Monday, August 3, 2015

Peer Review of Expert Testimony

The Mississippi Supreme Court decided Memorial Hospital at Gulfport v. White last Thursday located here.  The trial court had returned a Plaintiff verdict which the Defendant attacked on appeal by arguing the expert testimony of the Plaintiff was inadmissible since it was not supported by medical literature.  The following quote is the analysis of that issue which is worth filing away:   

“…under our precedent, medical experts are not required to support their opinions with medical literature.  We did state in Hill v. Mills that “when an expert (no matter how qualified) renders an opinion that is attacked as not accepted within the scientific community, the party offering that expert’s opinion must, at a minimum, present the trial judge with some evidence indicating that the offered opinion has some degree of acceptance in the scientific community.”  But we made it clear that we were not creating a requirement that an expert’s opinion be supported by peer-reviewed literature.  Indeed, we stated that we were not retreating from our ruling in Poole, where we held that peer-reviewed literature and publications are not absolutely required, and their absence does not constitute automatic inadmissibility. Here, Memorial did not challenge the opinions of White’s experts as contrary to the scientific community.  And it did not present medical literature that contradicted the opinions of White’s experts.  Rather, this case presents nothing more than a classic example of a  “battle of the experts.”  White presented experts who supported a reasonable probability of a substantially better outcome, whereas Memorial offered expert testimony that supported only a potential chance of a substantially better outcome.  And as we consistently have held, the fact-finder—in this case, the trial judge—determines the winner of a battle of experts.”

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