Volume 108
Issue 6
June '20

“Trust Me, I’m a Doctor”: Medical Malpractice as a Daubert-Free Zone

Written By: Monica Lynne Coscia

Abstract

This Note fills a gap in legal scholarship by being the first to undertake a comprehensive, fifty-state analysis of Daubert’s application to medical malpractice litigation. Most of the recent legal literature on Daubert concentrates on its application to criminal cases, mass torts, and patent litigation. Further, modern scholarship on medical malpractice focuses on damages caps and whether the standard of care should be local or national. Although scholars have waded into the intersection of Daubert and medical malpractice expert witnesses, no study has delved into why these experts get a free pass, and how we should react to this phenomenon.

This Note does not endeavor to prove that applying Daubert in the medical malpractice context would result in more just verdicts. But because the American judicial system strives for fair outcomes and fair process, admitting more reliable expert testimony should be a priority to help cultivate the latter. The admission and exclusion of expert testimony are central to whether there is fair process, so our judicial system must prioritize the admission of reliable, empirical expert testimony. Although Daubert is a flexible inquiry, it still scrutinizes expert testimony for reliability and accuracy. Because medical malpractice, first, is prevalent in the United States and, second, wreaks unquantifiable emotional pain on victims and families, fair process and Daubert bear particular and immediate importance in this type of legal action.

Part I introduces key terms and the landscape of expert witnesses, Daubert, and medical malpractice litigation. Part II presents legal scholarship’s first fifty-state survey of Daubert’s application to expert witnesses in medical malpractice cases. It concludes that a majority of state courts fail to apply Daubert, instead relying on state legislation governing expert testimony or claiming that Daubert is inapplicable to medical malpractice cases. Part III offers possible explanations for Daubert-free zones and argues that a Daubert framework is preferable for each party who perpetuates the zones. Part IV recommends that state-court judges apply Daubert—rather than industry custom—when determining the standard of care in the medical mal-practice context. Finally, the Appendix contains a comprehensive fifty-state survey of the application of Daubert to experts in medical malpractice cases.

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