California court throws out "speculative" expert testimony

Ten years after a key U.S. Supreme Court ruling, many say judges are stricter about the expert testimony they allow.

By Tanya Albert, AMNews staff. Aug. 4, 2003.

In a medical malpractice trial in California, physicians admitted that leaving a retractor in a man's peritoneal cavity after a September 2000 surgery was a deviation from the standard of care. It was the question of how much damage the mistake caused that was left to a jury, particularly whether the oversight contributed to an infection.

The jury's decision would rest on what medical expert witnesses had to say. But after the plaintiff's expert witness testified, the trial court judge told the jury to disregard the expert's testimony and threw it out, saying the opinion was based on speculation, not science.

The judge's action is now on appeal to the California Court of Appeal, 4th Appellate District Division One.

The plaintiff claims that the trial judge overstepped his boundaries and engaged in fact-finding when he excluded the testimony. But the defendant doctors and the California Medical Assn., which filed a friend-of-the-court brief in the case, say the court did the right thing. And the CMA says other courts shouldn't be afraid to do the same if they have doubts about expert witnesses brought forth by either side.

"The CMA wants to stop speculative testimony from being introduced," said Susan L. Penney, the association's legal counsel. "It leads the jury down the wrong path."

The medical society's decision to file a brief in the case comes at a time when doctors nationwide are calling for stricter scrutiny of medical expert witness testimony by both the courts and the professional organizations to which testifying physicians belong.