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Articles Posted in Expert Witnesses

A recent Court of Appeals case serves as a great reminder of the importance of disclosing the correct experts in a timely fashion in a Health Care Liability Action. In Mikheil v. Nashville General Hospital, No. M2014-02301-COA-R3-CV (Tenn. Ct. App. Jan. 29, 2016), plaintiffs filed an HCLA case against several parties related to the alleged failure to timely diagnose and treat cervical stenosis. Included as defendants were an orthopedic surgeon from Nashville General Hospital, a nurse practitioner, the hospital itself based upon a claim of vicarious liability through the orthopedic surgeon, and a neurologist.

To prove an HCLA claim, a plaintiff must present expert testimony regarding the “standard of care, a failure to act in accordance with the standard of care, and proximate cause.” Throughout the pretrial litigation, plaintiffs had multiple problems with their expert disclosures. First, plaintiffs failed to file their Rule 26 expert witness disclosure by the date set out in the agreed scheduling order, and instead filed a motion requesting an additional 120 days the day after the initial deadline. When the disclosure was eventually filed, plaintiff listed four potential expert witnesses, including Jane Colvin-Roberson who was to be called as a “life care planner expert.” The disclosure stated that “the plaintiffs would furnish a copy of the Life Care Plan when it is completed.”

Defendants moved to strike the experts because plaintiffs did not provide sufficient disclosures regarding the “facts and opinions to which the experts were expected to testify or a summary of the grounds for each opinion.” The Court gave the plaintiffs three days to serve full and complete disclosures. When the supplemental disclosure was given to defendants, rather than including the life care plan by Colvin-Roberson, the plaintiffs named a new life care planning expert, Nurse Lampton. Upon motion of the defendants, Nurse Lampton was stricken, as the plaintiffs did not disclose her in a timely fashion and did not seek leave of the court to substitute her for the life care expert originally named. As plaintiffs had at that point failed to provide full disclosures for a life care planner, the trial court ruled that plaintiffs were “prohibited from offering into evidence…any life care plan and any life care planning testimony.”

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In a case that could have only arisen in Shelby County,  Weatherspoon v. Minard, No. W2015-01099-COA-R3-CV (Tenn. Ct. App. Dec. 14, 2015), the Court of Appeals affirmed a trial court’s decision to dismiss a health care liability claim after excluding the plaintiff’s expert witness five days before trial.

The alleged negligence occurred in 1998, and this case had been pending in different forms for over fifteen years. After defendant filed a motion for summary judgment in 2009 on the basis that plaintiff did not have a standard of care expert, plaintiff responded and provided the affidavit of Dr. Evans. Defendant served a notice of deposition for Dr. Evans on May 22, 2013, with the deposition to occur one week later. “The notice requested that [plaintiff] ensure Dr. Evans produced certain documents at the deposition, including those related to the income he earned as an expert witness.” Dr. Evans failed to provide this information at his deposition, and continued to refuse to do so, even after the trial court granted defendant’s motion to compel production pursuant to a subpoena duces tecum.

The trial was set for February 2, 2015. On January 13th, counsel for defendant appeared at Dr. Evans’s office per the subpoena, but was told that Dr. Evans was not there and that counsel “did not have permission to be on the property.” Three days later, defendant filed a motion in limine to exclude Dr. Evans based on his refusal to provide these financial documents. The trial court heard arguments on January 28th and granted defendant’s motion excluding Dr. Evans. Because Dr. Evans was plaintiff’s only standard of care expert, and because standard of care must be proven by expert testimony in an HCLA case, the court dismissed plaintiff’s case.

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In Bradley v. Ameristep, Inc., No. 1:12-cv-01196 (6th Cir. Aug. 24, 2015), plaintiff appealed a district court dismissal of his product liability claims regarding ratchet straps he had purchased and used to secure a hunting treestand. Plaintiff bought the straps in 2007 or 2008, used the straps to secure his treestand for less than two months in 2008, stored the straps inside for almost three years, then used the straps to secure his treestand again in May or June 2011. He did not use the treestand until September 2011, at which time he visually inspected the straps. After plaintiff claimed into the stand, the straps broke and caused plaintiff to fall.

Plaintiff retained two expert witnesses to support his claims, but the district court granted defendant’s motion to exclude both of these experts. Because the expert testimony was excluded, the district court “concluded that there was no evidence to support the plaintiffs’ claims for strict product liability or negligent design and manufacture and granted the defendants’ motion for summary judgment on those claims.” The district court also granted summary judgment as to the failure to warn claim, determining that plaintiff was aware of the dangers of leaving the straps exposed to the elements, that plaintiff would not have heeded a warning to use a safety harness, and that plaintiff failed to proffer an adequate alternative warning. Accordingly, all of plaintiffs’ claims were dismissed.

On appeal, the Court reversed the dismissal, and in doing so provided an informative summary of Tennessee product liability law. First, the Court addressed the exclusion of one of plaintiffs’ experts, noting that Fed. R. Evid. 702 “impose[s] a threshold requirement of qualification by ‘knowledge, skill, experience, training or education,’ coupled with a two-part test for relevance…and reliability.” While the expert’s “qualifications contain[ed] numerous general attestations of expertise in materials analysis[,]” the district court focused on specific references to the expert’s metallurgical expertise to determine that he did not possess the necessary qualifications for this case. The Court of Appeals held that this was an error, pointing out that the proposed expert had “over thirty-five years of experience analyzing the forces and conditions that lead to product failures, “ that he had “served as an instructor in materials analysis and microscopic analysis” for multiple groups and organizations, and that he had conducted analysis on all types of polymer materials. Based on these qualifications, the expert testimony should have been allowed.

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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.

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.

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.  

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 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 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.

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.

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