Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

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In medical malpractice cases, both the patients and the defendant physicians rely upon expert testimony to either establish or refute that their was a breach in the standard of care.  Such expert testimony will be admitted only if the offering party can show that the proposed witness is sufficiently qualified to render an expert opinion.  In addition to showing that the witness is qualified, the offering party must show that the proposed testimony has a reliable scientific basis. 

If the trial judge determines that the expert is duly qualified and that the evidence appears to be reliable, the expert testimony will generally be admitted.  If the jury finds in favor of a party whose expert testimony was admitted over the opposing parties objection, this can create an issue for appeal.  The Supreme Court of the United States recently considered whether a party is entitled to a new trial based upon the fact that the trial court admitted expert testimony which was unreliable. 

In Weisgram v. Marley Co., the Executor of the Estate of Bonnie Weisgram filed a wrongful death action against the manufacturer of a heater in Ms. Weisgram’s home.  On December 30, 1993, a fire broke out in Ms. Weisgram’s home.  When the firefighters arrived on the scene, the front entrance was engulfed in flames.  Upon entering the house, the firefighters discovered that Ms. Weisgram was in the upstairs bathroom dead of carbon monoxide poisoning.  Ms. Weisgram’s son brought a lawsuit in federal court against the manufacturer of the electric baseboard heater located inside the door to his mother’s home.  Mr. Weisgram claimed that the baseboard heater was defective and caused both the fire and his mother’s death. 

At trial, Mr. Weisgram identified three experts witnesses whom he intended to call to prove that there was a defect in the heater which lead to the fire.  The defendant manufacturer objected to the introduction of the proposed expert testimony on the grounds that it was unreliable.  The trial court allowed the witnesses to testify despite these objections.  The defendant manufacturer renewed its objections to the admissibility of this evidence throughout the course of the trial.  The jury was ultimately allowed to consider the expert testimony and found in favor of Mr. Weisgram. 

The defendant manufacturer appealed the jury’s verdict on the grounds that the expert testimony should not have been admitted.  The defendant manufacturer argued that without such evidence Mr. Weisgram failed to prove his wrongful death claim.  The Court of Appeals for the Eighth Circuit determined that since the expert testimony offered by Mr. Weisgram was speculative and not shown to be scientifically sound, it was incompetent to support his case.  After assessing the remaining admissible evidence in a light most favorable to Mr. Weisgram, the Court determined that such evidence was insufficient to support the jury’s verdict as a matter of law.  As a result, the Court directed a verdict in favor of the defendant manufacturer.  In doing so, the Court denied Mr. Weisgram’s request for a new trial. 

Mr. Weisgram sought further appellate review with the Supreme Court of the United States on the grounds that since the Appeals Court directed judgment in favor of the defendant manufacturer, he was wrongfully denied the right to a jury trial.  The Supreme Court agreed that the expert testimony was unreliable and that without such testimony, Mr. Weisgram failed to present sufficient evidence to support the jury’s verdict.  However, the Court did not agree that this gave Mr. Weisgram the right to a new trial.  The Court pointed out that Mr. Weisgram was well aware of the standards applied to assess the admissibility of expert testimony.  By offering unreliable testimony, Mr. Weisgram ran the risk that it would not be admitted.  The Court also explained that Mr. Weisgram was given the opportunity on appeal to argue that the evidence which was rightfully admitted supported the jury’s verdict. 

In light of the Weisgram decision, it is now clear that the admissibility of unreliable expert testimony does not automatically entitled a party to a new trial.  Therefore, counsel for defendant physicians should fully investigate the credentials of both their own expert witnesses and the witnesses identified by the patient.  Defendant physicians should work with their counsel to assess whether the proposed testimony offered by a patient is based upon a reliable scientific basis.  If there is a question that the admissibility of the experts testimony may be overturned on appeal, a party can no longer rely on the expectation that they will be given the opportunity to present more reliable expert testimony at a second trial.   


More Than One Trial in Medical Malpractice Cases

by Attorney Frank E. Reardon

May 2000