QUALIFYING THE EXPERT WITNESS. Joseph A. Smith

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1 QUALIFYING THE EXPERT WITNESS Joseph A. Smith An expert is a witness with some specialized knowledge, skill, or education that will be helpful to the trier of fact in deciding the case correctly. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); Fed. R. Evid An expert may give opinion testimony if: (a) the expert s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. Fed R. Evid. 702; See Daubert, 509 U.S An expert is needed when the subject matter relates to a science, profession, business, or occupation that is beyond the knowledge or understanding of the average person. See Haidak v. Corso, 841 A.2d 316, 322 (D.C. 2004). The subject matter does not necessarily have to be of a scientific or medical nature, but merely beyond the common knowledge of a layperson. See United States v. Romero, 57 F.3d 565 (7th Cir. 1995). 174

2 Before an expert can testify at trial, the trial judge must first qualify them as an expert. Generally speaking, the witness must have shown that he has sufficient knowledge of his subject to give value to his opinion, but ultimately it is at the discretion of the trial court judge to decide if the witness is qualified to render an expert opinion. See Norfolk & W.Ry. Co. v. Anderson, 151 S.E.2d 628, 632 (Va. 1966); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). This qualification is generally based on the witness s education, experience, knowledge, skill, or training related to the matter at issue in the case. See Friendship Heights Assoc. v. Vlastimil Koubek, 785 F.2d 1154 (4th Cir. 1986). The factors for qualifying as an expert are considered independently so a witness may qualify as an expert based on their education or experience or a combination of both. Noll v. Rahal, 250 S.E.2d 741 (Va. 1979). However, [w]hile a witness may be qualified to testify as an expert on the basis of his experience in a particular field, a trial judge is not obliged to qualify a proffered expert when there are articulable reasons to doubt his competency. Johnson v. District of Columbia, 728 A.2d 70, 74 (D.C. 1999) (quoting Glorious Food, Inc. v. Georgetown Prospect Place Assocs., 648 A.2d 946, 948 (D.C 1994) (footnotes omitted)). As gatekeeper of expert testimony, the decision to admit expert testimony lies within 175

3 the sound discretion of the trial court, whose rulings will be sustained unless a clear abuse of discretion is shown. Hedgepath v. Street, 607 A.2d 1238, 1244 (D.C. 1992). While a witness may qualify as an expert in one field, they may not have the adequate background to qualify as an expert on the matter at issue in the trial and end up excluded as an expert. See Combs v. Norfolk & W. Ry., 507 S.E.2d 355 (Va. 1998) (witness was qualified as an expert witness in the field of biomedical engineering and competent to testify as to the compression forces placed on the plaintiff's spine at the time of the accident but was not a medical doctor and was not qualified to state an expert medical opinion regarding causation); see also Ornoff v. Kugh and Kogan Chartered, 549 A.2d 728, 731 (D.C. 1988); Hartke v. McKelway, 526 F. Supp. 97, 100 (D.D.C. 1981) (gynecologist properly excluded where she lacked any experience with the surgical procedure under consideration); Lareau v. Page, 840 F. Supp. 920, 932 (D. Mass. 1993) (expert properly disqualified where witness was not a neurosurgeon and had never faced the medical decisions that were the subject of the lawsuit). 176

4 Specifically, the expert must possess sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth. Dyas v. United States 376 A.2d 827, 832 (D.C. 1977). Moreover, an expert s opinion must be based on fact or adequate data not a mere guess or conjecture. Sponaugle v. Pre-Term, Inc., 411 A.2d 366, 367 (D.C. 1980); John v. Im, 559 S.E.2d 694 (Va. 2002). As such, an expert may be excluded when the expert is unable to show a reliable basis for his theory. Hollander v. Sandoz Pharms. Corp., 289 F.3d 1193, 1208 (10th Cir. 2002). Where there is an articulable reason to doubt an expert s competence in a particular area, the trial need not qualify the witness. Glorious Food v. Georgetown Prospect Place Assocs., 648 A.2d 946 (D.C. 1994). Furthermore, investigations performed in preparation for trial do not constitute the requisite training and experience to qualify as an expert witness. See Richardson v. Fuchs, 523 A.2d 445, 448 (R.I. 1987) (information about techniques used in Connecticut gained from single conversations with individual orthopedists in preparation for trial do not clearly rise to the level of knowledge or information gained from study, observation, practice or experience that a qualified expert is required to possess). 177

5 Qualifying an expert should be done carefully to ensure the expert s testimony is allowed at trial, and perhaps more importantly, is credible and believable to the jury. When qualifying an expert it is often best to simply start at the beginning, the expert s education. An attorney should walk the witness through his education starting with undergraduate education through his advanced schooling being sure to follow this by going over the witness s post graduate work, such as his or her internship, residency, and any fellowships, particularly if the work was focused in the same or similar field that you are having the witness testify on. Once the attorney has gone over the education and post-graduate work of the witness, he or she should go over the witness s career experience. Again starting with the earliest position and work through positions until reaching present day. It is important to emphasize positions that are the same or similar to that of the defendant health care provider by asking questions that allow answers that highlight the witness actual experience practicing that particular type of medicine or procedure in question. See Dierolf v. Slade, 581 A.2d 649, 651 (Pa. Super. Ct. 1990) (in case involving negligence during oral surgery, orthodontist excluded who does not perform oral surgery, is neither a neurologist nor has ever observed nerve injury, and has rarely been in operating room). 178

