During my Evidence course, and many times since, I proposed to prohibit eyewitness testimony without corroborating physical evidence. At least, I think, I did.
In one quarter of the exonerations of murderers on death row, by DNA identification, the defendant falsely confessed to the murder. What really happened was that the police implanted a false memory. They even provided details only the murderer could know, not in the media.
I even saw a brochure continuing legal education with course on how to implant false memories in jurors. At least, I think, I did.
https://en.wikipedia.org/wiki/Memory_implantation
Showing posts with label Evidence. Show all posts
Showing posts with label Evidence. Show all posts
Saturday, September 29, 2018
Thursday, September 27, 2018
The Google Mistrial
Go to page 71.
Asking the judge to question jurors in the middle of the trial may emerge as a new tactic to get a mistrial declared.
"...But the ubiquity of instant, electronic communication
and mobile applications for social networking sites such
as Facebook, Twitter, MySpace, and LinkedIn allows
jurors to research the issues in the cases on which they
serve, as well as to immediately interact with others. So,
how does this play out?
In a Fort Lauderdale, Florida, drug trial in March 2009,
a juror informed the judge seven weeks into the trial that
she overheard a fellow juror talking about researching
the case. The judge interviewed all 12 jurors, and after a
majority admitted searching Google for the defendant’s
name and medical terms, the judge declared a mistrial.
Other instances of Google “research”—including juror
use of Google’s Earth Street View to examine crime
scenes—have occurred with such frequency in recent
years that legal experts have coined the phrase, “Google
mistrial.” John Schwartz, As Jurors Turn to Web, Mistrials
Are Popping Up, N.Y. Times, Mar.17, 2009. In February
2009, an Arkansas juror used his handheld mobile device
to post messages on Twitter during court proceedings,
including the following tweet: “I just gave away twelve
million dollars of somebody else’s money.” Id. The judge
denied the defense counsel’s motion for a new trial, and
the decision has been appealed. Id.
A January 28, 2010, memorandum to all federal district
judges from U.S. District Judge Julie Robinson—
chair of the Committee on Court Administration and
Case Management of the Judicial Conference of the
United States—endorsed a set of suggested jury instructions
that district judges should consider to deter jurors from using electronic technology to research or communicate about trials on which they serve.
The proposed model instructions cover juror conduct
through a judge’s acceptance of a jury’s verdict:
You should not consult dictionaries or reference materials,
search the Internet, websites, blogs, or use any
other electronic tools to obtain information about
this case or to help you decide the case…. You may
not communicate with anyone about the case on your
cell phone, through e-mail, Blackberry, iPhone, text
messaging, or on Twitter, through any blog or website,
through any Internet chat room, or by way of any
other social networking websites, including Facebook,
MySpace, LinkedIn, and YouTube."
Sunday, August 21, 2011
Coping with Plaintiff Expert Witnesses
Nice review of the subject at the above link.
"Most state medical boards have the authority to discipline doctors found to have provided unethical witness testimony, said Lisa Robin, chief advocacy officer of the Federation of State Medical Boards. However, each board's process of investigating complaints and enacting discipline differs. Whether states have jurisdiction to punish out-of-area doctors also varies, Robin said.
In Mississippi, doctors from out of state who give deceptive testimony can be prohibited by court injunction from testifying in future cases. The state medical board also can revoke the licenses of doctors who provide false testimony and charge physicians up to $10,000 for investigating a case."
The litigation privilege will trump any licensing authority sanctions, and will be reversed by the courts. The courts want witnesses to be immune for their testimony, however false. This privilege is supported by the Supreme Court in a case where a police officer could not be sued for lying on the stand and sending an innocent defendant to prison for a few years. Little hope for doctors if the immunity is that extreme and even covers the crime of perjury.
Doctors should still report unprofessional conduct to all the licensing boards of the witness. It is just a moral obligation, and a legal one in some states, where there is mandated reporting of unprofessional conduct. Take each shady statement, and report it to each board once a month, so that the h witness remains under investigation for years. I am not aware of any statute of limitations for licensing board reporting.
