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sure your expert qualifies before you commit to using them. Be sure to review Waldt4

and Witte5 (but beware: Waldt has been briefed to the Court of Appeals).

VI. Causation & Damages If you have designated the witness on these areas as well,

don’t gloss over them because your focus is on violations of the standard of care. You don’t want your expert doing great on violations and then getting excluded on causation. • Explain what causation means in legal context: for example, a proximate cause versus the proximate cause.

• Have them explain which damages were caused by negligence.

Equally importantly, if there are unrelated injuries, identify those as well.

• Review the language for testifying regarding medical bills:

reasonable, necessary, and causally related to

plaintiff ’s injuries within a reasonable degree of medical certainty or probability.

VII. Challenges under Daubert (federal court) and Frye/Reed (Maryland state court)

Challenges to the admissibility of expert testimony under

Daubert (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (federal court) and Frye/Reed (Reed v. State, 238 Md. 374 (1978) (state court) are becoming more common. Terefore, experts should be prepared to address (1) their qualifications to render opinions in the area to which they have been designated to testify and (2) the “scientific basis” for their opinions. Under Frye/Reed, the court must determine whether a scientific process or technique is generally accepted within the relevant scientific community. Such testimony may then only be admitted if the judge determines that the testimony will be helpful to the jury and that the expert is qualified to testify concerning that process. Te qualifications of an expert to address various scientific

topics are discussed elsewhere in this article. However, getting concessions regarding the medicine at issue from the defendant and defendant fact witnesses goes a long way on this front. Regarding whether the scientific process the expert uses to

reach their opinions is generally accepted, the expert should be prepared to support their opinions with relevant medical literature. Two Fourth Circuit cases discussing the application of Daubert to the differential diagnosis of medical causation are Westberry v. Gislaved Gummi AB, 178 F.3d 257 (1999) and Cooper v. Smith and Nephew, Inc., 259 F.3d194 (2001). In addition, throughout the country, medical causation in cerebral palsy/birth injury cases is being challenged under Daubert- type standards. Te defense will argue that if the child does not meet one of the four so-called “essential criteria” set forth in the 2003 monograph published by ACOG, the opinion that the child’s cerebral palsy was caused by birth asphyxia may be challenged as without reliable scientific basis. When such a challenge is anticipated, the expert should be prepared with alternative interpretations of the literature that will be

4 Waldt v. University of Maryland Medical System Corp., 181 Md. App. 217, 956 A.2d 223 (2008).

5 Witte v. Azarian, 369 Md. 518, 801 A.2d 160 (2002). Trial Reporter / Summer 2009 29

cited by the defense or with opposing literature. In all cases, counsel should be sure that the opinions the expert intends to render can be supported by something other than their own anecdotal experience. For a more detailed analysis of Frye/ Reed issues, please see the corresponding article in this Trial Reporter issue by James L. Otway.

VIII. Specifics of Case As a practical matter, you can integrate specific facts of

your case while going through Sections V and VI, above. • Review in detail the specifics of your expert’s opinions and the facts supporting them. Make sure the expert knows the facts.

• Review areas that you anticipate the defense will try to attack.

IX. Conclusion Obviously, the above suggestions are not exhaustive, but

should provide an appropriate starting point for conducting your expert preparation sessions. With this outline format, you can add new issues as they arise, thus improving your preparations for your other experts.

Biography Christian Mester is a partner with the law firm of Goldberg,

Finnegan & Mester, LLC of Silver Spring. His practice consists exclusively of representing victims of catastrophic injuries in the areas of medical malpractice and personal injury. He is a graduate of Brown University (B.A. Political Science) and the University of Baltimore School of Law (J.D. cum laude). Mr. Mester currently serves as Chair of MAJ’s Medical Negligence Section.

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