Helpful Information

New Approaches To Handling Defense Experts

Sylvester "Sly" James, Jr.
The Sly James Firm Trial Layers, P.C.
802 Broadway, 7^th Floor
Kansas City, MO 64105
816/472-6800
Fax: 816/472-6805
Email: sly@slyjamesfirm.com
Website: http://www.slyjamesfirm.com/

When I was a younger lawyer, an old pro once told me, "Never take on an expert head on." By that he meant that I should not attempt to extensively cross-examine an expert on his field of expertise. As a young lawyer, however, I fantasized about that dramatic moment in the courtroom when the defense expert recanted his or her previous opinion as a result of my withering cross-examination. In my mind's eye, I saw him break down and admit that he was wrong all along. I would then turn and humbly face the jury. They would stare back at me in awe of my skill and ability. My fantasy has come true only once in my 23 years of practice - and I still lost the case.

As I have grew older and more experienced, my approach to defense experts changed. I no longer go for the big kill. Now I try to find ways to attack the foundation of the expert's opinions. I now understand that it is important to set realistic goals when approaching the defense expert. It is unrealistic to expect the expert to abandon his/her opinion. It is highly doubtful that the expert will concede that the defendant doctor breached the standard of care or that your client sustained debilitating injury or death due to the defendant's negligence. If your approach to the expert is dependent on these expectations, it will generally fail.

The defense expert can be used to bolster the plaintiff's case if more realistic goals are set and proper planning is undertaken to achieve those goals. By attacking and weakening the foundation of the expert's opinion, we allow the jury to conclude on its own that the ultimate opinions are not credible. Before attacking the foundation of defense expert foundations, however, we should use the experts to extract helpful concessions and admissions. In order to take full advantage of what an expert has to offer, we must be prepared.

I. Investigate the Expert Beforehand

It is important to acquire as much information about the expert as possible before you actually depose or cross-examine them. We should:

a. Acquire as many prior depositions of the experts as possible.

Review the depositions for information that you can use to establish bias or interest on the part of the witness. Although the substantive areas covered in prior depositions may be totally different, you may be able to find contradictions regarding non-substantive issues:

• How many times has he testified?
• How many times has he testified for this or other lawyers?
• Percentage of income earned in medico-legal consulting?
• Percentage of cases on behalf of defendants vs. plaintiffs, etc.? and
• Reliance on articles and treatises, articles written, etc.

By reviewing numerous depositions you might find discrepancies and variances that may be valuable in attacking the expert's credibility.

Once other depositions have been obtained, talk to the other plaintiffs' lawyers who deposed the expert and acquire any background investigative materials they collected and discuss their insights as to the expert's style and demeanor.

b. Review the expert's web page.

Often experts, or the groups to which they belong, set up web pages for marketing purposes. Some web pages have links to other sources that contain educational materials, medical articles, videos of procedures, C.V.s and other helpful information. If the expert has written articles, they are sometimes mentioned or linked to the web page. The expert may list presentations they have attended or in which they participated. In short, some web pages can provide a plethora of information that can be used to prepare for or to examine the expert.

c. Locate articles and presentations.

The expert may have mentioned articles he has written or presentations in which he has participated in prior depositions. Perhaps the examining attorneys collected all or some of those materials. Locate and thoroughly review any such articles and presentation materials well before the examination. You may be able to locate the expert's writings at http://www.findarticles.com/, http://www.ingentaconnect.com/ or Medline.

II. Get the Good Stuff Up Front

Favorable concessions can and should be obtained from the expert at the beginning of the examination before the expert becomes defensive and expresses his or her opinions. There are entire areas of examination that can yield helpful information regardless of the case and regardless of the expert's opinion.

a. Standard of Care Issues

You can use the defense expert to establish elements of your standard of care case. If your case involves an allegation that a pediatric neurosurgeon failed to timely revise a faulty shunt in a hydrocephalic child, you can use the defense expert to establish that:

• The treating doctor must maintain a high level of suspicion when evaluating a patient with a shunt because presentation of a shunt malfunction can vary widely;
• Signs and symptoms of shunt failure;
• What responsive actions are required by the standard of care;
• Whether certain diagnostic tests are helpful or required to diagnose the problem; and
• The critical element of time.

b. His Personal Familiarity with the Issue

Even if the expert denies that your client was injured as a result of negligence, you may very well be able to show that he has treated patients who have had the same problem. For example, in the shunt case, you should establish that:

• He has personal experience with shunt failures;
• He has treated patients with shunt failures;
• That he knows from treating patients whose shunts have failed that they often present with:
  • severe headaches;
  • lethargy;
  • loss of balance;
  • dizziness; and
  • ataxia.

