Expert Challenges Should Be Considered Long Before the Courtroom

In today's Wall Street Journal, there's an opinion piece discussing how many believe that lots of plaintiffs' lawyers are pursuing baseless claims based upon asbestos toxicity (assumedly, mesothelioma cases), entitled Colombo the Asbestos Sleuth.

Pointedly, the article describes the following - which any civil trial lawyer will quickly recognize as a Daubert challenge advanced by the defense in this case:

"Judge Colombo has been overseeing asbestos cases in which defendants were trying to disqualify Michael Kelly, a physician who had diagnosed thousands of people with asbestos-related disease on dubious grounds. The judge made clear in court that he didn't appreciate the national attention of our editorial, to put it mildly. But in the end he did the right thing by granting a hearing into Dr. Kelly's diagnoses. Tellingly, the plaintiff attorneys immediately withdrew all but one of their suits.

"The judge plowed ahead anyway, helping to expose another asbestos scam. Defendants presented evidence that Dr. Kelly was neither a radiologist nor a pulmonologist and had failed the test that certifies doctors to read X-rays for lung disease. They also showed that the overwhelming majority of hospital radiologists who had reviewed Dr. Kelly's patients found no evidence of disease. An outside panel of radiologists who looked at Dr. Kelly's work found abnormalities in only 6 of 68 patients; Dr. Kelly had found abnormalities in 60 of those 68.

"More than 90% of the lung function tests Dr. Kelly performed failed to meet basic standards. The defendants also showed that Dr. Kelly submitted nearly identical reports for every patient he saw, yet he failed to note that some of his patients also had heart disease or renal failure. Asbestos attorneys apparently don't pay for doctors to observe the Hippocratic Oath.

"In his ruling, Judge Colombo laid out the facts and found that "the only conclusion in the face of such overwhelming medical evidence is that the opinions of Dr. Kelly are not reliable." He then disqualified him from the case. The effects will be dramatic -- and salutary to the cause of justice. According to Michigan records, Dr. Kelly has been responsible for reporting more than 7,300 cases of asbestos disease. It is unclear how many of those cases have already been adjudicated, but what is clear is that no new suits bearing the doctor's name will see the legal light of day. Some 95% of Michigan asbestos cases are filed in Wayne County and come to Judge Columbo."

Here's My Question

Over my 20 years in practice, I've seen some silly stuff regarding experts. For instance, I've seen lazy or cheap lawyers in both the plaintiff and defense bar thinking they'll settle out, so why spend the cash on top-flight, expensive experts -- and of course, I'm giving them the benefit of the doubt here.

I know that it's true, sometimes lawyers are just plain stupid when it comes to picking experts. Heck, I've seen them delegate the chore to some pretty little paralegal who got promoted from legal secretary two years back, and doesn't understand the gates anymore than she can speak Swahili.

She picks someone off the web who is nice to her. Someone whose advanced degree is from DeVry University or better yet, one of those online, unaccredited, pay for the degree places. Stupid, stupid, and no I'm not kidding here. True story. True, true, true.

But from the Columbo piece, I'm wondering why the heck a plaintiffs' firm would actually pin its pocketbook on this guy -- good old Dr. Kelly doesn't seem to have hidden the ball here. Dr. Kelly hasn't been exposed by the FBI or Geraldo Rivera -- his credentials (or lack thereof) have been there, for all to see ....

I'm wondering why they didn't submit their expert to their own internal Daubert challenge long before they revealed him as a testifying expert and starting depending upon him to help win their case at trial.

Lesson learned. Do your own Daubert review before you reveal your expert.

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