Injury claims are sometimes very complex and require scientific evidence and other technical details that everyday people do not understand. In many cases, just explaining to the jury what happened will require both sides to present “expert witnesses” who have special knowledge about the subjects at hand. Special rules need to be followed to introduce and use these expert witnesses.
ƒExpert witnesses provide information about an area of expertise related to the accident rather than eyewitness testimony about what happened. To use an expert, you usually need to meet some procedural hurdles and have the court certify the expert before they can testify about their area of expertise. Only certain people can be qualified as experts, and they are used in particular ways in different types of cases.
For a free case evaluation, call the Maryland personal injury lawyers at Rice, Murtha & Psoras today at (410) 694-7291.
What Are Expert Witnesses in a Maryland Personal Injury Case?
Our Potomac personal injury attorneys and other lawyers pride themselves on being able to study up on the facts of a case and become incredibly knowledgeable about the unique facts and situations involved in the case. But we are not doctors, mechanical engineers, psychologists, and financial experts all at once. In many cases, lawyers need to call on experts who do hold the proper degrees, training, and hands-on experience necessary to help us, our clients, and the courts understand complex information involved in the cases before us.
Differences from Eyewitnesses
Although they are called “witnesses,” expert witnesses are not used in cases to explain what they saw or heard like eyewitnesses are. In fact, the reason that these people are called “witnesses” is because that is the legal name for someone who takes the stand to testify in court.
Typical eyewitnesses are called to the stand to say what they saw and heard or what happened to them. They explain the facts of the case. However, witnesses can also be called to explain reports they produced or evidence they analyzed. In many cases, these witnesses need to be certified as experts before their testimony can be used.
While eyewitnesses are qualified to testify simply because they were there, expert witnesses need to have special knowledge or information that the court and the jury do not otherwise have. They also need sufficient training and experience to make this information reliable before the court can accept them as an expert witness.
How Courts Use Expert Witnesses
Expert witnesses are usually called for three different reasons, though there may be other ways to use an expert witness, too.
The first is for certificates of merit or qualified expert reports. Under Maryland law, most medical malpractice lawsuits require a certificate of a qualified expert stating that they have looked at the plaintiff’s claim and find that they have a valid argument that the doctor in the case did indeed make mistakes. This helps weed out weak or unfounded claims.
The second is for the parties to explain complex information about what happened in the case. In some cases, it might not be easily understood how an accident happened or how the facts that have been presented link to intricate medical or scientific results. For example, experts are often needed to explain how exposure to certain chemicals results in cancer.
The third reason to call an expert witness is to help explain how the defendant was at fault. It is difficult for people outside of certain areas of expertise to understand what is normal within that field. For example, experts are often needed in medical malpractice cases to discuss whether the doctor did the right thing. Similarly, manufacturing experts might be needed to explain whether a factor followed proper procedures or not in a defective product case.
There is a fourth reason for experts, but it is quite rare: courts sometimes need to appoint experts to research or investigate. In these cases, the judge is the one making the appointment, not the parties.
Rules for Using Expert Witnesses in Maryland Injury Claims
The Maryland Rules of Evidence under Chapter 700 detail how expert witnesses are appointed and what thresholds must be met to use expert witness testimony in Maryland cases.
Rule 701 discusses what normal witnesses can testify about, and it limits what opinions they are allowed to give. For any witness not certified as an expert, their opinions need to be limited to reasonable opinions based on what they saw/heard that are helpful to the jury in determining the facts. For example, if a witness says the defendant was driving dangerously, they might not be qualified to make that claim. However, that’s a normal way to summarize and explain things like swerving, sudden stops and starts, and other reckless driving issues.
Expert witnesses are sometimes authorized to go beyond this.
Rule 702 governs how expert witnesses can be admitted. First, the party needs to show the witness is indeed qualified by some training, knowledge, or experience. For example, a medical doctor being used as an expert will need an actual medical degree and years of experience in the field to qualify. Second, they need to show that the expert is right for the subject at hand. For example, a physician’s assistant or a nurse might not be the right kind of expert in a case where a doctor is involved. Third, they need to show that there are facts on which the expert can base their opinion. If there are no facts in the record for the expert to look over, they cannot form an opinion that can be presented in the case.
Basis of the Opinion
The evidence and information that the expert looks over to build their expert opinion do not have to be admissible in court. A lot of times, there is evidence that the parties simply cannot show to the jury, but this information could still be gleaned from the record and used to help the expert make their report. In some cases, the court will show the evidence to the jury anyway but instruct them on how they can and cannot use that information.
Experts Can Opine on the “Ultimate Issue”
Experts are often used to explain to the jury whether they think, given their training and experience, that the defendant was liable. Usually, witnesses cannot do this, but expert witnesses are given special permission to give their opinion on the ultimate question at issue in a civil injury case: the question of who was at fault.
