Evidentiary Requirements for Medical Malpractice Experts in Suits under FTCA

Dutton v. United States, — Fed.Appx. —, 2015 WL 3719689 (11th Cir. 2015)

This decision provides a both concise and accurate formulation of the choice of law regarding the eligibility requirements for experts testifying in medical malpractice actions under the Federal Tort Claims Act (FTCA).

The court started off by observing that in diversity suits, the admissibility of expert testimony on issues of medical malpractice is governed by state rules because they “are so intimately intertwined with its medical malpractice laws that it would create an Erie conflict not to apply the state evidentiary rules in federal court” (citing McDowell v. Brown, 392 F.3d 1283, 1295 (11th Cir. 2004)).

The court subsequently reasoned that –

“This, of course, is an FTCA case, not a supplemental-jurisdiction case, so the Erie doctrine does not apply. However, in FTCA cases, “the extent of the United States’ liability … is generally determined by reference to state law.” Molzof v. United States, 502 U.S. 301, 305 (1992). And Federal Rule of Evidence 601 instructs that in civil cases, “state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.” Thus, although not controlling, we believe that our decision in McDowell is persuasive here. Georgia’s evidentiary rules for a physician’s expert testimony are so intimately intertwined with its malpractice laws that the rules must apply in an FTCA case for medical malpractice. That understanding accords with the holding of at least one sister Circuit. See Liebsack v. United States, 731 F.3d 850, 855–56 (9th Cir. 2013).”

For my analysis of the Liebsack decision, see here.