Physician Experts

If you are a Board Certified physician and would like to learn more about the role of the physician in medical negligence litigation, please respond by direct e-mail: coMEDcoINK@aol.com or complete the contact page. Please send your curriculum vitae by e-mail.

Sincerely,

Elliott B. Oppenheim MD, JD, LL.M. Health Law
for coMEDco, Inc.

MEDICAL EVIDENCE IN PERSONAL INJURY LITIGATION: DAUBERT’S GHOST

with commentary on scientific evidence in medical negligence litigation

Continued from part 1

§ 4 Fed.R.Evid. 702: The Two Part Test:

Before examining the Frye, Daubert, and Kumho Tire cases in greater depth, it is import to point out that Fed.R.Evid. 702 contains a two part test: (1) the subject matter of testimony must be distinctively related to a science, business, profession, or occupation that, in general, lay persons would not understand the testimony without expert witness testimony;  and (2) the witness must qualify as an expert witness such that calling upon the witness’ specialized knowledge will assist the trier of fact.
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MEDICAL EVIDENCE IN PERSONAL INJURY LITIGATION: DAUBERT’S GHOST

with commentary on scientific evidence in medical negligence litigation

Medical Presentation at Trial: Scientific Evidence in the 21st Century

§ 1 Preparation of Medical Proof for Trial- Introduction

As a case approaches trial, consistent with the Federal Rules of Civil Procedure and of Evidence, parties attempt to narrow issues which the trier of fact must then decide. This process winnows scientific wheat from chaff.  In some ways a pre-trial cottage industry has arisen in excluding expert witness testimony and of the scientific evidence through pre-trial motions in limine. This monograph concerns this winnowing process and describes in what ways courts make decisions in this winnowing process.

Fed.R.Evid. 702 provides:
Rule 702. Testimony by Experts
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

This monograph examines the substance of testimony these expert witnesses would offer.  Will testimony assist the trier of fact? And what about the quality of an opinion … “or otherwise.” How does a judge know what is scientific or technical or other specialized knowledge which requires expert testimony? What is the meaning of this substantive aspect of Rule 702?

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This monograph will present the landmark decisions and attempt to sculpt from these trees a unity which is relatively straightforward to understand even for the trial lawyer for whom this monograph represents an initial foray into these dark forests of scientific evidence.
In medical negligence litigation this author has advised orally and in writings that unless one can look to a recovery of at least $150,000, then “don’t do the case.” This is not true in motor vehicular negligence litigation where many lawyers obtain recoveries which compensate the client for small injuries; cervical spine strain; lumbosacral strain; contusions and abrasions. One of the reasons that this is possible is that the cost of automobile related litigation is much less than that of medical negligence litigation. (more…)