Thursday, April 3, 2008
Is There A Doctor In The House?: Ninth Circuit Finds A Physician's Assistant Who Twice Failed His Physician's Exam Was Properly Qualified As An Expert Witness
The Ninth Circuit's recent opinion in United States v. Smith, 2008 WL 834453 (9th Cir. 2008), provides an illustration of how liberal most courts are in finding witnesses to be qualified as expert witnesses under Federal Rule of Evidence 702. In Smith, in August 1999, four inmates at a federal penitentiary were in the recreation cage of the Special Housing Unit: Malik Smith, Charles Wesley Helem, George W. Jeffries, and Milton Johnson. After hearing scuffling noises, prison guards went to the cage, where they saw Smith stabbing Jeffries with a sharpened plastic object while Helem held him from behind. The object snapped into two pieces, but Smith continued to use one of the pieces to stab Jeffers. The object was a prison-made knife which was about six inches long, flat, and sharpened to a point at one end. The knife was made by melting down very thin Styrofoam trays and forming them into a hard plastic.
After the incident, Reynaldo Nisperos, a physician's assistant employed by the prison, examined the four inmates for injuries. While Helem and Johnson had none, Smith had injuries on the palm of his right hand and on the inside of his lip, and Jeffries had sustained several cuts, including one that was about eight centimeters long and pierced the skin of Jeffries's right eyelid and another that was approximately ten centimeters long on his face. Nisperios also noted a superficial abrasion on Jeffries's neck that was about six centimeters long and multiple superficial abrasions and laceration on Jeffries's lower back. According to Jeffries, either Smith or Helm yelled, "You're hot, you're hot" right before the attack began, with "hot" meaning in prison slang that Jeffries was considered a snitch.
Eventually, Smith was indicted for the assault with intent to murder, assault with a dangerous weapon, and the lesser included offense of simple assault. At trial, Nisperos described the injuries Jeffries sustained and testified that the weapon used by Smith could cause "very fatal injuries." He specifically noted that if the knife were used to hit an internal organ or a major artery, like the carotid artery or the jugular vein, it could cause "major injuries." The district court allowed Nisperos to render this opinion over Smith's objection that Nisperos lacked sufficient expertise to qualify as an expert because he was not a doctor and twice had failed the exam to qualify as a doctor. In determining that Nisperos was qualified to give his opinion, the court relied on Nisperos's medical degree from the Philippines, his bachelor's degree in criminology, and his testimony that he had treated inmates for wounds inflicted by prison-made knives 50 to 100 times during his nineteen years at the prison. Nisperos' testimony was then essential to the jury's verdict finding Smith guilty of assault with a dangerous weapon.
On appeal, the Ninth Circuit affirmed the district court's ruling, finding that Nisperos was properly qualified as an expert witness under Federal Rule of Evidence 702, which indicates, inter alia, that a witness can be qualified "as an expert by knowledge, skill, experience, training, or education." The Ninth Circuit found that Nisperos had the requisite education based upon his medical degree and the requisite experience based upon his twenty years of treating inmates. With regard to Nisperson twice failing the exam to become a doctor, the court noted that "[n]o specific credentials or qualifications are mentioned [in Rule 702]. Moreover, we have previously held that an expert need not have official credentials in the relevant subject matter to meet Rule 702's requirements."
The upshot of this is that most courts frequently qualify individuals as medical experts, even though they are not the type of people we would want diagnosing or treating ourselves or our loved ones. The Supreme Court adopted Daubert to keep "junk science" out of the courtroom. It seems to me that the Court might want to think about doing something similar to require that our expert witnesses in fact have what most would consider expertise.