The Appeal

On appeal, Mrs B argued that the trial court had erred by disqualifying Dr D and his testimony. The appeals court disagreed, holding that Mrs B bore both the burden of producing sufficient evidence and the burden of persuading the trial court that Dr D did not “devote annually more than 20% of his professional activities to activities that directly involve testimony in personal injury claims.”

The appeals court pointed out that Dr K’s attorney had requested information and documents from Dr D, which he did not produce. “Although we don’t require an exhaustive accounting of an expert’s timesheets, we need sufficient information from which to make an accurate calculation,” wrote the court in its decision. The court pointed out that Dr D had not produced information such that it could be determined that he complied with the 20% rule. At no point, noted the court, did Mrs B or Dr D ever provide any timekeeping logs, calendars, or other financial records that would verify how Dr D spent his time. The appeals court held that the trial court had not abused its discretion by disqualifying Dr D as an expert.

Mrs B also argued that since the trial court had allowed the expert during trial, it had erred in granting the defense’s motion to dismiss after trial. However, the appeals court thought it was completely appropriate for the trial court to correct its error in letting Dr D testify originally. “It would be a foolish rule indeed that didn’t generally allow judges to correct their own errors,” wrote the court. “Here, when the trial court learned or realized it had erred in admitting Dr D as an expert witness, it was not required to compound the error. Instead, it allowed the jury the opportunity to decide the case and then corrected its own error.” The appeals court held that once Dr D’s testimony was barred by the 20% rule, Mrs B no longer had evidence to support the idea that Dr K had violated the standard of care.

Protecting Yourself

The 20% rule in this state was enacted to avoid “hired gun” experts. Various states have enacted laws making it harder to bring huge personal injury lawsuits; this is one of those laws. If you spend any time as an expert witness, make sure you know what the states’ laws governing your testimony are, and be sure to comply.


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