LJN Newsletters

Increasingly, expert witnesses' opinions are subject to the scrutiny of the professional organizations to which they belong. This scrutiny can act as a check on their proffered expert testimony. The requirements of admissibility of expert opinion at trial have long been subject to the requirements of Daubert v. Merrill Dow Pharmaceutical Inc., 509 U.S. 579 (1993), and after admission, the opinions are often second-guessed by an unhappy client in a subsequent lawsuit, as in LLMD of Michigan v. Jackson-Cross Co., 740 A.2d 186 (Pa. 1999). Now we're finding that the further review of these same opinions by the expert's own specialty professional organization is being used increasingly as a new strategy of attack by the expert's unhappy opponents.

The Associated Press has reported that medical students and physicians are now being taught that an open acknowledgment of regret for medical errors, even an apology, may help doctors avoid malpractice lawsuits. In Illinois, malpractice reform legislation includes a concept known as "Sorry Works," recommending that an apology be offered when mistakes are made or untoward results occur. Within the overall context of medical malpractice risk management, a recent evolution in dispute resolution philosophy suggests that direct, forthright communications between physician and patient may reduce the risk of future litigation.

Court rulings across the country are showing that the increased use of genetic testing has substantially expanded physicians' liability for failure to counsel patients about hereditary disorders. In recent years courts in Minnesota, North Carolina, Massachusetts, New Jersey, Utah, Michigan, New York, Ohio, Georgia, Pennsylvania and Virginia have ruled on medical malpractice cases stemming from genetic testing issues. Decisions issued in those courts have tried to carve out rules on when physicians have a duty to relay information gleaned from genetic testing.

Part Two of a Two-Part Article. In last month's newsletter, we looked at the symptoms of traumatic brain injury (TBI) and the incentives plaintiffs who claim such injuries may have to exaggerate their symptoms. In this month's conclusion, we see how forensic experts test for and detect this type of fraud on defendants and their insurers.

Recent rulings of importance to you and your practice.

Lawyers for two Christian legal groups, the Liberty Counsel and the Alliance Defense Fund, were not satisfied with Attorney General Bill Lockyer's first meaty arguments in defense of California's marriage laws. The two groups rushed to the courthouse to try to stop San Francisco's same-sex marriages last winter. They want to be more than amici in the case -- they want to take part as parties to the litigation. As amici, the groups would be able to submit written arguments, and perhaps take part in oral argument; however, if they are considered parties, they would be able to argue orally, enter evidence, cross-examine witnesses and participate in strategy

A New York couple's short marriage may have a lasting effect on New York state law. The Appellate Division, Second Department, said a tort suit between spouses cannot be filed separately from, and after, a divorce action; the claim must be joined to the divorce suit. Accordingly, the court upheld the dismissal of a suit filed by a woman against her soon-to- be-ex-husband for intentional infliction of emotional distress and personal injuries on the basis of claim preclusion. Chen v. Fischer, 2003-00397.

The recent developments in the creation and recognition of relationships among same-sex couples have developed a momentum which, like it or not - the recent laws passed by 13 states banning gay marriage, notwithstanding - must be recognized and understood by family lawyers and other related practitioners in the areas of tax, estate planning, adoption, and other financial and interpersonal disciplines. See Wilson R: The Changing and Conflicting State of Same-Sex Marriage. The Matrimonial Strategist, November 2004.