On June 12, 2001, the United States Court of Appeals for the Seventh Circuit issued its opinion affirming the summary judgment which the AANS obtained in the suit brought against it by former member Donald C. Austin, MD. Dr. Austin, whose membership in the AANS had been suspended for six months for unprofessional conduct in connection with his testimony as a plaintiff’s expert in a medical malpractice suit and who later resigned, sued the AANS in 1998 in federal court. He claimed that his due process rights had been violated and that his fees as an expert witness had been greatly diminished as a result of the AANS’ action. He also alleged that the AANS’ entire professional conduct program was biased against plaintiffs’ experts and therefore was inherently unfair. In granting the AANS summary judgment in October 2000, Judge Elaine Bucklo of the United States District Court for the Northern District of Illinois ruled that “Dr. Austin received as much due process as anyone might hope for.”
In appealing Judge Bucklo’s decision to the Federal Court of Appeals, Dr. Austin argued that professional associations such as the AANS have no right to judge the trial testimony of an expert witness and that to do so constitutes improper intimidation of potential witnesses. Judge Richard Posner, writing for the Court of Appeals, dismissed Dr. Austin’s argument as follows.
“By becoming a member of the prestigious American Association of Neurological Surgeons … Austin boosted his credibility as an expert witness. The Association had an interest-the community at large had an interest-in Austin’s not being able to use his membership to dazzle judges and juries and deflect the close and skeptical scrutiny that shoddy testimony deserves. It is no answer that judges can be trusted to keep out such testimony. Judges are not experts in any field except law. … Judges need the help of professional associations in screening experts.”
This ruling of the Court of Appeals establishes the principal that professional associations not only have the right, but indeed the duty, to use internal disciplinary measures to identify and sanction individuals who give inappropriate or shoddy testimony as alleged experts in litigation. The Court of Appeals also ordered Dr. Austin to reimburse the AANS for its costs of the appeals.
Russell Pelton, General Counsel for the AANS, noted that the AANS has won every judicial challenge to its professional conduct program, and that this was the highest court to address and confirm the propriety of such a program.
The AANS was supported in its appeal by an Amicus brief filed on behalf of the American Medical Association, the American College of Surgeons and the Illinois State Medical Society.
Dr. Lustgarten Drops Suit
Gary Lustgarten, MD, a Florida neurosurgeon, has voluntarily dismissed his suit against the AANS that challenged the propriety of the Association’s Professional Conduct program.
The suit was filed after charges of unprofessional conduct were brought against Dr. Lustgarten by Mark Gold, MD. Dr. Lustgarten’s complaint alleged that the AANS’ Professional Conduct program was nothing more than a conspiracy to intimidate plaintiffs’ medical experts from testifying, chilled the exercise of a neurosurgeon’s right to give testimony in support of plaintiffs, restrained trade in violation of the Sherman Act and tortuously interfered with plaintiffs’ experts’ contracts with present and future patients injured by neurosurgeons.
The suit, originally filed in federal court in Brunswick, Georgia, was transferred to the Northern District of Illinois on motion of the AANS. That transfer was critical, reported AANS General Counsel Russell Pelton, because the federal court in Chicago is bound by the decisions of the Seventh Circuit Court of Appeals. The Seventh Circuit recently upheld the dismissal of the suit brought by Donald Austin, MD, which also challenged the propriety of the Association’s Professional Conduct program. Shortly after the transfer, John Vail, Senior Staff Attorney for the Association of Trial Lawyers of America, counsel for Dr. Lustgarten, advised the court that they were voluntarily dismissing the suit.