September 30, 2013
Liebsack v. United States, — F.3d —, 2013 WL 5303246 (9th Cir. 2013)
Medical malpractice suits reach federal courts through two channels: diversity and the Federal Tort Claims Act (FTCA). The FTCA framework was set up (inter alia) for suits against doctors working at veterans hospitals or another facility operated by the federal government. The diversity framework was designed for parties residing in different states. Under both frameworks, duty of care, negligence and all other substantive issues are determined by applicable state law. Federal law, on the other hand, controls every procedural and evidentiary issue. For FTCA, this rule was established in 28 U.S.C. § 2674; see, e.g., Gil v. Reed, 535 F.3d 551, 558 n.2 (7th Cir. 2008) (citing Arpin v. United States, 521 F.3d 769, 776 (7th Cir. 2008)). For diversity litigation, this rule was established by Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
This rule is very clear. Far less clear, however, are the lines separating “substance” from “procedure.”
Many states have established the “same specialty” requirement for expert witnesses testifying about medical malpractice. Under this requirement, an expert witness must practice medicine in the same specialty as the defendant doctor. Failure to satisfy this requirement disqualifies the witness. Her testimony about the duty of care owed by the defendant to his patient becomes inadmissible. This requirement has led to fierce controversies that state courts have resolved in different ways: see here, here, here, here, and here.
How will it play out in a federal court? Categorizing the requirement as “procedural” or “evidentiary” would trigger a fairly simple application of Federal Rule of Evidence 702 and the Daubert doctrine. To be eligible as a witness, the plaintiff’s expert would only have to show her familiarity with the disputed medical procedure or treatment. On the other hand, if the requirement were to be perceived as “substantive,” state law would apply. Under this scenario, the expert would have to show that she practices medicine in the same specialty as the defendant. Failure to demonstrate this alignment would disqualify the expert even when she is familiar with the disputed treatment. This, in turn, would allow the defendant to obtain a summary dismissal of the suit.
In a recent decision, Liebsack v. United States, — F.3d —, 2013 WL 5303246 (9th Cir. 2013), the Ninth Circuit has categorized the same-specialty requirement as “substantive” for purposes of FTCA. Correspondingly, it ruled that this requirement overrides Federal Rule of Evidence 702. The Court reasoned that, under Erie as well, this evidentiary requirement would be considered “intimately bound up with the rights and obligations being asserted.” This feature would make the requirement “substantive” and mandate its application in diversity suits.
This reasoning relied on Legg v. Chopra, 286 F.3d 286 (6th Cir. 2002)—a decision that categorized Tennessee’s “local expert” requirement as “substantive” as well due to its intimate connection to the applicable “local medical community” standard for doctors’ procedures (for a similar holding, see Creekmore v. Maryview Hosp., 662 F.3d 686 (4th Cir. 2011)). The Court also based its decision on Federal Rule of Evidence 601. This rule prescribes that “in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.”
Up to this point, the Court’s decision was impeccable. The Court, however, also ruled that the “same specialty” requirement does not completely displace the Daubert doctrine. An expert satisfying this requirement, it explained, only becomes competent as a witness. For her testimony to be admissible as well, it also needs to pass the Daubert test codified in Federal Rule of Evidence 702.
This ruling originates from a serious misunderstanding of the “same specialty” requirement. Experts testifying under this requirement are fact experts, not opinion experts. They provide information about their specialty’s customary practice and whether the defendant’s treatment of the patient aligned with that practice. To produce this information, an expert need not carry out any tests or experiments. Nor does she need to form an opinion concerning the quality of the treatment in question. All she needs to bring in is facts: see here, at 1208-16. The Daubert doctrine is of consequence only for causation decisions: for an important illustration see here or here.