Some boards will reply that testifying at a malpractice trial is not an act of medicine. It most definitely is. It is an act of super-medicine. It tells the doctors of the state what the standard of due care in a medical matter is.
2) Most of the recourse against plaintiff experts has to be found inside the trial itself. Defense counsel has a conflict of interest making money from having a rial. So they will resists acting against plaintiff experts. One must hire a second private attorney to terrorize the insurance company lawyer into acting a bit different, attacking the expert and seeking to end the trial before it begins.
3) Disqualify the expert.
4) Find a false fact uttered by reading every word uttered by the expert. Demand a mistrial and all legal costs assessed to the personal assets of the expert. Opinion has the protection of the First Amendment. False testimony about facts is perjury and not privileged. For example, the expert claims to have read a document and has not. He claims to have researched an article and has not.
"Most state medical boards have the authority to discipline doctors found to have provided unethical witness testimony, said Lisa Robin, chief advocacy officer of the Federation of State Medical Boards. However, each board's process of investigating complaints and enacting discipline differs. Whether states have jurisdiction to punish out-of-area doctors also varies, Robin said.
The American Academy of Emergency Medicine publishes expert witness testimony online.
The litigation privilege will trump any licensing authority sanctions, and will be reversed by the courts. The courts want witnesses to be immune for their testimony, however false. This privilege is supported by the Supreme Court in a case where a police officer could not be sued for lying on the stand and sending an innocent defendant to prison for a few years. Little hope for doctors if the immunity is that extreme and even covers the crime of perjury.
Doctors should still report unprofessional conduct to all the licensing boards of the witness. It is just a moral obligation, and a legal one in some states, where there is mandated reporting of unprofessional conduct. Take each shady statement, and report it to each board once a month, so that the h witness remains under investigation for years. I am not aware of any statute of limitations for licensing board reporting.
Some boards will reply that testifying at a malpractice trial is not an act of medicine. It most definitely is. It is an act of super-medicine. It tells the doctors of the state what the standard of due care in a medical matter is.
2) Most of the recourse against plaintiff experts has to be found inside the trial itself. Defense counsel has a conflict of interest making money from having a rial. So they will resists acting against plaintiff experts. One must hire a second private attorney to terrorize the insurance company lawyer into acting a bit different, attacking the expert and seeking to end the trial before it begins.
3) Disqualify the expert.
4) Find a false fact uttered by reading every word uttered by the expert. Demand a mistrial and all legal costs assessed to the personal assets of the expert. Opinion has the protection of the First Amendment. False testimony about facts is perjury and not privileged. For example, the expert claims to have read a document and has not. He claims to have researched an article and has not.
Monday, June 28, 2010
Daubert Applies to the Criminal Trial. New Jersey Limits the Effect of Eyewitness Testimony
The trial itself is Medieval garbage from the disputation method of Scholasticism, as a method of arriving at some answer to an important question. There are no validation nor even reliability data available to this essential legal methodology.
New Jersey is a leader in addressing problems with eyewitness testimony
By Emilie Lounsberry
Inquirer Staff Writer
McKinley Cromedy spent five years behind bars in New Jersey after a rape victim testified she was certain he was the one who attacked her.
Cromedy's lawyer questioned the ability of the woman, who is white, to differentiate among black men like the defendant, but the jury convicted Cromedy on the strength of the victim's memory.
DNA eventually showed he didn't do it, and the New Jersey Supreme Court responded with a bold move: It ordered trial judges across the state to instruct juries about the difficulties of cross-racial identification.
More than a decade later, New Jersey remains a leader nationally in efforts to deal with the problem of misidentification. A report filed last week with the state high court said that even more steps were needed to take advantage of the wealth of scientific studies casting light on the issue.
"New Jersey is a vanguard state," said Duquesne University law professor John T. Rago, among those working on the issue in Pennsylvania as part of an examination of the underlying causes of wrongful convictions.
Rago and others said Pennsylvania has a way to go to catch up with its neighboring state on the possible pitfalls of eyewitness testimony, which is among the most powerful evidence in criminal cases.
"There hasn't been much in the way of reform in Pennsylvania at all," said Gary Wells, a psychology professor at Iowa State University who was one of seven experts to testify before the special master who filed the New Jersey report on the issue.
