We continue to see Daubert motions in which insurance defense lawyers attempt to exclude testimony of treating physicians on routine matters of diagnosis, causation and prognosis. We haven’t lost one of those motions yet, but they constitute a tremendous waste of time and resources for all involved. I would never accuse my brother lawyers of filing frivolous motions just to pad their billings, but some of these are just ludicrous.
In considering any Daubert motion, it is important to keep the whole Daubert question in perspective. In an extraordinarily complex multidistrict product liability litigation, In re Ephedra Products Liability Litigation, 393 F.Supp.2d 181 (S.D.N.Y., 2005), Judge Rakoff of the Southern District of New York observed:

Daubert was designed to exclude “junk science.” It was never intended to keep from the jury the kind of evidence scientists regularly rely on in forming opinions of causality simply because such evidence is not definitive. The legal standard, after all, is preponderance of the evidence, i.e., more-probable-than-not, and that applies to causality as to any other element of a tort cause of action. Rule 702, a rule of threshold admissibility, should not be transformed into a rule for imposing a more exacting standard of causality than more-probable-than-not simply because scientific issues are involved.

It is widely accepted that a “physician may be asked to testify about the physical condition of a plaintiff, diagnosis, treatment, causes of the plaintiff’s condition, or prognosis.” Fed. Jud. Ctr., Reference Manual on Scientific Evidence 439 (2d Ed.). In clinical medicine, courts generally agree that under Daubert the methodology and data that diagnosing and treating physicians reasonably consider good grounds for opinions or inferences in medical practice are sufficiently reliable to form the basis of a qualified medical expert’s testimony in court. See 3 WEINSTEIN & BERGER, WEINSTEIN’S EVIDENCE 703[03], p. 703-24 et seq.(Rel.47-7/93 Pub.803); 2 Graham, Handbook of Federal Evidence § 702.5 at 79 (4th ed.1996); Fenner at 1009.
In Westbury v. Gislaved Gummi AB, 178 F.3d 257 (4th Cir 1999), the appellate court affirmed a trial court’s decision to admit the opinion testimony of a treating physician, finding that the physicians’ differential diagnosis based on temporal relationship between exposure and onset of symptoms – without the benefit of epidemiological studies, peer-reviewed published studies, animal studies, or laboratory data – that workplace exposure to a talcum powder caused a sinus problem. In allowing the physician’s testimony, the court noted:

[T]he court should be mindful that Rule 702 was intended to liberalize the introduction of relevant expert evidence. . . . And, the court need not determine that the expert testimony a litigant seeks to offer into evidence is irrefutable or certainly correct. . . . As with all other admissible evidence, expert testimony is subject to being tested by “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof. . . . [W]hile precise information concerning the exposure necessary to cause specific harm to humans and exact details pertaining to the plaintiff’s exposure are beneficial, such evidence is not always available, or necessary, to demonstrate that a substance is toxic to humans given substantial exposure and need not invariably provide the basis for an expert’s opinion on causation.

Last fall, in Flowers v. Wal-Mart, 2005 WL 2787101, decided 10/27/05, Judge Royal in the Middle District of Georgia 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 Kumho Tire. Though Daubertand 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.

Lawyers should not be intimidated by frivolous Daubert motions, and should not let opponents trick judges into excluding perfectly legitimate, routine medical evidence with junk motions fraudulently using the rhetoric of “junk science.”

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).