Black Robes and White Coats: Daubert Standard and Medical and Legal Considerations for Medical Expert Witnesses

Abstract

Expert testimony can play a pivotal role in a legal case involving a medical issue, but it is crucial that this testimony be scientifically sound. In the United States, the Frye Standard demanded that such expert medical testimony be “generally accepted,” but it has been superseded by the more demanding Daubert Standard. Under Daubert, judges became “gatekeepers” as to what scientific material was admissible in court and what might be dismissed as junk science. While a vast improvement over Frye, the Daubert Standard still faces its own problems. Judges usually lack scientific and medical expertise and sometimes have to do their own medical research to be able to evaluate the experts and their testimony. Expert witnesses can be subjected to an adversarial Daubert challenge, even during trial, to establish their credentials and the evidence they are reporting. About half of all judges have had no formal education in handling scientific evidence, but 91% felt comfortable in their gatekeeper role. Considerations for expert witnesses include training or coaching, familiarity with the entire case and courtroom procedures, and an ability to not just know the evidence but to be able to communicate it effectively to a lay audience (jury). Some countries have pioneered a concurrent testimony approach in complex cases, whereby experts argue the evidence of the case under oath before a judge in advance of the trial to determine where there are points of agreement and where the main areas of contention reside. This process, colorfully called “hot tubbing,” is aimed at a more conciliatory approach to reaching compromises. Nevertheless, bias still can result even in hot-tubbing cases, and more research is needed to better understand the nature of jury bias and how it can affect jury decisions in complex medical cases.