Junk Science Rx
Tennessee Judge W. Neil Thomas III readily admits that sifting through scientific evidence and parsing medical jargon in medical-malpractice cases can be like an English major performing brain surgery.
“I could have an expert come in and I wouldn’t know whether he is telling me the truth or giving me junk science,” says Thomas, who presides over Division IV of Hamilton County Circuit Court.
His solution: Create a protocol to rate the reliability of medical experts that would be acceptable to both lawyers and physicians.
Cooperative efforts between lawyers and doctors are not new; nor are panels set up to hear and rule on the reliability of experts. But Thomas’ protocol is unique because it fuses a cooperative element with admissibility. The independent findings are never presented to the jury; the judge uses them to decide what expert testimony will be admitted. But the findings then become part of the permanent trial record, so that the judge’s decisions can be argued in context on appeal.
EXPERT CHOICES
The idea grew out of a series of meetings in 2004 between the Chattanooga Bar Association, the Chattanooga-Hamilton County Medical Society and Thomas on the hot-button topic of medical-malpractice litigation.
The Thomas protocol that emerged works like this: If a judge needs technical assistance in a case involving medical evidence, the judge can, sua sponte, consult a physicians’ panel from the local medical society to recommend three highly qualified experts from a state that borders Tennessee. If the defense and plaintiffs lawyers can agree on any one of the three, that expert is hired as an independent examiner, with the parties splitting the cost. If they cannot agree, the judge makes the pick.
Once chosen, he or she reviews the opinions of any medical experts retained by the litigants, then issues an assessment of their reliability.
The legal backbone for the Thomas protocol is Rule 706 of the Tennessee Rules of Evidence, which, like a federal counterpart, gives the court authority to appoint experts under certain circumstances.
The rule is supported by the U.S. Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), as well as by McDaniel v. CSX Transportation Inc., 955 S.W.2d 257 (Tenn. 1997).
The protocol recently met its first test in the med-mal case of a patient who died in the hospital. A specialist in infectious diseases from Kentucky was appointed to act as the independent expert. To the surprise of everyone, the expert asserted that the patient had died from something entirely different from the causes specified in the lawsuit.
While the case worked out well for the defendant doctor, the lawyer who represented the doctor, John Curtis of Leitner Williams Dooley & Napolitan in Chattanooga, says judges should limit such independent assessments to the credentials of the litigants’ experts. Anything beyond, and there’s a danger.
An independent expert “has the judge’s ear,” Curtis says. “He’s been retained by the judge, so his opinions make him into a super expert.”
Nashville plaintiffs lawyer Randall L. Kinnard of Kinnard, Clayton and Beveridge, a past president of the Tennessee Association for Justice, is more pointed: “I think it is an invasion in the jury province.”
Thomas, however, believes he’s written the right prescription. “The trial judge has got to act as a gatekeeper because the jury is in no better position—and often is in a worse position—to decide whether something is or is not junk science,” he says.
