A "Daubert challenge" is often used loosely to describe any effort to exclude expert testimony. Technically, my experience in Newberry v. Martens involved an Idaho standard-of-care foundation challenge rather than a traditional federal Daubert analysis. Nevertheless, the practical lesson is the same: expertise alone does not make an opinion admissible. The expert must establish why he or she is qualified to offer that particular opinion.
The underlying case
The plaintiff in this case was hammering on a U-joint under his farm truck (what we call "metal on metal") when he felt something strike his right eye. A family-practice physician working in the local ED examined him and cleared him of serious injury. In the ensuing hours, the plaintiff's right eye became increasingly uncomfortable, and he returned to the ED for reevaluation. Despite his worsening symptoms and declining vision, the same physician did not identify a penetrating injury or suspect an intraocular foreign body, and sent him home. When the patient came to me a day later with severe pain and profound vision loss, I diagnosed a ruptured globe and a small metallic fragment lodged deep in the eye, and referred him for specialized care not available locally.
The fragment that had originated from the U-joint of his farm truck had carried with it a particularly aggressive bacteria, Bacillus cereus. Despite surgery, the patient permanently lost vision in his right eye. I later testified that the earlier care did not meet the applicable standard of care for the situation.
The appeal turned on more than my testimony. The larger dispute concerned the proximate-cause jury instructions in a multiple-cause case, where the defense wanted a "but for" instruction and the trial court gave the "substantial factor" instruction Idaho requires when more than one possible cause is in evidence. But the challenge during the appeal was whether my standard-of-care testimony should have been admitted in the first place.
Challenging my testimony
I am an ophthalmologist. The defendant was a family-practice physician. Idaho law does not require an expert to share the defendant's specialty, and the defense correctly conceded that point. The contention was narrower: did I have actual knowledge of the standard of care applicable to a family-practice physician in that community, and was the way I acquired that knowledge sufficiently reliable?
The defense argued that my interactions with local family physicians were not enough to give me the actual knowledge the statute demands, pointing specifically to the fact that I had not explicitly asked a local family physician to inform me of the standard of care. Consulting a local practitioner, the argument went, was the required route, and I had not taken it.
How my testimony survived
My foundation did not rest on my credentials. I testified that I practiced in the same community and during the same period as the defendant, that I worked alongside local family-practice physicians, received referrals from them, made referrals to them, and discussed patient care with them on a regular basis. Those ordinary professional interactions gave me direct, current knowledge of how physicians in that community were expected to evaluate and manage this kind of eye injury.
The Idaho Supreme Court affirmed that this was sufficient. Consulting a local physician is one method of learning the applicable standard, but it is not the only one. An expert need not practice in the defendant's specialty so long as he can show actual knowledge of the standard that applies. Because the trial court had reasonably found that my day-to-day interactions with local family physicians supplied that knowledge, its decision to admit the testimony was within its discretion, and the judgment was affirmed. Newberry v. Martens, 142 Idaho 284, 127 P.3d 187 (2005).
Why this matters to retaining counsel
The lesson here is the importance of establishing a solid foundation before offering an expert opinion. An actively practicing physician who works in the relevant community accumulates knowledge of the local standard of care as a byproduct of clinical practice, through referrals, shared patients, and everyday professional exchanges. That kind of foundation is far harder to impeach than an opinion assembled by an expert brought in from outside the community, because it rests on lived professional experience.
For an attorney selecting an expert, the practical takeaways are straightforward: tie the expert's knowledge to the relevant community, time period, and type of provider, which was the crux of Newberry; identify the precise standard of care at issue before opinions are offered; establish how the expert learned that standard, in specific terms; distinguish personal preference from what the standard actually required; keep the expert within the limits of his knowledge and the available evidence; and explain the clinical reasoning in plain language a jury can easily follow.
Authoritative references
Disclaimer: This article is provided solely for general educational purposes. It does not constitute legal or medical advice, establish an attorney-client, physician-patient, or expert-client relationship, or provide an expert opinion concerning any particular matter. The discussion is general, may not reflect later changes in the law or medicine, and should not be relied upon in making litigation, legal, or clinical decisions. Attorneys should independently verify the governing law and consult qualified counsel in the applicable jurisdiction. Medical conclusions require review of the complete facts and records of the individual case.