Health Care Litigation: Selecting the Right Expert is Critical for a Successful Case

Health care litigation is often inherently complex, regardless of the nature of the health care dispute. Whether the audience is a jury, judge, or arbitrator (or other tribunal) a case may require explanation of technical scientific matters, complex pricing arrangements, and/or health care industry-wide standards (and more). Depending on the nature and scope of an expert witness’s testimony, a party’s expert can be key to adjudication of a dispute in the party’s favor. Thus, selecting the correct expert is critical to any health care entity’s case, and parties must be thoughtful about selecting the correct expert for their case.

While an expert’s credentials can be compelling, a winning expert requires deep subject-matter expertise, including an understanding of the laws governing the dispute, among other factors. Key factors to consider in selecting an expert for any given health care litigation include:

1. The potential expert’s methodological framework. The testimony of all testifying experts is subject to the admissibility standards established by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). Per Daubert, expert testimony is admissible only if it is both relevant and reliable. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). The Daubert Court listed four factors that a tribunal may weigh to assess the relevance and reliability of an expert witness’s testimony:

• Whether a theory or technique can be and has been tested;
• Whether the theory or technique has been subjected to peer review and publication;
• Whether a theory or technique has a high known or potential rate of error and whether there are standards controlling the operation; and
• Whether the theory or technique enjoys “general acceptance” within its “relevant scientific community.” Id. at 149-50.

In order to avoid expending all the resources required to select, onboard, and prepare an expert witness for trial, including with respect to the expert witness’s written report, only for a tribunal to deem the expert’s testimony inadmissible, it is critical that any lawyer selecting amongst potential expert witnesses first strongly consider the admissibility of any potential expert’s anticipated testimony. This initial step requires the selecting lawyers themselves to gain a significant grasp on the technical items that require the expert’s opinion.

An expert’s pitch for an appropriate framework for presenting and assessing a dispute cannot only “sound good.” Any lawyer assessing that pitch must be able to understand the expert’s proposed methodology and any potential weaknesses in that methodology. While this may require additional work for attorneys looking for the right expert, such attorney homework is necessary to not only ensure the expert’s testimony is admissible, but also to present a winning case, including through the expert’s testimony.

In any event, as the opposing party’s attorneys will certainly be assessing the admissibility of any selected testifying expert, so should the selecting attorney. This means assessing, prior to engaging an expert, whether the expert’s proposed theory or technique can and has been tested and/or has been subject to peer review. If not — or if the theory can be tested but simply has not been, or the expert does not plan to test the theory — that may weigh against selecting that potential expert candidate. If the potential expert cannot point to any standards or principles governing their methodology, that likewise may be a red flag against selecting that candidate. The same is true if the potential expert’s theory or technique is not “generally accepted” by the relevant scientific community.

Although not a strict admissibility requirement (particularly because experts generally may not provide legal opinions under Federal Rule of Evidence 702), attorneys assessing potential expert witnesses should also consider the expert candidate’s understanding of the laws governing the dispute. In other words, can the potential expert articulate why their theory or technique produces the “correct” result consistent with the law at issue? Although the expert his or herself will likely not opine on that law, the attorney trying the case should be able to seamlessly explain why that expert’s opinion comports with the law (or contract or rule or regulation) that a party contends was violated. Simply because an expert had success with that theory in one jurisdiction does not mean that another jurisdiction will perceive the same facts as favorably under that jurisdiction’s different law.

2. The potential expert’s credentials. While certain CVs may seem impressive, attorneys assessing expert witness candidates must truly understand what experience the expert has that is relevant to the dispute. Naturally, there are endless different specialties and sub-specialties involved in health care litigation requiring different types and levels of expertise. Selecting the right expert for a health care dispute requires selecting an individual with deep knowledge of and/or involvement in the specialty at-issue. For example, a general surgeon may not be qualified to opine on neurosurgical care, and a nursing expert would not be appropriate to opine on physician-level decisions. Nor would any given dentist be qualified to opine on orthodontia. Nor would any given doctor or surgeon who has never been employed by an insurer have experience relevant to opine on insurer internal billing practices and policies.

