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A Taste of Their Own Medicine: Examining the Admissibility of Experts’ Prior Malpractice Under the Federal Rules of Evidence

Posted by on Wednesday, April 18, 2018 in Notes, Volume 71, Volume 71, Number 3, Volumes.



Expert witnesses play an important role in medical malpractice cases by persuading juries to adopt a theory favorable to their party. Their credibility and competency influence the jury’s decision, so parties seek to discredit opposing experts through cross-examination about their own malpractice as a provider of medical care. This evidence suggests a propensity for incompetence, so courts exclude this evidence when offered against defendant doctors. However, they disagree as to whether such evidence is admissible against nonparty experts. Federal Rule of Evidence 404 should prohibit prior malpractice evidence in both contexts, but courts disregard this rule for experts and admit or exclude this evidence on a discretionary basis. While bypassing rules of evidence is problematic, the policies prompting courts to do so are persuasive. This Note proposes that Rule 404 be amended to include an exception that permits evidence of an expert’s character for competency subject to two standards of judicial discretion. This prior malpractice evidence can help the jury by providing a better proxy for expert credibility and solve other problems inherent in expert-focused trials, without sacrificing democratic notions of allowing laypersons to administer justice.


Nell Henson
J.D. Candidate, 2018, Vanderbilt Law School; B.A., 2014, Furman University