Ninth Circuit Reverses a Defense Verdict
The Ninth Circuit Court of Appeals recently reversed a defense verdict in a medical malpractice case against a neurosurgeon, Jerden v. Amstutz. The plaintiff claimed that the neurosurgeon should have properly diagnosed the plaintiff as having multiple sclerosis rather than a brain tumor requiring neurosurgery.
During the trial, the plaintiff called the defendant doctor's surgical assistant. On cross, the defendant asked the assistant how he viewed the same MRA report. The plaintiff objected, but the trial court allowed the testimony as mere fact testimony. The Ninth Circuit ruled that this was not fact testimony, but expert opinion testimony - it was based on "scientific, technical, or other specialized knowledge" and should not have been admitted unless a sufficient foundation for the expert testimony was laid. On the basis of this and another expert evidentiary decision, the Ninth Circuit reversed the defense verdict and remanded for a new trial.
Under Tennessee law, you would also object to the relevance of the testimony given the Tennessee Supreme Court's holding in George v. Alexander. Even if a sufficient foundation was laid for the assistant to testify about his own opinion, and even if that opinion was shown to be relevant to the standard of care of a physician in the defendant doctor's specialty, George should still preclude the evidence under Tennessee law.