If the Expert Doesn’t Fit, You Must Acquit?

Does the expert witness you or the opposing parties have selected actually fit the disputed facts of the case?  Experts are expensive, so there is a natural inclination to combine experts and skimp where possible.  However, there may be risk to consolidating experts if it requires the experts to offer opinions beyond their qualifications.

Consider this scenario from a case I once handled.  Plaintiff fell and sustained a distal femur fracture.  That would have been a relatively simple injury to litigate.  However, during the later course of her medical treatment, Plaintiff developed a MRSA infection. Nevada generally requires medical expert testimony to establish causation, but a MRSA infection is not within the obviousness exception.

When initial expert disclosures occurred, the Plaintiff designated two orthopedists with joint specialties as her medical expert witnesses.  Both were deposed.  Orthopedist 1 was specifically asked if he believed the MRSA infection was related to the fall.  He stated “I don’t know if she did or not.”

As to Orthopedist 2, the expert witness disclosure stated he would testify “Plaintiff’s treatment required consultation and treatment by Dr. [infectious disease specialist] for the infections and his treatment was necessary for the injuries Plaintiff sustained in the subject incident. She had continued MRSA infections.”  It then stated “[d]uring the course of [Orthopedist 2]’s treatment, it was required for him to consult with specialists, to include Dr. [infectious disease specialist]. The need for referrals and consultations was required for Plaintiff’s treatment and was a direct result of the injuries Plaintiff sustained in the subject incident.”  The disclosure stated the orthopedist’s  “clinical notes, which are provided in lieu of a formal expert report, … and his entire treatment chart, to include hospital records have been previously disclosed….”  The disclosure did not state the orthopedist would provide an opinion about whether the MRSA infection was related to the fall.  Read in context, it indicates the orthopedist would defer to the infectious disease specialist as to the MRSA.  The problem was Plaintiff never designated the infectious disease specialist as an expert witness, nor did orthopedist’s medical records contain causation opinions concerning the MRSA.

I designated as an initial expert a retained infectious disease specialist to give a causation opinion.  On the rebuttal expert disclosure deadline, Plaintiff disclosed a written report from Orthopedist 2 that offered a MRSA a causation opinion for the first time.  He was deposed two days later and admitted he was asked to prepare the report only 5 days before the rebuttal expert disclosure deadline. 

I later moved to exclude the rebuttal report as improper.  I also moved to exclude MRSA causation opinions from trial because Orthopedist 2 was not qualified to offer opinions about infectious diseases.  Medical experts may offer causation opinions when there is sufficient overlap between their field and the field in which they are offering the opinion.  However, here, there was no overlap between his work and infectious diseases.  The court never ruled on the motion’s merits, as discussed in the next post.

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