Bar News - June 18, 2010
Importance of Experts in Medical Negligence Cases
By: Jonathan Lax
". . . .the hinges fell off of the gate . . ."
Willie Nelson’s The Last Thing I Needed the First Thing This Morning
Recent NH Supreme Court decisions indicate a party seeking to exclude an expert’s testimony, especially when exclusion will dispose of the case, may have an uphill battle. This is particularly true in medical negligence cases, in which the plaintiff must prove each essential element of a claim with "expert testimony of a competent witness or witnesses." See NH RSA 507-E:2. However, experts who stretch to give opinions which are outside of their area of expertise, or whose methodology is unreliable should be aggressively challenged, and properly excluded.
Before an expert may testify, the court must perform a two-part analysis. First it must ensure the expert is qualified. Goudreault v. Kleeman, 158 N.H. 236 (2009) ("Goudreault") citing Milliken v. Dartmouth-Hitchcock Medical Center, 914 A.2d 1226 (N.H. 2006). Although a proffered expert may be qualified in one area of expertise, they may nonetheless be precluded from offering opinions beyond that expertise. See Figlioli v. R.J. Moreau Companies, Inc., 151 N.H. 618, 623 (2005) (reversing ruling permitting general surgeon to testify about plaintiff’s neurological impairment assessment).
Even if an expert is qualified, the court must next satisfy itself the expert’s opinions rise to a threshold level of reliability to be admissible. See Baker Valley v. Ingersoll-Rand Co., 148 N.H. 609 (2002) ("Baker Valley"); RSA 516:29-a. The proper focus is the reliability of the expert’s methodology or technique. The trial court functions only as a gatekeeper, ensuring a methodology’s reliability before permitting the ultimate fact-finder (i.e. the jury) to determine the weight and credibility to be afforded an expert’s testimony. See Goudreault, 158 N.H. at 247 citing Baker Valley, 148 N.H. 609, 616 (2002). The First Circuit recently explained, the gatekeeping function requires the judge to "ensure that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand." Dilma Pages-Ramirez v. Ramirez –Gonzales et al. No. 08-1831 (May 19, 2010) citing Daubert v. Merrell Dow Pharm., 509 U.S. 579, 597 (1993).
The tension between the court’s gatekeeping role, and its interest in giving litigants their day in court is apparent in two recent NH Supreme Court decisions. In both Goudreault and the more recent decision of Beckles v. Madden Ltd.,___ A.2d ___ (N.H. 2010,) the court was called upon to review trial court orders on the admissibility of the plaintiff’s proffered expert testimony.
Two Recent Examples
The plaintiff in Goudreault sustained vascular injuries during anterior lumbar interbody fusion surgery performed by the defendant, a spine surgeon, with assistance from a vascular surgeon. The defendant filed a motion to exclude the plaintiff’s sole liability expert on the basis of his lack of qualifications. The expert retired from the active practice of surgery in 1986, and had never performed or observed the type of surgery involved in the case. After conducting an evidentiary hearing the trial court denied the defendant’s motion and permitted the expert to testify at trial.
At trial the expert conceded the medical records did not permit him to identify which doctor caused the vascular injuries. He initially testified that either the defendant, or the vascular surgeons could have caused the plaintiff’s injuries. After a recess and consultation between the plaintiff’s counsel and the expert, the expert testified the "use of blunt and sharp dissection ... requires traction and counter-traction" performed by two sets of hands, which occurred in an area of blood vessels that "can easily be damaged by either traction or counter-traction." The defendant objected to this testimony and renewed a motion to exclude it, which the trial court denied.
On appeal the Supreme Court upheld the ruling admitting the expert’s testimony. "To the extent there were gaps in Dr. Golding’s explanations, these omissions concern the relative weight and credibility of competing expert testimony rather than the basic reliability of such testimony, and are the province of the fact-finder, not the trial court." 158 N.H. at 247 citing Baker Valley, 148 N.H. at 615. Despite the expert’s difficulty coherently articulating the basis for his opinions on causation, and the trial court’s lack of an express finding that his methodology was reliable, the Supreme Court was unwilling to disturb the trial court’s ruling admitting the expert’s testimony.
In Beckles, the defendant medical providers were working up the plaintiff in the spring of 2003 to determine the cause of gait and balance problems when he fell and broke his ankle which caused blood clots in his leg which traveled to his lungs. The therapy for the blood clots caused a brain hemorrhage which left him with permanent brain damage and disabilities. The plaintiffs alleged the defendants failed to diagnose an apparent B-12 deficiency that was causing gait and balance problems, and failed to timely initiate precautionary measures (including a referral to physical therapy or an order for a cane or other assistive device) to prevent Mr. Beckles from falling.
The plaintiffs planned to call two experts, a hematologist and a neurologist. At their depositions, the experts gave equivocal testimony on whether appropriate care (as they defined it) would have prevented Mr. Beckles’ fall. After the plaintiff’s experts’ depositions the defendants moved for summary judgment, contending the experts were unable to establish the necessary causal connection between the defendants’ alleged negligent care and Mr. Beckles’ fall and subsequent injuries. The trial court found the experts’ opinions were insufficient to demonstrate causation, and therefore granted the defendants’ motion and dismissed the case. A motion for reconsideration was denied and an appeal followed.
Position of the Court
The NH Supreme Court reversed. The court held when the record was viewed in the light most favorable to the plaintiffs, a genuine issue of material fact existed regarding the circumstances concerning Mr. Beckles’ fall, and the relationship of these circumstances to the purported negligence in the case. The court’s opinion cited Goudreault for the proposition that "a medical expert’s competent opinion that the defendant’s negligence ‘probably caused’ the harm establishes the quantum of expert testimony necessary for a plaintiff to establish proximate cause." The court stated that "ultimately, resolution of the question of proximate cause is generally for the trier of fact." Id. at *5. The defendants argued the plaintiffs’ experts’ causation theory was speculative, since even if the defendants had done everything the standard of care required, avoidance of the injury was dependent on a number of variables, including Beckles’ cooperation in meeting with his physicians, engaging in physical therapy, and complying with safety instructions. However, "whether or not these underlying events were more likely than not to have occurred given the particular individuals involved and the circumstances of the case are issues of fact for the jury to resolve." Id. at 8 (citations omitted).
In Goudreault the admissibility of questionable expert testimony was upheld; in Beckles the exclusion of questionable expert testimony was reversed. These cases should not be read to suggest the gatekeeping function of the trial court is defunct, or that challenges to unqualified experts whose opinions are speculative and therefore unreliable are futile. Instead, they highlight the importance of retaining appropriately qualified experts who can adequately support and articulate the basis for their opinions, and the need for counsel to aggressively challenge any expert who shouldn’t get through the gate.
Jonathan Lax is an attorney with Nelson Kinder Mosseau & Saturley in Manchester.