Expert Witness Blog
Plaintiff sued defendant for using a mark on a product. The defendant hired a Family Practice/Family Medicine Expert Witness to provide testimony, which was challenged by the plaintiff. The court denied the motion to exclude.
Facts: This case (Superior Consulting Services, Inc. v. Shaklee Corporation – United States District Court – Middle District of Florida – May 31st, 2018) involves a use of marks. The plaintiff claims that the defendant uses their marks for their business Healthpoint, which is an assessment tool that constructs a personalized plan for health improvements. To assist in their case, the defendant hired Family Practice/Family Medicine Expert Witness Dr. Arthur Herold to provide expert testimony. The plaintiff subsequently filed a motion to exclude the expert witness testimony of Dr. Herold.
Discussion: Dr. Herold states that the plaintiff was engaged in the unlicensed practice of medicine and backed up his statement with three reasons: 1) The plaintiff was prescribing supplements to the consuming public; 2) The plaintiff stated that her blood tests can held customers detect diseases before standard blood tests; and 3) The plaintiff interpreted the results of the blood tests.
The plaintiff argues that Dr. Herold is not qualified to opine as to a Nurse’s standard of case, that Herold’s testimony is based purely on his personal opinion and not on reliable methodology, and that the report is unhelpful to the jury because it is likely to cause confusion.
The plaintiff argues that the expert testimony of Dr. Herold should be excluded because he has never practiced with a nurse in any capacity, has not published any literature on nurse’s standard of care; and has only had exposure to nurses as a nursing assistant thirty years ago. The court sides with the defendant by stating that Dr. Herold does not opine as to whether the plaintiff breached a nursing standard of care. The court further opines that Dr. Herold has over thirty-five years of experience in the medical field as a doctor and professor of medicine and has worked with and trained nurses during his career. Thus, the court concludes, Dr. Herold is competent to provide testimony in this case.
The plaintiff argues further that Dr. Herold’s report should be excluded because it was not supported by scientific evidence, but based only on his personal experience. The court again disagrees, opining that Dr. Herold stated that his findings were based on his education, training, and experience and that his conclusions are based on a national standard of care. This standard is taught in medical schools and these medical schools are accredited by a national board overseeing standards. Thus, the court concludes that Dr. Herold’s testimony is reliable.
Last, the plaintiff argues that Dr. Herold’s testimony will not be helpful to a jury because it is unfairly prejudicial and will likely lead to confusion. The court disagrees again by stating that Dr. Herold’s experience gives him specialized knowledge that will be helpful to a jury.
Conclusion: The motion to exclude the expert witness testimony of Dr. Arthur Herold is denied.