Expert Testimony Still Under Scrutiny

by Leona Egeland Siadek, Vice President, Government Relations

In the last six years, many states have addressed the issue of qualification criteria for a medical expert witness. Additionally, organized medicine has discussed and outlined procedures about witness qualifications. But the issue of standards for acceptable scientific testimony remains unsolved in many jurisdictions.

Pseudoscientific treatments have long been promulgated by qualified medical practitioners. Unreliable scientific evidence has been presented in numerous cases involving toxic liability as well as cases involving technical engineering issues in product liability. Judges at the trial court level are attempting to review and approve testimony to determine that it is based on theories generally accepted within the scientific community. And law review publications frequently present papers by scholars attempting a faithful comparison between the Frye standard and the Daubert standard.

The Frye standard, from a 1923 appeals court case known as Frye v. United States, holds that expert opinion based on a scientific technique is inadmissible unless that technique is “generally accepted” as reliable in the relevant scientific community. But in 1993, the U.S. Supreme Court ruled in Daubert v. Merrell Dow Pharmaceuticals, Inc., that for federal trials the Frye standard does not give the judge flexibility, and that Frye had been superseded by the adoption of the Federal Rules of Evidence.

The Daubert court held that the trial judge has to decide whether offered evidence is based on reasoning or methodology that is scientifically valid. General acceptance can be an important factor in deciding validity, but it is not a prerequisite to admissibility. Other factors that may be weighed included whether a theory or technique can be or has been tested, whether the theory or technique has been subjected to peer review and publication, whether (regarding a particular technique) there is a high known or potential rate of error, and whether there are standards controlling the technique’s operation.

The issue was further clarified in 1999 when the high court ruled unanimously in Kumho Tire Company Ltd. v. Carmichael that, at least for the federal court, the trial judge’s “gatekeeping” obligation to ensure validity applies to all expert testimony, not just to scientific testimony.

With this in mind, how can it happen that a Miami case, Castillo v. E. I. DuPont de Nemours and Co., was decided for the plaintiff to the tune of $4 million? Tragically, an infant was born with an eye condition known as microphthalmia. The jury decided that the birth defect was caused by the mist of DuPont’s fungicide Benlate, which was used on a nearby farm during the mother’s pregnancy. The presiding judge in this case did not apply any test of scientific rigor nor act as a gatekeeper scrutinizing expert testimony—which the law in Florida state court did not require. Florida decided that the plaintiff’s expert opinion met the Frye test—that it was based on accepted scientific methods. While the evidence might not have survived Daubert analysis, the Florida Supreme Court pointed out that Daubert is not the rule in Florida.

The Daubert standard must be applied in all federal courts; it is not required in all state courts. Whatever the doctrinal standard, it is imperative that the general consciousness be raised about problems of unreliable scientific evidence. It is a problem that goes hand in hand with criteria for who may be a witness.

Federal Actions

Two medical liability reform bills were introduced in May:

S. 22 (Ensign of Nevada), titled the Medical Care Access Protection Act of 2006, is a comprehensive medical liability reform bill. The bill utilized language from the successful Texas “stacked-cap” statute as a cap on noneconomic damages. Under this approach, a health care provider’s civil liability for noneconomic damages is $250,000. A health care institution, such as a hospital or nursing home, is also capped at $250,000. Where a final judgment is rendered against more than one health care institution, each facility can be tapped for $250,000 for noneconomic damages. There is, however, a limit of $750,000 in total civil liability for noneconomic damages.

S. 23 (Santorum of Pennsylvania and Gregg of New Hampshire), titled the Healthy Mothers and Healthy Babies Access to Care Act, has the same language as S. 22 but applies only to medical liability reform for OB-GYNs.

H.R. 420 (Smith of Texas), the Lawsuit Abuse Reduction Act of 2005, which proposes to make sanctions against attorneys for filing frivolous claims, is still in Senate Judiciary Committee. S. 1337 (Enzi of Wyoming), the Fair and Reliable Medical Justice Act, which would provide grants to 10 states to establish alternative reform models, is still waiting for a vote on the Senate floor.

State Actions

Florida
Governor Jeb Bush signed H.B. 145 into law on April 21. The bill eliminates joint and several liability.

Georgia
On February 13, the state supreme court struck down a portion of the venue reform law that had passed last year as part of the comprehensive civil justice reform bill.

Indiana
S.B. 296 was signed into law on March 20 by Governor Mitch Daniels. The measure gives the attorney general authority to negotiate punitive damage awards that are paid to the state.

Pennsylvania
S.B. 435 was vetoed by Governor Ed Rendell. The bill would have barred the application of joint and several liability in the recovery of all damages except where the defendant is guilty of intentional fraud and is more than 60 percent liable.

Washington
H.B. 2292 was signed by Governor Christine Gregoire in early March. The bill brokered by the governor will, among other items, require more and quicker reporting from hospitals and will set up a system of voluntary arbitration for malpractice, with maximum awards of $1 million and no right of appeal.

West Virginia
S.B. 576 was signed by Governor Joe Manchin on March 23. The bill establishes that the rate for pre- and post-judgment interest may not exceed 11 percent per year or be less than 7 percent per year.

Wisconsin
A.B. 1073 was signed into law on March 22 by Governor Jim Doyle. This legislation will limit noneconomic damages in medical malpractice cases to $750,000. This bill is in response to the state supreme court striking down the state’s former cap of $445,000 last year.