A final report to the Pennsylvania Senate, due in late summer, is expected to explore eyewitness identification.
"It's not an easy issue," said Rago, who said the 51 committee members were examining scientific advancements focusing on a number of avenues of criminal investigation.
The problem with eyewitness identification has come to light because of DNA testing, the great equalizer in the criminal justice system because it helps to convict the guilty and clear the innocent.
About three-quarters of the 254 defendants exonerated nationally by DNA testing, including Cromedy, had been convicted largely on the basis of eyewitness testimony.
"It was him," the young rape victim testified in 1994, telling a jury that Cromedy had attacked her in her basement apartment near the Rutgers University campus in New Brunswick.
New Jersey is a leader in addressing problems with eyewitness testimony
By Emilie Lounsberry
Inquirer Staff Writer
McKinley Cromedy spent five years behind bars in New Jersey after a rape victim testified she was certain he was the one who attacked her.
Cromedy's lawyer questioned the ability of the woman, who is white, to differentiate among black men like the defendant, but the jury convicted Cromedy on the strength of the victim's memory.
DNA eventually showed he didn't do it, and the New Jersey Supreme Court responded with a bold move: It ordered trial judges across the state to instruct juries about the difficulties of cross-racial identification.
More than a decade later, New Jersey remains a leader nationally in efforts to deal with the problem of misidentification. A report filed last week with the state high court said that even more steps were needed to take advantage of the wealth of scientific studies casting light on the issue.
"New Jersey is a vanguard state," said Duquesne University law professor John T. Rago, among those working on the issue in Pennsylvania as part of an examination of the underlying causes of wrongful convictions.
Rago and others said Pennsylvania has a way to go to catch up with its neighboring state on the possible pitfalls of eyewitness testimony, which is among the most powerful evidence in criminal cases.
"There hasn't been much in the way of reform in Pennsylvania at all," said Gary Wells, a psychology professor at Iowa State University who was one of seven experts to testify before the special master who filed the New Jersey report on the issue.
A final report to the Pennsylvania Senate, due in late summer, is expected to explore eyewitness identification.
"It's not an easy issue," said Rago, who said the 51 committee members were examining scientific advancements focusing on a number of avenues of criminal investigation.
The problem with eyewitness identification has come to light because of DNA testing, the great equalizer in the criminal justice system because it helps to convict the guilty and clear the innocent.
About three-quarters of the 254 defendants exonerated nationally by DNA testing, including Cromedy, had been convicted largely on the basis of eyewitness testimony.
"It was him," the young rape victim testified in 1994, telling a jury that Cromedy had attacked her in her basement apartment near the Rutgers University campus in New Brunswick.
Thursday, February 18, 2010
Georgia Supreme Court Allows Demand for Med Mal Expert's Own Record of Treatment in Similar Case
In a prior post, it was suggested that the plaintiff expert produce 4 or 5 of his own records on similar case to verify his actual compliance with the proposed standard of care. Any demand for defense expert records should be resisted for the reasons listed in that post. Here.
Click on the title of this post to read the entire review of this decision. And the Condra decision here.
"Consistent with the law in effect at the time, the Court of Appeals upheld the trial court’s ruling excluding the personal practice evidence. However, following Condra, the Georgia Supreme Court remanded the case back to the Court of Appeals to reconsider in light of that decision. Upon reconsideration, the Court of Appeals found that the same reasoning employed by the Supreme Court in Condra would apply to any case where evidence of the physician's personal practices could be construed by the jury as calling into question the credibility of the physician's testimony at trial, irrespective of whether the physician was a standard of care expert. In other words, “evidence that [the treating physician] routinely took the same precaution to guard against infection that he now claimed would not have made a difference in the present case arguably called into question the credibility of such a claim.” Concluding that the exclusion of evidence of the treating physician’s personal practice undermined the jury's ability to fully evaluate his credibility and deprived plaintiff of her substantial right to a thorough and sifting cross-examination, the Court of Appeals ordered a new trial where such evidence would be admissible."
Click on the title of this post to read the entire review of this decision. And the Condra decision here.
