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The 1993 Supreme Court Daubert ruling followed by the 1999 Kumho decision now imposes significant incentives to both plaintiff and defendant in Medical malpractice cases to bar unreliable expert testimony. Because now the Daubert's "gatekeeping" role for trial judges may exclude even a Board Certified medical expert.
Daubert teaches that one should not rely just on the credentials of the medical expert. The medical expert in Federal court, and increasingly in the State courts, must now not just be credible, as evidenced by Board Certification. Testimony must continue to be based on medical knowledge within the physician's expertise. But whenever possible, the medical expert must also support all methodology and opinions with objective documentation and "reliable methodology".
Thus the medical expert must increasingly document all his stated opinions from peer-reviewed literature. This requires thorough research of published clinical guidelines, &/or Specialty Position Statements, &/or medical articles from evidence based medical literature, &/or current published articles on the medical standard of care, -dealing with the litigated issue(s) during the contested period. Objective information has always been important, especially when other medical experts in the case have opposite medical opinions based on "experience". But it is now crucial. In some instances the medical expert's opinion on the standard of care when supported by peer reviewed medical literature was admissible even though his professional background did not perfectly match that of the defendants. The competent medical expert in the new millennium realizes that the real world documentation of the medical standard of care is usually not found in classic medical textbooks. Instead adequate documentation and support of medical opinions now demands a thorough familiarity with peer reviewed medical journals, and good computer dexterity with the medical research engines of Medical School Hospitals, Medline, and the National Library of Medicine.
IMPORTANT INFORMATION (from Alston and Bird LLP): Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993) Kumho Tire Co. Ltd. V. Carmichael, 526 U.S. 137 (1999)
States that have adopted the Daubert rules: Idaho, Kentucky, New Mexico and Vermont, Arkansas, Delaware, Iowa, Louisiana, Massachusetts, Montana, North Carolina, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Texas, West Virginia and Wyoming have adopted Daubert. See, e.g., Jones v. State, 862 S.W.2d 242, 244 (Ark.1993); Nelson v. State, 628 A.2d 69, 73-74 (Del. 1993); Carolan v. Hill, 553 N.W. 2d 882, 888 (Iowa 1996); State v. Foret, 628 So.2d 1116, 1123 (La.1993); Commonwealth v. Lanigan, 641 N.E.2d 1342, 1349 (Mass. 1994); State v. Blain Southern, 980 P.2d 3 (Mont. 1999); State v. Goode, 461 S.E.2d 631,639 (N.C. 1995); State v. Clark, 655 N.E.2d 795, 811 (Ohio Ct. App. 1995); Taylor v. State, 889 P.2d 319, 328(Okla. 1995); State v. Futch, 860 P.2d 264, 270-71 n.7 (Ore. Ct. App.1993); State v. Dinkins, 462 S.E.2d 59, 60 (S.C. 1993); E.I. duPont deNemours and Co. v. Robinson, 923 S.W.2d 549, 556 (Texas 1995); State v. Derr, 451 S.E. 2d 731, 743 (W. Va. 1994); Springfield v. State, 860 P.2d435, 443 (Wyo. 1993
States that have not yet adopted the Daubert rules: California, Georgia, Illinois, New York, and several other states have not yet adopted the Daubert standard. See, e.g., Mattox v. State, 875 P.2d 763 (Alaska 1994); State v. Johnson, 922 P.2d294, 296 (Ariz. 1996); People v. Leahy, 882 P.2d 321, 324 (Cal. 1994); People v. Lyons, 907 P.2d 708, 712 (Colo. Ct. App. 1995); Flanagan v. State, 625 So. 2d 827 (Fla. 1993); Orkin Exterminating Co. v. McIntosh, 452S.E.2d 159, 165 (Ga. Ct. App. 1994); People v. Lowitski, 674 N.E.2d 859(Ill. App. Ct. 1996); Armstrong v. City of Wichita, 907 P.2d 923 (Kan. Ct. App. 1995); State v. Harvey, 1997 WL 422956 (N.J. July 30, 1997); People v. Victory, 631 N.Y.S. 2d 805, 811 n.12 (1995); State v. Jones, 922 P.2d 806,808 (Wash. 1996).
In states declining to follow Daubert, these jurisdictions typically continue to follow the "general acceptance" test articulated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Although the Frye test predated the Federal Rules of Evidence by half a century, it continued to serve as an aid to their application until Daubert held it inapplicable to cases arising under Rule 702. As a consequence, several states adopting Daubert have relied on the similarity between their evidence codes and the Federal Rules of Evidence. See, e.g., State v. Parkinson, 909 P.2d 647, 654 (Idaho Ct. App. 1996)(noting Idaho's rule is identical to the federal rule); Mitchell v. Commonwealth, 908 S.W. 2d 100, 101 (Ky. 1995) (same); State v. Alberico, 861P.2d 192 (N.M. 1993) (same); State v. Brooks, 643 A.2d 226, 229 (Vt. 1993)(applying Daubert because Vermont's rules are "essentially identical" to the federal rules).
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