You can then use the medical records in your case to establish that your client presented in similar fashion with similar complaints.

c. Common Sequelae

Based on the experts personal treatment of such patients, he should admit that:

• Failure to properly revise or correct shunt malfunction can result in:
  • persistent neurological problems;
  • disability; and
  • death.

d. Patient in Best Position to Know

Any credible expert has to admit that:

• Pain is subjective;
• Patient in best position to know if they are in pain;
• Pain cannot be measured; and
• Pain can be disabling.

III. Hitchhike on Damages

In his book "Ball on Damages," David Ball explains that, "Hitchhiking is the subversion of defense liability experts into plaintiffs' damages experts." Ball on Damages at 189. We combine hitchhiking with the use of our Harms List.

We prepare an annotated Harms Llist (See Ball on Damages at 67-76) in advance of the expert's deposition. Each harm, injury, consequence and fix that we can find in the medical record is included on the annotated list. In his deposition, we then ask the expert a series of questions to which he must agree and, thereby, establish the existence of the harm. For trial, we then either use his deposition testimony or his trial testimony to fill in the Harms list in front of the jury.

Q. Doctor, you have reviewed all of the medical records in this case, haven't you?

A. Yes.

Q. In fact, you have based your opinion, in part, on your review of the medical records, haven't you?

A. Yes.

Q. You believe that the medical records you reviewed fairly and accurately told the story of what happened to John, didn't you?

A. Yes.

Q. You do not think that when the defendant, Dr. Jones, made entries in the chart that he was misstating what he saw, do you?

A. No. I think his records are accurate.

Q. So, Doctor, would it be fair to say that you relied on the medical records to be accurate and correct?

A. Yes, that would be fair.

Q. Would it also be fair to say that you have no reason to believe that Dr. Jones was inaccurate when he recorded his observations in the medical record?

A. I believe that is fair.

Q. You don't have any reason to believe that when Dr. Jones recorded what John told him that John was inaccurate, do you?

A. No.

Q. You would then agree with Dr. Jones when he wrote in the medical record that John complained of a headache that he rated as a 10 on a scale of 1-10?

A. Yes, that is in the chart.

Q. You would agree that John is the only person who could rate the severity of his headache pain, isn't that correct?

A. Yes, pain is subjective.

Q. Pain is not subjective to the person who is in pain though, is it doctor?

A. I guess not.

Once the foundation is laid for the accuracy of the medical record and that the expert accepted and relied on the information therein as true, you can then use the defense expert to establish as many Harms List items contained in the record as you want.

IV. Bias

If you can establish the bias of an expert witness it will go a long way towards creating suspicion, doubt and mistrust of the expert and/or his opinions. Various ways to establish bias include:

• Establish that the expert never treated the patient;
• The expert was hired by the other lawyer;
• What the expert was paid by the other lawyer;
• That the expert generally works for the defense;
• Show what the expert charged and what they plan to charge for various activities in the case; and
• Request production of all 1099's they have received from lawyers or insurance companies in medico-legal situations over the past five years. They must be issued 1099's for all payments that they receive. By requesting the 1099's you can get the information directly related to their expert testimony without getting into their actual overall income, however, you can show the percentage of income comprised of testimony and fees produced by expert witness activity.

Use Technology

Bring a consulting physician or nurse with you to the deposition of the expert. We frequently retain a medical consultant to review the case before we retain an expert to testify. There is no rule that prohibits you from bringing that consultant with you to the deposition in order to help you with the examination of the expert. It can be invaluable and his assistance is work-product and, therefore, not subject to discovery.

If, for whatever reason, you choose not to bring your consultant with you, you can still take advantage of his expertise in a number of ways:

1. Have the consultant script out deposition questions that you can use with the expert. Be sure that you discuss those questions with your retained expert, however, to make sure that he or she agrees with the question.

2. Locate a court reporter who can arrange for "real time" transcription and who has the ability to transmit the transcription to a remote location in real time. Often the court reporter can set up a web site to which your consultant or expert can log in and read the deposition as it progresses. They can then transmit follow-up questions, suggestions or comments to you during the deposition via e-mail, PM, Blackberry or phone. The cost of real time transcription is a bit more expensive (90¢ a page with our reporters) and it may cost about $100.00 to set up the web site. You should plan this in advance, however, because some firms have computer firewalls that can interfere with or eliminate the ability to communicate with your remote consultant. Check with your court reporter way in advance of the deposition and they can usually find a location or way to set up the remote real time ability.

CONCLUSION

If we have realistic goals for the examination of the defense expert and then prepare properly, we can often make the defense expert a witness for the plaintiff.