Expert witnesses typically belong to professional associations. Their memberships may enhance their credibility when they testify in court. Many of those organizations have established rules that members must follow if they wish to remain in good standing with the association. Some groups have developed rules that govern members who testify as experts.
A case arising in Texas demonstrates the risks associated with disobeying rules that address expert testimony. A recent decision of the United States Court of Appeals for the Fifth Circuit affirmed the dismissal of an expert’s lawsuit against a professional organization that censured the expert for violating a rule governing the conduct of expert witnesses.
Facts Pertaining to the Case
Dr. Jay Barrash regularly testifies as an expert witness in the field of neurosurgery. Hired as an expert witness in a medical malpractice case, Dr. Barrash testified in a deposition that the defendant surgeon had incorrectly placed a bone graft during a patient’s surgery and failed to treat a post-operative infection.
After settling the case, the defendant surgeon filed a complaint with the American Association of Neurological Surgeons (AANS). The complaint alleged that Dr. Barrash violated the AANS Rulesfor Expert Opinion Services by failing to provide impartial testimony, failing to review all pertinent medical information, and failing to allow for differing medical opinions. The complaint also alleged that Dr. Barrash was unqualified to testify and that he charged excessive fees to provide expert witness services.
After holding a hearing, an AANS committee agreed that Dr. Barrash was entitled to criticize the defendant surgeon’s post-operative care. The committee apparently rejected the surgeon’s complaints about Dr. Barrash’s qualifications and fees.
The committee ruled, however, that Dr. Barrash did not review all pertinent medical records before testifying because he failed to examine an available X-ray. The committee also concluded that Dr. Barrash failed to provide unbiased testimony. The committee recommended that Dr. Barrash be suspended from AANS membership for six months. After Dr. Barrash appealed, the AANS Board of Directors downgraded the suspension to a censure. The censure decision was upheld by the membership at large.
There is always a risk that members of a professional organization will be resentful when one of its members testifies against another of its members. Whether that happened here is unclear, but it is clear that Dr. Barrash was unhappy with the association’s disposition of his case.
Dr. Barrash resigned from AANS and sued the association in federal court, alleging (among other claims) that he was denied due process because he was not given adequate notice of the charges. The district court agreed that Dr. Barrash was not given notice of how he allegedly failed to give unbiased testimony. The district court ordered the expungement of that allegation from the censure.
The district court upheld the AANS’ resolution of the charge that Dr. Barrash failed to consult pertinent medical records before testifying. It also rejected Dr. Barrash’s claim that the AANS failed to follow its bylaws and therefore breached its contract with him. Dr. Barrash appealed.
The Decision on Appeal
Dr. Barrash based his lawsuit on claims that arise under Texas law. The court of appeals noted that Texas courts give a great amount of deference to the internal operations of voluntary organizations like the AANS. Notwithstanding that deference, Texas law does require voluntary organizations to provide due process when the organization takes an adverse action against a member.
The most fundamental due process rights are the right to be informed of the accusation and the right to be heard in response. The AANS gave Dr. Barrash a copy of the letter in which the surgeon accused him of testifying without reviewing intraoperative X-rays that allegedly showed proper bone graft placement. The X-rays were available for Dr. Barrash’s inspection at the hearing and Dr. Barrash did not ask to see them in advance. The court of appeals concluded that the AANS gave Dr. Barrash adequate notice of the charge and did not violate his due process rights with regard to that charge.
Dr. Barrash also argued that he did not review the X-rays because they were not pertinent to his testimony. The court of appeals declined to review that claim, which would have required it to substitute its own judgment for the professional conclusions drawn by a committee of neurologists who were better situated to decide the question.
Finally, Dr. Barrash contended that the AANS failed to follow the procedural requirements of its own bylaws during his disciplinary proceeding. He argued that the bylaws constituted the terms of a contract with its members and that AANS therefore breached its contract. The court of appeals concluded that Texas law does not provide a contract remedy for a voluntary organization’s failure to abide by its bylaws. While voluntary organizations must provide basic due process, bylaw provisions that exceed that basic duty are not enforceable in a breach of contract action under Texas law.
In the end, Dr. Barrash learned that courts (at least in Texas) provide limited recourse when a professional organization has disciplined a member. Since professional discipline can often be used against an expert witness during cross-examination, experts should always take care to understand and to follow any rules for expert testimony that have been created by the professional associations to which they belong.