An emerging trend among the legal community has highlighted the possible shortage of expert witnesses for medical malpractice and other healthcare lawsuits. This scarcity appears to be driven by an increase in demand and a constrained supply of permissible experts, governed by standards established by the US Supreme Court several decades ago.
Malpractice verdicts of $10 million or more have surged by over two-thirds (67.7%) from 2013 to 2023 according to data from reinsurance company TransRe, as reported on Medscape. More than half of these verdicts exceeded $25 million. Several high-profile cases in Pennsylvania, New York, and Florida reflect this trend.
The Daubert v. Merrell Dow Pharmaceuticals, Inc. case from 1993 continues to impact the witness expert landscape. In response to this case, the Federal Rules of Evidence Rule 702 was amended, thereby introducing criteria to evaluate the admissibility of expert testimony. Despite the original intent to exclude “junk science” from testimony, critics argue that these changes favor well-funded defendants and burden individual plaintiffs, in addition to placing judges in the role of scientific arbiters.
One notable criticism suggests that the Daubert motion may be used as a harassment technique and a tactic for delay. Furthermore, such a hearing could add further time and cost burdens on less affluent parties pitted against well-funded adversaries.
As verdicts in healthcare lawsuits continue to ascend, it is widely anticipated that the demand for distinguished and credible expert witnesses will also increase, inevitably impacting their value and associated costs for litigants.
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