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Causation Expert Can Opine on Standard of Care says New Court of Appeals Case

Evidence—Expert Opinion

Pipher v Loo, ___Az. Adv. Rep. ___, 1 Ca-CV 08-0143 (App., Div. II, March 10, 2009) (Justice Irvine)

CAUSATION EXPERT MAY OPINE BREACH OF STANDARD OF CARE AS PREDICATE TO OPINION ON CAUSATION/RULE 703 EVID. ALLOWS EXPERT TO BASE OPINION IN PART UPON HEARSAY WHERE OTHER RELIABLE AND TRUSTWORTHY EVIDENCE SUCH AS LABAROTORY RESEARCH

This medical malpractice case resulted in a defense verdict and the plaintiff appealed based upon alleged error in rulings upon the admissibility of expert testimony.

The plaintiff claimed the defendant was negligent in the administration of anesthesia during a dental procedure and that this negligence had caused him injury to his lingual nerve.

On appeal the plaintiff first complained about the trial court allowing defendant's expert to testify on the issue of causation because the testimony depended upon inadmissible hearsay evidence gathered from other patients and doctors concerning their experience with the anesthesia. The court sustained the trial court's rulings in admitting this testimony because an expert can rely upon hearsay when it is customary in his practice to do so and especially where the expert also relied upon laboratory research he himself had conducted and the experience of many patients of his own over the years.

The Court of Appeals however ruled the trial court erred when it excluded plaintiff's causation expert's opinion that the defendant has breached the standard of care in administering the anesthesia too fast and that this breach of the standard of care caused the plaintiff's lingual nerve damage. The court held that where the standard of care opinion is stated as a predicate to the causation opinion, the standard of care opinion is admissible even where the plaintiff has a second standard of care expert to speak solely to the issue of the standard of care.

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