Expert witness' testimony as to his personal practices is admissible
Smethers v. Campion, No. 04-0117 (Ariz. Ct. App. Mar. 22, 2005) - DEx 95391
The Arizona Court of Appeals reversed a trial court's decision to exclude a
doctor's testimony of his personal practices and held that an expert witness may
testify as to his personal practices, even if his personal practices are beyond
the standard of care, because such testimony could be relevant and enables the
jury to evaluate the credibility of the testifying expert.
Dr. Gary Smethers, a patient at Southwestern Eye Center Ltd. for nine years,
sought LASIK surgery to correct his vision. In the nine years that Smethers
received treatment from Campion, his prescription and eye measurements never
changed. Smethers went to Dr. Michael Campion for a pre-surgery LASIK
evaluation. Campion operated on Smethers.
When Smethers arrived, he was wearing his contact lenses. The staff at
Southwestern told Smethers to remove his contact lenses so that they could
measure his eye. The cornea changes its shape when one wears contact lenses and
resumes its natural shape after several days without contact lenses. Thus,
Campion instructed Smether not to wear his contact lenses for five days prior to
the surgery, which Smethers did.
However, when Smethers came in for the surgery, Campion did not re-measure
Smethers' eyes. Campion performed the LASIK surgery based on the measurements
taken when Smethers was still wearing contact lenses.
The LASIK surgery over-corrected Smethers' corneas, and his eyes deteriorated.
Smethers experienced glares, halos, ghosting, starbursts, and other problems.
Further, Smethers had to carry multiple pairs of glasses and a magnifying glass
to allow him to see in different lighting.
Smethers sued Campion and Southwestern for medical malpractice. Campion's expert
witness, Dr. Perry Binder, testified that Campion did not breach the standard of
care, even though Binder would have remeasured Smethers in his personal
practice. Southwestern and Binder submitted a motion in limine to exclude
Binder's testimony regarding his personal practice of remeasuring patients'
cornea after they have ceased wearing contact lenses for at least 72 hours.
The trial court granted the motion in limine, and a jury found in favor of the
defendants. Smethers appealed, charging that the trial court erred by excluding
Binder's testimony.
The appellate court held that the trial court erred because Binder's testimony
was relevant and enabled the jury to determine his credibility. Further, the
court noted that Binder contradicted himself by saying that Campion met the
standard of care and would have done the same thing as well as testifying that
he always remeasures his patients' corneas in his own practice.