Commercial Litigation and Arbitration

Daubert, Rule 702 and The Humble Expert

The interesting issue in Watson v. United States, 485 F.3d 1100 (10th Cir. 2007), was, in the Court’s words: ‛What to do when an expert witness says he isn't really so expert?“ The plaintiff prisoner was suing the government under the Federal Tort Claims Act for negligent treatment of his medical condition, resulting in a brain hemorrhage. The government called as an expert Dr. Thomas Fred Goforth, the clinical director at the Bureau of Prisons' Federal Transfer Center in Oklahoma City to testify that, in his opinion, the medical team at the relevant correctional facility at all times acted professionally and competently in the treatment of the plaintiff. The humble doctor’s deposition was not all that the government might have hoped for. In the Tenth Circuit’s words:

When initially asked at his deposition "[d]o you consider yourself an expert witness as you are sitting here today?," Dr. Goforth replied, "[n]o, no." Aplt. App. at 68. Later, however, Dr. Goforth warmed to the idea, responding: "Let me rephrase that. I certainly feel like I may be a little bit more expert than someone who has no prison experience as far as healthcare." Id. Elsewhere, he testified: "When we are talking about me, I am talking about meeting the standard of care in the community." Id. at 84; see also id. ("I don't know that Joe Schmidt knows what goes on in a prison, and I do."); id. at 85 ("And I have a feeling they don't know much about what happens in a prison.").

The trial judge allowed the witness’s testimony, and the plaintiff cited this as error following an adverse determination below. The Watson Court affirmed. In a masterpiece of understatement, the Court observed that: ‛While overly modest expert witnesses may not be exactly an everyday sort of problem in our legal system, neither can we ignore the prospect of mistakenly excluding a witness who really is expert but simply too demure to trumpet his or her qualities under cross-examination; it would hardly benefit the legal system to exclude from the stand self-deprecating individuals who rarely testify but have the expertise to do so in favor of those who are more extravagant and savvy to the legal system or who may make their living testifying in our courts.“ Held, the decision as to expertise is the trial court’s, not the witness’s, and there was no abuse of discretion below in admitting the good doctor’s testimony.

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