Nursing Home Litigation
the court, can result in the dismissal of a claim or the inability to offer the expert’s testimony at trial. Tis inability can make it difficult, if not impossible, for a party to pursue/defend the claim. In the rare instance of the absence of a court scheduling order, the expert disclosure and report must be submitted at least ninety (90) days before the date set for trial. Fed. R. Civ. P. 26(a)(1)(C), Fed. R. Civ. P. 26(a)(1)(D). Should the ninety (90) day deadline need to be applied, please remember, neither party can depose an expert witness until the report is filed. Fed. R. Civ. P. 26(b)(4) (A). Tus, in order to allow for an appropriate amount of time to complete discovery, both parties should file their respective reports prior to the ninety (90) day deadline, even where there is no court order. So to summarize, the rule of thumb to follow when in federal court on a nursing home cases, as in any case, is use due diligence, review and re-review the scheduling order, and make sure to identify and comply with every requirement listed in the rules regarding the expert disclosure and the expert report. Finally, if the expert testimony is being provided solely
to rebut or contradict evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), then the designation needs to be made thirty (30) days after the opposition’s expert disclosure. Any and all expert witness disclosures must be supplemented by both parties when appropriate.
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B. Qualifying Expert Testimony in Federal Nursing Home Cases
When in federal court, no matter what the basis, your
expert must be qualified and accepted under the Federal Rules of Civil Procedure. Tis means applying Fed. R. Evid. 702 which has recently been amended to reflect the noted case, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Pursuant to Fed. R. Evid. 702, a witness who is qualified as an expert by knowledge, skill experience, training or education may testify in the form of an opinion if: a. the expert’s scientific, technical, or otherwise specialized knowledge will help the trier of fact to understand the evidence to determine a fact in issue, b. the testimony is based on sufficient facts or data, c. the testimony is the product of reliable principles and methods, and d. the expert has reliably applied the principles and methods to the facts of the case. Fed. R. Evid. 702. It is undisputed that an expert is almost always needed
in a case involving allegations of negligent medical care. Te only exception that readily comes to mind is a case involving the invocation of res ipsa loquitur. Tis argument tends to be more common in cases involving hospitals than nursing homes. However, it is always better to have an expert and solidify your case, rather than take the chance and risk a dismissal. And while the above criteria might be a difficult burden to meet for some medical malpractice or product liability cases, it should not be an overwhelming obstacle in a nursing home case. As previously discussed, the type of medicine usually being examined in nursing home cases would not typically be described as esoteric or technologically obscure. Nursing home cases tend to involve allegations regarding a healthcare provider’s lack of supervision of the resident, lack of properly administering a physician’s order (such as failing to turn and reposition a resident, failing to provide appropriate nutrition, failing to administer medication, administering too much medication, etc.), a general failure of the physician to issue the appropriate orders, or a failure of the facility to create and initiate appropriate care protocols. For these reasons, qualifying an expert’s testimony in
a nursing home case will be less about whether or not the standards of care alleged are accepted forms of medicine and more focused on what evidence the expert can provide that demonstrates that these breaches did in fact occur and, did in fact cause the injuries and/or death. Te federal courts place an especially high value on reliable publications and studies, so anything that can be pulled by your expert that can support his/her conclusions, should be. Make sure your expert has thoroughly reviewed his/her materials and that said materials are appropriately disclosed in a timely manner during the litigation process. One can rarely have too much supporting data for an expert in a federal case, and alternatively, a shortage of supporting data could jeopardize your expert’s testimony.
26 Trial Reporter / Fall 2011
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