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April 2024

FBMJ’s Kim Sveska Wins Daubert Challenge

Congratulations to Foley, Baron, Metzger & Juip Member, Kim Sveska, for a recent successful Daubert win in a potentially high-damages medical malpractice case.  

A Daubert win is based on a standard which instructs judges to consider several factors related to expert witness reliability and testimony, as well as the relevance of the testimony to the case. Judges must make sure the scientific basis of an expert’s opinion are based on legitimate science, and if they are not, take the appropriate steps to exclude certain parts of the expert’s opinion, or not allow the expert to testify at trial.  

The case involved a spinal hematoma caused by a cervical spinal injection, and what difference it would make if the patient was taken to surgery within 12 hours versus “as soon as possible. Plaintiff’s expert witness supplied medical literature that failed to parse outcomes except to say if the patient was taken to surgery within the first 12 hours, the outcome would be the same. The expert reinterpreted this to mean “as soon as possible, which the judge found was not supported by the literature cited.  

Sveska also challenged the plaintiff’s expert’s credentials. The expert had no neurosurgical experience with a spinal hematoma, nor had he ever treated a patient with the same condition. The judge agreed with the defense and decided to strike him as an expert in the case. Notably, Daubert motions often come before trial, meaning the decision to strike plaintiff’s expert will most likely result in the case being dismissed.