“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.”
I was reminded of this passage from the Lewis Carroll classic “Through the Looking-Glass” as I read the Ohio Supreme Court’s unanimous ruling in Johnson v. Abdullah, a medical malpractice case that shines a spotlight on one of the most important and misunderstood aspects of civil and criminal trials: expert testimony.
Most people, especially those who have watched one or more of Law and Order’s 47,985 episodes, recognize that expert testimony is important because it often determines the outcome of a case. That is why attorneys, including my partners and me, devote hundreds of hours and tens or hundreds of thousands of dollars to preparing, presenting and/or impeaching experts.
What non-lawyers do not know, however, is that a federal or state court judge — and I say this with all due respect — is basically Humpty Dumpty when it comes to deciding who is or is not an expert based on what may be the most loosely defined and subjective criteria in American jurisprudence.
In the federal system, a person qualified by knowledge, skill, experience, training or education may testify as an expert if the trial judge determines they meet both four subjective benchmarks established under Rule 702 of the Federal Rules of Evidence and five ephemeral “Daubert Standards” used to assess whether their scientific testimony is based on valid reasoning that can be applied to the facts in the case.
Once a witness has gained these dual stamps of approval it is difficult, if not impossible, to debunk their testimony unless opposing counsel can undermine the expert’s credibility and create reasonable doubt about their expertise in the minds of the jury — a feat I accomplished when I cross-examined an ATF agent in a firearms case that ended in the acquittal of my client.
As the ruling in Johnson v. Abdullah illustrates, the rules governing expert testimony in Ohio parallel the federal standards. The case involved a medical malpractice suit the surviving siblings of David Johnson filed against Dr. Anthony Abdullah in 2017. Before the case went to trial, counsel for the Johnson family objected to allowing Dr. Ronald Walls to testify on behalf of Abdullah because Ohio’s Rules of Evidence only allowed physicians who spend more than 50% of their time in “active clinical practice” to testify as expert witnesses.
The attorney’s based their objection on the fact that Dr. Walls, who is a respected physician, was employed as the chief operating officer of Brigham and Women’s Hospital in Boston, Mass. and was not caring for patients. The trial judge overruled the plaintiff’s objections and permitted Dr. Walls to testify. The jury in the case ruled in favor of Dr. Abdullah.
The Johnsons challenged the verdict in the First District Court of Appeals and won. The Appellate Court ruled that if a physician acting as COO can be considered engaged in the active clinical practice of medicine, so could a nonphysician COO which would be completely contrary to the Ohio Rules of Evidence.
Dr. Abdullah then appealed to the Ohio Supreme Court. Justice Patrick Fischer writing for a unanimous Court said that while “active clinical practice” is not defined in state law or in the rule, the courts have held that it is work “related or adjunctive to patient care,” a definition meant to prevent the use of “hired gun” physicians who spend the majority of their time testifying against fellow physicians in the state’s courts.
The justices remanded the case back to the trial court for rehearing where Dr. Walls, despite having a wall full of diplomas, will not be allowed to testify as an expert.— Attorney David Betras, a senior partner at Betras, Kopp & Harshman LLC., directs the firm’s non-litigation activities and practices criminal defense law in both the state and federal courts. He has practiced law for 35 years. Have a legal question you'd like answered here? Send it to email@example.com.