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William F. Horsley
William F. Horsley, P.A.
www.horsleylawfirm.com
“I can’t give you a brain, but I can give you this
diploma.”
- The Wizard of Oz
I. Introduction: The importance of experts.
There is almost no area of trial practice today in which
expert witnesses play no role. Whether your case is a complex
product liability claim, an involved medical negligence claim,
a contested equitable distribution matter, or an apparently
routine automobile collision case, expert testimony may be
crucial to the outcome of the case. Experts may be
“retained,” that is, hired for their expertise in the
matter in controversy, or they may consist of other witnesses,
such as treating physicians, who may be called upon to express
an opinion on some aspect of the case.
The need for expert testimony necessarily raises the stakes
of the litigation. An expert must be paid for his or her time,
not only in giving testimony, but also in preparing to give
testimony or to render an opinion. A good expert can make the
difference in whether a case will be successful or not.
Likewise, an expert who turns into a dud can deliver a fatal
blow to the case.
The importance of expert testimony in so many of our cases
mandates that expert testimony be given serious thought and
planning. In product liability or medical negligence cases,
the lawyer may spend as much or more time and money locating
and preparing the expert, and defending the expert’s
deposition, than in any other phase of the case except for
trial itself. The expert’s testimony must be persuasive, not
only in its own right, but also when juxtaposed against the
testimony of the opponent’s expert.
To avoid being “done in” by your own expert, you must
not only carefully select the right expert for the case, you
must also spend the time to make sure the expert is prepared
to “tell the truth effectively.” You must also make sure
you know the facts of the case and the law regarding expert
testimony, as well as the science or medicine involved.
II. Stumbling blocks:
Expert testimony is governed by Rule 702, Rules of
Evidence. Except in medical negligence cases, the rule
provides:
If scientific, technical or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training or education, may
testify thereto in the form of any opinion.
Under the rule, once it is shown that the witness has the
required degree of expertise, the test for admissibility is
whether the proferred testimony would be “helpful” to the
trier of fact. Of course, there are cases in which the witness
is certainly qualified, but the court may determine that the
testimony is unnecessary, as the jury can just as well make
its determination without hearing expert testimony. Too, even
a well-qualified accident reconstruction engineer will not be
allowed to testify regarding the speed of a vehicle without
having observed the vehicle in motion for a sufficient time to
allow the formation of the opinion.
Some consternation was created when the Supreme Court decided
Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993). This case, at least in Federal Court, made the trial
judge the “gatekeeper” in determining whether particular
expert testimony is sufficiently reliable to allow
admissibility. Daubert, in theory, was an attempt by the Court
to deal with a perceived problem of using “junk science”
in litigation by requiring the trial court to make a
determination of the reliability of the proferred testimony by
an examination of the method by which the expert arrived at
his or her opinion.
The Supreme Court revisited the issue in Kumho Tire Co. v.
Carmichael, 526 U.S. 137 (1999), making it clear that the
gatekeeping function of the trial court extended to expert
testimony of all kinds.
It is not the purpose of this presentation to discuss the
merits of these cases. Rather, our purpose here is to alert
the lawyer to the necessity of having the expert be able to
defend the method by which the opinion was reached. If the
expert uses methods which have not achieved general acceptance
in the relevant scientific (or other appropriate) community,
then his or her opinion testimony may be excluded as
insufficiently reliable.
Thus, part of the process of selecting and preparing an expert
must necessarily involve reviewing with the expert the
methodology used in reaching the opinion, and preparing the
expert to meet the inevitable Daubert challenge at trial.
In medical negligence cases, there are other barriers. An
expert on the standard of care must not only practice either
in the same specialty as that of the defendant doctor, or one
in which the same procedure at issue is practiced, but must
also express a sufficient familiarity with the standards of
care, in that specialty or the similar specialty, prevailing
in the community where the negligence occurred, or in similar
communities.
There are two cases (at least) of particular interest
concerning experts in medical negligence cases. In FormyDuval
v. Bunn,, the defendant doctor was a “general
practitioner” without board certification. Plaintiff
submitted three experts, one board certified in oncology, one
board certified in emergency medicine and family practice, and
the third not board certified, but who was found to be a
specialist in emergency medicine by virtue of his practice.
The trial court excluded all three, holding that they were all
“specialists,” while the defendant was not a
“specialist.”
In Henry v. Southeastern OB-Gyn Associates, P.A., 145 N.C.
App. 208, 550 S.E.2d 244 (2001), plaintiff’s expert
testified in deposition that he was unfamiliar with
Wilmington, North Carolina and with the medical community
there, where the alleged malpractice occurred, but that he was
familiar with the applicable “national standard of care”
and that the standard in Spartanburg, South Carolina, where
the witness practiced, would be the same as the standard
applied at Duke Hospital or at UNC Hospital. The court noted
the absence in the record of any evidence that the standard of
care in Wilmington is the same as that practiced in Durham or
Chapel Hill, “or that these communities are the ‘same or
similar’.” The witness was disqualified.
