Expert Witness Rules

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On a warm October afternoon two years ago, wearing one of the yarmulkes that Jewish funeral directors provide for non-Jewish attendees, I helped shovel red Georgia dirt into the open grave of an old client and friend. As I did so, I pondered the unanswered question whether long-term side effects of her food poisoning a quarter century earlier had contributed to her death after years of internal organ illnesses.

A recent decision of the Georgia Supreme Court on what is required to get a food poisoning case to a jury brought that grim saga back to mind.

In Patterson v.

hold hands

The “laying on of hands” can resonate powerfully. In my background, it has spiritual and theological implications as a ritual of blessing or of healing. Can this and other senses beyond sight and hearing also be part of legitimate trial advocacy in conveying truth to jurors?

The Georgia Court of Appeals recently said yes in the context of a case where two experts disagreed on whether there was a difference in temperature of the hands of a plaintiff who had a diagnosis of complex regional pain syndrome (also known as reflex sympathetic dystrophy), due to medical malpractice.…

"Independent" medical exams are commonplace in personal litigation, workers compensation, and disability insurance contexts.  Experience has made us cynical so that we now refer to these as "defense medical exams" or "insurance medical exams."

The New York Times on 3/31/09 carried an investigative article, "Exams of Injured Workers Feed Mutual Mistrust," detailing abuses of such exams in the New York workers compensation system.  In fairness, there are also common forms of fraud by claimants, companies and others. But that does not excuse the fraud in "independent" medical exams.

Some highlights of the article:

  • Quote from an IME doctor who was videotaped in an exam making positive finding, directly contradictory to the report he later submitted: "“If you did a truly pure report, you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.”
  • “You go in and sit there for a few minutes — and out comes a six-page detailed exam that he never did.”
  • “There are some noble things you can do in medicine without treating. This ain’t one of them.”
  • “Physicians regrettably have moved away from being neutral observers. They’ve moved toward one camp or the other.”
  • Often IME doctors are hired  by brokers that then have clerical staffs prepare reports based on dictation or checklists completed by the doctors, who often do not read the reports before signing them.  The article gives examples of doctors signing reports on exams they never performed.
  • The best protection against this sort of thing is to record or videotape an IME.

My experience in Georgia is almost entirely in civil litigation rather than workers comp, which is a different animal.  In personal injury litigation, a small number of "reliable" doctors perform most of the IMEs. They stiffly resist any attempt to record or videotape exams.

 OCGA 9-11-35 provides for a medical examination in the discretion of the court for good cause shown. 

The choice of examiners  is ultimately within the discretion of the court, which need not approve an exam by a doctor who is a hand-picked defense advocate.  Though some judges seem not to understand this point, the law does not provide for an adversarial medical examination by a hand-picked defense advocate.  There is nothing in the Code to authorize the defendant to require the court to select, or the plaintiff to submit to examination by, a physician who is a handpicked and reliable advocate for the defense.

The burden is on the party seeking the exam to show "good cause."  A critical factor in determining whether to grant a motion for examination are the ability of the movant to obtain the desired information by other means and the timeliness of the motion and the events leading up to it.

We have had some success in blocking or neutralizing defense medical exams.  When we have blocked use of notoriously biased defense medical examiners, or successfully insisted on videotaping the exams, we have found that the insurance companies do not proceed with exams by neutral doctors or with the biased doctors being videotaped.

Daubert v. Merrell Dow Pharmaceuticals was a U.S. Supreme Court decision in 1993 that led to a sea change in standards for admitting expert testimony into evidence. Setting out a set of factors to be considered by courts in such decisions, it spread from questions of cutting edge science to the most mundane forms of expertise. 

The Daubert factors include consideration of whether the theory or technique can be and has been tested, whether the theory or technique has been subjected to peer review and publication, the potential rate of error, and general acceptance in the relevant scientific community.

Many …

It comes as no surprise that the Supreme Court of Georgia rejected constitutional challenges to the Daubert rule on expert testimony in the newly released decision of Mason v. Home Depot.  The text of the decision is copied below. I apologize for formatting errors that may appear.

It appears that Georgia attorneys representing injured people may have to give up on direct attacks on the state adoption of Daubert, and do the harder work in each case of beating defense Daubert motions and making offensive use of Daubert against defense expert. This is a grinding, expensive proposition, and it makes the transaction cost of many legitimate cases prohibitive.

Last month there was a news story about the New Jersey Committee on Attorney Advertising, a panel appointed by the Supreme Court of New Jersey ruling that attorney advertisements that tout listings such as the “Super Lawyers” listings violate professional responsibility rules against ads that compare lawyers’ services or create an “unjustified expectation about results.”  That gave me pause, as it did the marketing folks at every big law firm in Atlanta, since the profile on my web site includes listings in the “Super Lawyers” issue of Atlanta Magazine, “Legal Elite” issue of Georgia Trend magazine, and the Bar Register of Preeminent Lawyers.

However, the Fulton County Daily Report published an article on August 11th reporting an analysis to the effect that,  while Georgia’s ethics rules contain proscriptions against comparative advertisements and ads that create unwarranted expectations, the language in Georgia is more permissive than that found in New Jersey’s ethics rules. The New Jersey rule prohibits as false and misleading any advertisement that “compares the lawyer’s services with other lawyers’ services.” Under Rule 7.1(a)(3) of the Georgia Rules of Professional Conduct, the rule against comparisons does not apply if the comparison “can be factually substantiated.”

The “Super Lawyers,” “Legal Elite,” and “Preeminent Lawyers” lists are all based upon periodic surveys of our peers in the legal profession, and cannot be purchased.  While the methodology is certainly not perfect, neither is it meaningless or factually unsubstantiated.  Therefore, we will continue to include those designations on the web site.

When the Georgia General Assembly passed Senate Bill 3 — the "tort reform" conglomeration — in February 2005, most of the legislators hadn’t even read the entire bill, most of its provisions were not discussed in any detail, and hardly anyone understood it. To say it had a lot of poor draftsmanship is an understatement.  I heard one prominent Republican legislator privately describe it has having been "written with a crayon."  Since then bits and peices of the legislation have been been held unconstitutional by trial or appellate courts, and more likely meet the same fate.  Increasingly, I hear legislators who voted for it in the rush of the moment saying things like, "we went too far," "we didn’t understand what was in the bill," etc. 

It will take a few years, but I predict that the problems with the bill will be largely repaired.  A cap on noneconomic damages in medical malpractice cases will likely remain, as the political support for it in the medical community is mighty strong.  However, as in California after it adopted such a cap in the 1970’s, we may see a requirement for financial disclosure by insurance companies to support premium rate increases.

Likewise, the replacement of "joint and several liability" with "proportional liability" will be politically difficult to change.  However, if the problems with the new rule are explained to legislators, perhaps there could be some modification.

The Daubert rule on expert testimony is here to stay, but the version of it in the State Bar’s proposed new Georgia Evidence Code makes more sense, both procedurally and substantively, than the self-contradictory scissors and paste job in S.B. 3.

The offer of judgment rule in S.B. 3 is such a miscarriage that I hardly ever hear of anyone actually using it.  I know that most of the insurance companies are afraid to use it in significant cases out of concern that it will be they rather than the plaintiffs who it will hurt.  It may take a couple of years, but I expect that a more sensible and workable version of the offer of judgment rule will be passed.

A lot of the other stuff that was included in S.B. 3 will bite the dust over the next couple of years.

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.