INTRODUCTION

Contentious medical malpractice litigation has resulted in a strained relationship between the legal and medical professions in many communities.  Discussions of tort reform, particularly medical malpractice reform, have increased in frequency over the last decade as efforts to address perceived shortcomings of the existing personal tort litigation framework have intensified.  While caps on non-economic damages, attorneys’ fees and the like may have an external impact, more direct cooperation between doctors and lawyers is needed to effectively address the problems between the two professions.

In State of New York v. Shinnecock Indian Nation, 523 F. Supp. 185 (E.D.N.Y. 2007), the plaintiffs sought to permanently enjoin a Native American tribe from constructing a casino and conducting certain gaming on a parcel of non-reservation property on eastern Long Island.  Plaintiffs demonstrated that the defendants’ actions did not comply with town codes and violated state anti-gaming and environmental laws.  The defendant claimed immunity from those laws.  In finding for plaintiffs, the court found that aboriginal title to the land held by the tribe at the time of first European contact in 1640 was extinguished because the tribe sold the land to non-Indians in the 17^th century; the land was subsequently acquired by the town; and New York ultimately ratified the town’s ownership of the land.

Since our last newsletter, state and federal courts within the Third Circuit have continued to deal with the application of Daubert in various contexts.  One case in particular raises several novel issues that we will explore in this article.  In that case, Vaccaro v. HJC America, Inc., 2007 U.S. Dist. LEXIS 75315 (D.N.J. Oct. 9, 2007), the District Court of New Jersey dealt with such Daubert-related issues as surprise, choice of law, and the use of expert-created evidence at trial.

As usual, the Fourth Circuit continues to examine and analyze Daubert and attempt to ensure that the standard is applied fairly and informally.  Recently, the Court found that an expert’s inability to answer certain questions on cross-examination was not relevant to the admissibility of his testimony, but instead to the weight of his testimony. 

In Bullock v. Lott, 964 So. 2d 1109 (Miss. 2007), the Mississippi Supreme Court reversed and rendered judgment in favor of defendant physicians Dr. Ronald Bullock and Dr. Stephen Massey, finding that the plaintiff’s expert, Dr. Larry Gibson, based his testimony on “facts” that were not in the record.

The Seventh Circuit recently provided an important reminder of the need to conduct, or account for the absence of, testing in alternative design product liability cases.  Terry Winters, the plaintiff and appellant in Winters v. Fru-Con, Inc., 498 F.3d 734 (7^th Cir. 2007), had lost a hand during an accident at a food processing plant.  Though his hand later was reattached, his use of the hand was severely limited.  Mr. Winters sued several entities and settled with all but one, Fru-Con. 

Over the past six months, courts within the Eighth Circuit have found that expert testimony on the value of a life is inherently too unreliable to be admissible, found that a qualified appraiser may vary his or her methods and information relied upon in reaching an opinion, and re-emphasized the importance of testing novel theories before attempting to rely on them.

Gravy, bread, fezone and reezey:  Case agent’s interpretations of drug jargon admissible, but speculative testimony as to the meaning of statements held as error; Arizona expert’s testimony as to defective design excluded under Daubert

This past quarter, the Ninth Circuit addressed a situation in which a case agent testified as both a lay and expert witness, and the court set forth cautions regarding the same.  The U.S. District Court in Arizona conducted a Daubert analysis in a product liability action to exclude an expert’s testimony as to an alternative design that had never been tested.

The Tenth Circuit recently addressed a question that is not often encountered by defense counsel when deposing a proffered expert witness in civil litigation:  whether a witness who testifies he or she is not an expert in a particular field is automatically disqualified to testify as an expert witness at the time of trial.

In Watson v. United States, 485 F.3d 1100 (10^th Cir. 2007), the court was presented with this issue.  The guardian of an incapacitated federal prisoner in Watson sued the United States Government under the Federal Tort Claims Act alleging that prison officials were negligent in responding to the prisoner’s medical condition, which allegedly resulted in the prisoner’s persistent vegetative state.  Id. at 1102-03.

Long v. Raymond Corp., 245 Fed. Appx. 912 (11^th Cir. 2007)

The worker was injured while operating a forklift and brought a products liability suit against the forklift’s manufacturer.  In support of its theory of liability, the plaintiff proffered the testimony of an expert in industrial safety.  After a lengthy mid-trial hearing the district court ruled the testimony inadmissible to two elements of the plaintiff’s claim.  On appeal from the North District of Alabama, the plaintiff sought to overturn the district court’s ruling on the admissibility of expert testimony.