EXPERT WITNESS

Berk v. Choy

Issues

Does a state law that requires an expert affidavit to successfully bring a lawsuit in some cases also apply in federal court? 

 

This case asks the Supreme Court to determine whether a Delaware law that imposes an extra pleading requirement for medical malpractice complaints applies in federal cases. Berk maintains that the Delaware law is incompatible with numerous Federal Rules of Civil Procedure and is procedural, and therefore cannot be applied in federal courts under the Erie doctrine. Respondents contend that the affidavit of merit simply screens the merits of a suit without altering pleadings, which avoids any conflicts with the Federal Rules, is specifically contemplated by Rule 11(a), and should be interpreted as a substantive rule under Erie. The Third Circuit held that there was no conflict with the Federal Rules and that the Delaware law is substantive. This created a circuit split contradicting other appellate courts that refused to apply similar laws from other states. This case will potentially affect forum‑shopping incentives, plaintiffs’ access to courts, and healthcare litigation exposure.

Questions as Framed for the Court by the Parties

Whether a state law providing that a complaint must be dismissed unless it is accompanied by an expert affidavit may be applied in federal court.

Harold Berk (“Berk”), the petitioner, filed a medical malpractice lawsuit against Dr. Wilson Choy (“Choy”), Beebe Medical Center (“Beebe”), and Encompass Health Rehabilitation Hospital in the U.S.

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Daubert Standard

Diaz v. United States

Issues

Does Federal Rule of Evidence 704(b) allow an expert witness to testify that most drug couriers carry drugs knowingly, and that drug-trafficking organizations do not trust unknowing couriers with large quantities of drugs, when knowledge is an element of the offense?

This case asks the Supreme Court to decide whether Federal Rule of Evidence 704(b) prohibits expert testimony about the mental states of a group that the defendant is a member of. Diaz was convicted of knowingly importing drugs into the United States after a government expert testified that “in most circumstances, the driver knows they are hired . . . to take the drugs from point A to point B.” Diaz argues that such testimony is impermissible under Rule 704(b) because it is functionally equivalent to stating an opinion that she had a certain mental state. The United States counters that the rule only restricts an expert from explicitly concluding or directly opining on whether a defendant had a certain mental state. The outcome of this case will affect how the government goes about proving its criminal cases, how effectively parties can rebut expert testimony, and how juries make decisions about mental states.

Questions as Framed for the Court by the Parties

Whether in a prosecution for drug trafficking — where an element of the offense is that the defendant knew she was carrying illegal drugs — Federal Rule of Evidence 704(b) permits a governmental expert witness to testify that most couriers know they are carrying drugs and that drug-trafficking organizations do not entrust large quantities of drugs to unknowing transporters.

Delilah Guadalupe Diaz lives in Moreno Valley, California. Brief for Respondent, the United States at 5. One night in August 2020, she drove across the border from Mexico into the United States. Id. She told a border patrol officer who inspected the car that it was her boyfriend’s.

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expert witness disclosure

expert witness reports

Expert witness reports in civil federal court are governed by Federal Rule of Civil Procedure 26(a)(2)(b). Under this rule, the parties are required to disclose the names of their retained expert witnesses before trial, and to give the opposing party a written report, prepared and signed by the expert witness.

McWilliams v. Dunn

Issues

Did Ake v. Oklahoma clearly establish that an indigent defendant’s right to an expert witness requires that the expert be independent from the prosecution?

The Sixth Amendment to the U.S. Constitution provides, in relevant part, that a person standing criminal trial has the right to the assistance of an attorney for his defense. In Ake v. Oklahoma, the Supreme Court interpreted that portion of the Sixth Amendment to mean that a defendant also has the right to an expert “to assist in evaluation, preparation, and presentation of the defense.” It is not clear, however, whether a defendant’s right to such an expert entitles him to an independent expert, devoted to advocating specifically for the defense’s case. McWilliams argues that the Sixth Amendment does guarantee an independent expert for the defense of the accused. The State of Alabama, on the other hand, argues that a defendant need only have access to an expert, which may be satisfied through the assistance of an expert neutral to all parties. The outcome of this case will help to further define the scope of protection afforded by the Sixth Amendment regarding a defendant’s right to counsel. 

Questions as Framed for the Court by the Parties

When this Court held in Ake v. Oklahoma, 470 U.S. 68 (1985), that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” did it clearly establish that the expert should be independent of the prosecution?

In 1984, McWilliams raped and murdered a convenience store attendant. See McWilliams v. Commissioner, D.C. Docket No. 7:04-cv-02923-RDP at 3 (11th Cir. Dec. 16, 2015). For several months leading up to these events, McWilliams had been attending voluntary couples counseling sessions.

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non-testifying expert witnesses

A non-testifying expert witness is an individual possessing specialized knowledge, skills, and experience relevant to a particular case “who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial." Federal Rule of Civ

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