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The starting point for any successful challenge under Federal Rules of Evidence (FRE) 702 and Daubert is the form and content of the witness's disclosure under Federal Rules of Civil Procedure (FRCP) 26(a)(2). Here is all you have to know.
Like baseball batters in a line up, the home run potential of any given Daubert motion varies greatly. (A Daubert motion is one seeking to exclude unqualified expert evidence. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).) Statistics go out the window with every at-bat because statistics cannot predict individual performance. Players without a good eye for the fast ball usually do not make it to the big leagues; lawyers without the skill set to deconstruct and demonstrate the methodological flaws in a disclosure of opinion testimony may get to play in the big leagues, but they have terrible batting averages. What can be done to improve the odds?
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Exclusion of Evidence: The FDA’s 510(k) Process
By Janice G. Inman
In a drug or medical device injury case, one of the defense’s most potent arguments is often that the product in question underwent FDA approval, so the balance of its safety and efficacy has already been determined. But when a device is approved for sale to the public through the FDA’s 510(k) process, the rigorous safety and efficacy analysis required of new and unique medical devices has not been undertaken.
Physician Extenders or Liability Expanders?
By Kevin Quinley
For health care services to serve an influx of patients, so-called “physician extenders” now carry out functions previously performed by doctors. The aim of this article is to examine factors driving the growth in physician extenders, identify liability “hotspots” and offer tactics for health care providers to use in managing professional/medical liability risks.
Paralysis Cases: Helping Your Client Cover Future Costs
By Mitch Warnock
Part Two of a Two-Part Article
Your paralyzed client currently has many problems to deal with, but the future holds many more. In order to advocate for your client, you need to gain an understanding of his or her current and future challenges, and work to maximize the resources your client will need to deal with them.
When Lack of Informed Consent Is Not the Issue
By Janice G. Inman
When an injury occurs, the first reaction of those in the medical office might be to ask, "Did the patient sign an informed consent form?" When the answer is "Yes," and the harm that occurred is listed as a possibility on that signed form, everyone can breathe a sigh of relief. Right? Not so fast.
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