Expert Evidence Admissibility: From Rocky Highlands to Swampy Lowlands, via the Medical Standard of Care

Abstract

This article proposes an alternative research program for expert evidence law scholarship. The program takes a path that diverges from the majority of writing in this field, in two main ways. First, it eschews the field’s predominant epistemological stance. This stance — termed “epistemological rectitude” — primarily emphasizes fact-finding accuracy and rigorous admissibility or “gatekeeping” standards. Second, the proposed program adopts a narrower focus of inquiry than that usually taken: instead of experts in general, the program examines specific types of experts employed in specific types of cases to prove specific elements in dispute. Part I begins by presenting the current state of expert evidence law and highlighting the epistemological rectitude animating both case law and commentary. It then explains how epistemological rectitude elides the degree to which expert evidence law is highly pragmatic and contextual in its practical operation, and the problem that this entails for legal knowledge. To respond to this problem, the proposed program employs a context-driven method, presented at the end of Part II. Part III unpacks and defends this method by adopting a narrow focus: expert evidence on the medical standard of care in malpractice cases. This narrow focus is adopted to show: the limitations inherent to studying experts in general; the extent to which contextual differences matter to the law’s operation; and the knowledge to be gained by narrowing inquiries in this manner. The conclusion outlines in broad terms how the proposed program can be developed.