This question is Esq ONLY. Mr., Kansas medical malpractice
This question is for William B Esq ONLY.Mr. B, Kansas medical malpractice here again. Thought I'd catch you up on things, plus I have a few questions with which I'm hoping you can help me.Since I last wrote I've filed a couple of motions and filled out my Pretrial Questionnaire. I told you I thought I would appeal the denial of my request a screening panel be assembled, but decided you're right that it would be a very long shot, especially since the Rules of the Supreme Court plainly state I had very limited time to request a panel and not only is that time long past, but I, in my ignorance, asked the court to deny my earlier motion to assemble a panel. So I'm forgetting about that.Once my request for the screening panel was denied, I made a motion to be allowed to move ahead proving malpractice without expert testimony. The court told me it was too early to rule on that, that question would ripen later, or something like that.Then I did some more reading and made a motion asking the court to appoint an expert, but with my being responsible for paying him/her. Remember, my difficulty was I could not FIND an expert; couldn't even get one to answer my letters / emails of enquiry. I thought I made a good argument, noting that both Fed. R. Evid. 706(a) and D. Kan. Rule 26.4(a) provided for court appointed experts. I pointed out (I hope correctly) that D. Kan. Rule 26.4(a) was particularly significant since the federal courts follow state laws and procedures when a diversity suit calls a particular state's law into the federal court, that therefore the existence of D. Kan. Rule 26.4(a) was proof the feds believed its substance did not violate Kansas rules. One of the defense lawyers said he'd never heard of either of these federal rules and appreciated learning of them. All agreed nothing in KS rules prohibited the court appointment. But the judge ruled that since nothing in the KS rules specifically empowered him to appoint an expert he was not going to do it. Since the most basic function of the courts is to hear cases, not to dismiss them (I came across a case which included the quote, “the courts do not favor default judgments,” then went on to point out that hearing the facts was the first responsibility; now there was sound reasoning), I thought the dismissal was a chickenshit move, but one that certainly showed me the handwriting on the wall. Still, until at least one cow comes home…Also, in my preparation for my Pretrial Questionnaire, I came across a statute I wish I'd known about earlier, like when I was first filing my Petition. Turns out, Kansas holds pharmacists responsible for examining each patient's prescription profile before filling a new prescription; this, to assure no adverse interactions are known, the legacy drugs with the new ‘script. AND pharmacists are not protected by the no-vicarious-liability law with which KS shields MDs, DOs, APRNs, etc. BINGO! Now I can have two payable issues, perhaps with two insurers instead of only the one I now have! I point this out and make a motion to amend my (already-once-amended) Petition. Nope, the judge says it's too late. I kind of have to agree he's got a point: it's been more than three years now since the event and my only excuse is that I'm an ignoramus. So no-go there.So, as things now stand the defense has until August 12 to submit their Motions for Summary Judgments, and I have until September 2 to respond. The hearing is scheduled for 9/28.The judge then asked me if I had anything in place of expert testimony, viz., “learned treatises, articles on subject, etc.” I reminded him I'd tried to get fluticasone propionate's in-package warnings and instructions judicially noticed, ditto for the FDA's consumer info, but had been refused. Twice. I'd gotten the impression I could forget the “learned treatises” exception to the hearsay rules. Now I think I'd better write up a list of maybe a dozen or so and just amend my Pretrial Questionnaire to include those among my exhibits; what do you think?Also, assuming the court won't judicially notice these things, can I have them on hand at trial and use them to question defense witnesses? I've noticed what seems a special treatment given to exhibits, witnesses, etc. used in rebuttal. Is this maybe the way to work these things in?I've got other things I'll want to ask, but have to run now. Please start with this stuff.Thank you.