Last week, we talked about the general arguments to exclude from a tort case any determination by the SSA of disability. This week, I am going to outline some reasons why the medical opinion of the physician used in the SSA determination should be excluded.
Like most other jurisdictions, there are limitations on the admissibility of expert testimony. Louisiana Article 702 of the Code of Evidence governs the admissibility of expert testimony. It provides:
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.
Article 702 is identical to Federal Rule of Evidence 702. In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786 (1993), the United States Supreme Court established the framework for the admissibility of scientific expert testimony under Federal Rule of Evidence 702. The Louisiana Supreme Court adopted the Daubert test in State v. Foret, 93-0246 (La. 1/30/93), 628 So.2d 1116.
Expert testimony must rise to a threshold level of reliability in order to be admissible. Id. at 1123 (adopting Daubert). To be reliable, such testimony requires more than “subjective belief or unsupported speculation,” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,113 S.Ct. 2786, 2795, 125 L.Ed.2d 469 (1993). Under the Daubert/Foret test, the trial court is charged with a “gatekeeping responsibility” to ensure that all expert testimony is “not only relevant, but reliable.” Daubert, 509 U.S. at 590, 113 S. Ct. at 2795. 
In civil cases, when a pre-trial Daubert motion is filed, the trial court is required to either order a pretrial or status conference under Louisiana Code of Civil Procedure article 1551 to discuss or simplify any Daubert issues or, if still not resolved, hold a pretrial contradictory hearing to allow the trial court an opportunity to determine whether the proposed expert testimony is reliable. Benn v. Hilton Hotel, Inc., 02-0620 (La. 5/10/02), 815 So.2d 830; Caubarreaux v. E.I. Dupont de Nemours, 97-978 (La.App. 3 Cir. 5/6/98), 714 So.2d 67, 71.
In making this preliminary determination, Article 702 first calls for the trial court to examine the expert’s qualifications as an expert witness. Additionally, the trial court should apply several factors to determine whether the reasoning and methodology underlying an expert’s testimony is scientifically valid and can properly be applied to the facts at issue.
These factors include:
1. whether the expert’s theory or technique can be and has been tested;
2. whether the theory or technique has been subjected to peer review and publication;
3. the technique’s known or potential rate of error; and
4. whether the methodology is generally accepted in the scientific community.
For the medical doctor who made the determination in the SSA hearing, he/she cannot be subpoenaed (as outlined in the previous blog post), so you cannot evaluate his/her methodology or expertise. For these reasons alone, you can exclude the doctor’s testimony, as well as his assessment (See the blog from last week).
We often get orthopedic surgeons or general surgeons making a determination that the Plaintiff is unable to return to work, but neither are qualified to perform functional capacity evaluations.  They typical do not perform any testing to determine his level of strength, ability to lift, stamina, or  pushing and pulling ability.  
In other words, they follow no reliable technique or methodology to determine if a plaintiff is incapable of working.  They offer nothing more than “subjective belief or unsupported speculation.” See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,113 S.Ct. 2786, 2795, 125 L.Ed.2d 469 (1993). 
Of course,  as  good  an argument as this may be, good luck in getting it excluded! I don’t mean to be cynical, but we all know the game.
Yet, we keep up the fight, right?

As always, if there is anything I can do to assist you in north Louisiana or northeast Texas, please don’t hesitate to call day or night. For more information about the firm, go to our website located at www.perkinsfirm.com.

Mark Perkins

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