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Common Errors That Prevent Use of an Expert Witness

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By Senior Status Judge Stan Billingsley

Editor's Note: This article is one of a series that LawReader has agreed to provide Lawyers Mutual's newsletter as a bar service. LawReader provides Internet legal research service specializing in Kentucky law.

Some errors at trial seem to keep happening year after year. We continuously see instances when parties, usually plaintiff’s lawyers, don’t follow the correct steps to permit them to call an expert witness. A recent example is Turner v. Appalachian Regional Healthcare, Inc. (No. 2004-CA-000977-MR (Ky.App. 05/27/2005)) in which the court held that a failure to qualify one’s expert witness in a medical malpractice case justifies summary judgment against the plaintiff. Obviously, errors like this can result in a malpractice claim.

The Standard for Qualifying An Expert Witness

KRE 702 authorizes the introduction of expert opinion testimony when:

  1. the witness is qualified to render an opinion on the subject matter,
  2. the subject matter satisfies the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993),
  3. the subject matter satisfies the test of relevancy set forth in KRE 401, subject to the balancing of probativeness against prejudice required by KRE 403, and
  4. the opinion will assist the trier of fact per KRE 702. See Rogers v. Commonwealth of Kentucky (No. 1997-SC-0851-MR (Ky. 09/26/2002)).

Note that in Kentucky not all cases require an expert. For example, if the conduct of a defendant physician is within the realm of knowledge of a juror such as when the doctor operates on the wrong leg an expert is not required. These exceptions are rare however.

The Two Most Common Mistakes In Qualifying An Expert

  1. Most trial judges send out trial orders usually months before a trial that require each party to disclose by a certain date the names of all expert witnesses they intend to call. While one would think that an attorney would actually read these trial orders, they frequently ignore them, and finally give notice of the name of the expert they intend to call a few days before the trial date. The opposing counsel then moves the court to exclude the expert and more likely than not, the expert is precluded from being called. This is only fair, since the opposing party was not given an opportunity to depose that witness and prepare to rebut the witness with his own expert witness. The offending attorney always screams bloody murder -- and we can only imagine what they tell their client (if they tell at all) what happened to their case.
  2. The second common error we see is when the expert called for a party cannot pass the test of being qualified to testify on the subject matter for which he is being called. Unless a person has subject matter knowledge by skill, practice, or training, that person will not usually be allowed to give an expert opinion to the jury. One shouldn’t expect to qualify a nurse to testify as to the standard of care for a neurosurgeon about some technique employed in the surgery.

You should always be sure that your expert can meet a reasonable evaluation by the trial judge as to his qualifications and you should disclose the name of the expert as required by the trial order in a timely manner. We suggest the best practice for assuring that you have an expert who can be qualified is to select someone in the same subject matter type of practice or job, with years of experience, and the ability to support his position. A good rule is to hire the expert and question him prior to filing the lawsuit. Then seek a ruling by the court well in advance of the trial that the expert is qualified.

 


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