Expert Witness Testimony: Rules of Engagement

Abstract

Overlooked in most legislative remedies to address the medical malpractice (MMP) crisis is stringent prohibition against the use of "junk science'' in the courtroom and defining the qualifications of an expert witness. Expert witnesses should be required to: (1) to disclose information materially related to the reliability of expert testimony. (2) Filing of a "Daubert brief'': a summary of the plaintiff's expert's opinion along with a resume outlining his/her knowledge, skill, experience, training and education, reputation in the field relevant to the litigation, and complete details of the methodology employed by the expert. (3) An oath or declaration that acknowledges the duty to disclose to the court all information known to the person to be material to the reliability of the expert witness. Rules of evidence: The "Frye test'' or the "general acceptance rule'' has been used by judges to exclude expert testimony unless it is "sufficiently established to have gained general acceptance in the particular field in which it belongs.'' Stricter standards need to be legislated at the state level. The mandatory use of scientific panels by judges in all MMP cases is needed. Legislative relief has been sought by the medical community to address the serious disconnect between negligence and MMP litigation. The use of junk science in the courtroom remains largely unaddressed in the judicial system. Medical societies and legislatures must act to define an expert witness and restrain plaintiff's attorneys from using junk science to influence juries.