Joshua Potter, JD
Karen Fukutaki, MD
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This presentation will be an attempt to
explore the persistent problem of medical
expert testimony and reports that are difficult
to reconcile with the medical evidence in the
case. We hope to offer insight and tools to
make you more effective in your trials and
appeals.
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A thorough, unbiased and inclusive review of all
available records
A personal evaluation of the individual in
question when appropriate and a specific
disclaimer issued if no personal evaluation
occurred
Interviews of ancillary parties when appropriate
A concise and thorough summary of the
information gathered and how this information
supports the opinion set forth by the evaluator,
preferably in written form
Restraint in offering opinions in areas in which
one has insufficient expertise
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Individuals form perceptions, hold beliefs,
and formulate what they believe to be truths.
History is replete with examples of beliefs
held that have been shown not to be truths
◦ The world is flat
◦ Bathing will cause illness
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Calling something a lie implies the person
telling the lie knows the truth.
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Overestimation of the scope of one’s
knowledge?
Ignorance?
Inability to consider one’s opinion might not
be accurate?
Financial motivation?
Personal bias?
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“Medical Expert” provides live testimony
Rheumatoid Arthritis and Lupus
Primary Care physician is rheumatologist
“Medical Expert” is pulmonologist with no
clinical practice in rheumatology
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A written report from State Agency “Expert” - SAE
Schizophrenia and depression
PTP is Psychiatrist
SAE is “board-eligible in Psychiatry” and
reviews one treatment note
What board and what weight?
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Written report State Agency “Expert” SAE
Hangman fracture with RUE numbness. A
former bull rider with pre-existing RSD in
right lower extremity
SAE Reviewed one scan of left knee
“Board-eligible” in internal medicine
50 pounds occasional 25 frequently; 6/8
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Let’s roll up our sleeves and find some
solutions
We have powerful cases
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Daubert v. Merrill Dow Pharmaceuticals
509 U.S.509 U.S. 579 (1992)
Levin v. Dalva Bros, Inc. 459 F.3rd 68 (1st Cir
2006)
Granfield v. CSX Transp.,Inc., 597 F.3d 474
(1st Cir 2010 - read the cross examination
General Electric v Joiner 522 U.S. 136
Playing in a circuit in your neighborhood
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Use your legal search engine.
Over 18,578 cases cite Daubert . The line of
cases from Daubert have powerful dicta.
Joiner is cited 3,436 times. You will find
language on point in your circuit that his
highly critical of the in-expert expert.
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USCS Fed Rules Evid R 702, Part 1 of 2
FEDERAL RULES OF EVIDENCE, Rule 702. Testimony by
Expert Witnesses
A witness who is qualified as an expert by
knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable
principles and methods; and (d) the expert has
reliably applied the principles and methods to the
facts of the case. ...
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Expert evidence can be powerful and misleading.
The judge must weigh possible prejudice against
probative force under rule 403 Daubert 504 U.S.
595; GE v. Joiner, 522 U.S. 136
Rule 706 allows the court at its discretion to
procure the assistance of an expert of its own
choosing. Finally, Rule 403 permits the exclusion
of relevant evidence "if its probative value is
substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading
the jury . . . ." . Daubert 509 U.S. 579
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Trained experts commonly extrapolate from
existing data. But nothing in either Daubert
or the Federal Rules of Evidence requires a
district court to admit opinion evidence which
is connected to existing data only by the ipse
dixit of the expert. GE v. Joiner, 522 U.S.
136, 146
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Use your new analytical skills
Challenge medical opinions
Ipse Dixit doesn’t live here any more
Remember Testimony beyond the experts
scope of expertise should be excluded. Levin
v Dalva Brothers, Inc. 459 F.3rd 68 78-70 ( 1st
Cir. 2006)
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Dishonest
What board?
American Board
American Board
American Board
American Board
of
of
of
of
Internal Medicine
Medical Specialties AMBS?
Orthopedic surgery
Psychiatry and Neurology
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If the CE or ME is willing to be dishonest
about qualifications what else is “fishy”?
When in doubt, look it up. It’s good for the
blood pressure