Also relevant is the length of time the expert has been involved in (or out of) his or her respective specialty. For example, a recent medical school graduate who has not actually practiced much if at all will be significantly less compelling (not to mention, raise questions of admissibility of such individual’s testimony) as compared to a surgeon who has been practicing for twenty years. On the flip side of that, if a potential expert retired from his or her respective practice and has ceased practicing for any meaningful period of time but nonetheless practiced for decades when he or she did practice medicine, the scepter of risk raises that the expert’s theory or technique is outdated or otherwise inappropriate for the dispute at hand.

Moreover, understanding the actual content of a potential expert’s CV is key to maintaining the expert’s credibility at trial. While many achievements are certainly laudable, be sure that an item on a CV is indeed a genuine achievement. For instance, it may appear impressive that the expert is a member of a certain organization or received certain credentialing. But can anyone pay a fee to become a member of that organization? Was the credentialing a matter of “pass/fail” and is that industry standard credentialing? Particularly in health care litigation, it is important to assess whether the potential expert has all relevant credentialing and/or met all relevant continuing education requirements. For example, while the expert may have previously been a practicing neurosurgeon, if the dispute involves a neurosurgery sub-specialty for which the neurosurgeon does not have certification for, that neurosurgeon’s education and experience is likely not as relevant to the dispute as one may have initially anticipated.

Attorneys selecting an expert witness must also consider that individual’s publications, speaking engagements, and any publicly available expert opinions previously prepared by the potential expert and submitted in another litigation. Specifically, before selecting the individual as the party’s designated expert, it is important to analyze such materials to determine whether the expert has ever contradicted his or her stance as presented in the present dispute, and if so, if that contradiction could be successfully addressed in the present dispute.

Of course, any disciplinary record or loss of licensure is also relevant to assessing the credibility of the expert candidate, as are any prior instances of the expert’s opinion being excluded by a tribunal. In the latter instance, if the opinion that the potential expert anticipates giving has been excluded by even one other tribunal because of the expert’s credentials, depending on the factual nature of the dispute at hand, that may be a difficult hurdle to get around. The same is true if the facts of the present dispute are analogous to those present in other cases in which the expert’s opinion was deemed to be inadmissible due to the unreliability of the opinion.

3. The ultimate audience to whom the expert will be presenting. The audience the potential expert’s opinions are directed at matters in selecting an expert. If the expert is being selected for a jury trial, there are a couple different factors an attorney should consider:

• First, how well can the expert articulate the complex issues that require explaining. This factor is important regardless of the audience, but the level of explanation required of an expert may differ depending on if the trier-of-fact is a jury or a judge and the complexity and novelty of the issue at hand. One of the core purposes in choosing to engage an expert is to distill complex information to a trier-of-fact. That is not an easy task, but it is a task required of a successful expert. This means not only explaining such information simply and clearly, but also in a way that keeps the jury engaged.
• Second, and relatedly, assess whether the potential expert confident in publicly speaking about his or her opinion. Not all intelligent folks are great public speakers, and as trial lawyers know, how a witness presents to, or is received by, a jury, can make or break a jury’s perception of a witness and the witness’ credibility.
• Third, it is important to consider whether the expert’s specialty is one that jurors may be skeptical of, or if it is something that jurors will embrace. For example, in an insurance billing dispute, although an expert for the insurer that has exclusively worked for big-name insurers for the duration of his or her career will have the requisite subject matter knowledge to opine in such case, consider whether a jury will be skeptical of such an expert “bought by” big insurers, particularly where the opposite party is sympathetic to a jury.

Of course, health care litigation is broad and spans a wide variety of different specialties and sub-specialties, which inherently calls for all different types of experts. However, keeping the above general principles in mind when selecting an expert witness for any health care litigation is key to securing the best expert witness possible for a client.

Foley is here to help you address the short and long-term impacts in the wake of regulatory changes and litigation concerns. We have the resources to help you navigate these and other important legal considerations related to business operations and industry-specific issues. Please reach out to the author, your Foley relationship partner, or to our Health Care Practice Group and Health Care Litigation Area of Focus with any questions.