Dov Apfel.

Birth Injury Information
Dov Apfel.
Expert Testimony Under Daubert
Effective December 1, 2000, Federal Rule of Evidence 702 was amended to include the following criteria for evaluating the admission of expert testimony: 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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Rule 702, as amended, adopts criteria previously endorsed by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and later refined in Kumho Tire v. Carmichael, 526 U.S. 137 (1999). According to the Supreme Court, experts have the potential to be both powerful and quite misleading witnesses. Daubert, 509 U.S. at 595. Therefore, trial judges must act as "gatekeepers" and: (1) decide whether an expert is following in the courtroom the same level of intellectual rigor that other experts follow in the relevant field, (2) verify the reliability of the process or technique used by an expert in formulating his opinions, (3) exclude opinions that are nothing more than subjective belief or unsupported speculation, and (4) confirm that the testimony is grounded in the methods and procedures of science. In fulfilling their gatekeeping duties, trial courts may consider: (1) whether the theory or technique used by the expert can be or has been tested, (2) whether the theory or technique has been subjected to peer review and publication, (3) the known or potential rate of error of the technique or method, and (4) whether the theory or technique has obtained general acceptance within the scientific community.

Thus, medical malpractice lawyers must be aware of the circumstances in which they may find themselves arguing for -- or against -- the exclusion of an expert by a trial judge, presumably because that expert's opinions are not supported by valid scientific data and methodology. For example, in a birth trauma case, the plaintiff’s causation expert must be prepared to state an opinion to a reasonable degree of medical certainty that the irreversible brain damage sustained by an infant could have been prevented with proper care and/or earlier delivery. However, it is the answer to the next question -- what is the basis for the opinion? -- that will determine if the testimony is sufficiently reliable to be admissible and considered by the jury. The answer to this question also may precipitate the filing of a Daubert motion to either exclude the expert’s testimony or for summary judgment.

Some defense lawyers may try to use these new mandates to convert courtrooms into legislative forums or scientific conferences. They appeal to judges to extricate doctors from the consequences of their wrongful acts. For example, they retain experts who claim that asphyxia rarely causes cerebral palsy and/or that electronic fetal monitoring cannot predict the precise moment when asphyxia develops and is capable of producing irreversible brain damage. Of course, these arguments ignore: the fact that EFM is available in almost every hospital in the United States; the fact that the American College of Obstetricians and Gynecologists ("ACOG") publishes educational pamphlets for patients emphasizing the benefits of EFM. ACOG Patient Education Pamphlet, Fetal Heart Rate Monitoring, May, 1996; and the fact that about 83% of the women who gave birth in 1997 had electronic fetal monitoring, a 22% increase since 1989. National Vital Statistics Reports, Trends in the Attendant, Place, and Timing of Births, and in the Use of Obstetric Interventions: United States, 1989-97, Volume 47, Number 27, December 2, 1999.

Do not overlook the fact that many judges and prospective jurors have learned through personal experience and/or anecdotal discussions with friends and family members that EFM is a critical component of obstetrical care in the United States and throughout the world. This helps lawyers persuade jurors and judges that it is improper for a defense expert to question the value of EFM in a specific case on the grounds that it might lead to unnecessary interventions and increase cesarean section rates. After all, why would EFM be so popular if, as defendants and their experts often claim, it is a futile exercise that does not help to prevent adverse outcomes?

Please Note:
This web site is not intended as legal advice on cerebral palsy, and is not a substitute for obtaining guidance from your own legal counsel about cerebral palsy litigation. It provides general educational information about the standards of care and causation issues that can arise in obstetrical malpractice and cerebral palsy litigation. Readers of the articles contained within this web site should not act upon the cerebral palsy information without first consulting with a lawyer who is experienced in evaluating and litigating cerebral palsy and obstetrical malpractice cases. Mr. Apfel is admitted to practice law in Maryland and the District of Columbia. When Mr. Apfel is asked to participate in cerebral palsy litigation filed in other states, he will associate with, and act as co-counsel with, an attorney licensed in that state who is familiar with the local laws and procedures.
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