A Virginia trial judge refused to allow a podiatrist to give causation testimony in a FELA case where a railroad worker alleged his foot problems were caused by conditions in the workplace. The Virginia Supreme Court has agreed to hear the case.
Here is the wording of the assignment of error that the court has agreed to review:
The trial court erred in granting Norfolk’s motions in limine to exclude the testimony of Drs. Zelen and Steffan based upon its finding that they were not qualified, as podiatrists or otherwise, to render expert opinions as to the causation of plaintiff’s physical injuries, and in subsequently granting Norfolk’s summary judgment motion based upon plaintiff’s lack of causation testimony.
In Tennessee, a podiatrist
means one who examines, diagnoses, or treats medically, mechanically, or surgically, the ailments of the human foot, ankle and soft tissue structures extending no higher than the distal tibial metaphyseal flair, including the use and prescribing of drugs and medications, but excluding the direct applications of general anesthesia by a podiatrist and the amputation of the foot. A podiatrist may perform Achilles tendon repair, subject to the provisions of subsection (b), but may not perform surgery on Pilon fractures or tibial fractures that do not enter the ankle joint. T.C.A. Sec. 63-3-101.
Here are the statutory qualifications for podiatrists in Tennessee:
No person shall be entitled to take any examination for a license unless that person furnishes the board with satisfactory proof that that person is eighteen (18) years of age or over, and of good moral character, and that that person has received a license or certificate of graduation from a legally incorporated regularly established and recognized college of podiatry conferring the degree of D.P.M. (Doctor of Podiatric Medicine) and accredited by the Council of Education and the American Podiatry Association. …
T.C.A. Sec. 63-3-110.
Podatrists can prescribe drugs. T.C.A. Sec. 63-3-127. They are eligible for privileges in hospitals and ambulatory surgery centers and can operate in those facilities. T.C.A. Sec. 63-1-101 (b).
A podiatrist was permitted to testify on the issue of impairment in several worker’s compensation cases, including Simpson v. Calsonic Kansei North America, 2007 WL 439032 (Tenn. Work. Comp. Panel. Feb. 12, 2007), Trasher v. Carrier Corp., 2002 WL 31558109 (Tenn. Work. Comp. Panel. Nov. 22, 2002), and Chapman v. E-Z Serve Petroleum Marketing Co., 2000 WL 527860 (Tenn. Work Comp. Panel May 02, 2000), although the opinions do not indicate that the defendant challenged the podiatrist’s ability to testify. A podiatrist was also permitted to testify on causation in the FELA case of Biddle v. Norfolk Southern Railway Co. 1997 WL 716879 (Tenn. Ct. App. Nov. 19, 1997), although once again it does not appear that the defendant challenged the ability of the podiatrist to testify
If a podiatrist is testifying about what he or she is licensed to do and actually does, why shouldn’t he or she permitted to testify? Shouldn’t the fact that podiatry requires less overall schooling (as compared with a medical doctor) go to weight and not admissibility?
Thanks to the Torts Prof Blog and The VLW Blog for informing me about this case.