Saturday, August 13, 2005

The Basis and Reasons Therefor: Rule 703 and Expert Discomfiture

Via Walter Olson at Point of Law, we learn of a piece in Medical Economics by internist Todd Feinman, M.D., entitled "Malpractice: A Different Kind of Tort Reform," in which Dr. Feinman recounts how he invented the concept of "evidence-based medicine" after being named (briefly) as a defendant in a medical malpractice suit. The article discloses that Dr. Feinman's enterprise will make the fruits of this new and enlightened approach available to consumers of all stripes, for a fee, through his website

We don't mean to pick on anyone who has managed, in the great American tradition, to secure publication, in an industry journal, of an "article" in which his new web service is hawked -- except to mention that it all reminds us of an old skit on Saturday Night Live, where Steve Martin played a medieval barber and would-be healer known as Theodoric of York. You remember:

Joan: You charlatan! You killed my daughter, just like you killed most of my other children! Why don't you admit it! You don't know what you're doing!

Theodoric of York: [steps toward the camera ] Wait a minute. Perhaps she's right. Perhaps I've been wrong to blindly follow the medical traditions and superstitions of past centuries. Maybe we barbers should test these assumptions analytically, through experimentation and a "scientific method." Maybe this scientific method could be extended to other fields of learning: the natural sciences, art, architecture, navigation. Perhaps I could lead the way to a new age, an age of rebirth, a Renaissance! [thinks for a minute ] Naaaaaahhh!
But Dr. Feinman's article does evince a more general confusion over the rules of evidence that it might be helpful to address, before it becomes an urban legend in the "tort reform" wars.

As Dr. Feinman recounts the saga of his brush with malpractice liability, the tort system can have at least one beneficent effect. It can send doctors scurrying to the medical library, even if the project of designing effective treatments for their patients had not originally supplied sufficient occasion to do so. The lawsuit in which Dr. Feinman was initially named involved a woman who died after treatment for an infection and chronic renal failure secondary to multiple myeloma. Once served with process, Dr. Feinman tasked a medical librarian with a literature search about the range of appropriate treatments in such a situation. The outcome? "We found no evidence," he says, "that any treatment was more effective than what I had ordered, or that my treatment could have hurt the patient's prognosis."

Dr. Feinman took his research to defense counsel and said he wanted to invoke it in his trial testimony. (Although the claims against Dr. Feinman had been dismissed by now, his testimony was still required on the claims against other defendants.) The following colloquy reportedly ensued:

Defense counsel: Medical evidence from clinical trials isn't easy to get admitted in court. It's considered hearsay. An expert or defendant can bring his own experience, knowledge, and training to support his testimony, but you can't bring actual copies of medical or scientific evidence, or quote from it.

Dr. Feinman: You mean I can rely on that evidence to form my opinion, but I can't cite the data from the clinical trials, or bring copies of the trial results to court? You mean a $500-an-hour expert can say whatever he wants in court, based on his individual experience, but you can't admit medical data that proves that a specific intervention may have caused or prevented a bad outcome?

Defense counsel: Yes, that's how the medicolegal system works.

Dr. Feinman: In that case, the system is broken, and it's time for reform.

As events actually unfolded at trial, Dr. Feinman says, "my attorney managed to give me the opportunity to explain to the jury how valid and relevant medical evidence supported my treatment decisions." This, perhaps, might be seen as one clue that the system is not so badly broken, or in need of "reform," as Dr. Feinman had initially supposed. And indeed, as a trip to the law library would have revealed, there is, in fact, at least one entire Federal Rule of Evidence devoted to the very problem that Dr. Feinman found so troubling. Under Fed. R. Evid. 703:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

A review of the Advisory Committee Notes to Rule 703 can help to place the rule within the larger context of evidentiary procedures under the modern adversary system. Enacted in 1975, Rule 703 was actually designed to broaden the permissible sources on which expert opinion might be founded beyond the limits then prevalent in many jurisdictions. Those traditional limitations may now seem quaint in Daubert's aftermath. We now live in an era where experts can scarcely sneeze without first citing peer-reviewed literature in support. But in olden times, before disco stalked the earth, the permissible bases for expert opinion were theoretically confined, in many courts, to facts established either through the expert's personal observations or via testimony from other witnesses in court. Rule 703 expanded the range of material available for expert consideration in recognition of the plain truth that experts commonly and necessarily consult a wide range of data and background material in their normal professional practice, when not in court.

What nonlawyers may find puzzling is that the evidentiary issues don't stop there. If the expert can rely on learned literature in forming his opinions, surely he should be permitted to invoke that literature on the stand, during direct examination, to defend and explain his opinions, no?

Well, not necessarily.

For the benefit of the uninitiated: If a learned treatise or a piece of medical literature is going to come into evidence, it is important, for various reasons, to keep track of what proposition the evidence is offered to prove. That need arises, in part, from firmly entrenched rules about hearsay. The adversary system relies very heavily on cross-examination to test whatever evidence the parties may offer. Lawyers can't cross-examine a journal article (as opposed to the article's authors), and so some of our system's key procedures for enabling the jury to weigh and assess the evidence in rational fashion would be unavailable, if journal articles could routinely be offered directly, without further ado, to prove the truth of their contents. To be sure, many scientists and physicians might be unbothered by that outcome. They might believe, for example, that the discursive crucible of peer review is already a far more reliable engine of truth than jury trials. (Certainly no practicing physician would be temperamentally inclined to make treatment decisions by assembling twelve random laypersons in a room and asking for their collective judgment on how to proceed.) But neverteheless, it is a bedrock principle of our existing system that evidence, in general, must be sponsored by witnesses who claim to know that the evidence is true, and who are prepared to answer the parties' searching questions about such claims under oath.

