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Bobbitt v. Chow1/30/2003
). In other words, the trial court's discretion to qualify a witness as an expert is wider than its discretion not to do so. Id.
In Cababag, this court stated its view that "the question whether a person is an expert is a question of law. The person either is or is not an expert, and there is only one right answer." After stating this view, this court recognized that Larsen stated a contrary and controlling precedent that the trial court has wide discretion in determining the competency of a witness as an expert with respect to a particular subject.
In State v. Cordeiro, 99 Hawaii 390, 404, 56 P.3d 692, 706 (2002), the Hawaii Supreme Court cited Cababag as authority that (1) "the question whether a person is an expert is a question of law. The person either is or is not an expert, and there is only one right answer" and (2) " he question of whether a witness qualifies as an expert is a matter addressed to the sound discretion of the trial court, and such determination will not be overturned unless there is a clear abuse of discretion." In doing so, the Hawaii Supreme Court did not note that "(2)" contradicts "(1)", and did not decide which of them was right.
DISCUSSION
Bobbitt argues that
Dr. Lubin's opinions and testimony as to standard of care should have been admitted because Dr. Lubin expressed opinions based on his education and experience as it related to the treatment of an infection in a patient with a prosthetic joint. Dr. Lubin provided admissible testimony on causation and what the likely effect would have been if the infection had been discovered earlier.
Dr. Chow and OAH argue that the court
properly excluded Dr. Lubin's opinions because Dr. Lubin (1) was not an expert in orthopedics, knee replacements, or infectious diseases; (2) did not support his opinions with reliable underlying facts or methodology; and (3) conceded that he could not opine with any degree of medical certainty that Dr. Chow's treatment of [Bobbitt] caused any damages.
Our review of the record shows that Bobbitt's statement that "Dr. Lubin provided admissible testimony on causation and what the likely effect would have been if the infection had been discovered earlier" is not supported by the record. Dr. Lubin testified, in relevant part, as follows:
Q: You don't know as you sit here today whether [Bobbitt's] prognosis would have been any different had the infection been found two months earlier? Same infection, same treatment, same patient. You don't know?
A: That would be -- that would be speculation.
Based on the record, we decide that, even assuming Dr. Lubin was an expert regarding causation, Dr. Lubin's deposition testimony does not support a finding of causation that was Bobbitt's burden to prove.
CONCLUSION
Accordingly, we affirm the November 28, 2001 Judgment dismissing this case for lack of evidence.
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