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D.C. Court of Appeals Holds that Trial Court Abused Its Discretion by Excluding Causation Testimony of Plaintiff’s Medical Expert in Medical Malpractice Case

Perkins v. Hansen
No. 11-CV-1540 (District of Columbia Court of Appeals, November 7, 2013)

by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (

This case involves a medical malpractice claim advanced by the Plaintiff, whose wife had died at Georgetown University Hospital from severe liver failure. Plaintiff brought a medical malpractice action against his wife’s treating physicians, alleging failure to timely diagnose his wife’s severe liver failure, which caused his wife not to receive a life-saving liver transplant. Plaintiff claimed that had her physicians recognized her liver failure sooner, she would have been admitted to a facility that performed liver transplants and would have survived.

At trial, Plaintiff offered the Dr. Esteban Mezey to testify on causation, explaining that it was more likely than not that if Plaintiff’s wife had been transferred to a hospital that performed transplants, she would have received a transplant and survived. The Defendants objected to the testimony by Plaintiff’s expert because he did not review the relevant data on the mean and median wait times for organ transplants in the relevant area; they asserted that the expert did not have an adequate foundation for his opinion. The trial judge sustained the objection and excluded Plaintiff’s expert’s testimony on causation. Without that testimony, Plaintiff conceded that he could not establish causation, and the trial judge granted Defendant’s motion for a directed verdict. On appeal, Plaintiff alleged that the lower court abused its discretion in excluding his expert’s testimony and also by granting the directed verdict. The District of Columbia Court of Appeals agreed and reversed and remanded the case for a new trial.

The Court of Appeals recognized that there was no doubt that Plaintiff’s expert had the necessary skill, knowledge, and experience to provide a reliable foundation for his testimony based on his credentials, such that he could opine about the likelihood that Plaintiff’s wife would have received a liver transplant and survived if she had been admitted to a transplant facility sooner. He had working knowledge of the likelihood of livers being available to patients coming to transplant hospitals. Still, Defendants argued that in a setting where actual data on the issue in question existed, the witness can and must rely on that data to support his opinions—otherwise, the expert’s experience constituted nothing more than conjecture. Where the expert failed to know and access the relevant data, there was a hole in the foundation of the expert’s opinion.

The Court reiterated that a doctor’s experience alone could qualify him to offer expert testimony and made clear that experts are not required to rely on data that will provide the highest degree of certainty or probability in establishing a prima facie case of medical malpractice. The available data would have been fodder for cross-examination, but was a red herring in assessing the admissibility of the expert’s testimony. Therefore, the Court of Appeals reversed the trial court’s judgment and remanded the medical malpractice case for further proceedings.