The extent of expert witnesses – end speculation!!

California court throws out “speculative” expert testimony

In a medical malpractice trial in California, physicians admitted that leaving a retractor in a man’s peritoneal cavity after a September 2000 surgery was a deviation from the standard of care. It was the question of how much damage the mistake caused that was left to a jury, particularly whether the oversight contributed to an infection.

The jury’s decision would rest on what medical expert witnesses had to say. But after the plaintiff’s expert witness testified, the trial court judge told the jury to disregard the expert’s testimony and threw it out, saying the opinion was based on speculation, not science.

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n the California case, Jennings v. Palomar Pomerado Health Systems Inc. et al., the plaintiff’s expert testified that the retractor left below the patient’s peritoneal cavity during abdominal surgery contributed to an infection in the upper subcutaneous tissue and fascia, according to court records.

Doctors discovered the infection when they went in to remove the retractor. There was no infection in the area around the retractor.

The plaintiff’s expert testified that there was “guilt by association” even though there wasn’t evidence of an infection where the retractor was lodged, court records show. He told the jury that the omentum encased the retractor to isolate and kill germs in the peritoneal area where it was lodged.

The expert testified that the sutures used to close the surgical opening could have brought the infection back up to the peritoneal area, before the omentum was able to take care of any infection below.

As soon as he was finished testifying, defense attorneys for the hospital and two physicians who were named in the lawsuit moved to strike the testimony because there was no basis for the expert’s opinion that the retractor left in the man’s body contributed to the infection.

The judge agreed.

He said the infection, under either explanation the expert outlined, “would have happened anyway even if the retractor had been removed during the original surgery,” according to court records.

Plaintiffs argue that the judge engaged in fact-finding. But the hospital, physicians and the CMA argue that the judge was just doing his job — keeping out speculative and unreliable testimony.

“Trial judges should not abdicate responsibility for determining the reliability and admissibility of evidence before it may be submitted to the jury,” the CMA said in its brief. “In fact, trial courts should be encouraged to do exactly what the court in this case did: carefully analyze expert testimony to ensure that only well-founded, nonspeculative expert opinions reach the jury.”

Indeed, that’s happening more often today than it did a decade ago.

First, a round of applause for the judge. This case illustrates some points that Mr. Howard made in his NY Times piece last week – my rant on that op-ed – Rethinking malpractice . Judges can and should influence malpractice cases in just the way that this judge did. They should not allow speculative testimony. Rather they should remember that the jury is a fact finding group. They should not have to make theoretical judgements.