"Consistent with the law in effect at the time, the Court of Appeals upheld the trial court’s ruling excluding the personal practice evidence. However, following Condra, the Georgia Supreme Court remanded the case back to the Court of Appeals to reconsider in light of that decision. Upon reconsideration, the Court of Appeals found that the same reasoning employed by the Supreme Court in Condra would apply to any case where evidence of the physician's personal practices could be construed by the jury as calling into question the credibility of the physician's testimony at trial, irrespective of whether the physician was a standard of care expert. In other words, “evidence that [the treating physician] routinely took the same precaution to guard against infection that he now claimed would not have made a difference in the present case arguably called into question the credibility of such a claim.” Concluding that the exclusion of evidence of the treating physician’s personal practice undermined the jury's ability to fully evaluate his credibility and deprived plaintiff of her substantial right to a thorough and sifting cross-examination, the Court of Appeals ordered a new trial where such evidence would be admissible."
Sunday, September 13, 2009
Have Plaintiff Experts Produce Their Records of Patients Like the Plaintiff for Review
This proposal was a resolution to be presented at the Pennsylvania Medical Society Business Meeting in October, at Hershey, PA. It was endorsed by the Board of Trustees of the Montgomery County Medical Society.
It is advisable for all medical defendants to hire a personal attorney. There are inherent conflicts of interest in the case and in insurance. These will make the insurance company defense attorney less aggressive in defending the client. Both defense attorney and insurance have an interest in not crushing cases. If the defendant tries to make any demand, they will easily rebuff him. They will be more careful if the defendant has a personal attorney make these demands. If the defendant fires the defense lawyer, he will get another that is just the same. The defense attorney will replace the client in minutes. If insurance and defense lawyers fully deter or discourage the plaintiff lawyer, they lose thei incomes. For such innovation, the personal lawyer is best suited to demand it.
Pennsylvania Rule of Evidence 702 states, "If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise." (1). The sociology of expertise now agrees, genuine expertise comes less from credentials, more from a track record and experience (2).
So, in accordance with Pennsylvania Rule of Evidence 702 (1), the treatment records of the plaintiff expert treating patients similar to the plaintiff for similar problems should be obtained in discovery. This discovery motion has justification in that expertise comes from experience and a track record, and less from credentials (2).
All identifiers of these plaintiff expert patients should be blacked out. Payment for the expense of such discovery should the same as charged to the plaintiff. These plaintiff expert treatment records should be reviewed for compliance with the standard of care the plaintiff expert claimed were not met by the defendant.
If the plaintiff expert does not have sufficient records to produce or refuses to produce such records, a motion to disqualify the expert should be filed with the court. He does not have enough experience to be an expert on the narrow subject of the claim. If there are not enough records because the condition is so rare, the rarity serves as a good defense. If the plaintiff expert's own practice records show any deviation from the proposed standard of care, consider filing pretrial motion to impeach the expert for a prior inconsistent statement. If the plaintiff expert is disqualified or impeached, the expert opinion is false testimony. The case should be dismissed in accordance with the Iqbal doctrine, and its limits (3), and all legal costs should be assessed to the personal assets of the plaintiff expert.
A demand for the treatment records of the defense expert should be opposed on the following grounds, 1) the burden of proof is on the plaintiff, and the defense is not even required to produce any testimony; 2) the defense expert may not be making claims as to what a standard of care is, but may be offering alternative causation or unforeseen intervening causes of the injury; 3) even if the defense experts records all comply with the plaintiff experts proposed standard of care, they may reflect defensive medicine or academic teaching duties (extra thorough examinations to teach student doctors), and not acceptance of a standard of care proposed by the plaintiff expert.
