My esteemed colleague and co-author of this column, Ken Garten, wrote an excellent column about the value of expert witnesses last week and I can certainly not add much to his discussion. I use expert witnesses on most of my cases. On medical malpractice cases, I am required by Missouri law to file an affidavit within 90 days after a malpractice case is filed affirming that I have an expert opinion in writing which supports the claims I make in the lawsuit.
Those of us who practice mostly in state court in Missouri operate under a rule of law that provides that “if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as expert by knowledge, skill, experience training or education may testify thereto in the form of an opinion or otherwise.”
In state court, the judge is the ultimate gatekeeper on what is admissible in evidence from an expert and who is qualified as an expert. The rule in federal court is much more restrictive.
In 1993, the United States Supreme Court announced a standard for admitting expert testimony in federal court cases in a case entitled Daubert v. Merrell Dow Pharmaceuticals.
The parents of children born with birth defects brought a product liability claim against the manufacturer of a drug called Bendectin, which was prescribed to treat morning sickness during pregnancy.
There was no published scientific study supporting the claim that there was a link between the drug and the birth defects. The Supreme Court announced that the trial judge must be a gatekeeper before admitting expert testimony and determine that the evidence is scientifically valid and relevant to the case.
The main thrust of the Daubert standing was to prevent “junk science” or pseudoscience.
Thus, since 1993, federal courts across the land have been holding Daubert hearings in many cases. Daubert hearings are held out of the hearing of the jury and usually occur before the trial even begins. The Daubert hearing can last hours, days or even weeks in some cases. It adds tremendous expense to any case in which a hearing is held for both sides. The playing field oftentimes favors the party with the most money, which is usually the defendant. Daubert makes the playing field even more unfair.
It is a reason to avoid federal courts. The threat of a Daubert hearing can cause substantial delay and expense to a case, which delights many lawyers representing defendants such as Merrell Dow in the case of Bendectin.
I have only had one remote experience with Daubert. I was involved in a case several years ago involving mesh that was placed in my client’s husband to repair a hernia. The mesh failed shortly after it was implanted and his bowel became incarcerated in the mesh.
In other words, the man’s bowel came through a hole in the mesh, and it cut off blood circulation to the bowel, causing it to die. The man’s bowels got infected and he ultimately died.
We had the mesh tested by a textile engineer and he examined the mesh under some high tech microscope and determined that there was a manufacturing defect in the mesh. The manufacturer hired an army of experts including a polymer scientist. I did not even know what polymers were until I became involved in this case. My eyes glaze over thinking about it.
We were nearing trial of the case and the manufacturer’s attorney did what many lawyers do in federal court and sought dismissal of the case on a motion for summary judgment. He was essentially claiming that we could not prove our case even if we assumed the facts presented by us were true. I thought the motion was frivolous and was not worried we would lose.
We held phone conference with the judge and she overruled the motion for summary judgment much to my delight. Then, in the next breath she told my opponent that there would be no Daubert hearing in our case.
I began dancing in my chair and I am sure my opponent fell out of his. The judge had just told the lawyer on the other side that we were going to have a trial and that I did not have to expose my expert to an expensive hearing to allow the defense lawyer to spend countless hours testing his qualifications and the scientific validity of his opinions. I am sure my opponent had planned on billing his client tens of thousands of dollars in a ridiculous Daubert hearing.
It would have been ridiculous because my expert based his opinion on looking through a microscope and explaining to the jury that the plastic in the area of the failure was much thinner than it was in other areas in the mesh. It did not take a polymer scientist to tell anyone that this was the cause of the failure and my client’s death.
I believed that the manufacturer had decided in my case that it wanted a Daubert hearing as an intimidation tactic and to force us to spend a lot of money. Fortunately, the judge did not allow that nonsense to occur.
The Missouri legislature is considering changes to the Missouri state court evidence rules that would permit Daubert hearings in state court. It would be inapplicable in most cases, but the prospect Daubert hearings in many cases like my surgical mesh case is absurd. It is intended to make access to the courts more difficult and expensive. I challenge the sponsors of this legislation to point out multiple abuses in state court cases in which scientifically invalid opinions have been rendered.
The evidence rules in Missouri are not broken. Quit trying to fix them.
Bob Buckley is an attorney in Independence, www.wagblaw.com . Email him at firstname.lastname@example.org