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The role of the judge in expert witness testimony

In our last couple posts, we explored the issue of cerebral palsy and the question of causation. As we noted, causation is an important issue in medical malpractice litigation, and one which is often disputed. Because of the importance of determining the cause of medical injuries in medical malpractice litigation, expert testimony plays a critical role.

One thing that should be clear is that it is not the function of judges handling medical malpractice lawsuits to weigh in on the issue of causation, as this requires specialized training and knowledge. As a recent Michigan appeal decision made clear, judges are not to voice opinions on scientific and medical issues in medical malpractice litigation, but to play a gatekeeping function with regard to expert testimony.                       

What is meant by the term gatekeeping is that judges have the role of determining whether medical experts are qualified to provide opinions on certain matters, and whether or not their testimony is reliable. Judges, then, have authority to determine whether an expert witness is qualified to offer an opinion in a medical malpractice case, but not to resolve the medical or scientific dispute itself. This is what happened in a Michigan medical malpractice case which was recently decided on appeal.

The court in that case determined that the judge was wrong in barring testimony from the plaintiff's expert witness because, in the circumstances of the case, doing so went beyond her role of determining whether or not the expert was qualified to offer an opinion.

When pursuing a medical malpractice case, it is important to work with an experienced attorney who is able to recognize when a judge is going beyond the scope of his or her role as judge, not only with expert witnesses but also with other aspects of the case.

In a future post, we'll speak a bit more about expert witness standards and what medical malpractice plaintiffs can do to make sure they build a strong case in this area. 

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