I was not familiar with this term before reading Hill v. Emergency Medicine of Idaho and Dr. Stuart Clive (3/27/25). Perhaps the court wasn’t either, because the opinion repeatedly puts “hindsight bias” in quotation marks. Or perhaps the quotation marks indicate an implied “so-called.”
In this medical malpractice case, Jon and Shawna Hills claimed that Dr. Clive and his employer (EMI) breached the standard of care by misdiagnosing Mr. Hill with vertigo when he was suffering a stroke. The jury returned a verdict for the defendants. On appeal,
we reverse the district court’s decision overruling the Hills’ objection to expert testimony on the topic of “hindsight bias” because we conclude the testimony was not relevant. We hold that this error prejudiced a substantial right of the Hills and therefore vacate the judgment and remand this matter for a new trial.
EMI’s expert witness, Dr. Adeoye, an emergency room physician, testified as follows concerning “hindsight bias”:
[We] often have more information than the person who was, in fact, taking care of the patient has at the time that they are taking care of the patient, so hindsight bias basically refers to a tendency to make judgment with more information in hand than the person actually had when they were making decisions with that information in hand. . .
I think in instances where there’s a poor outcome, hindsight bias tends to— it is an emotive process when there is a poor outcome, and we tend to be frankly harsher on the person who was making the decisions with less information than we are now making the decisions with.
The trial court overruled the Hills’ relevance objection. The supreme court explained why this testimony should not have been admitted:
We agree with the Hills that the district court erred in overruling their trial objection because Dr. Adeoye’s testimony was not relevant. First, Dr. Adeoye’s testimony covered issues that are entirely within the common sense and normal experience of the average juror. It is within the experience of the average juror that “hindsight is 20/20.” The jury did not need Dr. Adeoye to explain that concept to them. Dr. Adeoye’s expert testimony on hindsight bias was not based on scientific, technical, or other specialized knowledge that would help the trier of fact to understand the evidence or determine a fact in issue.
Dr. Adeoye’s testimony was also irrelevant because, as EMI admitted during [a] bench conference with the district court, it was not related to the facts of the case or the standard of care issue at the heart of the case. As a result, Dr. Adeoye’s testimony did nothing to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
We also note that the district court suggested that, had it known that Dr. Adeoye was only going to offer general opinions on the topic of hindsight bias, it might have sustained the objection. We point this out because EMI’s expert disclosure painted a very different picture of the testimony it intended to elicit from Dr. Adeoye at trial. EMI disclosed that Dr. Adeoye was expected to testify that: he was familiar with the local standard of care and that Clive complied with the applicable standard of care; a reasonable medical provider would not have suspected a stroke based on Mr. Hill’s presentation at the emergency room; Mr. Hill did not present with any significant risk factors for a stroke; it was pure speculation that a CT or MRI scan would have revealed Mr. Hill was suffering from a stroke; and the causes and clinical presentations of vertigo and the concept of hindsight bias.
In short, the testimony that EMI elicited from Dr. Adeoye at trial was a dramatic departure from the expected testimony described in EMI’s expert disclosure. While we understand this departure may have constituted an unexpected surprise for the district court, Dr. Adeoye’s testimony at trial was not relevant and the district court erred in overruling the Hills’ relevancy objection. [Emphasis added; citations and internal quotation marks omitted.]
The court also explained why this error warranted a new trial:
The theme of “hindsight bias” was one that EMI repeated throughout the trial. EMI referenced the dangers of hindsight four times in their opening statement. EMI referenced Dr. Adeoye specifically in opening, foreshadowing to the jury that Dr. Adeoye would caution them “to be aware of something called hindsight bias” and to “look at [the case] through that physician’s lens [and] the information [he] had at the time, and not in hindsight of knowing there was a bad outcome.” EMI also referenced the dangers of hindsight bias when judging Clive again in its closing statement. In fact, EMI’s final statement to the jury before it adjourned to consider the case asked the jury “not to judge Dr. Clive through hindsight bias.”
Dr. Adeoye’s testimony was an improper expert endorsement of EMI’s hindsight bias theme. As such, his testimony was essentially a legal argument. We conclude that the Hills’ substantial rights were affected because the erroneous admission of Dr. Adeoye’s testimony could have affected the outcome of the litigation. Therefore, we vacate the judgment in favor of EMI and remand for a new trial.
