Why do we spend thousands of dollars on expert witnesses?
Medical malpractice and products liability cases are almost always expert dependent. Even most traffic accident cases require expert testimony. In a medical malpractice case, a qualified health care provider must testify that the health care provider "breached the standard of care" which is another way of saying the health care provider did not meet the minimal standard of a practitioner in his or her field. Products liability cases required experts (typically engineers) to explain how the product was defective. Even in an auto case we need experts to explain to the jury the nature and extent of the plaintiff's injuries.
Lawyers and judges have struggled for years in determining the requisites for expert testimony. In federal court, we have the Daubert standard which says the judge is the gatekeeper of scientific evidence. In other words, the judge cannot allow all expert testimony into evidence and leave it to the jury to determine if it is credible. The judge must decide whether it is reliable and relevant. Virginia courts have not explicitly adopted the Daubert standard, but the trend is clear. A judge has the duty to exclude expert testimony if the expert is not on solid footing. In essence, the expert must be qualified and he must have an adequate foundation for his or her testimony.
After millions of dollars in plaintiffs' verdicts were tossed out in the past year, the Virginia Supreme Court just overturned a verdict for a medical doctor in a tragic case involving the death of a five year old after a routine tonsillectomy and adenoidectomy. The parents alleged that their son was at risk of respiratory failure and should have been observed overnight in the hospital instead of being discharged home. The defense expert testified that the child died as a result of an undiagnosed genetic condition without excluding the possibility that the child died of respiratory failure after he was discharged home.
The lesson for trial lawyers is that we need to be meticulous in making sure that our experts are qualified and that they are also meticulous in their preparation for trial. If you are a plaintiff please understand that your attorney needs to make a substantial investment in quality experts in order to prevail in court. At the Silverman Law Firm we spend thousands of dollars every year locating and retaining experts to review our clients' cases.