Circuit Court V. Federal Court Expert Selection, Preparation, and Care
Karl J. Protil Aside from case selection, the next most important
controllable aspect of your case is the selection, preparation, and care of your expert. Te purpose of this article is to discuss the multifaceted aspects of not only selecting an appropriate expert, but also what you do after the selection process. Tis article will examine the legal requirements of expert selection in both Maryland Circuit and Federal Courts, and the practical aspects of choosing your expert.
Circuit Court Rules Because a mountain of books have been written on selection
of experts and there are as many recommendations on how to choose as there are books, the easiest topic to examine are the Circuit Court rules which govern experts. To sum it up, there are very few rules which regulate or limit your ability to hire an expert of your choice. Te jury instruction states:
“An expert is a witness who has special training or experience in a given field. You should give expert testimony the weight and value you believe it should have. You are not required to accept any expert’s opinion. You should consider an expert’s opinion together with all the other evidence.”
As long as your expert can show they have special training
and experience in a given field, they may testify and your case should get to the jury. As many of you know, it is not that simple and there are many potential pitfalls along the way. Te instruction is only a starting point because, as a practical matter, almost any expert should be able to show that they have the requisite training, experience, and background to give standard of care or practice opinions against the defendant if you have done any screening at all. What the jury instruction does not say, but what you should add to it, is one very important qualification for your expert: the ability to communicate. Even if your expert is the most knowledgeable in the world, yet cannot communicate effectively, you have chosen poorly.
Health Claims Experts in medical malpractice cases have to meet
additional foundational requirements because you must file your case first with the Health Claims Alternative Dispute Resolution Office (HCADRO) prior to filing in Circuit Court. One of the requirements in HCADRO is that you file a Certificate of Merit and Report from your expert. Courts and Judicial Proceedings §3-2A-02 sets forth the statutory requirements for your certifying expert. In HCADRO, should the respondent/defendant be board certified, your expert must be in the same or related field and also be board- certified. In addition, the certifying expert must have clinical
experience, provide consultation relating to that clinical practice, or have taught medicine in the defendant’s specialty or related specialty within five (5) years of the date of the negligent act. See Courts and Judicial Proceedings §3-2A-02(c). While the requirements of the Certificate of Merit and Report are well beyond the scope of this article, your certifying expert must meet the specifics of the statute as a prerequisite to having met the jurisdictional requirements of HCADRO and having filed a proper report. You now have the sum total of all the Circuit Court and HCADRO rules governing experts.
Federal Court Rules Te same rules cited above apply to experts in Federal
Court. In Federal Court, however, your expert must provide a written report and list their deposition and trial testimony during the previous four (4) years. Keep this in mind when you choose an expert as many do not keep such a list and may be reluctant or unable to put one together.
Because
Federal Court judges are more likely to entertain Frye-Reed challenges to the experts’ opinions because of their perceived role as a gatekeeper, make sure those opinions are supported accordingly with proper foundations.
22 Trial Reporter / Summer 2009
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