During a recent birth-injury trial in a Texas probate court, the presiding judge refused to admit our medical causation expert’s opinion on the mechanism of the plaintiff’s injuries. The judge asked for peer-reviewed literature to support our expert’s opinions. When we could provide no such literature, he refused to admit our expert even though the expert had a great deal of experience in birth injuries and the causal mechanisms of such injuries. Although the trial reached an agreeable resolution, our trial team could not help but wonder whether a trial judge exceeds his or her “gate-keeping” role by excluding a trained medical expert with decades of experience but no peer-reviewed literature to support his or her conclusion. This article focuses on the following grey area: whether peer-reviewed literature is required to support medical opinions based upon experience and observation rather than easily verifiable peer-reviewed studies.
In order for an expert’s testimony to be admissible, the trial court must determine whether the expert is qualified, and whether his testimony is relevant and reliable. The factors for reliability are enshrined in Federal Rule of Evidence 702. The Supreme Court’s opinion in Daubert v. Merrell Dow Pharmaceuticals (1993) interpreted Rule 702 and laid the foundation for modern reliability analysis. Rather than a rigid test for evaluating the reliability of an expert’s opinion, Daubert created a flexible, multifactor test that focused completely on principles and methodology rather than the expert’s conclusions. Likewise, the Texas Supreme Court, in E.I. du Pont de Nemours & Co. v. Robinson (1995), adopted Daubert. Like many states, Texas and federal law are complimentary on the reliability of expert opinion.
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