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Smith v. Sass2/5/2004
ed to an active clinical practice, the expert said at a deposition taken in March 2000 that he estimated that classroom teaching took up sixty to eighty percent of his time, with the remainder given to clinical trials and administration. At the time of trial in August 2002, the expert said that division of duties had changed, with his teaching duties decreasing "linearly" with each passing month. A detailed look at his teaching schedule showed that the expert taught a clinical research seminar and clinical research literature review in Spring 2000; no classes in Summer 2000; fundamentals of research in Fall 2000; clinical research project seminar in Spring 2001, no classes in Summer 2001; fundamentals of clinical research in Fall 2001; clinical research seminar in Spring 2002; and direct study in Summer 2002 (a thesis class where he guided the students in individual projects).
. The expert's current clinical research involved the study of new drugs which explored the relationship of estrogen replacement therapy and its effect on the development and prevention of osteoporosis and cardiovascular outcomes. Finally, the expert was forced to concede that the American Medical Association listed his "major professional activity" as "research."
. With this information, Price asked the court to strike the expert's opinions under Evid.R. 601(D). Price argued that the expert could not establish that he spent at least one-half of his professional time in the active clinical practice of cardiology. The court denied the motion by saying that "the witness doesn't have to be the best witness."
. I am unsure what the court meant when it said "the witness doesn't have to be the best witness." In the context of expert testimony, it is true that neither party is obligated to find the "best" expert in any given field of expertise. But that wasn't a question before the court --the question was whether the estate's expert devoted at least one-half of his professional time to the active clinical practice of cardiology. The court's reason for denying the motion was non sequitur and shows that the court did not have the proper legal standard in mind when it denied Price's motion.
. Had the court applied the proper standard to the legal question before it, it would have no choice but to find that the testimony showed rather convincingly that the estate's expert did not spend at least one-half of his time in the active clinical practice of medicine when he testified at trial. The expert conceded that he did not actively see patients, that he had not admitted a patient to the hospital for several years, and that he does not perform in-patient care. At best, the expert could be said to be engaged in clinical trials of drugs which were unrelated to cardiac care as raised as an issue in this case. At the time of trial, the expert said that among his clinical trials he was studying estrogen replacement therapy. I can see no possible means of correlating the study of estrogen replacement therapy to the issues of diagnosis and treatment of heart disease as raised in this case. It may be that the expert's research involves the effects of certain drug therapies on individual patients, but the expert rather explicitly stated that he did not see any patients as part of his research. In short, the expert did not spend at least one-half of his time in the active clinical practice of medicine.
. The estate argues that even if we find that the expert did not devote at least one-half of his professional time to active clinical practice, he nevertheless qualifies as an expert because his activities are necessarily related to or adjunctive to patient care. In the past, the expert had significant e
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