Tag: expert witness testimony

EvidenceExpert WitnessExpert Witness Testimony

Expert Witness Liability, According to the U.S. 4th Circuit Court of Appeals

Recently, we have received some questions from expert witnesses regarding potential liability for expert witness testimony. The U.S. 4th Circuit Court of Appeals decided this issue last Friday.

Last week, on October 26th, 2018, the United States, Fourth Circuit Court of Appeals ruled that the federal common law “witness litigation privilege” protects an expert witness for civil claims stemming from their testimony.

The best summary of the decision that I found comes from Pillsbury Winthrop Shaw Pittman LLP’s, Gravel2Gavel Blog. You can find the blog post here.

The matter involved a coal miner who was claiming benefits under the Black Lung Benefits Act. According to the expert witness the evidence did not support the plaintiff’s claim and the claim was denied. Thereafter, a report from the Center for Public Integrity alleged the “Johns Hopkins radiology unit and its expert witnesses were much less likely to find evidence of black lung disease than other doctors.”

The report from the Center for Public Integrity led to a lawsuit against Johns Hopkins and their doctors claiming liability for fraud, tortious interference, misrepresentation and more. The trial court dismissed the claim citing the federal common law “witness litigation privilege.” According to Gravel2Gavel, the appeals court was divided on the issue, but agreed with the trial court decision.

The Fourth Circuit stated “absolute immunity” applies to the expert witness testimony. They went further to state, “‘when a witness takes the oath, submitting his own testimony to cross-examination, the common law does not allow his participation to be deterred or undermined by subsequent collateral actions for damages.’” This is a really wordy way for the court to say an expert witness cannot later be sued for their testimony.

We also went ahead and summarized the ruling in this video:

EvidenceExpert WitnessExpert Witness Testimony

Florida Supreme Court Says ‘No’ to Daubert Expert Witness Standard

Since 2013, Florida has been the center of a battle over admissibility standards for expert witness testimony.

Prior to a move by the legislature in 2013, Florida followed the Frye Standard (i.e. general acceptance test). This test is considered a more lenient in allowing for expert witness testimony.

Normally, this standard is preferred by plaintiff’s counsel and disliked by defense counsel. Much like the “general acceptance test,” my last statement is a generalization.

In 2013, the Florida Legislature passed a law changing the admissibility standard from Frye, to the federal standard commonly referred to as Daubert StandardRather than the general acceptance test, the judge as the gatekeeper, would apply a multi-pronged test to analyze the admissibility of expert evidence. Here are the prongs per Cornell Law:

  1. whether the theory or technique in question can be and has been tested;
  2. whether it has been subjected to peer review and publication;
  3. its known or potential error rate;
  4. the existence and maintenance of standards controlling its operation;
  5. whether it has attracted widespread acceptance within a relevant scientific community.

Most of our members are familiar with the Daubert Standard because it is the standard used by federal courts and more than three-quarters of US states. Naturally, my home state of California still uses Frye because we always want to do things a little differently. Well, according to the Florida Supreme Court ruling this week, Florida likes to do things differently as well.

To summarize, the Florida Supreme Court found the law implementing the Daubert Standard to be an unconstitutional infringement on the court’s authority by the legislature.

The decision was covered by CBS Miami, and the most pertinent part is as follows:

“We recognize that Frye and Daubert are competing methods for a trial judge to determine the reliability of expert testimony before allowing it to be admitted into evidence,” Justice Peggy Quince wrote in the majority decision, joined by justices Barbara Pariente, R. Fred Lewis and Jorge Labarga. “Both purport to provide a trial judge with the tools necessary to ensure that only reliable evidence is presented to the jury. Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used. With our decision today, we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.”

It was a 4-3 decision by the Florida Supreme Court and the Chief Justice offered an impassioned dissent. For our members practicing in Florida, the law is clear, the Supreme Court has decided Frye is the appropriate standard for Florida.

Expert WitnessExpert Witness Testimony

Expert Witness Credibility Can Make or Break a Case

In the forefront of legal news today is the Glossip v. Gross death penalty challenge / lethal injection case before the Supreme Court. Set for oral argument today, the Justices must determine if Oklahoma’s use of the common surgical sedative midazolam fails to make prisoners unconscious during lethal injections, violating the Eighth Amendment’s protection against “cruel and unusual punishment.”

According to ProPublica, the case took a turn when Oklahoma’s pivotal witness, Dr. Roswell Lee Evans, testified in trial that inmates “would not sense the pain” of an execution after receiving a high dose of midazolam. That, in and of itself, is not enough to turn heads but legal and medical professionals took note when Dr. Evans, a board certified psychiatric pharmacist and the dean of the Harrison School of Pharmacy at Auburn University in Alabama, testified that he has never used midazolam on a patient, nor has he ever personally induced anesthesia.

To make matters worse, 150 pages of his 300 page expert report were printouts from the consumer website Drugs.com, whose disclaimer reads, “not intended for medical advice, diagnosis or treatment.” Furthermore, pundits were grumbling at the fact that Dr. Evans had not published a paper related to his pharmacology research since 1996.

Last month, a brief was filed by 16 independent professors of pharmacology disputing Dr. Evans’ claim. The professors, according to Probublica, contended that, “It is widely recognized in the scientific and medical community that midazolam alone cannot be used to maintain adequate anesthesia…”

Caution SignCaution all Expert Witnesses! Credibility is Everything.

Once general competency is satisfied, an Expert Witness’ knowledge of the subject matter affects the weight and credibility of his testimony. Since a general rule of evidence is that a witness may only testify to what they have personally observed or encountered through their five senses, this “Sunday Pundit” is concerned for the good doctor. His lack of experience with the midazolam, his unreliable sources, and his lack of peer support do not bode well for him or the state of Oklahoma.

Ponder the The Daubert standard  for evaluating the reliability and relevance for “good science” and make your own judgment:
1) whether the scientific theory can be (and has been) tested;
2) whether the scientific theory has been subjected to peer review and publication;
3) the known or potential rate of error of the scientific technique; and
4) whether the theory has received “general acceptance” in the scientific community.

We are interested in your comments. Please feel free to share.