In a personal injury claim, the plaintiff has the burden to prove that the defendant caused his or her injuries and damages. When injuries are of a medical nature, medical experts are often necessary to educate the judge and the jury on the issue of causation.
In choosing an expert for his or her personal injury suit, the plaintiffs should carefully examine a potential candidate’s training and experience, as well as question whether there are any assailable weaknesses from the defense perspective. Most importantly, the plaintiff should ensure that his or her expert cannot be accused of a speculatory opinion and that the expert is specifically able to drill down the cause of the plaintiff’s injuries.
In deciding whether to permit an expert to testify, courts will look at the proposed expert’s skill, knowledge and experience and weigh whether that expert’s opinion will likely aid in the search for truth. Implicit in this judicial examination is that the proffered expert must have a professional opinion which is steeped in sufficient facts and data.
Into the Expert’s Rabbit Hole
Let us explore the many pitfalls of expert testimony by studying a common personal injury claim: the plaintiff’s pulmonary infection that was caused by a sewage backup in his or her apartment. Right off the bat, the plaintiff should retain an expert who is a board-certified pulmonologist and who has had experience with this particular pulmonary infection. And equally as important, the plaintiff (most preferably through his or her attorney) should preserve fluid samples from the sewage backup. This is a critical step in order to preserve objective data to show that the bacteria in the water was at a sufficient level to show disease.
In drilling down an expert’s specific opinion, the plaintiff should ascertain that his or her proposed pulmonologist has experience in tracing and identifying the source of the bacterial infection. Secondly, the potential expert should have an awareness as to whether or not this specific bacteria was in the sewage water. If that is not possible, the proffered pulmonologist should at least be familiar with and cite research and literature that establish that the plaintiff’s bacterial strain could exist in sewage water.
The plaintiff’s personal injury claim may be weakened if his or her expert can only opine that the pulmonary infection likely came from the stagnant sewage water in the apartment. The plaintiff’s pulmonologist, on the other hand, should be able to provide details as to how long the plaintiff had contact with the water. Did the plaintiff wade through the water or did sewage spray from a broken overhead pipe?
Failure to get a firm hold of these expert issues early on in this case can severely weaken a plaintiff’s personal injury claim. Plaintiffs should consult with an attorney early in the case so that evidence and data may be gathered, collected and preserved. A skilled personal injury attorney in Memphis, TN may also be able to guide the plaintiff in choosing an appropriate expert. And most importantly, a skilled personal injury lawyer can help ensure that a court would find the expert to be acceptable and reliable.