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Kumho for Clinicians in the Courtroom

By Harold J. Bursztajn, Milo Fox Pulde, Darlyn Pirakitikulr and Michael Perlin
October 30, 2006

Two Supreme Court rulings, Daubert v. Merrill Dow Pharmaceuticals Inc., 509 U.S. 579 (1993) and Kumho Tire v. Carmichael, 526 U.S. 137 (1999), have had a profound effect on the treatment of expert testimony in the courts. In 1993, the Supreme Court, in Daubert, articulated guidelines for admissibility of scientific expertise as testimony. Later, in 1999, in Kumho, the Court focused on the admissibility of clinical expertise as testimony.

More recently there has been increasing recognition of the inconsistency of trial courts in their construction and articulation of evidentiary standards to medical testimony. One proposed remedy is that 'Physicians should respond by correcting courts' misinterpretations of medical practice and assisting in the development of legal standards that encourage thoughtful and informed consideration of medical testimony by judges and juries.' Kassirer JP, Cecil JS: Inconsistency in Evidentiary Standards for Medical Testimony: Disorder in the Courts. 288 JAMA 1382, Sept. 2002.

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