How Closely Must Expert Qualifications Overlap?

Monday’s post discussed the limits of overlapping expert witness qualifications.  The Supreme Court of Nevada considered a related topic in Spilsbury v. Rynders.[1]  An orthodontist, Dr. Spilsbury, was accused of malpractice in performing a certain procedure.  The primary attack on appeal was that the patient’s orthodontic medical expert, Dr. Al-Fakiani, was unqualified.  Dr. Al-Fakiani was generally qualified in orthodontia, however Dr. Spilsbury argued he was not qualified as to this particular procedure.

This case involves lingual braces using an iBrace system, meaning that the brackets and wires were placed on the back of Rynders’ teeth, and Dr. Al-Fakiani specializes in the Invisalign system of orthodontics. Dr. Spilsbury argues that this makes Dr. Al-Fakiani unqualified to render an opinion on lingual braces. However, as the district court found and we agree, the treatment at issue involved more than just the application of the iBraces.

Specifically, Dr. Al-Fakiani three primary opinions had no relation to the specific procedure.  “Dr. Al-Fakiani’s opinions were not specific to lingual braces, but rather, went toward whether Dr. Spilsbury exercised due care in his general orthodontic practices.”  The overlap between the qualifications was then sufficient to permit Dr. Al-Fakiani to testify.

The local federal court considered the overlap requirement in Stedeford v. Wal-Mart Stores.[2]  The personal injury plaintiff relied upon her treating orthopedist to causally relate the treatment she received and was projected to need in the future.  In turn, Wal-Mart disclosed neurologist Steven McIntire, M.D. and another medical expert.

Plaintiff moved to exclude Dr. McIntire arguing “because he is not a spinal surgeon, he is unqualified to dispute Dr. Dunn’s opinions about Stedeford’s prognosis and course of treatment.”  This argument failed.  Dr. McIntire had testified in an unrelated case

that “neurologists are responsible for evaluating and treating conditions of the nervous system, which one could look at as the brain, the spinal cord[,] and the peripheral nerves.”  And, even though he does not perform spinal-surgery procedures himself, neurologists are “diagnosticians” so, in his neurology practice, he frequently determines whether spinal-surgery procedures are called for.   Were Dr. McIntire proposing to opine about the manner or method in which Stedeford’s spinal surgery was performed, his lack of surgical experience may be disqualifying. But he intends to opine only about whether the surgery was indicated….

In other words, the overlap was sufficient as to whether surgery was indicated.  Dr. McIntire was allowed to testify.

[1] No. 64368, 2016 Nev. Unpub. LEXIS 71; 2016 WL 315122 (2016).

[2]  2:14-cv-1429, 2016 U.S. Dist. LEXIS 92202 (D. Nev. July 15, 2016).