Articles Posted in Expert Witnesses

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

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.

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.

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.

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 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.

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."