Evidence Commons^™

Non-Physician Vs. Physician: Cross-Disciplinary Expert Testimony In Medical Negligence Litigation, Marc D. Ginsberg

Marc D. Ginsberg

The source of the applicable standard of care in a specific medical negligence claim is multifaceted. The testifying expert witness, when explaining the applicable standard of care, “would draw upon his own education and practical frame of reference as well as upon relevant medical thinking, as manifested by literature, educational resources and information available to practitioners, and experiences of similarly situated members of the profession.” Accordingly, in typical medical negligence litigation, the plaintiff’s expert witness testifying regarding the existence of and the defendant-physician’s deviation from the standard of care would be a physician. Why, then, have courts permitted non-physicians to …

Non-Physician Vs. Physician: Cross-Disciplinary Expert Testimony In Medical Negligence Litigation, Marc D. Ginsberg

Georgia State University Law Review

The source of the applicable standard of care in a specific medical negligence claim is multifaceted. The testifying expert witness, when explaining the applicable standard of care, “would draw upon his own education and practical frame of reference as well as upon relevant medical thinking, as manifested by literature, educational resources and information available to practitioners, and experiences of similarly situated members of the profession.” Accordingly, in typical medical negligence litigation, the plaintiff’s expert witness testifying regarding the existence of and the defendant-physician’s deviation from the standard of care would be a physician. Why, then, have courts permitted non-physicians to …

Florida's "Brave New World": The Transition From Frye To Daubert Will Transform The Playing-Field For Litigants In Medical Causation Cases, Erica W. Rutner, Lara B. Bach

Barry Law Review

No abstract provided.

Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill

David S Caudill

My focus is on an apparent trend at the intersection of the fields of evidentiary standards for expert admissibility and professional responsibility, namely the eagerness to place more ethical responsibilities on lawyers to vet their proffered expertise to ensure its reliability. My reservations about this trend are not only based on its troubling implications for the lawyer’s duty as a zealous advocate, which already has obvious limitations (because of lawyers’ conflicting duties to the court), but are also based on the problematic aspects of many reliability determinations. To expect attorneys - and this is what the proponents of a duty …

The Epistemological Trend In The Evolution Of The Law Of Expert Testimony: A Scrutiny At Once Broader, Narrower, And Deeper, Edward J. Imwinkelried

Georgia Law Review

The thesis of this Article is that we are moving toward a
fundamentally epistemological approach to determining
the admissibility of expert testimony. The first part of the
Article notes that while many Frye jurisdictions exempted
soft science and nonscientific expertise, the Daubert line of
authority mandates that like an epistemologist, a trial
judge examine knowledge claims by any expert. The
second part addresses the question of the breadth of the
judge's analysis. The second part points out that under

the marketplace and general acceptance tests, courts
sometimes conducted a global analysis and inquired
generally whether the discipline itself was recognized …

Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill

Pepperdine Law Review

My focus is on an apparent trend at the intersection of the fields of evidentiary standards for expert admissibility and professional responsibility, namely the eagerness to place more ethical responsibilities on lawyers to vet their proffered expertise to ensure its reliability. My reservations about this trend are not only based on its troubling implications for the lawyer’s duty as a zealous advocate, which already has obvious limitations (because of lawyers’ conflicting duties to the court), but are also based on the problematic aspects of many reliability determinations. To expect attorneys - and this is what the proponents of a duty …

No Expertise Required: How Washington D.C. Has Erred In Expanding Its Expert Testimony Requirement, Colin Miller

Faculty Publications

No abstract provided.

Comparative Bullet Lead Analysis: A Retrospective, Paul C. Giannelli

Faculty Publications

For over thirty years, FBI experts testified about comparative bullet lead analysis (CBLA), a technique that was first used in the investigation into President Kennedy’s assassination. CBLA compares trace chemicals found in bullets at crime scenes with ammunition found in the possession of a suspect. This technique was used by the FBI when firearms (“ballistics”) identification could not be employed – for example, if the weapon was not recovered or the bullet was too mutilated to compare striations. Although the FBI eventually ceased using CBLA, the Bureau’s conduct in first employing the technique and then defending it after it was …

Pretrial Discovery Of Expert Testimony, Paul C. Giannelli

Faculty Publications

No abstract provided.

State V. Riker, Battered Women Under Duress: The Concept The Washington Supreme Court Could Not Grasp, Ann-Marie Montgomery

Seattle University Law Review

Although some people have the option of going to the police after receiving threats on their lives, this was not the case for Deborah Riker: Deborah is a battered woman. Since age nine, Deborah suffered repeated torture and abuse at the hands of men who were in her life. In 1987, Deborah met Rupert Burke, a man who abused both women and drugs. When Burke threatened both Deborah and her sister, Deborah did what he told her to do: she soldhim cocaine. As a result, Deborah was charged with delivery and possession of cocaine. Deborah's case presented the classic defense …

Experts As Hearsay Conduits: Confrontation Abuses In Opinion Testimony, Ronald L. Carlson

Scholarly Works

The dispute over whether litigants may use experts to run unexamined hearsay into the trial record is a microcosm of a larger debate. The larger question is whether judicial review of expert testimony should be passive, or whether the expert witness process should be marked by active judicial policing. Does the plethora of expert opinions presently being offered in modern trials merit special scrutiny by the courts?

Some scholars urge that courts must accommodate experts. Proponents of this view favor few challenges to the unrestricted rendition of opinions by an expert, whether the expert is real or self-proclaimed. Under this …

Evidence--Expert Testimony--Quantity And Quality Required To Establish Casual Relation, Linda L. Hupp

West Virginia Law Review

No abstract provided.