Consider Dr. Feinman's own malpractice case (or more precisely, a hypothetical case modeled on Dr. Feinman's account). Substantive medical malpractice law requires the jury to decide whether the treatment afforded by the physicians satisfied the prevalent standards of medical care. And according to Dr. Feinman himself, he was unacquainted with the entire concept of a "standard of care" before he was sued. It isn't taught in medical school, he says. And in the actual practice of medicine, doctors don't pause during CPR to have earnest conversations with their colleagues about what other reasonable practitioners of their specialty might do under comparable circumstances.

Fair enough. It follows, perhaps, that Dr. Feinman could not himself testify to the applicable standard of care -- not, at least, unless he first went and educated himself at some such venue as a medical library. In that library, he might discover a dusty tome entitled The Mayo Clinic Guide to the Standard of Care for Treating Infections and Renal Failure Secondary to Multiple Myeloma. And if, by training and experience, Dr. Feinman is the sort of fellow who possesses specialized knowledge enabling him to interpret the Mayo Clinic Guide in now forming a helpful testimonial opinion on the standard of care, the rules allow him to do so.

But suppose now that Dr. Feinman is the only defense witness to testify about the standard of care. And suppose further, and quite hypothetically, that Dr. Feinman breaks down in tears on cross-examination and says: "You know what? The defense lawyers are holding my family hostage, and they have threatened to torture and kill my wife and children them unless I give this opinion. I don't really believe a single word of the testimony I've just offered." May the jury permissibly find that the defendants' version of the standard of care is nevertheless correct, because after all, the Mayo Clinic Guide vouches for it?

Well, no, you see, because the Mayo Clinic Guide is hearsay. (Here we are leaving recondite peripheral issues, such as Fed. R. Evid. 803(18), to one side.) And thus if Dr. Feinman is going to mention the Mayo Clinic Guide to the jury during direct examination, we have to be mindful of the risk that the jury will be confused about whether that dusty tome counts as direct evidence on the standard of care, or merely as support for any opinion that Dr. Feinman himself may offer. So at a minimum, we have to weigh the pros and cons, and then maybe tell the jury, if we let the reference in, what the Mayo Clinic Guide is and is not in evidence to prove. By the same token, of course, there is also some risk of confusion if Dr. Feinman is forced to take the stand and testify to his ultimate opinion without being able to defend it by explaining how it's something more than a mere pontification. And so we have to give poor Dr. Feinman some chance to defend his views.

The solution afforded by Rule 703 is to vest discretion in the trial judge about how much of the underlying bases for his opinions an expert may disclose on direct. In actual practice, courts appear to be relatively lenient on this point, in the Daubert era, unless some meaningful risk of confusion or prejudice is presented. Few trial judges, we believe, will currently confine direct examination to an unsupported statement of the expert's conclusions (much as many juries might actually prefer that). But even when and if they do, the structure of the rules creates a natural tendency for those bases to emerge as the natural product of the adversary system. If an expert offers only an unexplained conclusion on direct examination, the other side will be loathe to forgo attack, and so there will be cross-examination about how on earth the expert can hold such an opinion, and what he bases it on. And once that cross is conducted, the door is opened for further exploration of the foundations for the expert's opinions on redirect examination. Meanwhile, we were really able to get to Kansas all along, whenever we wanted, just by clicking our heels together three times and cross-examining the adversary's expert about the Mayo Clinic Guide.

Experts are often uncomfortable with these procedural mechanisms, because they are often understandably uncomfortable with the entire adversary process. In the normal practice of their disciplines, experts commonly have the opportunity to state and defend their opinions in sustained expository fashion, without interruption, in whatever manner they please. Their views won't be elicited through a tiresome process of Q&A, and they won't be confined to answering whatever questions somebody else sees fit to ask -- somebody, perhaps, whose level of understanding the expert holds in fairly low regard. Serving as an expert witness at trial is an inherently irritating process, and experts frequently bemoan their unaccustomed lack of control over the direction of courtroom inquiry. We're not saying such complaints are unfounded. But we do think there's an important distinction, of which both experts and lawyers often lose sight, between: (1) "The legal system won't allow witness w to state proposition x at time y under circumstances z," and, e.g., (2) "The legal system 'can't admit medical data that proves that a specific intervention may have caused or prevented a bad outcome.'"

Meanwhile, there are tensions and paradoxes lurking within Rule 703's approach. In part, the rule reflects the same ambivalence manifest in Daubert about how far juries may be trusted to grasp the underlying theories and data on which expert opinions are based. No doubt experts could find it more than a little ironic to be severely limited in the explanations they can provide to the jury, when every tiny little step in their reasoning had to be explained and rigorously defended, often at painful length, during pretrial proceedings on admissibility. We'll say this much in favor of Dr. Feinman's ideas for reform: His instinct, apparently, is to give more information to the trier of fact, rather than suppressing more.


D.P. writes ...

For a patient's point of view re: malpractice, etc., please visit or Thanks, DP

11:47 AM  
Anonymous writes ...

Dr. Feinman never said in the Medical Economics article that he invented "evidence based medicine". The doctor's company "Doctor Evidence" provide "evidence based testimony" services for attorneys and doctors.

1:55 PM  

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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.