In this medical malpractice case involving colon cancer, the plaintiff hired three expert witnesses. All but one was excluded from testifying.
Facts: This case (Swan v. United States – United States District Court – District of Alaska – December 1st, 2016) involves medical malpractice. The plaintiff (Swan) received treatment from the defendant (Government) for rectal bleeding. Swan alleges that the government did not inform him that he needed to follow-up his test results with a colonoscopy. When this procedure was performed in 2012, Swan was diagnosed with colon cancer. Swan seeks damages for pain and suffering, medical expenses, and lost earning capacity. Swan called three witnesses to assist in his case, all of which were challenged on a Daubert motion by the Government. Swan retained Hugh Richards (Economics Expert Witness), Dr. Judith Schmidt (Oncology Expert Witness), and Dr. Mark Gordon (Colorectal Surgery Expert Witness)
Discussion: Swan retained Richards to provide an opinion on his economic damages, including the loss of subsistence hunting and fishing opportunities. In calculating damages, Richards assumed that Swan would contribute 20% of an annual subsistence harvest. The Government argues that his report is not reliable in that it relies on faulty assumptions regarding Swan’s lost subsistence harvest and the replacement cost. The court disagreed, stating that although the United States has identified significant issues with the validity of Richard’s assumptions, these are more adequately dealt with during cross examination.
In addition, the United States argues that experts Drs. Schmidt and Gordon are not qualified to testify on the standard of care in this case as they are unqualified to do so. According to Alaska statute, a person may not testify as an expert witness unless the witness is 1) a licensed professions; 2) trained or experienced in the same discipline as the defendant; 3) certified by a board in the state as being in the same field related to the matter at issue. In the current case, the United States that an expert is disqualified unless he is either certified by the same board as the defendant or has “similar training and experience”. The court points to the second clause in the statute that an expert is not prohibited from testifying if his training, expertise directly relates to a matter at issue.
The matter at issue in the current case is the diagnosis of colon cancer from the discovery of occult blood. As long as Swan’s experts’ training, expertise, and board certifications directly relate to this matter, they will be allowed to testify. The court opined that Dr. Schmidt’s training, expertise as a board certified internist qualifies her from testifying. However, Dr. Gordon may not. His board certification in surgery does not directly relate to a matter at issue in the current case.
Conclusion: The expert witness testimony of Dr. Richards and Dr. Schmidt will be allowed. The motion to exclude the standard of care testimony of Dr. Gordon is granted.