Challenging Expert Witness Testimony in Healthcare Fraud Trials
Challenging Expert Witness Testimony in Healthcare Fraud Trials
Expert witness testimony can make or break a healthcare fraud case. The testimony of a credible expert witness can lend credibility to the prosecution’s arguments and theories. Likewise, the defense can use expert testimony to poke holes in the government’s case. Because expert testimony is so critical, both sides need to understand how to effectively present and challenge expert witnesses.
Why Expert Testimony Matters in Healthcare Fraud
In healthcare fraud cases, expert testimony is often needed to help the jury understand complex medical and billing issues. For example, an expert may be called to explain medical terminology, treatment standards, proper coding and billing procedures, etc. Jurors usually lack the specialized knowledge needed to judge whether medical care or billing was appropriate without expert assistance.
Experts can also connect the dots for the jury, tying together the prosecution’s arguments into a cohesive narrative. The expert helps take abstract concepts and makes them concrete for laypeople. A strong expert witness can lend credibility to the theme and theories put forth by the side that hired them.
Additionally, experts allow evidence to be introduced that might otherwise be inadmissible. Through the expert, the court may receive testimony based on knowledge, documents, or data that wouldn’t normally be permitted.
Requirements for Expert Testimony
For expert testimony to be admissible in federal court, the witness must satisfy Rule 702 of the Federal Rules of Evidence. This rule has three main requirements:
- The expert must be qualified by “knowledge, skill, experience, training, or education.”
- The testimony must be based on sufficient facts or data.
- The testimony must be the product of reliable methods reliably applied to the facts of the case.
The trial judge acts as a “gatekeeper” and must determine whether the proposed expert testimony meets these standards. If not, the judge can exclude the testimony entirely or limit what topics the expert can speak to.
Qualifications of the Expert Witness
The expert witness must have appropriate qualifications to testify about the matters at hand. In a healthcare fraud case, typical experts include:
- Medical experts – such as doctors, nurses, medical examiners
- Billing and coding experts – such as certified professional coders
- Healthcare data analysts
- FBI agents or financial investigators familiar with healthcare fraud schemes
The expert’s qualifications should match up with the subject matter of their proposed testimony. For instance, a doctor may be qualified to discuss medical standards but not qualified to analyze billing data. Attorneys have to think carefully about matching the right experts to the right issues.
Reliable Methodology
The expert must have based their opinions on sufficient data and must have applied reliable methodology to reach their conclusions. If the expert’s methods are unsound or speculative, the testimony can be excluded.
For example, a medical expert cannot simply assert that a doctor’s treatment was improper – they must explain their reasoning process and point to accepted medical standards or peer-reviewed research to back up their opinion. Statistics experts need to use scientifically valid techniques for data analysis.
Challenging the Opponent’s Experts
Counsel can challenge the admissibility of the opposing side’s experts through Daubert motions and voir dire examinations. In a Daubert hearing, the judge scrutinizes the expert’s qualifications and methodology outside the presence of the jury.
Key strategies for challenging an expert include:
- Questioning if the expert truly has specialized knowledge or experience regarding the issues they will testify about.
- Probing the facts, data, or assumptions underlying their opinions – does their testimony have an adequate factual foundation?
- Looking for analytical gaps or flaws in their methodology – are there inconsistencies in how they applied methods or analyzed data?
- Investigating potential bias – does the expert have a stake in the outcome or connection to any parties?
If the testimony fails to meet the requirements of Rule 702 and Daubert, the judge may exclude some or all of an expert’s proposed testimony.
Defending Your Own Experts
When presenting your own experts, you will need to establish their credentials, explain their methodology, and demonstrate the connection between their opinions and the particular facts of the case. Some best practices include:
- Vetting your experts thoroughly – carefully review their background, experience, and work product for anything that could be used to attack their credibility.
- Having experts prepare detailed written reports explaining their opinions, methods, data relied on, etc.
- Being ready to explain specialized terminology, testing methods, or analytical techniques used by your experts.
- Bringing out on direct examination how your expert applied reliable methodology to reach their conclusions.
- Having your expert explain how their opinions are connected to and supported by the facts of the case.
Anticipating the other side’s challenges and proactively addressing any weaknesses in your expert’s testimony is key. You want to show the judge that your expert satisfies the requirements of Rule 702 and Daubert.
Presenting Expert Testimony Persuasively
To maximize the impact of expert testimony:
- Use clear, simple language that is understandable to laypeople.
- Have the expert explain their credentials, experience, and how they are qualified regarding the issues they will discuss.
- Build the foundation before having the expert give opinions – walk through the facts and data they relied upon.
- Use demonstrative exhibits like charts to illustrate key points.
- Draw connections between the expert’s opinions and your overall legal theories and themes.
- On cross-examination, control the expert by asking leading questions and pivoting back to your main points.
Experts who come across as competent and trustworthy can be highly persuasive. But experts who appear evasive or partisan under cross-examination can actually hurt your case.
Conclusion
Expert testimony is a critical battleground in many healthcare fraud prosecutions. Understanding the legal rules governing expert admissibility and effectively presenting or challenging experts can make the difference between winning and losing.
Both sides should carefully vet their experts and anticipate the other side’s likely lines of attack. Winning the “battle of the experts” goes a long way toward winning the case.