An expert witness in a wrongful death lawsuit was not properly vetted by the trial court before making key assertions about decedent’s cause of death, the U.S. Court of Appeals for the Seventh Circuit recently ruled. That means the plaintiff, who alleged her teen daughter died due to medical malpractice, will get another chance to make her case at trial.
In Florida, there is no licensing or professional training one has to obtain in order to qualify as an expert witness. However, just having general knowledge isn’t enough either. Courts have established that individuals may be competent to provide expert witness testimony in a subject if they are qualified by knowledge, skill, experience, training or education. Other considerations could include continuing education, fellowships and professional affiliations. The competency and qualifications of an expert witness are to be determined by the trial judge, and unless one can show there was a clear error in the judge’s discretion, that determination won’t be reversed.
The case of Hall v. Flannery involves the tragic death of a 17-year-old girl. When she was just 5-months-old, she was dropped and suffered a skull fracture. That fracture expanded over time and a cyst later formed. The fracture and cyst weren’t problematic for her until she turned 17. She suffered a blow to the head and, as a result, lost consciousness and later reported blurred vision and dizziness. CT and MRI scans revealed the full extent of the fracture and cyst.
She needed to undergo a surgery known as a cranioplasty, which is done to repair the fracture and repair the thick membrane surrounding the brain where the cyst had formed.
The procedure was formed by defendant neurosurgeon and a neurosurgical resident. The day after her surgery, the girl was sent home. Three days after that, she was found dead in her bed. A coroner reported the girl had been discovered in a normal resting position. An autopsy was conducted. The first doctor was unable to identify a case of death, so he asked another doctor to examine the body. She determined the surgery had caused damage to the teenager’s brain. Specifically, she had suffered a seizure brought no by surgical damage. Neither doctor had reviewed or was even aware of the pre-surgery CT and MRI scans when they reached these conclusions.
Decedent’s mother filed a wrongful death lawsuit against the neurosurgeon and the hospital, alleging negligent post-operative care.
At trial, defendants presented testimony from three different doctors, one of whom opined decedent hadn’t died from a seizure, but rather from a heart condition. Plaintiff’s attorney objected right away, arguing there had been no foundation laid and no qualifications that would suggest the witness was qualified to give an opinion as to decedent’s cause of death.
A sidebar was held in which the district judge analyzed whether the physician had presented his opinion with a reasonable degree of medical certainty. No one mentioned the doctor’s methodology or qualifications. The judge ruled the opinions had been properly disclosed and allowed them.
Jurors later decided the case in favor of the defense.
Plaintiff appealed, arguing the district court erred in allowing the defense’s three expert witnesses to testify about the exact cause of death because, based on the Daubert standard (which Florida now follows too), the experts lacked the knowledge skill, training, education or experience and their opinions weren’t based on reliable principles and methods.
The 7th Circuit agreed with plaintiff with regard to one of those witnesses. The reason was not necessarily that the doctor was not qualified, but because the court erred in failing to apply the Daubert standard with regard to this particular witness. Because there was a good chance that this wrongful admission of testimony affected the outcome of the trial, the Seventh Circuit vacated the verdict and remanded for a new trial.
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Hall v. Flannery, Nov. 4, 2016, U.S. Court of Appeals for the Seventh Circuit
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Cardiologist Seeks $27M From Doctor for Brain Damage During Electroshock Treatment, Oct. 31, 2016, Naples Wrongful Death Attorney Blog