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Hawes v. Chua3/29/2001
elied on consensus guidelines promulgated by the Public Health Service of the United States Department of Health and Human Services.
Here, Dr. Hill's testimony was at least minimally sufficient for admission into evidence since he testified as a board certified obstetrician and gynecologist; kept abreast of "the state of the medical art obstetrics and gynecology," attended national meetings; was familiar with, and based his opinions on, the literature of his specialty, as well as the standards of care, including those of the American College, applicable to a reasonable obstetrician and gynecologist who undertakes the management of twin pregnancies. Moreover, we cannot say that Dr. Hill's opinions were based on nothing more than speculation or conjecture, nor merely constituted his personal opinion. Therefore, we conclude that the trial judge's decision not to strike his testimony did not constitute manifest error. However, we stress that while the trial judge retains considerable discretion in determining whether to admit defense national standard of care expert testimony, (1) it is insufficient for the expert to merely recite the words "national standard of care"; (2) the expert's testimony may not be based on his or her personal opinion, nor on mere speculation or conjecture; and (3) the expert's opinion must reflect some evidence of a national standard, such as attendance at national seminars or meetings or conventions, or reference to published materials, when assessing a medical course of action or treatment.
Appellants other arguments are unpersuasive and may be addressed summarily. First, they contend that a juror should have been removed from the jury panel prior to jury deliberations. Approximately two weeks after the commencement of a lengthy trial, one of the jurors revealed to the court that he recognized a defense expert in radiology, Dr. Michael Friedman, because, some ten years earlier, the juror had worked as a technician (taking x-rays) in the emergency room of Alexandria Hospital where the expert also worked. Although Dr. Friedman's name was mentioned to the jury venire prior to trial, he was not physically present. In addition, even though the juror did not state, during the voir dire, that he had worked at Alexandria Hospital as a technician ten years earlier, he did reveal his training and background in health care. He was a Navy Medical Service Corp. Officer, worked mainly in health care administration, and had "a background operational health care." In deciding not to remove the juror, the trial judge stated:
I think that [the juror] did tell us what his medical background was.
He did not report having worked somehow in an emergency room or some facility or for some entity during which he encountered Dr. Friedman, mentioning Dr. Friedman would not give anybody an opportunity to recall him 10 years later. . . .
As soon as the doctor walked into the [court] room, [the juror] indicated . . . that he recognized him and he was forthright about it.
I am positive that [the juror] was asked the appropriate questions about whether any of that had any bearing on his ability to be fair and impartial and that if he had any prior conceived conceptions of Doctor Friedman as being an honest or reliable person . . . . he juror said no.
I do not have anything that would suggest juror bias or intentional failure to disclose information.
We see no abuse of discretion. "A trial judge has broad discretion in deciding whether to exclude a juror for cause." Johnson v. United States, 701 A.2d 1085, 1089 (D.C. 1997) (citing Wilburn v. United States, 340 A.2d 810, 812 (D.C. 1975)). We have said that if there is
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