Daubert in English for medical-legal witnesses: How courts will view you

by • May 1, 2008 • UncategorizedComments Off on Daubert in English for medical-legal witnesses: How courts will view you1311

By Marcel B. Matley
for The Medical-Legal News

I am not an attorney, nor a medical person, and do not offer legal or medical advice. The goal here is to offer a practical guide in preparing expert evidence for federal and state courts following federal rules. The illustrations offered are the inventions of a layperson and are to be taken in a forgiving spirit.

Introduction

Expert testimony must be:

• from a properly qualified witness;

• relevant to a fact at issue;

• reliable;

• helpful to the jury; and

• not in violation of any rule, such as not being unnecessarily cumulative of other evidence.

The Rules of Evidence are designed to ensure that these requirements are established before a jury has to sit through an expert’s testimony. In the case Daubert vs. Merrell Dow Pharmaceuticals, Inc., the U.S. Supreme Court was most concerned with reliability of expert testimony. Please bear in mind that what “reliability” means in a scientific laboratory or in medical care of patients is not exactly the same as what “reliability” means in a court of law. This discussion only considers how to prove the latter.

The questions of the witness’s qualifications and the testimony’s reliability are the primary responsibility of the witness. The other three listed above are the primary responsibility of the attorney calling the witness. Thus, we will look briefly at how to establish qualifications and reliability.

Qualifications of the witness

The expert witness must be both generally qualified in the particular discipline and specifically qualified in the precise problem the jury has to decide. Suppose a family is suing a hospital’s emergency…

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