Common sense approach to Daubert objections to treating physician testimony
Judge Ashley Royal in the U.S. District Court for the Middle District of Georgia has made a common sense decision in response to one of those frivolous Daubert motions to exclude testimony of treating physicians. In Flowers v. Wal-Mart, 2005 WL 2787101, decided 10/27/05, Judge Royal held:
It is significant in this case that Dr. Dicks is Mr. Flowers’s treating physician, not simply an expert who makes a living providing opinion testimony or one retained for purposes of litigation to provide an opinion based on facts presumed to be in evidence. His examination and diagnosis were part of his routine activities as a doctor, which should not be subject to an extensive analysis under Daubert and Kukmho Tire. Though Daubert and Rule 702 require district courts to exercise a “gatekeeper” role as to expert testimony, it is generally appropriate “to avoid unnecessary ‘reliability’ proceedings in ordinary cases where the reliability of an expert’s methods is properly taken for granted.” Kumho Tire, 526 U.S. at 152. This is just such an ordinary case in which a treating physician offers a medical opinion that a fall from a ladder onto a concrete floor aggravated a back injury.
In dealing with obstructionist defense firms billing by the hour, we have had to fight over Daubert motions challenging admissibility of ordinary testimiony of treating physicians. So far, the federal district judges before whom we have litigated in Georgia have rejected such nonsense, but we still have to fight the fight.
The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks).