It’s not proper to exclude an expert merely because he’s not a specialist, says NM Court of Appeals

Tamiflu Photo is in the public domain
Photo is in the public domain

In Holzem v. Presbyterian Healthcare Services (July 17, 2013), the Court of Appeals issued a reminder that New Mexico’s standard for the admission of expert testimony is liberal. The fact that a doctor is not a specialist, or have a particular credential, in a given area of medical practice does not mean that his testimony can be excluded, provided that he otherwise has experience in that area.

Douglas Reid, age 34, sought treatment at one of defendant’s urgent care centers, where he was provided with palliative treatment and then sent home. His condition worsened, and was admitted to a hospital, but he died the next day of Influenza B that had not been diagnosed. Plaintiff alleged that defendants were negligent for failing to diagnose the condition.

Plaintiff offered an expert physician, Darwin Palmer, to support the case. Defendants moved to exclude him because he was not a specialist in emergency medicine, and had no experience with Tamiflu. Dr. Palmer was, however, a specialist in infectious diseases, and while he testified at deposition that he hadn’t practiced medicine after Tamiflu became available, he later provided affidavits saying that he had lots of experience treating flu victims, and really did have experience prescribing Tamiflu after all.

Defendants moved to exclude these late-submitted affidavits, but the trial court didn’t rule on that motion. The trial court did, however, find that the expert lacked experience in emergency medicine, excluded his testimony, and granted summary judgment to the defendants because Dr. Palmer was Plaintiff’s only expert.

The Court of Appeals reversed.  Judge Hanisee’s opinion noted that under Rule 11-702, an expert may be qualified by “experience” and “knowledge” to testify, and therefore need not be a specialist, or possess a certain credential or level of education, as long as he or she has background that provides sufficient “experience and expertise” to testify. Dr. Palmer was a specialist in infectious diseases, had years of experience in treating influenza patients, including the prescription of Tamiflu. And while defendants objected to Dr. Palmer’s affidavits that contradicted his deposition testimony, the trial court had not ruled on that issue, so the affidavits were part of the record that had to be considered on summary judgment.

The takeaway here is that if you want to exclude your opponent’s expert, focusing on the expert’s lack of specialization, or lack of a particular credential, license, or education, is probably not going to succeed as long as he or she has practical experience in the relevant area of expertise.  And if you do succeed in excluding an expert on that basis, you’re flirting with reversal on appeal. In this situation, New Mexico’s appellate courts have expressed a marked preference for allowing the expert to testify, and allowing the expert to be cross-examined on his or her lack of specialization or credentials.



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