Sue Mei Chow v. Hurt

By Judge T. J. Markow I have reviewed the authority on the defendant’s Motion to Reconsider the court’s decision to preclude Dr. Cruikshank, one of the plaintiffs treating physicians, from giving testimony as an expert witness. Because I believe that such testimony is unduly prejudicial to the plaintiff and that its prejudicial effect outweighs any probative value and because I believe serving as expert witness for someone adverse to his patient is inconsistent with his fiduciary duty, I will not change my decision. Counsel for the defendants have not given any authority which would require a different decision. In fact, the vigor with which they insist on using this witness to give opinions which I am sure any number of other experts are equally qualified and eager to render eloquently underscores my decision. There is nothing unique about this witness except that he treated the patient in connection with this case. My decision precludes this witness from giving opinion testimony as an expert witness. He is not precluded from giving fact testimony. To the extent that issues of causation and time of death of the baby are issues of opinion and not fact I am not prepared to decide as there has been no authority presented on either issue. There appear to be mixed fact and opinion questions. To the extent they are purely opinion testimony, they will not be permitted; to the extent they are fact testimony, they will be permitted. I do not know how that decision can be made until the foundation is laid at trial.