The lessons for the trial lawyer inherent in these and other
cases are that expert witnesses should be carefully chosen,
with an eye toward the requirements of the statute, and once
chosen, must be prepared to testify in accordance with the
requirements of the statute.
III. Non-retained experts.
Typically, the “non-retained” expert is one who is
already part of the case, such as a treating physician or
other health care provider involved in the client’s care and
treatment. While the lawyer may have little say in the
“selection” of such an expert, to the extent possible the
lawyer should make sure the expert is prepared to give
effective testimony.
There was a time when doctors complained that lawyers were
calling them to testify at trial or in deposition without
first preparing them to do so. Now, the pendulum has swung
away from that, and many doctors are reluctant, or refuse
outright, to meet with lawyers before testifying. Many
physicians resent what they see as an intrusion into their
time, and many others simply don’t like lawyers or
litigation and therefore pose a real threat to the success of
the client’s cause.
Almost as much of a threat as the hostile treating doctor, is
the treating doctor who comes across as such an advocate for
the patient that his or her credibility is at stake.
There probably isn’t much a lawyer can do by way of
preparing a hostile treating physician to testify. In such
cases, extra focus must be given to the lawyer’s own
preparation for crossing the minefield. In the case of the
enthusiastic treating physician, the lawyer must make sure the
witness is aware of the potential harm to be done by pushing
the envelope too aggressively.
A. The hostile doctor.
If a treating physician is uncooperative in scheduling
testimony, or refuses to meet with you prior to the testimony,
you should consider that to be a clue that he or she is
unfriendly and proceed accordingly.
In your preparation for the testimony of this witness, you
must be thoroughly knowledgeable about both the facts and the
medicine of the case. The direct examination must be prepared
so as to elicit the necessary testimony (usually about
causation) without giving the witness a lot of leeway. There
may be entries in the record where the doctor has already tied
the subject incident to the patient’s condition. If so, take
advantage of that. Try to arrange preliminary questioning so
that the doctor will have no escape route and will have to
give the opinion you need.
Anticipate the cross examination of the doctor by the defense
and try to negate it. If the doctor performed a number of
tests designed to rule out a particular condition, and those
tests have no bearing on the ultimate diagnosis, make the
doctor say so on direct. If x-rays show no bony injury, the
doctor will still have to agree that x-rays do not show soft
tissue injury and a negative x-ray does not mean the absence
of injury. Be as specific in your questioning as possible
without leading.
Becoming knowledgeable about the client’s medical records
includes knowing those entries that are potentially harmful.
If there are a lot of “no shows” for appointments,
comments about non-compliance, indications of drug seeking
behavior, or notations of patient comments about his or her
personal injury claim, coupled with an uncooperative or
hostile medical witness, you’d better understand that this
is probably not a good case to take to litigation. Even a
helpful doctor cannot be much help in that situation.
B. The cooperative medical witness.
As noted above, if this witness if perceived by the jury as
being too much of a patient advocate, his or her testimony may
be compromised. The prudent lawyer, in preparing the witness
to testify, must ascertain the basis for the doctor’s
opinion on causation. Obvious potential problem areas are
diagnoses made solely on the basis of the history given by the
patient or on the temporal relationship between the incident
at issue and the onset of symptoms. Discrepancies in the
record may represent serious problems for the case. If the
history given in the emergency room differs significantly from
that given to the doctor at the first visit, and the
doctor’s diagnosis is made solely on the history given in
the office, you can be sure the doctor will be cross examined
on the discrepancy. If the doctor is truly cooperative,
explore the possible explanations for the discrepancy and
prepare the direct examination accordingly.
If possible, use the doctor to educate the jury about the
client’s injury. Prepare the witness to use exhibits which
illustrate the condition, or which illustrate some medical
procedure or treatment rendered in the case. Review these
exhibits with the witness before the testimony. If the
exhibits are not helpful, find out beforehand.
The witness must be prepared for cross examination. In the
typical personal injury case, the defense will focus on the
subjective nature of the patient’s complaints of pain and
discomfort, the negative results of any tests or diagnostic
procedures, the possible causes of the client’s condition
other than the accident at issue, the existence of some
pre-existing condition, and any discrepancies or negative
notes in the records. Preparation includes reviewing with the
witness possible responses to these lines of questioning. Make
sure the doctor knows he or she may explain an answer, and
that he or she should do so when necessary.
I suggest a meeting with the doctor as soon after accepting
the case as possible. Some of these issues can be discussed at
that time with the hopeful result that the doctor’s record
will not be ambiguous and will not provide fertile ground for
cross examination. Be very careful, though, since you do not
want to be in the position of offending the doctor or of being
seen to attempt to manipulate the record unfairly. You should
ask the doctor to refer you to relevant literature, and to
offer suggestions on exhibits which could be used to
illustrate his or her testimony.
