Expert Witness Banned for Bias
Two Nevada judges have banned a neurosurgery expert witness from testifying, finding that his expert opinions were too speculative and too biased to be admitted — and this in a state that does not fully embrace the Daubert standard.
The expert witness, neurosurgeon Dr. Derek Duke, reportedly earns a $1-million a year from insurance companies to defend them against personal injury claims.
Two Nevada judges have banned a neurosurgery expert witness from testifying, finding that his expert opinions were too biased to be admitted — and this in a state that does not fully embrace the Daubert standard. The expert witness, neurosurgeon Dr. Derek Duke, reportedly earns a $1-million a year from insurance companies to defend them against personal injury claims.
Nevada District Justice Timothy Williams, the second judge to disqualify Duke for bias, wrote a 35-page opinion evaluating 371 of Duke's expert reports, finding that nearly 95% of the time the neurosurgeon disagreed with the treating physician, and 86% of the time he found no injury when the treating physician concluded there was. Justice Williams may have been motivated in part to spend 11 days on his lengthy opinion because Williams himself was once a personal injury attorney. In a more laconic opinion, Duke was also disqualified in 2015 for bias by Justice Mark Denton, who is in Nevada's Eighth Judicial District Court along with Williams.
Justice Williams found that Duke offered opinions outside his area of expertise when Duke blamed plaintiffs' injuries on mental or psychological conditions, even though Duke is not a psychologist. Williams also found some hubris in Duke's opinions: “The Court notes that on the very first day of his testimony, Dr. Duke informed the Court of his ability to diagnose and treat depression and anxiety without the need for neuropsychological testing, and often merely by talking with him.”
Duke had also told some plaintiffs that they had to resort to other treatment plans and asked about litigation and comments on the case's weakness. Justice Williams found that behavior “… beyond the scope of his role as a supposedly independent examiner.”
Duke's expert witness opinions have not only drawn the ire of judges, but also of personal injury attorneys. After a recent case in which Duke served as an expert witness, Las Vegas attorney Dennis Prince filed suit against Duke, alleging that Duke exhibited “extreme bias” and that he was part of a civil conspiracy with Allstate Insurance.
Duke has had his own conspiracy theories, claiming that treating doctors were “blatantly pandering to those seeking to inflate the economic value of litigation.” His claim was not wholly without merit: the FBI and the U.S. attorney's office did investigate claims of such collussion back before 2008, and a Nevada attorney, neurosurgeon and a medical consultant were charged, but no widespread conspiracy of doctors and lawyers was ever found.
Prince has said that Duke was effective in influencing jurors with his “boyish charm.” That, combined with what at least would be considered an “aggressive” opinion style, may have led to Dr. Duke's downfall.