A good expert witness can make or break your auto accident lawsuit. A recent unpublished Court of Appeals case has shown why trial lawyers need to take care of and make good use of their experts.
On September 15, 2015, the Michigan Court of Appeals issued an unpublished opinion that serves as a warning to trial attorneys not to give up on their experts. The plaintiff’s attorney’s mistakes in the pretrial process left his client without recovery in part because he didn’t do what it takes to get his expert in front of the jury.
In preparing his case, plaintiff’s counsel had brought on Dr. Aria Sabit of McLaren Lapeer Hospital. For some reason, Dr. Sabit didn’t want his credentials presented to the jury. During the pretrial phase, the trial court ordered that the credentials be disclosed to the court and the defendants before he could testify.
The court ruled that the trial court did nothing wrong by requiring the credentials be disclosed. MRE 702 states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise[.]
The court said that rule makes the trial court judge the “gatekeeper” over the admission of expert testimony. That includes excluding the testimony of experts whose credentials have not been established.
On appeal, the plaintiff’s attorney argued that the doctor’s credentials were privileged, relying on Dye v St John Hosp & Med Ctr. But he hadn’t done what he needed to to protect his client’s claim. Instead of doing what the judge had ordered to get his expert witness’s testimony in front of the jury, plaintiff’s attorney decided he “[didn’t] need it.” Rather than requesting an in-camera review of the doctor’s curriculum vitae, the plaintiff’s attorney gave up on a key part of proving his client’s case.
Trial attorneys have to be tenacious on behalf of their clients. If there is an important piece of evidence, like the testimony of an expert witness, trial lawyers need to fight to tell that part of the story to the jury. Sometimes that will mean providing key documents to the court ahead of time. Other times it will mean objecting and preserving a record so a court of appeals can address it later. But it is never includes giving up on a key expert witness just because a court requests documentation of that expert’s credentials.
David Christensen is a 20 veteran trial attorney. He represents auto accident victims against insurance companies, going to bat to them and presenting their best case. If your clients are facing challenging auto accident litigation, contact Christensen Law today for a referral.