Accredited Psychiatry & Medicine | Harold J. Bursztajn, MD, Forensic Psychiatrist

Standards for Experts

Recent Supreme Court decisions emphasize the need to regulate the admissibility of expert testimony by means of standards that require opinions going beyond ipse dixit; that is, that are based on more than the fact that the expert "said it him/herself." Dr. Bursztajn's recent article published in the Journal of the American Academy of Psychiatry and the Law (32:205-10, 2003) Avoiding Ipse Dixit Mislabeling: Post-Daubert Approaches to Expert Clinical Opinions informs us how experts can reduce the likelihood that their conclusions will be mislabeled.

Article: When forensic neuropsychiatric expertise is indicated, early retention is best.
Article: DSM misuse pitfalls evident in clinical training and courtroom testimony.
Article: Kumho for Clinicians in the Courtroom - Inconsistency in the Trial Courts.
Article: Attorney Abuses of Daubert Hearings. Dr. Bursztajn's article with Dr. Tom Gutheil on the various tactics employed by attorneys looking to take advantage of Daubert hearings.
Article: Rule 26 to Change: Limited Privilege for Draft Reports and Communications. Expected to become law on December 1, 2010, proposed changes to the Federal Rule of Civil Procedure 26 are intended to reduce the cost of litigation by giving limited protection to drafts of expert reports and communications between testifying expert witnesses and their staff and retaining counsel. Full text of the proposed amendments available here (pdf).
Presentation: Depositions: tips and traps. Dr. Thomas Gutheil's recent presentation to Harvard Medical School's Program in Psychiatry and the Law.
Article: Expert Witness Disclosures: How to Comply and Avoid Exclusion. Bench & Bar of Minnesota, April 2008, by Courtland C. Merrill, Esq.
Case: Supreme Court increases reliance on forensic psychiatric expert opinion (decided 1.22.02)
Finding of Complete Lack of Volition Not Required For Civil Commitment of Dangerous Sexual Offender
Case: Experts Permitted to Testify on Link Between Prescription Drug and Suicide In Miller v. Pfizer, 2000 U.S. Dist. LEXIS 9816, a U.S. District Court held that two physicians who had done substantial research on the link between certain types of prescription drugs and suicide may testify in a lawsuit against a pharmaceutical manufacturer.
Case: Social Workers not qualified to offer medical or psychiatric opinions under Daubert's progeny.
Case: Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993)
Summaries of some recent court decisions as to the admissibility of expert evidence post the U.S. Supreme Court Daubert decision:
- Article: Massachusetts Federal District Court Applies Kumho Tire to Exclude Plaintiffs' Expert Testimony on 'Hedonic' Damages
Article: National Certification for Forensic Psychiatrists: A Preview of the Post-Daubert Expert. An examination of the admissibility of scientific testimony in court, an important issue in the education of judges and juries as claims of emotional, medical, and psychological damages may sound dubious to the non-expert.
Case: U.S. Supreme Court Rules About Standards In Expert Witness Post-Daubert
Article: The McNaughton rule -- not knowing right from wrong
Article: Shulman in Denial, Doctors Say. Dr. Bursztajn quoted in Newsday on the need for objectivity in expert testimony and confidentiality in mental health treatment.
Article: In U.S., Partisan Expert Witnesses Frustrate Many. In most of the rest of the world, expert witnesses are selected by judges, though American judges are generally free to appoint their own experts, they seldom do. Many judges, having been trial lawyers, are suspect that any expert can be truly neutral. The virtue of this adversarial system is that the finder of fact is allowed to balance this out through competing testimony. New York Times, August 12, 2008.