References
1. http://www.pacode. com/secure/ data/225/ chapter7/ s702.html
2. Collins, H., Evans, R. Rethinking Expertise, U of Chicago, Chicago.
P. 67.
3. Find at: http://www.law.cornell.edu/supct/html/07-1015.ZS.html; limits discussed at: http://blogs.wsj.com/law/2009/05/19/why-defense-lawyers-are-lovin-the-iqbal-decision/
It is advisable for all medical defendants to hire a personal attorney. There are inherent conflicts of interest in the case and in insurance. These will make the insurance company defense attorney less aggressive in defending the client. Both defense attorney and insurance have an interest in not crushing cases. If the defendant tries to make any demand, they will easily rebuff him. They will be more careful if the defendant has a personal attorney make these demands. If the defendant fires the defense lawyer, he will get another that is just the same. The defense attorney will replace the client in minutes. If insurance and defense lawyers fully deter or discourage the plaintiff lawyer, they lose thei incomes. For such innovation, the personal lawyer is best suited to demand it.
Pennsylvania Rule of Evidence 702 states, "If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise." (1). The sociology of expertise now agrees, genuine expertise comes less from credentials, more from a track record and experience (2).
So, in accordance with Pennsylvania Rule of Evidence 702 (1), the treatment records of the plaintiff expert treating patients similar to the plaintiff for similar problems should be obtained in discovery. This discovery motion has justification in that expertise comes from experience and a track record, and less from credentials (2).
All identifiers of these plaintiff expert patients should be blacked out. Payment for the expense of such discovery should the same as charged to the plaintiff. These plaintiff expert treatment records should be reviewed for compliance with the standard of care the plaintiff expert claimed were not met by the defendant.
If the plaintiff expert does not have sufficient records to produce or refuses to produce such records, a motion to disqualify the expert should be filed with the court. He does not have enough experience to be an expert on the narrow subject of the claim. If there are not enough records because the condition is so rare, the rarity serves as a good defense. If the plaintiff expert's own practice records show any deviation from the proposed standard of care, consider filing pretrial motion to impeach the expert for a prior inconsistent statement. If the plaintiff expert is disqualified or impeached, the expert opinion is false testimony. The case should be dismissed in accordance with the Iqbal doctrine, and its limits (3), and all legal costs should be assessed to the personal assets of the plaintiff expert.
A demand for the treatment records of the defense expert should be opposed on the following grounds, 1) the burden of proof is on the plaintiff, and the defense is not even required to produce any testimony; 2) the defense expert may not be making claims as to what a standard of care is, but may be offering alternative causation or unforeseen intervening causes of the injury; 3) even if the defense experts records all comply with the plaintiff experts proposed standard of care, they may reflect defensive medicine or academic teaching duties (extra thorough examinations to teach student doctors), and not acceptance of a standard of care proposed by the plaintiff expert.
References
1. http://www.pacode. com/secure/ data/225/ chapter7/ s702.html
2. Collins, H., Evans, R. Rethinking Expertise, U of Chicago, Chicago.
P. 67.
3. Find at: http://www.law.cornell.edu/supct/html/07-1015.ZS.html; limits discussed at: http://blogs.wsj.com/law/2009/05/19/why-defense-lawyers-are-lovin-the-iqbal-decision/
Monday, September 7, 2009
If Opposing Experts Testify in Good Faith, the Case Should End for Lack of Jurisdiction and Justiciability
The problem. Over 80% of medical malpractice claims are weak and fail at that rate at every stage of the claim. It is this majority of weak cases that need to get deterred. If they are, the defense bar loses jobs, and the insurance companies lose profits. They will therefore refuse to aggressively get these dismissed early. Some method is needed to deter the weak testimony of paid off plaintiff experts. There should be no quarter given to them.
This scenario is a situation where the interest of the defendant and those of the plaintiff attorney are in accord. Both will benefit from not holding trial and avoiding its time and expense. It is advisable for all medical defendants to hire a personal attorney. There are inherent conflicts of interest in the case and in insurance. These will make the insurance company defense attorney less aggressive in defending the client. Both defense attorney and insurance have an interest in not crushing cases. If the defendant tries to make any demand, they will easily rebuff him. They will be more careful if the defendant has a personal attorney make these demands. If the defendant fires the defense lawyer, he will get another that is just the same. The defense attorney will replace the client in minutes. If insurance and defense lawyers fully deter or discourage the plaintiff lawyer, they lose thei incomes. For such innovation, the personal lawyer is best suited to demand it.
