000663 TRIAL LAWYERS FORUM by Nell D. Kodsi Confronting Experts Whose Opinions Are Neither Supported nor Directly Contradicted by Scientific Literature n complex litigation, cases are is often a question that experience." Third, recent case law ate we often won or lost based on who ask layjurors to decide, lfthis same interpreting the rule a•ainst "bol- oncologist were retained stering'" can be read to prohibit using wins the "battle of the experts." as an ex- Yet, one of the main weapons pert witness by a plaintiff who was your own expert to testifb.." regarding exposed to X and developed cancer that experts use for "battle" in the the lack of scientific literature on a medical and scientific arenas !or by a defendant who is claiming given topic. sci- entifi and medical literature is that X was the alternative cause Obstacles to Confronting Pure often notab]y absent in Florida court- of plaintiff's cancer as opposed to Opinion Testimony in Florida rooms. Not only are juries deprived some exposure attributable to his clientl, and the oncologist formed Florida courts have defined "pure of citation to literature because of its opinion" testimony status in Florida as "•earsay,'" but the opinion that X caused plaintiff's an expert as cancer, then, under the pure opinion opinion that is based on the expert's .judges have been reluctant to look to in Florida, this oncologist "personal experience and train- literature as a means of disallowing doctrine expert opinion testimony when that may very well be permitted to testify ing. In HoW Cross Hospitu[, lnc. u. Marrone, 81• So.2d 1113 !Fla. testimony is based on pure opinion. at trial regarding his opinions. Imagine the following scenario: A The lawyer confronting such 4th DCA 2001•, the Fourth District an expert typically would have three an- world renowned oncologist makes articulated the difference between gles of attack: 1) Try to get the com-t expert opinions admissible under. a presentation a committee of to the pure opinion doctrine and those oncologqsts that based on his years to exclude the expert's testimony; that are subject to a Fo,e ana]ysis: of treating cancer patients, he be- cross-examine the expert on the lack of a basis for the opinion; 3) utilize Pure opinion refers to expert opinion lieves exposure to chemical X causes the attorney's own expert to explain developed from ind•,ctive reasoning cancer. Yet, this oncologist has abso- based on the experts' own experience, lutely no scientific studies t.o present why this opinion is incorrect. Por each observation, or research, whereas in support of his opinion. Rather, the of these modes of attack, the most oncologist has treated thousands of power•hl weapon is the fact that the the F}3,e test applies when an expert cancer palients who were exposed to witness reaches the conclusion by opposing ex'pert's opinion has no basis deduction, from app].•qng new and X, emd he believes that lhere must be in scientific or medical literature. novel scientific principle, formula, a causal link between their exposure Yet, each of these chosen avenues or procedure developed by others. and their cancer. •hq•ile many of us of attack is littered with obstacles. case law regarding In some ways, the distraction be- might view this opinion as a sugges- First, Florida tion for someone to study the issue pure opinion testimony may make tween opinions that must meet the more thoroughly, few of us would /•>)'e test and those that are based on the lack of literature irrelevant in an likely rely on the opinion of' one on- pure opinion seems cotmt.erin1•uitive attempt to exclt•de the expert. Sec- and potentially counterproductive. It" cologdst as proving that exposure to ond, a question on cross-examination asking t}•e witness about tile lack of an expert witness dares to utilize sci- X causes cancer. entific literature as a tool in helping As absurd as this hypothetical literature could very well elicit the following unhelpful answer, "I didn't form an opinion, then the court can may seem, this is just the type of and will scrutinize that opinion under opinion that Florida courts have even bother to look for lit.erature. •..we. In ttoly Cross, for examp]e, the have been practicing medicine held admissible based on the "pure Fourth District held that an expert's opinion doctrine."Thus, determining over 30 years and have seen expo- opinion regqrding when sure to X cause cancer in hundreds a patient's whether such an opinion supports cancer spread to the lymph nodes a conclusion that X causes cancer of my patients. don't know if there is any literature on this; was subject to a FWe analysis because while not a question we would just ½•ow expect expert onco]ogists it to be true based on my own clinical the expert relied to evalu- on cm•cer stagnng THE FLORIDA BAR JOURNAb"JUNE 2006 80
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