A Maryland plaintiff was stripped of a medical malpractice damages award of nearly $1 million after her expert witness was disqualified for failing to meet the requirements of Maryland Code 3-2A-04(b)(4). In an unreported opinion for Brenda Brown v. Falik & Karim P.A., et al. released October 2, 2020, the Maryland Court of Special Appeals held that the plaintiff’s expert witness did not pass the state’s “twenty-percent rule,” which precludes an expert witness from testifying in medical malpractice cases if the expert spends more than 20% of their time on expert witness activities.
Brown v. Falik & Karim
In Brenda Brown v. Falik & Karim P.A., et al., the plaintiff sued the defendants, a physician and their practice, after her husband passed away due to complications from back surgery performed by the defendants. The plaintiff’s case depended heavily on testimony provided by her expert witness, an orthopedic surgeon. Although the initial expert witness certification stated that no more than 20% of the expert’s activities involved serving as an expert witness, the expert himself was unable to provide documentation tracking the time he spent on expert witness work each year.
Despite the defendants’ objections, the trial court allowed the plaintiff’s expert to testify, finding that he was qualified to serve as an expert despite clear information surrounding his compliance with the 20% rule. The case resolved in favor of the plaintiff, including a damages award totaling $911,227.02.
Following this decision, the defendants filed a motion for judgment notwithstanding the verdict, arguing that the expert witness should be disqualified. After trial, the trial court acknowledged its error and entered judgment notwithstanding the verdict on behalf of the defendants. The Court of Special Appeals found that this judgment was not made in error.
The Risk of the Professional Expert
Maryland’s rule requiring medical malpractice experts to limit their expert witness work to 20% or less of their total annual work is one of many such rules nationwide. The goal of these rules is to reduce the impact of the “professional expert witness” phenomenon. A professional expert witness is one whose primary work is done as an expert witness, not as a participant in a particular scientific or technical field. Also known as “hired guns,” these witnesses often find themselves facing challenges in court.
Maryland’s rule, for example, seeks to ensure that medical malpractice experts spend at least 80% of their time engaged in the practice of medicine or related disciplines. By requiring so much of an expert’s focus to remain on non-case-related work, such rules seek to meet several goals. First, rules like this help ensure that an expert witness has relevant, up-to-date experience in their field. When an expert witness spends most of their time practicing within their discipline, the risk that their expertise will become merely academic is reduced. Practicing expert witnesses constantly learn and update their knowledge by applying it to real-world problems.
Expert witnesses who focus primarily on their professional work also establish that their livelihoods depend on the work itself, not on their testimony in court cases. As a result, claims that the expert is saying whatever the hiring attorney wants them to will carry less weight. An expert witness who does not depend on giving testimony or writing expert reports to survive financially has less incentive to give testimony that pleases the party who hired them. In both cases, an expert witness’s active participation in their field becomes key to establishing the witness’s credibility.
Preparing for a Hired Gun Challenge
A challenge to an expert witness based on the expert’s professional expert or hired gun status may be based on one more grounds. Applicable state law or rule of procedure, if it exists, will often provide the basis for such a challenge. The arguments made in favor of the challenge, however, may cover grounds ranging from bias to junk science to litigation costs.
In the Maryland case, the fact that the expert witness could provide no documentation as to how he spent his time became a key issue—one that ultimately led to his disqualification. When an expert’s time in various roles must be quantified, documentation like calendars and timesheets can play an invaluable role.
When the expert’s credibility is the key issue, bolstering that credibility is essential. Focusing on the expert’s CV, professional connections, and work done can help defend against claims that the expert is no more than a hired gun. Even experts that spend relatively little time working in their fields may be deemed credible if the work they do is well-regarded and of high quality.