Vol. 11, No. 2, Pg. 20. Treating Physicians' Opinions in Federal Court After Westberry.

• Author: By John R. McCravy III

South Carolina Lawyer

1999.

Vol. 11, No. 2, Pg. 20.

Treating Physicians' Opinions in Federal Court After Westberry

20Treating Physicians' Opinions in Federal Court After WestberryBy John R. McCravy IIIThe recent case of Westberry v. Gislaved Gummi, AB, et al, No. 98-1540 (4th Cir., May 20, 1999) will potentially impact the admissibility of all treating physician testimony in federal court. Both plaintiff and defense practitioners should be familiar with the principles enunciated in West-berry before trying a personal injury case.

The issue of admissibility of a treating physician's opinion must begin with a review of the applicable federal rule and case law. Admission of expert opinion testimony in federal court is governed by Federal Rule of Evidence 702 which 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 . . . may testify thereto in the form of an opinion or otherwise.

In the landmark case of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), the Supreme Court held that a district court considering admissibility of expert opinion testimony should exercise a "gatekeeping function" in determining whether evidence is sufficiently reliable and relevant.

The trial court must determine first, whether the reasoning or methodology underlying the experts proffered opinion is reliable and "supported by adequate validation to render it trustworthy." The second prong of the inquiry is to determine whether the opinion is relevant to the facts in issue. Id.

DAUBERT AND TREATING PHYSICIANS' TESTIMONY

As a practical matter, trial courts construed Daubert as requiring a hearing on the issue of admissibility of expert opinions. After Daubert, courts became divided on the issue of whether Daubert even applied to the testimony of treating physicians.

Some trial courts required a proffer and entertained arguments concerning scientific validity of treating physician's testimony. Still other courts held that the Daubert test was applicable only to novel scientific opinions and not to the testimony of treating physicians applying accepted methods of medical diagnosis.

EFFECT OF KUMHO ON TREATING PHYSICIANS' OPINIONS

In Kumho Tire Co. v. Carmi-chael, 119 S.Ct. 1167 (1999), the...