As expert witnesses, chiropractors can offer their services in the legal arena

Substantial amounts of scientific evidence are presented in court, and both judges and juries need this scientific testimony to understand facts and reach an informed decision about the case presented. This evidence, in most circumstances, is presented by recognized experts in the field. Black’s Law Dictionary describes expert evidence as: "evidence that the expert thinks, believes or infers with regard to facts in dispute from his personal knowledge of the facts themselves."

There are basically two types of witnesses—the lay person (non-medical) and the expert in a particular field. Lay witnesses may only testify to sensory perceptions of what is seen, heard, touched, smelled, or tasted. In some circumstances, lay witnesses may testify in the form of an opinion. The Federal Rules of Evidence and evidence codes in most states will allow lay witnesses to give an opinion only when they cannot communicate what is perceived without stating an opinion. The lay witness must meet certain predictions under the Federal Rules before testimony can be admitted into the court case.

Expertise Required
In determining what can be admitted, each state uses the Daubert Standard (1972) or the Frye Test (1923) to understand evidence.

Daubert Standard Federal Rule of Evidence 702
When scientific, technical, or special knowledge is needed to understand the evidence, the method is through an expert witness’s opinion. Federal Rule 702 allows expert testimony if the court determines the information will assist the trier of facts. As part of this, the court may require a determination as to whether a reliable body of scientific, technical, or specialized knowledge has been developed by the expert in his or her area of specialty. The court must also determine whether the witness is qualified to give the testimony sought (Fed R Evid 104(a)).

To determine whether expert testimony is admissible, four questions must be answered:

1. Does the expert witness qualify as an expert pursuant to the rules of evidence?
2. Is the expert’s testimony relevant to the case?
3. Will the expert’s testimony assist the trier of facts?
4. Should the expert testimony given by the expert be admissible?

The better qualified you are with specialized knowledge in your field, the more credible you will be with attorneys and in court.

Frye Test
This test allows scientific evidence that is generally accepted by the scientific community. The growing trend is the use of the Daubert Standard Rule 702, when the evidence admitted must assist the trier of facts. The judge’s initial responsibility is determining whether the witness is qualified as an expert. The jury determines the credibility and weight to be given to the expert’s testimony.

Expert witnesses are like other witnesses, except the law allows an expert to give an opinion. This opinion is only reliable when given on the subject about which the expert believes to have knowledge. Without the knowledge you may not be allowed to testify as an expert.

Ultimate Issue Doctrine
A general rule not used as frequently allows experts who testifies as to cause and effect from their analysis must state any conclusion in the form of an opinion rather than as an absolute fact. Most states have abandoned the Ultimate Issue Doctrine.

Most states follow the Federal Rules of Evidence, which includes the Dauber Standard. Frye was used in 45 states before the Daubert Standard decision in Daubert vs. Dow Pharmaceuticals. The Supreme Court approved the final draft of the Federal Rules of Evidence in 1972 adopted by most states in some form.

Reliability and Relevance
The Federal Rules, especially Daubert 702, places appropriate limits on the admissibility of scientific evidence. The reliability standard under Rule 702 requires that the expert’s testimony pertain to "scientific knowledge." Scientific implies method and procedures, while knowledge implies a body of known facts. It also requires that the testimony assist the trier of facts to understand the evidence or to determine the facts in the case.

Under Daubert, the Preliminary Assessment Requirement mandates that the trial judge assess whether the underlying reasoning is scientifically valid and the scientific evidence is properly applied to the facts at issue in the case. Further, the judge must hear cross-examination, weigh the evidence, and consider the burden of proof in the case. This method replaced the general acceptance of the Frye Test. In Daubert, the question is whether the witness has valid testimony about the facts by scientific methodology.

The trial court must ensure that any and all scientific testimony or evidence is reliable and relevant. It must also ensure the subject of the expert’s testimony is based on scientific knowledge. Expert witnesses have a great responsibility with a wide latitude in offering an opinion.

With the Daubert method:

1. The trial judge decides who will testify as an expert witness;
2. The fudge determines that the expert’s testimony rests on a reliable foundation;
3. The trial court must examine whether the facts or data are the type relied on by an expert; and
4. Scientific, technical, or specialized knowledge follows the same rule of admissibility to meet the standard of reliability.

The Daubert criteria does not represent a definite checklist, but rather evidence relative and reliable to the case which is scientific, technical, or of specialized knowledge and tied to the facts of the particular court case. To be knowledgeable as an expert witness and able to give scientific testimony is an option for chiropractors to offer their services in court. To qualify as an expert, chiropractors needs to have special knowledge, skills, experience, and training to render an opinion. However, in medical negligence cases, the chiropractor, depending on your state laws, the professional standard of care for a health care provider is the level of care, skill, or training that is recocognized and accepted by similar healthcare providers. There are three standards:

1. The chiropractor is trained and certified in a specialty.

2. If not a similar health care provider, but to the satisfaction of the court possesses the training, experience, and knowledge in a related field of medicine, then may testify to the prevailing professional standards of care in a given field.

3. Must be duly and regularly engaged in the practice of his or her profession, hold a professional degree in the profession, and has training and experience. To satisfy this, the expert must posses "special" knowledge or skills about the subject on which he or she is called to testify or render an opinion. CP

About the Author
Kenneth S. Ross, DC, JD, MBA, LHRM, is a retired criminal law enforcement officer. He practices chiropractic in Orlando, Fla, and is a member of the Orange County Bar Association. Ross is a faculty member of Texas Chiropractic College, teaches tort law, and conducts a national expert witness certification course. He can be reached at 407-682-6041 or via his website: www.medicallawjd.com.