6 Two of the most common reasons for using expert testimony are to establish standard of care and causation. It is crucial when qualifying an expert for the purpose of establishing standard of care and deviation from it to show that the expert is familiar with the appropriate standard of care analysis for that particular jurisdiction. Generally, the standard of care is the degree of skill practiced by a reasonably prudent practitioner in the field of practice or specialty under same or similar circumstances. See Va. Code (2012); Shilkret v. Annapolis Emergency Hospital Ass n., 349 A.2d 245 (Md. 1975); In medical malpractice cases, it is necessary for the plaintiff to establish throught expert testimony a causal relationship between any alleged breach of the standard of care and the claimed injuries. Lasley v. Georgetown Univ., 688 A.2d 1381 (D.C. 1997). The District of Columbia applies a national standard of care practice by those in a defendant s profession acting in the same or similar circumstances. Snyder v. George Washington Univ., 890 A.2d 237 (2006); Travers v. District of Columbia, 672 A.2d 566 (D.C. 1996); Washington v. Washington Hosp. Ctr., 579 A.2d 177 (D.C. 1990). In order to establish a national standard, plaintiff must establish through expert testimony the course of action that a 179

7 reasonably prudent doctor with the defendant s specialty would have taken under the same or similar circumstances. Travers, 672 A.2d at 568. There must be evidence that a particular course of treatment is followed nationally. Reference to a published standard is not required, but can lend credence to determination that national standard exists. Id. In Hawes v. Chua, 769 A.2d 797, 806 (D.C. 2001) the court listed at least seven legal principles that are important in assessing the sufficiency of national standard of care proof: (1) the standard of care focuses on the course of action that a reasonably prudent doctor with the defendant s specialty would have taken under the same or similar circumstances (2) the course of action or treatment must be followed nationally; (3) the fact that District physicians follow a national standard of care is insufficient in and of itself to establish a national standard of care; (4) in demonstrating that a particular course of action or treatment is followed nationally, reference to a published standard is not required, but can be important; (5) discussion of the course of action or treatment with doctors outside this jurisdiction, at seminars or conventions, who agree with it; or reference to specific medical literature may be sufficient; (6) an expert s personal opinion does not constitute a statement of the national standard of care; thus a statement only of 180

8 what the expert would do under similar circumstances is inadequate; and (7) national standard of care testimony cannot be based upon mere speculation or conjecture. It is insufficient for an expert s testimony to merely recite the words national standard of care and that the testifying expert must establish that a particular course of treatment is followed nationally either through reference to published materials, discussion of the described course of treatment with practitioners outside the District of Columbia at seminars or conventions, or through presentation of relevant data. Id.; Snyder, 890 A.2d at 241 n.3. Virginia adheres to the idea that there is a statewide standard of care, rather than the national standard of care that many states have adopted as the practice of medicine has become more uniform across the country. See Va. Code In Virginia, any physician or nurse who is licensed to practice medicine in the Commonwealth is presumed to know the statewide standard of care for the field or specialty in which he is certified or qualified. Id. Because Virginia follows a statewide standard of care, in the past it could be potentially difficult for a practitioner to show that he or she is familiar with the standard care, particularly if they were from a distant state or region of the country. However, as medicine has become more 181

9 standardized nationally, that strain has been reduced so long as an attorney can show that the expert has gained some familiarity with the Virginia standard, whether it be through medical literature, conferences, or talking and meeting with practitioners from Virginia. See Christian v. Surgical Specialists of Richmond, Ltd., 596 S.E.2d 522 (Va. 2004). Virginia has extended the presumption of knowledge of standard of care to those physicians who are licensed in another state and meet the educational and examination requirements for licensure in Virginia. Id. This presumption also extends to nurses licensed by a state that is part of the Nurse Licensure Compact. Id. To gain the benefit of the presumption it is crucial that the attorney contact the Virginia Board of Medicine to request a determination as to whether the potential expert meets the educational and examination requirements for licensure in Virginia and whether he would be eligible for licensure in Virginia. Like the District, Maryland adheres to a more national standard of care. In Shilkret v. Annapolis Emergency Hospital Ass n, 349 A.2d 245, (Md. 1975), the Maryland Court of Appeals abandoned the strict locality rule and held that regardless of locality a physician is under a duty to use that degree of care and skill which is expected of a reasonably competent 182

10 practitioner in the same class to which he belongs, acting in the same or similar circumstances. Unlike the District and Virginia, Maryland requires an expert not only at trial to establish standard of care and causation, but also before suit can even be filed. Before filling suit, a plaintiff must file a claim with the Health Care Alternative Dispute Resolution Office. Md. Code Ann., Cts. & Jud. Proc. 3-2A-04 (2012). Within in 90 days of filing the claim, the plaintiff must file a certificate from a qualified expert attesting to a departure from the standard of care and the departure was the cause of the plaintiff s injuries. Id. In addition to the normal qualifications of an expert, the certifying expert must have had clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant s specialty or a related field of health care, or taught or practiced in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged negligence. Md. Code Ann., Cts. & Jud. Proc. 3-2A-02. Additionally, if the defendant doctor is board certified, the certifying expert must be board certified as well unless the care the defendant provided to the plaintiff was unrelated to the area in which he is certified or the expert taught medicine in the defendant s specialty or related field. Id. Maryland further prohibits the 183

11 attesting expert on the standard of care from spending more than 20 percent of his professional time testifying in personal injury cases. Md. Code Ann., Cts. & Jud. Proc. 3-2A-04. Although some aspects of qualifying an expert may seem complicated or tedious, it is important for an attorney to be thorough during the qualification process. Thoroughness helps ensure that the witness will be accepted as an expert by the court and that the jury will find the witness believable and convincing. The nightmare scenarios for any attorney are that either the expert will not be found qualified, or perhaps even worse, accepted by the trial judge but found on appeal to be unqualified to offer expert opinions. By using the case law as a guide and being thorough during the initial examination to qualify the witness as an expert, an attorney can avoid these outcomes and further the client s goal of a successful outcome. 184