Before admitting the opinion testimony of an expert, the court must first make a determination whether or not the witness qualifies as an expert.74 A witness qualifies as an expert by virtue of the witness’s special skill or knowledge.75 The traditional means by which one acquires the knowledge to qualify as an expert is by study and/or actual experience or long observation. An expert, however, may acquire expertise from a variety of other sources, some of which may not represent first-hand observations by the expert, such as treatises and lecture courses which represent the accepted end product of the accumulation and dissemination of information.76 If the witness has experience in a given field, the absence of formal training or relevant scientific treatises will not prevent the witness from being qualified as an expert.77 The qualification of an expert will depend on the state of the expert’s knowledge in relation to the state of the art appropriate to the litigation, i.e., whether the expert has kept up to date with changes in the area of expertise.78 Although at times an expert may be qualified by criteria outside of his formal training or designated specialty, courts must scrutinize an expert’s qualifications with due regard for the specialization of modern science.79
The proffered expert in a malpractice case must be familiar with the standard of care in Delaware.80 In cases where an expert is familiar with a different locality where the standard of care is identical to that observed in the relevant Delaware locality, another expert may provide bridging testimony to reconcile the two standards.81
In one case, a court determined that a proffered out-of-state engineering expert was not qualified because he was not licensed to practice engineering in Delaware (adding in a footnote that the expert did appear to be licensed in any state).82 That decision was rejected, however, in another case where the expert, though not licensed in Delaware, was licensed in Pennsylvania.83
Perhaps the most common type of expert testimony is expert medical testimony. By statute, to be qualified to give expert medical testimony as to applicable standards of skill and care, the witness must be “familiar with the degree of skill ordinarily employed in field of medicine on which he or she will testify.”84
This statute, amended in 1996,85 modified prior statutory language which required that the expert be “familiar with that degree of skill ordinarily employed in the community or locality where the alleged malpractice occurred, under similar circumstances by members of the profession practiced by the health care provider.”86 An expert is deemed “familiar” with the degree of skill ordinarily exercised if the expert knows what degree of skill is ordinarily employed and is well acquainted or thoroughly conversant with it. Delaware cases pre-dating the amendment of the statute indicate that factors to be considered in determining familiarity include, (i) direct observation, (ii) study in the field (as a medical student, intern or resident), (iii) care of patients, (iv) teaching, (v) consultation with others experts in the field, and (vi) study of medical records, reports, journals. Each factor must be considered in light of the relative difficulty or novelty of the medical problem, including the diagnosis and treatment.87
Generally, when a medical specialty is involved, only a like specialist may testify as to the relevant standard of care.88 But the diagnosis and treatment of some medical problems may be of concern to doctors of different specialties. In specialties with overlapping fields of knowledge or practice, a common standard of care may be shown.89 Even a general practitioner with knowledge or training may be competent to give testimony about a specialty reserved to experts.90 It must be shown, however, that the generalist has sufficient knowledge of the subject upon which the testimony is sought to permit it to be presented to the trier of fact.91
74. D.R.E. 104(a); State v. Pennell, 584 A.2d 513, 515 (Del. Super. 1989).
75. Loftus v. Hayden, 379 A.2d 1136, 1139 (Del. Super. 1977), aff’d, 391 A.2d 749 (Del. 1978). See also Szewczyk v. Doubet, 354 A.2d 426, 428 (Del. 1976).
76. Baylis v. Wilmington Medical Center, Inc., 477 A.2d 1051, 1057 (Del. 1984); Loftus v. Hayden, 379 A.2d 1136, 1139 (Del. Super. 1977), aff’d, 391 A.2d 749 (Del. 1978). See also Drucker v. Philadelphia Dairy Products Co., 166 A. 796, 797 (Del. Super. 1933).
77. Goodwin v. State, No. 111, 1991, slip op. at 6, Walsh, J. (Del. Feb. 27, 1992) (ORDER), disposition reported at 608 A.2d 727 (Del. 1992) (TABLE); Royal v. State, No. 54, 1990, slip op. at 2, Horsey, J. (Del. Feb. 4, 1992) (ORDER), disposition reported at 608 A.2d 730 (Del. 1992) (TABLE); Israel v. State, No. 56, 1986, slip op. at 3-4, Christie, J. (Del. Aug. 22, 1986) (ORDER), disposition reported at 514 A.2d 413 (Del. 1986) (TABLE); Thomas v. West Dover Butcher Shop, C.A. No. 88A-MY-8, slip op. at 2-3, Babiarz, J. (Del. Super. Mar 14, 1989).
