

 

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.

 

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 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.

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.

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.