Frankel v. Deane (Md. 8/25/2022), https://www.mdcourts.gov/data/opinions/coa/2022/43a21.pdf, illustrates the legal issue that is the title of this post. It also illustrates what is technically a legal issue (a trial court’s abuse of discretion in excluding expert medical testimony), but is actually a practical issue that every trial lawyer has to deal with sooner or later, even multiple times in the course of a long career: the nightmare trial judge. I will discuss the legal issue first.
This is an obstetrical malpractice case. A caesarean section was delayed for several hours due to the negligence of both the treating physicians and the nurses, as result of which the baby sustained significant hypoxic brain damage during labor and was born with cerebral palsy. The plaintiff mother, suing on behalf of her child, settled with the physicians and proceeded to trial against the hospital that employed the nurses. Rodriguez-Valentin v. Doctors’ Center Hospital, No. 20-2093 (1st Cir.
Back in the Before Time, one of my clients decided that the personal presence of expert witnesses in the courtroom was rarely necessary and hence rarely worth the expense. He used to fly around the country taking video depositions of experts for trial testimony purposes, typically scheduling two, three, or even four such depositions in the course of one trip. He was perfectly comfortable presenting expert testimony to juries on a screen. Perhaps, unbeknownst to my client, his method was a harbinger of things to come. Because from March 2020 to the present, as far as I know, no expert ha
Your response to that title is “Tell me something I don’t know,” right? This is black-letter law! Unfortunately, as every litigator knows, sometimes trial judges make decisions that are simply incomprehensible – decisions that fly in the face of well-known legal principles. Fortunately, appellate courts (usually) set things right.
When I was a practicing trial lawyer, a long time ago in a galaxy far, far away (okay, so it was actually Rhode Island), our state supreme court recognized lack of informed consent as a basis for liability in medical malpractice cases. In doing so, it held that the risks that must be disclosed are those that a reasonable patient would have considered in deciding whether or not to undergo the procedure in question. Of course, expert testimony is necessary to establish what all of the material risks (disclosed and undisclosed) of the procedure are, what the alternative treatments are, etc.
This is a tricky one. In Hirchak v. W.W. Grainger, Inc., https://ecf.ca8.uscourts.gov/opndir/20/11/192642P.pdf (8th Cir. 11/17/2020), the plaintiff was injured at work when a web sling broke and dropped a load of steel tubing on him. The plaintiff couldn’t sue the manufacturer, Juli Sling Co. Ltd., because it’s a Chinese company, not subject to the jurisdiction of American courts. So he sued W.W. Grainger, Inc. (“Grainger”), which had allegedly sold the Juli sling to the plaintiff’s employer, Weiler, Inc.
Most of the attorneys who contact us are looking for a testifying expert. Presumably that’s because many experts won’t testify (for all kinds of reasons), but are willing to assist attorneys in understanding and preparing cases for litigation, which makes finding consultants easier for attorneys than finding testifiers. Nevertheless, sometimes attorneys do need our help obtaining a consulting expert, and sometimes they even want one of each.
I’ve been in the expert referral business for 15 years, during which I’ve recommended consulting and testifying experts to hundreds of attorneys. I’ve had my share of misses – i.e., either the attorney didn’t engage an expert I recommended, or an expert failed to satisfy the attorney and was replaced. But in the large majority of cases, the expert I recommended was retained and met or exceeded the attorney’s expectations.
I recently had occasion to refer a neuro-ophthalmologist to Jason Rubin, a plaintiffs’ attorney in New York who is one of my regular clients. The plaintiff/patient had increased intracranial pressure (the reason is not important here) that was affecting her optic nerves, with resulting visual impairment. She eventually had a ventriculoperitoneal shunt inserted to relieve the pressure, but by that time she had very significant vision loss that got even worse postoperatively, and she ended up with severe, permanent vision loss. The issue requiring the expert’s opinion was whether earlier p
Revisiting an old blog is often a useful exercise. For us at Vident, this particular post is always relevant, because our business is providing experts, and we’re always focused on the “why” as well as the “how” when we promote our services. So if you haven’t seen this one, or even if you have, it’s a useful reminder of why we do what we do and how completely you can rely on us to do it right.