There are 5 elements that must be proven in a medical malpractice suit, 1) an injury; 2) it was caused by the treatment; 3) nothing broke the chain of causation of the injury, such as patient non-compliance, bad luck events, other people's behaviors, etc.; 4) there is a standard of care; and 5) the treatment that caused the injury deviated from it. Experts are needed to establish the standard of care, and to establish the causation. It is reassuring that when a phenomenon exists and can be measured, the agreement of experts is excellent. Expert testimony has good inter-rater reliability. The court should feel reassured that any disagreement does not come from any inherent nebulousness of the subject matter.
The jury is supposed to find the facts. It is the "trier of facts." It is their job to find that the doctor did something or did not do something, when he did it. Facts.
It should be defense lawyer standard of due care to get the earliest dismissal of a complaint. Good faith (sincere) testimony of opposing experts means a scientific controversy exists, and the rhetoric in a court cannot resolve a scientific controversy (1). Only additional, scientifically valid data may resolve a scientific controversy.
A court should dismiss the case lacking justiciability (the limits upon legal issues over which a court can exercise its judicial authority) as early as possible to avoid wasting its time. Opposite expert testimonies violate both the Frye doctrine (2) used in Pennsylvania courts and the Daubert doctrine (3) used in federal court.
Claims of a deviation from doctor standards of due care within the knowledge of the jury, or having support from only a plaintiff expert, are within the ability of the court to judge, and where only the facts of treatment are in dispute, should proceed.
If an expert is shown to be testifying in bad faith, the other side should demand a mistrial, and all legal and court cost be assessed to the personal assets of the expert testifying in bad faith, to deter.
The defendant should discuss with the insurance company defense lawyer making the following preliminary motion, as early as possible after the completion of discovery, to dismiss the claim because opposing experts are testifying in good faith, and the court lacks technical ability or constitutional authority to resolve a scientific controversy.
The court should dismiss the lawsuit if 1) the experts disagree over the standard of due care; 2) agree about the standard, but whether the doctor’s treatment met it; 3) agree about the standard, that the doctor failed to meet it, but disagree over whether the deviation from standards caused the injury or merely preceded it. The jury may judge a claim where opposing experts agree about the standard of care, that if the doctor’s treatment deviated from it, it would have caused the injury, but disagree about the material facts of the treatment (if it happened, when it happened). The jury has the ability to determine what happened, then using the agreement of experts over material opinions about the standard, the hypothetical causation, but disagreement about the facts of treatment.
The court may also accept a claim the standard of care and of causation is within the knowledge of the jury, such as wrong site surgery, or that has no defense expert.
If one of the opposing experts is shown to be testifying in bad faith, the other side should demand a mistrial, and all legal and court cost be assessed to the personal assets of the expert testifying in bad faith, to deter.
Footnotes:
1. Sancho v. U.S. Department of Energy. F.Supp.2d, 2008 WL 4370009 (D. Hawaii) (Lack of subject matter jurisdiction in a claim that turning on a particle accelerator could create a black hole swallowing the earth). Lack of subject matter jurisdiction may be raised at any point of case. May be raised by the court itself. The Court has ability to answer legal questions not scientific ones. Its decisions are at the point of a gun, and may distort clinical practice if an unscientific opinion prevails. The jury has no ability to judge the science, especially after all with any knowledge have been excluded in voir dire. The jury will favor the more personally likable expert, or apply one of may cognitive biases. These results of lack of subject matter jurisdiction violate the procedural due process right of the civil defendant to a fair hearing.
2. Frye Decision: “...the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Opposite testimony on the standard of care implies lack of “general acceptance.” The experts are there to help the jury apply the standard of care to the facts. If they disagree, they are not helping but confusing the jury.
3. Daubert Decision: “Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate, and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. The inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate.”
This scenario is a situation where the interest of the defendant and those of the plaintiff attorney are in accord. Both will benefit from not holding trial and avoiding its time and expense. It is advisable for all medical defendants to hire a personal attorney. There are inherent conflicts of interest in the case and in insurance. These will make the insurance company defense attorney less aggressive in defending the client. Both defense attorney and insurance have an interest in not crushing cases. If the defendant tries to make any demand, they will easily rebuff him. They will be more careful if the defendant has a personal attorney make these demands. If the defendant fires the defense lawyer, he will get another that is just the same. The defense attorney will replace the client in minutes. If insurance and defense lawyers fully deter or discourage the plaintiff lawyer, they lose thei incomes. For such innovation, the personal lawyer is best suited to demand it.