78. Peters v. Gelb, 314 A.2d 901, 903-04 (Del. 1973).
79. Bowen v. E.I. du Pont de Nemours & Co., Inc., 906 A.2d 787, 796 (Del. 2006).
80. Brett v. Berkowitz, 706 A.2d 509, 517-18 (Del. 2008); McKenzie v. Blasetto, 686 A.2d 160, 162-63 (Del. 1996); Wilson v. James, C.A. No. 07C-04-025 PLA, slip op. at 4, Ableman, J. (Del. Super. Feb. 19, 2010) (board-certified pediatrician precluded from giving expert testimony on standard of care of physician’s assistant when physician admitted to a lack of familiarity with the practices of physicians’ assistants in Delaware). This rule in medical malpractice cases is governed by 18 Del. C. §§ 6801 & 6854.
81. Brett v. Berkowitz, 706 A.2d 509, 517-18 (Del. 2008); McKenzie v. Blasetto, 686 A.2d 160, 63 (Del. 1996).
82. Burkett-Woods v. Haines, C.A. No. 02C-10-263-CLS, Scott, J. (Del. Super. May 2, 2006).
83. Talley v. Tri-State Waste Solutions, Inc., C.A. No. 05C-08-311-PLA, Ableman, J. (Del. Super. June 25, 2007).
84. 18 Del. C. § 6854.
85. 70 Del. Laws, c. 45 (June 30, 1996)
86. Similarly, the statute defining malpractice has been amended to state that “[t]he standard of skill and care required of every health care provider in rendering professional services or health care to a patient shall be that degree of skill and care ordinarily employed in the same or similar field of medicine as defendant, and the use of reasonable care and diligence.” 18 Del. C. § 6801(7).
87. Loftus v. Hayden, 391 A.2d 749, 752-53 (Del: 1978); Suarez v. Wilmington Medical Center, Inc., 533 A.2d 1249, 1251-52 (Del. Super. 1987); Ross v. Sobel, C.A. No. 85C-MR-116, slip op. at 7-8, Barton, J. (Del. Super. June 15, 1990), rev’d on rehearing on other grounds, C.A. No. 85C-MR-l 16, Barron, J., (Del. Super. Aug. 27, 1990); Sweeny v. Medical Center, C.A. No. 85C-JN-15 & 82C-JL-26, slip op., at 4-5, Del Pesco, J. (Del. Super. Dec. 15, 1989), aff’d mem., 582 A.2d 936 (Del. 1990); Ragazzo v. Truono, C.A. No. 83C-OC-46, slip op. at 2 n. 1, Babiarz, J. (Del. Super. Apr. 12, 1989); Redden v. Slovin, C.A. No. 319, slip op. at 4, Taylor, J. (Del. Super. Mar. 22, 1980).
88. Baoust v. Kraut, 377 A.2d 4, 7 (Del. 1977); Friedel v. Osunkoya, 994 A.2d 746, 751, 762 (Del. Super. 2010) (toxicologist who is not a physician and does not prescribe methadone is deemed not competent to opine as to whether methadone was the cause of death and typical prescribed doses); Hurley v. Medical Center of Delaware, Inc., C.A. No. 87C-JL-72, slip op. at 2, Del Pesco, J. (Del. Super. Nov. 28, 1988).
89. Baoust v. Kraut, 377 A.2d 4, 7 (Del. 1977). See also Di Sabatino Bros., Inc. v. Wortman, 453 A.2d 102, 106 (Del. 1982); Delmarva Power & Light v. Stout, 380 A.2d 1365,1369 (Del. 1977); Board of Public Education v. Rimlinger, 232 A.2d 98, 100 (Del. 1967).
90. Baoust v. Kraut, 377 A.2d 4, 7 (Del. 1977). See also Di Sabatino Bros., Inc. v. Wortman, 453 A.2d 102, 106 (Del. 1982); Delmarva Power & Light v. Stout, 380 A.2d 1365,1369 (Del. 1977); Board of Public Education v. Rimlinger, 232 A.2d 98, 100 (Del. 1967).
91. Suarez v. Wilmington Medical Center, Inc., 526 A.2d 574, 577 (Del. Super. 1987); Good v. Bautista, C.A. No. 84C-MR-46, slip op. at 3, Balick, J. (Del. Super. May 25, 1987).
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