Expert testimony is generally not relevant to establish “deliberate indifference” under the Eighth Amendment where the plaintiff's case “does not depend on technical determinations” or where the expert testimony can only prove medical malpractice. Expert testimony is, however, relevant where the expert is able to establish that the defendant's actions were taken with conscious disregard of danger to the plaintiff or where complex scientific issues are involved. Furthermore, the failure to set forth competing expert testimony can be fatal to a claim of “deliberate indifference” at the summary judgment stage. Therefore, if a defendant relies on an expert, the plaintiff should provide expert testimony, as a safeguard, to survive summary judgment even though the plaintiff's expert testimony may be insufficient to ultimately prevail at trial. Finally, while an expert may not testify to the ultimate legal issue of “deliberate indifference” or the defendant's subjective mental state, he or she may offer factual opinions on what the defendant should have done and what was reasonably expected, even when the expert's factual opinions embrace the ultimate legal question. Click above to read the full article in the Criminal Law Bulletin.
Originally published in the Criminal Law Bulletin on March 1, 2016.
The Relevance of Expert Testimony to Claims of “Deliberate Indifference” Under the Eighth Amendment, 52 Crim. L. Bull. 43 (2016).