Return to Vaccination News Home Page  __»   Right-click to "open in new window"

Subscribe to the Vaccination NewsLetter

View past & current Scandals (columns by Sandy Mintz)

Search This Site using keywords

California court throws out "speculative" expert testimony

Ten years after a key U.S. Supreme Court ruling, many say judges are stricter about the expert testimony they allow.

By Tanya Albert, AMNews staff. Aug. 4, 2003.

In a medical malpractice trial in California, physicians admitted that leaving a retractor in a man's peritoneal cavity after a September 2000 surgery was a deviation from the standard of care. It was the question of how much damage the mistake caused that was left to a jury, particularly whether the oversight contributed to an infection.

The jury's decision would rest on what medical expert witnesses had to say. But after the plaintiff's expert witness testified, the trial court judge told the jury to disregard the expert's testimony and threw it out, saying the opinion was based on speculation, not science.

With this article   Important -- if misunderstood -- guidelines   See related content   Regional news: West

The judge's action is now on appeal to the California Court of Appeal, 4th Appellate District Division One.

The plaintiff claims that the trial judge overstepped his boundaries and engaged in fact-finding when he excluded the testimony. But the defendant doctors and the California Medical Assn., which filed a friend-of-the-court brief in the case, say the court did the right thing. And the CMA says other courts shouldn't be afraid to do the same if they have doubts about expert witnesses brought forth by either side.

"The CMA wants to stop speculative testimony from being introduced," said Susan L. Penney, the association's legal counsel. "It leads the jury down the wrong path."

The medical society's decision to file a brief in the case comes at a time when doctors nationwide are calling for stricter scrutiny of medical expert witness testimony by both the courts and the professional organizations to which testifying physicians belong.

Physicians believe that keeping junk science out of the courtroom is one way of helping rein in what they see as out-of-control jury awards that have contributed to a medical liability insurance crisis.

Scientifically sound?

In the California case, Jennings v. Palomar Pomerado Health Systems Inc. et al., the plaintiff's expert testified that the retractor left below the patient's peritoneal cavity during abdominal surgery contributed to an infection in the upper subcutaneous tissue and fascia, according to court records.

Doctors discovered the infection when they went in to remove the retractor. There was no infection in the area around the retractor.

The plaintiff's expert testified that there was "guilt by association" even though there wasn't evidence of an infection where the retractor was lodged, court records show. He told the jury that the omentum encased the retractor to isolate and kill germs in the peritoneal area where it was lodged.

The expert testified that the sutures used to close the surgical opening could have brought the infection back up to the peritoneal area, before the omentum was able to take care of any infection below.

As soon as he was finished testifying, defense attorneys for the hospital and two physicians who were named in the lawsuit moved to strike the testimony because there was no basis for the expert's opinion that the retractor left in the man's body contributed to the infection.

The judge agreed.

He said the infection, under either explanation the expert outlined, "would have happened anyway even if the retractor had been removed during the original surgery," according to court records.

Plaintiffs argue that the judge engaged in fact-finding. But the hospital, physicians and the CMA argue that the judge was just doing his job -- keeping out speculative and unreliable testimony.

"Trial judges should not abdicate responsibility for determining the reliability and admissibility of evidence before it may be submitted to the jury," the CMA said in its brief. "In fact, trial courts should be encouraged to do exactly what the court in this case did: carefully analyze expert testimony to ensure that only well-founded, nonspeculative expert opinions reach the jury."

Indeed, that's happening more often today than it did a decade ago.

High court defines judge's role

A 1993 U.S. Supreme Court ruling set out to keep "junk science" out of the courtroom by asking judges to serve as gatekeepers by evaluating the underlying science for expert witness testimony.

The high court outlined four criteria on which to base a decision: falsifiability, error rate, general acceptance and peer review and publication.

Federal courts now abide by the guidelines set in that case, Daubert v. Merrell Dow Pharmaceuticals Inc. Many state courts have adopted the guidelines as well.

"In the past 10 years, I have seen a major shift in the courtroom," said Richard O. Faulk, a Texas-based defense attorney who has practiced for more than 25 years and has succeeded in getting expert witness testimony dismissed. "There is a trend toward more rigorous standards."

In courts following those guidelines, a defense or plaintiff attorney can ask a judge to review an expert's testimony before the trial begins and before a jury would ever hear it.

In states where the guidelines aren't followed, including California, courts generally follow guides established in an earlier federal appeals court case commonly known as Frye. That ruling said the expert's method had to be generally accepted.

Some lawyers say even if the judge isn't acting as a gatekeeper as outlined in Daubert, junk science is still unlikely to hold sway with the jury because cross-examination shows the flaws in the theory.

"Cross-examination is a very effective way to show that doctors aren't what they seem to be," said Michael W. Gunzburg, a personal injury trial lawyer in New York City. "If the doctor's theory is so far-fetched, a jury is going to see through it."

Return to Vaccination News Home Page  __»   Right-click to "open in new window"

DISCLAIMER:    All information, data, and material contained, presented, or provided here is for general information purposes only and is not to be construed as reflecting the knowledge or opinions of the publisher, and is not to be construed or intended as providing medical or legal advice.  The decision whether or not to vaccinate is an important and complex issue and should be made by you, and you alone, in consultation with your health care provider.