Experts do not always have to disclose the facts that they base their opinion on in their initial testimony, but they have to on cross-examination if the defense lawyer asks them to.
Experts Appointed by the Court
As mentioned above, courts can appoint their own experts if needed.
Maryland’s 25% Rule for Expert Witnesses (Formerly 20% Rule)
Maryland has a special rule for who can be used as an expert in cases before Maryland courts. In general, experts should be people who actively work and practice in the given field of expertise that they are testifying about. This means that if a scientist is needed, we should ask an actively working scientist; if a doctor is needed, we should ask a practicing physician.
To ensure this, Maryland used to use a “20% rule” that was bumped up to a “25% rule” in 2019. Under Md. Code, Cts. & Jud. Proc. Art., § 3-2A-04(b)(4)(ii), experts in medical malpractice cases cannot devote more than 25% of their work toward testifying as expert witnesses.
The problem that the Maryland legislature was trying to head off here is the issue of so-called “hired guns” or “experts for hire” – doctors who primarily testify in medical malpractice cases rather than primarily treating patients. In some cases, doctors will actually get their license and do the minimal practice necessary in order to qualify as a witness, then shift their professional activities toward simply acting as an expert witness for hire. Other times, lawyers will try to use expert witnesses who are retired or semi-retired and no longer actively do the kind of work involved in the case. The 25% rule seeks to combat this and push lawyers toward using witnesses who are in active medical practice in the relevant field.
There are other rules in other sections of the code that create requirements for medical experts, such as a requirement that they have actual “clinical experience” in the relevant specialty within the past 5 years. Some of these rules only apply to expert witnesses filling particular roles.
Our Baltimore personal injury lawyers will always be sure to use appropriate witnesses that qualify under these rules rather than risk your case on weak expert testimony or a rejected expert who spends too much time as a professional witness.
How Expert Witnesses Are Used in Injury and Medical Malpractice Claims in Maryland
Depending on the type of case at hand, expert witnesses might be used in different ways to affect different outcomes. The following are some of the most common ways that experts are used in certain cases:
Accident reconstruction experts and other automotive experts might be needed. An accident reconstruction expert has experience and training using photos and evidence at the scene of the crash – such as skid marks and traces of paint within vehicle damage – to determine how the accident took place. Other automotive experts might be used to explain details about crumple zones, airbags, ignition locks, and other potentially malfunctioning auto parts.
As mentioned, medical malpractice cases often require an expert witness to certify the case from the beginning. As the case goes on, experts will also be needed to explain complex medical information to the jury. Additionally, they will usually be asked to opine on whether the defendant doctor’s actions were appropriate or whether they fell below the “standard of care.” Expert witnesses in medical malpractice cases usually must have similar training and experience to the defendant doctor involved in the case for their testimony to be relevant.
Manufacturing and Design Defect Cases
Products in all sorts of fields can be defective or dangerous. Often, a close look at the manufacturing process and the standard practices within a field are necessary to determine if the product was indeed dangerous or defective.
Experts can testify about “design defects” and “manufacturing defects.” With design defects, the expert would explain how the product was dangerous as designed and that even if it was working as intended, that design was inherently unsafe. With manufacturing defects, the expert testifies as to the problems with a particular device or example of the product, such as missing screws or other deviations from the intended product.
Often, financial experts are used to help calculate damages. Many injury cases involve lost wages and the effect that your injury will have on your ability to work going forward. This could mean hiring an expert to assess how many more working years you had left in you before the accident and what wages you would have earned over that period. Then, they can compare those amounts to your post-injury expectations to determine how much money you will lose going forward. This evidence can be presented to the jury to help them calculate how much your injury case is worth.
Paying for Expert Witness Testimony in Maryland
Expert witnesses are typically paid for their services. This is not usually a conflict of interest or anything the court considers fishy; it merely compensates the expert for their time and professional work.
Generally, hiring an expert is just one of the expenses that go into bringing a lawsuit and taking it through the court system. These fees and expenses would be grouped along with things like filing fees, attorney’s fees, and even the cost of preparing handouts and exhibits for presentation in court.
All-in-all, most injury cases are paid for on a “contingency fee” basis. This means that the plaintiff pays nothing up front, and the lawyer covers the costs of things like hiring an expert. Then, the legal fees and other costs – like the cost of hiring expert witnesses – are paid out of the winnings. This allows you to hire a lawyer when you might otherwise not be able to afford one, then pay for it all out of your winnings.
Experts hired by the court are paid by the court, not the parties.
Call Our Maryland Personal Injury Lawyers Today
If you were injured in an accident, call (410) 694-7291 for a free case review with Rice, Murtha & Psoras’ Ocean City personal injury lawyers.