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Kumho for Clinicians in the Courtroom
Two Supreme Court rulings, Daubert v. Merrill Dow Pharmaceuticals Inc., 509 U.S. 579 (1993) and Kumho Tire v. Carmichael, 526 U.S. 137 (1999), have had a profound effect on the treatment of expert testimony in the courts. In 1993, the Supreme Court, in Daubert, articulated guidelines for admissibility of scientific expertise as testimony. Later, in 1999, in Kumho, the Court focused on the admissibility of clinical expertise as testimony.
More recently there has been increasing recognition of the inconsistency of trial courts in their construction and articulation of evidentiary standards to medical testimony. One proposed remedy is that 'Physicians should respond by correcting courts' misinterpretations of medical practice and assisting in the development of legal standards that encourage thoughtful and informed consideration of medical testimony by judges and juries.' Kassirer JP, Cecil JS: Inconsistency in Evidentiary Standards for Medical Testimony: Disorder in the Courts. 288 JAMA 1382, Sept. 2002.
However, in actual practice, the integrity of a clinical expert's testimony does not depend on the clinician alone. Rather, both the understanding of the retaining attorney as to what is needed to formulate an objective expert opinion, as well as the clinician's dedication to doing so, are essential. Therefore, it is important to improve communication between testifying clinical experts and the attorneys who retained them in the service of providing the finders-of-fact with the most valid and reliable clinical expertise.
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