|Ottenwess Law attorney David Ottenwess represents two radiologists in a medical malpractice case. During the course of discovery, plaintiff named, and subsequently produced a “familiar” urologist as an expert to testify in the case. While urology was not a specialty being criticized in the case, the issue did deal with a rare leimyosarcoma located on the renal vein. It was represented to defense counsel in discovery responses that this expert was providing causation testimony. Surprisingly at deposition, the expert testified that he was also providing standard of care testimony as to the radiologists as well. He claimed that he was qualified to provide radiology standard of care opinions because he holds a certification in genitourinary radiology (which is a subspecialty of urology) and because radiology was included in his urology boards. He further testified that as a part of his clinical practice he reviews urology images (urology images were at issue in this case). Interestingly, when it came time to answer questions about the issues he was held out to discuss, the expert refused to answer certain questions that were detrimental to plaintiff’s case when cross examined on his causation opinions.
Defendants filed a motion to strike the expert’s standard of care and causation testimony.
The Court agreed with Defendants and struck the witness’s testimony:
The Court concludes Duncan is not a board certified diagnostic radiologist. While he may utilize radiographic diagnostic devices in his practice, he does not have the same qualifications as those of a diagnostic radiologist. Finally, Dr. Duncan did not meet his burden to establish he devoted a majority of his practice to diagnostic radiology the year before the occurrence in this case. Duncan has not met the statutory criteria and cannot give standard of care testimony against the defendants.
Duncan cannot provide proximate cause testimony based on his refusal in his deposition to allow defendants the opportunity to explore, examine and investigate his opinion as to proximate cause, etc. To the extent this testimony is standard of care testimony it is excluded. If Duncan cannot, or will not, provide a basis for his opinion as to the proximate cause to the defendants in discovery, he cannot so testify to it at trial…
Click here to read the Court’s opinion.
A special thanks to Jeff Feikens for his collaboration on the motion to strike.