There are 5 elements that must be proven in a medical malpractice suit, 1) an injury; 2) it was caused by the treatment; 3) nothing broke the chain of causation of the injury, such as patient non-compliance, bad luck events, other people's behaviors, etc.; 4) there is a standard of care; and 5) the treatment that caused the injury deviated from it. Experts are needed to establish the standard of care, and to establish the causation. It is reassuring that when a phenomenon exists and can be measured, the agreement of experts is excellent. Expert testimony has good inter-rater reliability. The court should feel reassured that any disagreement does not come from any inherent nebulousness of the subject matter.
The jury is supposed to find the facts. It is the "trier of facts." It is their job to find that the doctor did something or did not do something, when he did it. Facts.
It should be defense lawyer standard of due care to get the earliest dismissal of a complaint. Good faith (sincere) testimony of opposing experts means a scientific controversy exists, and the rhetoric in a court cannot resolve a scientific controversy (1). Only additional, scientifically valid data may resolve a scientific controversy.
A court should dismiss the case lacking justiciability (the limits upon legal issues over which a court can exercise its judicial authority) as early as possible to avoid wasting its time. Opposite expert testimonies violate both the Frye doctrine (2) used in Pennsylvania courts and the Daubert doctrine (3) used in federal court.
Claims of a deviation from doctor standards of due care within the knowledge of the jury, or having support from only a plaintiff expert, are within the ability of the court to judge, and where only the facts of treatment are in dispute, should proceed.
If an expert is shown to be testifying in bad faith, the other side should demand a mistrial, and all legal and court cost be assessed to the personal assets of the expert testifying in bad faith, to deter.
The defendant should discuss with the insurance company defense lawyer making the following preliminary motion, as early as possible after the completion of discovery, to dismiss the claim because opposing experts are testifying in good faith, and the court lacks technical ability or constitutional authority to resolve a scientific controversy.
The court should dismiss the lawsuit if 1) the experts disagree over the standard of due care; 2) agree about the standard, but whether the doctor’s treatment met it; 3) agree about the standard, that the doctor failed to meet it, but disagree over whether the deviation from standards caused the injury or merely preceded it. The jury may judge a claim where opposing experts agree about the standard of care, that if the doctor’s treatment deviated from it, it would have caused the injury, but disagree about the material facts of the treatment (if it happened, when it happened). The jury has the ability to determine what happened, then using the agreement of experts over material opinions about the standard, the hypothetical causation, but disagreement about the facts of treatment.
The court may also accept a claim the standard of care and of causation is within the knowledge of the jury, such as wrong site surgery, or that has no defense expert.
If one of the opposing experts is shown to be testifying in bad faith, the other side should demand a mistrial, and all legal and court cost be assessed to the personal assets of the expert testifying in bad faith, to deter.
Footnotes:
1. Sancho v. U.S. Department of Energy. F.Supp.2d, 2008 WL 4370009 (D. Hawaii) (Lack of subject matter jurisdiction in a claim that turning on a particle accelerator could create a black hole swallowing the earth). Lack of subject matter jurisdiction may be raised at any point of case. May be raised by the court itself. The Court has ability to answer legal questions not scientific ones. Its decisions are at the point of a gun, and may distort clinical practice if an unscientific opinion prevails. The jury has no ability to judge the science, especially after all with any knowledge have been excluded in voir dire. The jury will favor the more personally likable expert, or apply one of may cognitive biases. These results of lack of subject matter jurisdiction violate the procedural due process right of the civil defendant to a fair hearing.
2. Frye Decision: “...the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Opposite testimony on the standard of care implies lack of “general acceptance.” The experts are there to help the jury apply the standard of care to the facts. If they disagree, they are not helping but confusing the jury.
3. Daubert Decision: “Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate, and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. The inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate.”
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