Expert Witnesses

August 17, 2006

Expert Witnesses – Discovery of Reports

The ABAs House of Delegates voted 207-137 to recommend adding to Federal Rules of Civil Procedure Rule 26(a)(2) a privilege for draft reports and communications between attorneys and their experts.

A Law.com article on the votes reports that "[t]he proposed change was prompted by varying judicial interpretations of 1993 amendments that expanded permissible expert discovery from "materials relied on" by an expert to "any data or other information considered by an expert" in forming his or her opinion. Some judges protect drafts until experts turn them over to counsel, while others require counsel and experts to turn over all drafts. "

Read the full article here.

June 28, 2006

Attacked Expert Fights Back – and Wins

by The Law Offices of John Day, P.C.

Dr. Gary Lustgarten testified the for the plaintiff as an expert in a medical negligence trial in North Carolina. Lustgarten testified that in his medical opinion that certain notes made by one of the defendant’s, Jauffman, were inaccurate. After the case settled, one of the defendants filed a complaint about Lustgarten with the American Association of Neurological Surgeons, which yanked Lustgarten’s membership. One of the defendants also complained to the State Medical Board, which pulled Lustgarten’s license.

Lustgarten appealed the ruling to the Wake County Superior Court, which affirmed. The North Carolina Court of Appeals reversed, saying “we conclude that the superior court erroneously affirmed the board’s determination, as the substantial record evidence does not permit an inference that Dr. Lustgarten made an entirely unfounded statement concerning Dr. Jauffman’s notes.”

This excerpt from the decision tells the story:

May 23, 2006

Response to Motion in Limine to Exclude Economist’s Testimony

by The Law Offices of John Day, P.C.

This is a brief in response to a defendant’s motion in limine to exclude the expert witness testimony of an economist. The economist was disclosed in a wrongful death case arising out of the drowning of a three-year-old boy. The economist is expected to testify about the present value of the child’s loss of earning capacity.

Obviously, with a child so young there is very little empirical evidence to establish the child’s likely career path. The economist was asked, then, to simply address the likely present value of the child’s earnings had he graduated high school and entered the workforce, and alternatively had he graduated college and entered the workforce. We are prepared to prove the child’s likely success in life through other witnesses, to let the jury decide his probable earning capacity, and to let the economist explain how to calculate that in today’s dollars.

The Defendants moved to exclude the economist’s testimony in part because he did not have a sufficient basis on his own for the assumptions of educational achievement. The Defendants also moved to exclude his testimony because the economist’s original report did not include a deduction for personal maintenance expenses, which the Defendants’ termed as “mandatory” under the Tennessee Supreme Court’s holding in Wallace v. Couch. A careful reading of Wallace and Tennessee evidentiary law on expert witnesses demonstrates the Defendants in our case were wrong.

January 23, 2006

Defense Expert May Be Sued for Medical Negligence by Plaintiff

by The Law Offices of John Day, P.C.

The plaintiff alleged that she had a head injury arising out of a vehicle wreck and filed suit. The defense had her examined by a neuropsychologist under Virginia rules of court and she later sued him.

This is how the Court described Plaintiff Harris’ allegations: “Dr. Kreutzer “verbally abused [Harris], raised his voice to her, caused her to break down into tears in his office, stated she was ‘putting on a show,’ and accused her of being a faker and malingerer. Harris [also] contends that despite his knowledge of her condition, Dr. Kreutzer ‘intentionally aggravated her pre-existing condition and her post-traumatic stress disorder and her brain injury.’ Further, Harris also contends Dr. Kreutzer breached his duty to her in the conduct of the Rule 4:10 examination because he ‘failed to comply with the applicable standard of care within his profession in that he: a. failed to appropriately examine and evaluate the mental status of the plaintiff . . . and d. was deliberately abusive to plaintiff with disregard for the consequences of his conduct.’ As a result, Harris claims her mental and physical health ‘drastically deteriorate[d].'”

The trial court dismissed the case. The appellate court reversed dismissal of the medical negligence case, first saying that “b]y bringing her personal injury action, Harris gave her implied consent to the Rule 4:10 [similar to TRCP 35]examination and formed a limited relationship with Dr. Kreutzer for purposes of the examination. A physician or health care provider, such as Dr. Kreutzer, who performs a Rule 4:10 examination, expressly consents to a relationship with the examinee when he agrees to conduct the examination. Therefore, we conclude there is a consensual relationship between the physician and the examinee as patient for the performance of the Rule 4:10 examination.”

December 26, 2005

Suit Against Expert Fails

by The Law Offices of John Day, P.C.

Plaintiff was injured in a car wreck. She brought an uninsured motorist claim and was subjected to a psychological evaluation at the insistence of her insurer. The evaluator “testified that he believed that Gilbert experienced actual pain relating to the 1994 accident, but that a personality disorder complicated the pain and caused Gilbert to over-report symptoms. He concluded that while Gilbert did not have a major psychiatric disorder, she did have a histrionic personality disorder with narcissistic features that causes her to exaggerate and magnify the degree . . . of pain that shes in and to magnify the degree of disability that she has.”

Plaintiff lost that case and then filed one against the evaluator.

The Alaska Supreme Court affirmed dismissal of the suit, holding that the evaluator’s testimony was privileged. It said that”[t]estimony in a judicial proceeding, if pertinent to the matter under inquiry, is absolutely privileged, even if given maliciously or with knowledge of its falsity. Even defamatory testimony is privileged, and the witness granted immunity, because of the public policy rationale that the privilege leads to more just trials by (1) encouraging more witnesses to come forward and (2) ensuring that witnesses will be more open and honest in testifying.” (Footnotes omitted.)