The Trial Judge

The function of a trial judge is complicated in a field such as ophthalmology because it is complex, permitting a number of treatment modalities (often implicating surgery) that are all generally supportable. It is the task of the trial judge to determine whether an opinion of an expert commands sufficient respect in the field of ophthalmology that it should go to a jury with all of the other relevant evidence. It is particularly vexing for trial judges because, generally, they do not understand enough about ophthalmology to recognize that an opinion by an expert does not attract sufficient respect among practitioners. How would it be expected that a trial judge would have familiarity with the technical details of a field as wide-ranging as ophthalmology? How would a judge know about anterior segment surgery, cataract surgery, corneas, glaucoma, neuroophthalmology, ocular oncology, oculoplastics, refractive surgery, retina and vitreous, immunology, or even the basics of these so-called subspecialties? In each, there are technical requirements that would overwhelm the most avid student of scientific requirements—an attribute that most trial judges do not possess. Consequently, a hearing on the issues is of crucial importance. It is essential that a trial judge be supplied with enough information to make an informed judgment. To argue that an opinion by an expert requires no less than inclusion in a peer-reviewed medical journal may not carry the day if the peerreviewed material is weak or not on point or if the literature (any literature) contains an opinion that is strong enough but has not yet appeared in a peer-reviewed journal. The trial judge’s view is always subject to the prospect that an appellate court may disagree that the trial judge’s findings of fact are sufficient. The gatekeeper role is not one to which trial judges are accustomed. Junk science is a difficult concept that presents enormous problems for the trial judge trying to make a determination that is fair for everyone. Most judges simply do not know enough about the subject matter to make a reasonable determination.