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12 Med. & L. 627 (1993)
Expert Testimony: Use and Abuse

handle is hein.journals/mlv12 and id is 631 raw text is: Med Law (1993) 12:627-641 Medicine and Law CICML 1993 Law Expert Testimony: Use and Abuse Ralph Slovenko Professor of Law and Psychiatry, Wayne State University Law School, Detroit, Michigan, United States of America Abstract There is much controversy in the law of evidence over new types of expertise, about what the expert can testify, the proper basis for expert opinion, and in what form the expert may testify. This article discusses those problems. The most controversial area in the law of evidence is the use of expert testimony. The controversy is over new types of expertise, about what the expert can testify, the proper basis for expert opinion, and In what form the expert may testify. A few years ago a prominent judge said, 'It is time to take hold of expert testimony. In the view of many, it's past midnight. The tes- timony tendered as 'helpful' is often not the case. At trial, the use of expert testimony poses two interrelated but sepa- rate questions: first, whether the subject-matter of the litigation Is such that the trier of fact may appropriately receive assistance in the form of spe- cialized knowledge; and second, whether the witness at hand is qualified to give such assistance. In resolving the first question, the test under rule 702 of the Federal Rules of Evidence (adopted in 1975) and its state counterparts is whether the testimony of the expert 'will assist the trier of fact to understand the evidence or to determine a fact in issue'. The test is called 'helpfulness'. It means that experts may testify not only on subjects beyond the ken of a lay jury (as common-law courts often held) but also allows them to aid the jury in understanding even familiar matters. According to the rule, experts, by virtue of experience or training, may provide an understanding more thor- ough or refined than that provided by ordinary experience. The advent of advanced technology has resulted in increasingly com- plex litigation and has intensified the use of expert witnesses. As recent as a generation ago the vast number of tort cases involved simple assaults and batteries - one person hitting another - while the majority of today's cases involve procedures or products beyond the understanding of a judge or jury. Technology, needless to say, pervades the practice of medicine. In cases alleging a defective product or instrument, or misuse, expert testimony has become a necessity to answer such questions: Did the physician exercise proper care? Did the manufacturer adhere to the customary practices of the industry? Was the manufacturer's design consonant with the state of the art? Was there an alternate design which could have been feasibly employed that would have kept the accident from happening or at least reduced the injuries resulting from the accident? Was the instrument properly used? 627

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