Day on TortsThis 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.
Articles Posted in Expert Witnesses
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."
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.
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.
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."
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."
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."
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:
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.