| In the case of Ellison v. United States, the plaintiff suffered a stroke after receiving dental care at a VA hospital. The instant medical malpractice case resulted. At the heart of the case was whether plaintiff’s expert, a 37 year dental veteran, could testify since he: (a) did not know what other dentists were doing when the plaintiff’s accident occurred; and (b) came to a different conclusion than one of the major dental teaching texts — http://pdf.wcmlaw.com/pdf/VA.pdf
The trial court in the EDPA allowed the expert to testify. The court ruled that a trial court’s rule is not determine whether the expert’s opinion is correct, but rather whether “the opinion is based on reliable methodology and reliably flows from that methodology and the facts at hand.” In making this decision, the court needs to look at such factors as : “(1) whether a method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique’s operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put.” However, the court stressed that not all factors needed to be met to satisfy the expert test and no one factor is dispositive. Here, in light of the evidence, the court ruled that the plaintiff’s expert opinion was based on scientifically valid principles and thus allowed the expert to testify. For more information about this post, please contact Bob Cosgrove at |
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