A Taste of Their Own Medicine: Examining the Admissibility of Experts\u27 Prior Malpractice Under the Federal Rules of Evidence

Medical malpractice litigation is challenging for both plaintiffs and defendants. The intersection of legal issues with complex medical theories creates a dispute focused on expert witnesses, which leads to greater litigation expenses and cumbersome legal proceedings.\u27 As one scholar observed, medical malpractice has proven to be ... an unpleasant quagmire of unending skirmishes and full-scale engagements spread across a shifting battlefield. That analogy is fitting considering the stakes of a medical malpractice case-the injured patient\u27s emotional, physical, and financial well-being may be contingent on a successful outcome, while the doctor may perceive even the threat of litigation as detrimental to his professional reputation. Expert witnesses are involved in almost every medical malpractice case. To recover any damages, the patient must establish the standard of care customarily exercised by other medical professionals and that her doctor\u27s failure to provide that care caused her injuries. Essential to establishing those facts are the experts, whose testimonies and opinions aim to educate the jury and become determinative to their findings. Unfortunately, because both the plaintiff and defendant will likely call an expert to the stand, these experts can also confuse the jury by presenting contradictory testimonies, a problem known as the battle of the experts. This resulting battle between the patient and doctor\u27s experts on key elements, like the standard of care and causation, is problematic because after presenting to the jury conflicting testimonies on complex and unfamiliar subject matter, the nonexpert jury must then decide which expert is more credible or competent. Unable to bridge this knowledge gap, jurors ultimately rely on proxies, such as appearance and demeanor, to determine an expert\u27s credibility. Because attorneys understand that the jury relies on such proxies, lawyers attempt to discredit opposing experts during cross- examination by inquiring into the experts\u27 personal malpractice litigation in their capacity as a provider of medical care and other forms of professional misconduct to suggest that the expert is incompetent or not credible. This cross-examination technique poses important evidentiary questions regarding the admissibility of specific acts suggestive of an expert\u27s competency. In resolving these questions, courts disagree as to the applicable evidentiary rules that permit or prohibit parties to introduce evidence of an expert\u27s professional misconduct. While admitting this evidence is problematic because parties use it to show a propensity for negligence, it is useful to allow this evidence to be admitted given the jury\u27s inherent reliance on proxies in deciding liability. This Note examines the extent to which evidence of a medical expert\u27s prior malpractice is admissible under the Federal Rules of Evidence. Ultimately, this Note contends that while Rule 404 requires courts to exclude such evidence because parties use it to show a propensity for incompetence, this problem can be resolved by enacting an expert exception that provides juries with better proxies for expert credibility and minimizes other issues inherent in expert-focused trials. Part I provides an overview of medical malpractice law and expert witnesses. Part II illustrates the discrepancy in judicial application of character evidence rules between defendant doctors and expert witnesses when determining the admissibility of their prior malpractice. Part III asserts that prior malpractice evidence, whether proffered against the defendant or a nonparty expert, should theoretically be inadmissible under the evidence rules, as it is both outside Rule 608\u27s scope13 and prohibited by Rule 404,14 meaning courts should not apply Rule 403 to determine its admissibility. Part IV xplores two solutions: (1) complying with the rules as written and prohibiting such evidence in most cases, or (2) creating an expert exception to facilitate the admission of this prior malpractice evidence against expert witnesses. Though arguments in favor of limiting extensive cross-examination of experts\u27 character are compelling, the better solution is to permit this evidence pursuant to two standards based on Rule 403 that account for differences between party and nonparty experts. If judges thoughtfully exercise this discretion to ensure trials remain focused on medical facts and not expert competency, this framework may minimize other problems inherent in expert-focused trials, such as the battle of the experts, questionable judicial review of experts\u27 methods, and selection bias with experts, without sacrificing democratic notions of giving laypersons a role in the judicial process