Joshua Potter, JD Karen Fukutaki, MD

 This presentation will be an attempt to explore the persistent problem of medical expert testimony and reports that are difficult to reconcile with the medical evidence in the case. We hope to offer insight and tools to make you more effective in your trials and appeals.

 A thorough, unbiased and inclusive review of all available records  A personal evaluation of the individual in question when appropriate and a specific disclaimer issued if no personal evaluation occurred  Interviews of ancillary parties when appropriate  A concise and thorough summary of the information gathered and how this information supports the opinion set forth by the evaluator, preferably in written form  Restraint in offering opinions in areas in which one has insufficient expertise

 Individuals form perceptions, hold beliefs, and formulate what they believe to be truths.  History is replete with examples of beliefs held that have been shown not to be truths ◦ The world is flat ◦ Bathing will cause illness  Calling something a lie implies the person telling the lie knows the truth.

 Overestimation of the scope of one’s knowledge?  Ignorance?  Inability to consider one’s opinion might not be accurate?  Financial motivation?  Personal bias?

 “Medical Expert” provides live testimony  Rheumatoid Arthritis and Lupus  Primary Care physician is rheumatologist  “Medical Expert” is pulmonologist with no clinical practice in rheumatology

 A written report from State Agency “Expert” - - SAE  Schizophrenia and depression  PTP is Psychiatrist  SAE is “board-eligible in Psychiatry” and reviews one treatment note  What board and what weight?

 Written report State Agency “Expert” SAE  Hangman fracture with RUE numbness. A former bull rider with pre-existing RSD in right lower extremity  SAE Reviewed one scan of left knee  “Board-eligible” in internal medicine  50 pounds occasional 25 frequently; 6/8

 Let’s roll up our sleeves and find some solutions We have powerful cases

 Daubert v. Merrill Dow Pharmaceuticals 509 U.S.509 U.S. 579 (1992)  Levin v. Dalva Bros, Inc. 459 F.3 rd 68 (1 st Cir 2006)  Granfield v. CSX Transp.,Inc., 597 F.3d 474 (1st Cir read the cross examination  General Electric v Joiner 522 U.S. 136  Playing in a circuit in your neighborhood

 Use your legal search engine.  Over 18,578 cases cite Daubert. The line of cases from Daubert have powerful dicta. Joiner is cited 3,436 times. You will find language on point in your circuit that his highly critical of the in-expert expert.

 USCS Fed Rules Evid R 702, Part 1 of 2 USCS Fed Rules Evid R 702, Part 1 of 2  FEDERAL RULES OF EVIDENCE, Rule 702. Testimony by Expert Witnesses  A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise 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....

 Expert evidence can be powerful and misleading. The judge must weigh possible prejudice against probative force under rule 403 Daubert 504 U.S. 595; GE v. Joiner, 522 U.S. 136  Rule 706 allows the court at its discretion to procure the assistance of an expert of its own choosing. Finally, Rule 403 permits the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....". Daubert 509 U.S. 579Rule 403

 Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. GE v. Joiner, 522 U.S. 136, 146

 Use your new analytical skills  Challenge medical opinions  Ipse Dixit doesn’t live here any more  Remember Testimony beyond the experts scope of expertise should be excluded. Levin v Dalva Brothers, Inc. 459 F.3 rd ( 1 st Cir. 2006)

 Dishonest  What board?  American Board of Internal Medicine  American Board of Medical Specialties AMBS?  American Board of Orthopedic surgery  American Board of Psychiatry and Neurology

 If the CE or ME is willing to be dishonest about qualifications what else is “fishy”?  When in doubt, look it up. It’s good for the blood pressure