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Preparing the Expert Physician Witness and Avoiding the “Because I said So” Trap:

 

 

Of all of the answers loathed by trying teenagers and trial judges alike, perhaps one is the most
reviled: “Because I said so.”  Teenagers don’t like it because there is no battleground on which to
challenge your opinion, and trial judges reviewing expert testimony dislike it for essentially the same
reason.

Like parenting, practicing medicine is at least as much an art as a science, fraught with uncertainty,
complexity, judgment calls, and the danger of opinions without bases.  See, e.g., Priamo v Cook, 598 F3d
558, 565 (9th Cir 2010) (“despite the importance of evidence-based medicine, much of medical decision
making relies on judgment—a process that is difficult to quantify or even to assess qualitatively.”)
(cited in Baan v. Columbia County, 180 So.3d 1127, 1133 (Fla. 1st DCA 2015).

In 2013, the Florida legislature codified the Daubert prohibition against “because I said so” opinions
into the rules of evidence by amending Fla. Stat. Section 90.702.  The statute was amended to read, that
in testimony by expert witnesses:

     If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding
     the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill,
     experience, training, or education may testify about it in the form of an opinion or otherwise, if:
     (1)The testimony is based upon sufficient facts or data;
     (2)The testimony is the product of reliable principles and methods; and
     (3)The witness has applied the principles and methods reliably to the facts of the case.

In so doing, Section 90.702 now requires that opinions rendered by qualified individuals must be based on
sufficient facts or data, and are the product of reliable principles and methods that have been applied
to the facts of the case.  See, Giaimo v Florida Autosport, Inc., 154 So.3d 385, 388 (Fla. 1st DCA 2014)
(concluding that a physician’s testimony was inadmissible after he was asked how the percentages
attributable to the pre-existing and work injury were calculated, and the physician explained that he
“thought about it, [and] that [was] the answer [he]came up with.”) In Giaimo, the Court found the
physician’s opinion provided no insight or explanation into what principles or methods were implemented
to reach his medical opinion.  As the Court noted, the physician failed to meet parts two and three of
the Daubert test since he was unable to demonstrate how he applied any such research or methods to the
facts of the case .” Id. at 388.

As trial counsel, your task is to avoid this fatal “because I said so” trap and prepare your expert to
provide a detailed insight of their opinion to the Court and the trier of fact.  This can be done by
ferreting out the principles and methods your expert used to reach their opinion.  A recent Court of
Appeals decision demonstrates that a properly formulated and supported expert opinion can amount to much
more than ipse dixit, and thereby survive a strict application of the Daubert standard.

In Baan v Columbia County., 180 So.3d. 1127, the testifying physician thoroughly demonstrated how he
arrived at his opinion that Emergency Medical Services (EMS) breached the prevailing professional
standard of care in failing to transport an infant in respiratory distress to the hospital.  The physician
went beyond presenting a pure opinion testimony, relying on his 30 years’ experience as an emergency room
physician along with medical records, EMS records, autopsy reports and statements from medical personnel
present during the child’s final hours.  Thus, when preparing your physician witness, make sure that
“because I said so” is the beginning, rather than the end of the story.  Dig hard into why she says so and
then dig harder.  For example, has your expert testified in, or treated patients in similar cases, has
he reviewed the medical literature and treatises in the area, and reviewed all of the medical records
and witnesses statements in your case.  If the answers to these questions are in the affirmative, you are
probably on the right track.

In March, the Florida Bar Board of Governors and a key Bar committee recommended that the Florida Supreme
Court reject the Daubert standard, and oral arguments are scheduled for later this year. However, at this
juncture it is essential that practitioners offer a detailed analysis that comports with Section 90.702.
The court in United States v. Hansen, 262 F.3d 1217 (11th Cir. 2011) provided a non-exclusive list, akin
to the scientific method, of possible factors a judge may consider in determining whether the Daubert
standard has been meet:

     (1) Can the opinion be tested, and has it?
     (2) Has the opinion been subjected to peer review and/or publication?
     (3) If error rates can be determined, have they?
     (4) Are there standards controlling the technique’s operation; if so, have they been maintained?
     (5) Is the methodology generally accepted as reliable within the relevant scientific community?

In sum, you CAN prepare you expert sufficiently to pass the Florida Statue 702 , Judicial Review test by
“drilling down” on your expert’s otherwise “intuitive” opinion.  Failing to properly flush out your
expert’s testimony and merely eliciting their opinion will undeniably risk exclusion by the trial court—
legally the least productive “because I said so” of all.