Judge, Jury, and the Gatekeeper: Admitting and Weighing Expert Testimony in Veterans’ Claims Adjudication and the Federal Courts

  • Organization: Veterans Law Review
  • Document Type: Article/News
  • Date Created: Monday, December 05, 2016
  • Submitted: Monday, December 05, 2016
  • Attachment(s): PDF

On November 13, 2005, Mark McEwen was brought to the emergency room of Baltimore Washington Medical Center (BWMC), complaining of dizziness, vomiting, slurred speech, weakness, and fainting.  He was treated with anti-nausea medication and released the next morning.  Upon arriving in Orlando, Florida, on November 15, however, Mr. McEwen felt additional symptoms of headache, unsteadiness, and nausea.  A magnetic resonance imaging (MRI) examination at a Florida hospital revealed that Mr. McEwen had suffered a stroke.  He received anti-clotting treatment and his condition improved dramatically.
Mr. McEwen and his wife sued BWMC for negligent treatment.  They employed two doctors as expert witnesses to testify that BWMC physicians should have recognized that Mr. McEwen was exhibiting signs of a stroke on November 13, and that the provision of anti-clotting treatment, rather than an anti-nausea treatment, would have averted his November 15 stroke.

At the beginning of this Article, I asked whether it would be sensible for the veterans’ claims system to import elements of the federal system with regard to admitting expert testimony.  After an examination of the purpose of each system and the fundamental differences between the systems, I must conclude that, although analogies are appropriate between the systems, the further importation of the federal system’s process for admitting experts does not make sense for the veterans’ claims system.
 

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