Moreover, even when outright falsehoods are told on the stand, few prosecutors will pursue a charge of perjury, leaving corrupt experts free to sell their services, Indest added. Florida law puts some limits on expert witnesses, including a provision that an expert who has been repeatedly disqualified by a trial court cannot offer evidence at trial. Unfortunately, no such restriction applies to experts asked to provide the initial affidavits that are often the first impetus for lawsuits to be filed. Ross Fogleman, a malpractice defense attorney in Sarasota, recalled a case in which the pre-suit affidavit was provided by an expert who had been disqualified over and over when presented as a witness at trial. Even if a case is dropped after the pre-suit period, the physician or his insurer will have spent several thousand dollars to defend the matter.
Class actions pose an even greater problem, in part because the economic stakes are higher.
Orthopedic and neurosurgeons face increasing litigation on the basis of pedicle screw use, as do the manufacturers of the devices. According to published reports, once of the experts on whose affidavits pedicle screw litigation was filed has withdrawn amid controversy. Evidence uncovered during discovery seems to indicate that he did not personally review the underlying records, dictate, or in some cases even sign, the approximately 500 affidavits alleging defect, injury, and causation filed under his name. Despite the apparent taint on the initiating affidavits, the case is moving forward in courts, underscoring the continuing economic impact of the medical expert in legal matters. Medical expert testimony isn't cheap.