A recent appeals court decision reminds us yet again that cases that seem strong can still fail on a technicality. In this case, a jury’s award of close to a million dollars was voided by the failure of the plaintiff to follow the state’s rule for medical expert testimony.

Facts of the Case

After Mrs B’s husband died from complications following back surgery, she sought an answer about why the tragedy had happened. Her husband’s back pain had driven him to seek treatment from Dr K, a neurological surgeon who recommended surgery to ease Mr B’s pain. Mrs B had not expected that the treatment would result in her husband’s death. She hired a plaintiff’s attorney who consulted an expert orthopedic surgeon, Dr D, who told the attorney that Dr K was negligent in his treatment of the patient. Mr B was high-risk patient, said the expert, and Dr K should have considered alternative treatments to surgery, and advised the patient about other options.

The attorney filed a medical malpractice case against Dr K and his practice. Because it was a medical malpractice case, the plaintiff was required to file a certificate of a qualified expert, which she did. The certificate stated that Dr D would testify at trial that the surgery performed by Dr K violated the applicable standard of care and that Dr K was negligent for failing to recognize that Mr B was a high-risk patient and for not opting for less invasive alternatives to surgery. The certificate also stated, as required by state law, that no more than 20% of Dr D’s professional activities were related to testifying as an expert witness.

During discovery leading up to the trial, Dr K’s defense attorney sought information about Dr D’s income and activities in an effort to determine whether the expert was in compliance with the state’s 20% rule. Dr K’s attorney requested a list of medical malpractice cases that Dr D reviewed or in which he acted as an expert witness, as well as all documents accounting for the time he spent on professional activities, such as patient care, surgeries, and supervising medical care. Dr D did not produce these documents.


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In his deposition, Dr D testified that no more than 20% of his time was devoted to testifying as an expert witness, but explained that he did not keep specific records of how much time he devoted to expert testimony as opposed to his other work. Prior to trial, the defense made 2 motions. The first was a motion to make Dr D produce tax documents from which the defense hoped to ascertain whether Dr D was following the 20% rule. The court granted this motion. The second was a motion to preclude Dr D from testifying at trial. The court denied this motion. Afterwards, Dr D produced an affidavit again attesting to compliance with the 20% rule and he provided some tax returns.

The Trial and Verdict

At trial, as expected, Mrs B called Dr D as her expert witness. The defense objected, arguing that Dr D had not produced enough evidence to prove compliance with the 20% rule. The court decided that despite the failure to produce all relevant documents, Dr D was still qualified to testify. Dr D testified over the defense’s objections. At the conclusion of the plaintiff’s case, the defense attorney asked the trial court to dismiss the case on the grounds that 1) Dr D was not in compliance with the 20% rule, 2) without Dr D’s testimony Mrs B had no evidence to support her claim that Dr K had violated the standard of care, and 3) without such evidence of a violation of the standard of care, there was no case. The trial court declined to rule on this motion, deferring until the case could go to the jury. At the end of the defense’s part of the trial, the defense attorney again renewed the motion for summary judgement for Dr K. Again, the trial court deferred.  

The jury heard all the evidence, deliberated, and returned with a judgement for Mrs B of over $900,000. After trial, the defense filed a written memorandum renewing the motion. This time the trial court reconsidered and found that it had erred in allowing Dr D to testify. It granted the motion for Dr K notwithstanding the jury verdict – in other words, stripping Mrs B of her monetary award, and tossing out the jury’s verdict. Mrs B appealed.