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Expert Witness’s Ouster Costs Med Mal Plaintiff $1 Million

Oct. 5, 2020, 1:21 PM

A Maryland woman was properly stripped of a nearly $1 million medical malpractice damages award because she didn’t show that her expert witness spent no more than 20% of his time in activities related to providing expert witness testimony, a state appeals court said.

Brenda Brown couldn’t prove her professional negligence case against physician Joel Falik without the testimony of physician Sanford Davne, the Maryland Court of Special Appeals said Oct. 2 in an unpublished opinion. A trial court thus properly directed a verdict for Falik, it said.

Brown sued Falik after her husband died of complications following back surgery. She filed a certificate of a qualified expert, Davne. He proposed to testify that Falik violated the standard of care by failing to recognize that Brown’s husband was a high risk patient and that there were other less invasive options than surgery.

Under Maryland’s procedural rules, experts who spend more than 20% of their time acting as expert witnesses are generally precluded from testifying in medical malpractice cases. Brown certified that Davne met the requirement.

But Davne didn’t produce documents in response to Falik’s discovery requests to show the percentage of his time he devoted to expert activities or the amount of income he received from acting as an expert witness.

Davne testified at trial over Falik’s objection. The jury returned a verdict for Brown awarding her nearly $1 million in damages.

The trial court later granted Falik’s motion for judgment notwithstanding the verdict on the basis that Brown didn’t show Davne was qualified to act as an expert witness.

The appeals court affirmed. Brown had the burden of proving Davne met the requirements for testifying, it said. But she didn’t produce any documents from which the court could determine if Davne met the 20% requirement, such as timekeeping logs, calendars, or financial records, it said.

Judge Dan Friedman wrote the opinion. Chief Judge Matthew Fader and Judge Steven B. Gould joined.

The case is Brown v. Falik & Karim P.A., 2020 BL 381863, Md. Ct. Spec. App., No. 3377, unpublished 10/2/20.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com