Saturday, October 30, 2004

6th Circuit Reverses Exclusion of Medmal Testimony

The Sixth Circuit has published an opinion reversing a trial court's exclusion of testimony from plaintiff's expert on the standard of care. The plaintiff suffered brain damage due to insufficient oxygen following her bypass surgery. In her malpractice suit, she relied on a cardiac surgeon's opinion that her ventilation tube was removed prematurely by the pulmonologist responsible for her post-operative respiratory care. In barring that testimony as unreliable and awarding summary judgment, the lower court held that a Wisconsin surgeon could not opine on a Tennessee pulmonologist's alleged breach of the duty of care without showing familiarity with medical literature or published standards applicable in the pulmonologist's specialty. The Sixth Circuit reversed, holding that the rules of evidence exact no such requirement:
Daubert 's role of "ensuring that the courtroom door remains closed to junk science,"Amorgianos v. AMTRAK, 303 F.3d 256, 267 (2d Cir. 2002), is not served by excluding testimony such as Dr. Johnson's that is supported by extensive relevant experience. Such exclusion is rarely justified in cases involving medical experts as opposed to supposed experts in the area of product liability. See generally Daniel W. Shuman, Expertise in Law, Medicine, and Health Care, 26 J. Health Pol. Pol'y & L. 267 (2001) (characterizing the effect of the Daubert and Kumho Tire cases on claims of medical expertise as "much ado about little," while noting that these cases have had a significant effect on toxic tort and products liability litigation).
See Dickenson v. Cardiac & Thoracic Surgery of E. Tenn., P.C., No. 03-5355 (6th Cir. Oct. 25, 2004) (Keith, Moore, & Gilman, JJ.).


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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge 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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.