Medical Expert to Establish Causation

From Qualifying and Attacking Expert Witnesses by Robert Clifford

Make certain the medical expert’s testimony and conclusions as to causation are not rejected because they are deemed to be speculative, conjectural, or ambiguous. In most jurisdictions, the plaintiff must establish with “a degree of medical certainty” that the act of the defendant caused the injury complained of. In many personal injury actions, the requirement is not a difficult hurdle. For example, in an automobile accident or a slip and fall claim, it is a simple matter to establish that the plaintiff’s broken leg is the result of the collision or the fall. However, when dealing with environmental caused injuries or diseases of a type that may infect society at random, often with no known or specific origin, proving causation between the defendant’s conduct and the injury may be very difficult and the success of the case may hinge on the ability of the medical expert to establish causation.

The testimony of an expert that an incident was probably caused by the defendant’s conduct may be considered speculative and conjectural, and consequently falls short of meeting the standard required to prove proximate cause. The medical expert may not be aware of the necessity to frame his or her response to the court imposed requirements needed to establish causation. For example, the expert may not appreciate the difference between testimony that the injury was “probably caused by the defendant’s conduct” and “the injury was caused by the defendant with reasonable medical certainty.” Counsel should take time to discuss the sometimes subtle distinctions involved in the wording of his or her testimony. Unless the distinctions are explained to the expert the expert might express an opinion that may be insufficient to prove causation.

Bob Clifford, author of Qualifying and Attacking Expert Witnesses, resides in Carmel, California. He serves as a consultant to law firms and as an arbitrator and mediator in insurance and litigation matters. He has been the senior partner of an Oakland, California law firm where he specialized in general litigation, including real property disputes, personal injury litigation, insurance matters, contract disputes, will contests and estate matters.

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2 Responses to “Medical Expert to Establish Causation”


  1. 1 Monte Leonova May 29, 2009 at 12:11 am

    What if a witness only “nods” to claim yes and “shakes” to claim no? Does the attorney have to verbally request the court reporter to add it to the transcript? Example: Let it be know Witness A has nodded head to mean yes.

    • 2 Robert Clifford June 8, 2009 at 6:16 pm

      Monte,
      Counsel should either ask the witness to indicate that a nod means “yes” and shaking means “no” and request him or her to answer verbally so the court reporter can provide a record of his or her answer. If the witness persists in nodding or shaking counsel should state for the record that the witness has nodded his or her head to indicate that an affirmative response.
      Bob Clifford


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