Make sure the doctor understands the relevant legal
terminology. Opinions must be expressed to a reasonable degree
of certainty, which means “more likely than not.” In
answers to questions on direct, the doctor needs to avoid
using words which are speculative, such as “possibly.” On
cross, the defense will almost certainly ask the doctor to
admit that something other than the subject incident could
cause the patient’s symptoms or condition. The well prepared
doctor should simply respond that he “cannot speculate on
that.” Obviously, in a hypothetical world, anything is
hypothetically possible. Your doctor-witness, though, is
dealing in the real world of his or her patient and should be
prepared to resist guessing.
Caution the doctor about defense techniques, such as flattery
(“Doctor, you got an excellent result in this case, didn’t
you?”) The witness should keep in mind that a good medical
outcome may still result in significant impairment.
Don’t be afraid to ask the doctor about what he or she sees
as weaknesses in the medical case. Follow up with questions
about how the doctor would go about explaining these
weaknesses.
IV. Retained Experts.
For our purposes, a “retained” expert is one who has no
connection with the case except for being selected to review
material and express one or more opinions necessary to prove
the case and persuade the jury that the side proferring the
expert should prevail.
A good expert witness brings skills into the courtroom just as
sophisticated and subtle as those of the most effective trial
lawyers. A good expert must appear confident without being
arrogant. He or she must be polite, but not obsequious. He or
she should be well dressed, but not flashy, slick or trashy.
The good expert must be a good communicator. He or she must be
sincere, without being too much the advocate. He or she must
project an aura of objectivity.
A. Selecting the expert.
This is not a presentation on how or where to find an expert.
However, selecting the right expert is often the first step in
avoiding “death by expert.” There are a number of factors
to be considered in retaining an expert witness: the nature of
the case, the location of the trial, the complexity of the
issues involved, in medical negligence cases the area of
practice involved, and your assessment of how the particular
expert will “play” in your trial.
Remember that the testimony of an expert witness is inevitably
theater. Jurors must judge the expert’s testimony on his or
her personal credibility. To be sure, the witness’s academic
achievements are important elements in determining
credibility, but physical appearance, race, gender, speaking
and language skills and personality are at least as important.
The foremost qualifications of the expert, ultimately, are
effective presentation and teaching ability. The jury must be
educated in the technical matters of the case. Once the jury
perceives that it understands the technicalities of the case,
it will be ready to make a decision that the expert’s
testimony is correct.
Don’t fall victim to a false economy. Face it, a case in
which one or more retained expert witnesses are required
promises to be time consuming and expensive. Do not stint on
experts! If you think you might need more than one expert, get
more than one. Avoid “professional experts” who have
testified in hundreds of cases. You can be sure the opposition
will have “the book” on such a witness.
In preparing this presentation, I sent out an inquiry on the
ATLA product liability and medical malpractice list serves,
seeking suggestions on selecting and preparing experts. Here
are some of the responses and comments on the selection of
experts:
“It is a good idea to meet with the expert, if possible, in
person to assess how you, and perhaps the jury, will interact
with him or her. This also allows you to make sure the expert
clearly understands the facts of the case as well as the
idiosyncrasies of the jurisdiction involved.” Terry Light,
Lewisburg, Pennsylvania
“I once had an expert show up in a Mardi Gras sweatshirt
with John Lennon style glasses on. I had thoroughly checked
her out. She had testified in about ten other cases and none
of the other lawyers had any complaints. Now, I take nothing
for granted.” Vicki Slater, Jackson, Mississippi.
“I had [an expert] ride up on a Harley. He was in leather
and had a chain necklace. During the deposition, he confided
that he no longer had an active practice because he was in
“recovery.” Did I say goodby fast enough?” Bobby
Phillips, Savannah, Georgia
“Watch out for posture! I had an expert . . . [who] was
wonderful at his deposition and was wonderful at his
preparation. At trial, he put his elbow on the railing and his
head on his hand and slumped on his hand the whole time he
testified. [During recess] I explained to him what he was
doing. . . but to no avail. His body language was a major
factor in our losing the trial where his opinion was
crucial.” Rhoda Fuller, Louisville, Kentucky
“Watch out for make up! We had a nurse expert - very
intelligent, well prepared and adept and handling cross
examination [who appeared in court] wearing bright red lip
stick, blue eye shadow, heavy mascara, thick pancake make up
and two dotted rouged cheeks. She looked like she was going to
a Halloween party as one of Miss Kitty’s girls.” B. J.
Kilbride
Bearing in mind these, and the other matters noted above, your
expert should possess the following qualities:
- Excellent academic or practical qualifications in the
field in which he or she is expected to testify;
- Good communication skills;
- A “down to earth” demeanor;
- A grasp of the facts and issues of the case.
B. “Woodshedding” the expert.
No matter how qualified the expert seems, he or she must still
be prepared for testifying, whether in deposition or at trial.
Once the expert has been retained, he or she must be given all
of the relevant documents in the case, and make sure the
copies are legible. In a product liability case, if possible
the product itself should be made available for examination.
Make sure the expert thoroughly knows the case, but don’t
try to force an opinion on him or her.
Here, in no particular order, is a checklist for the
preparation and use of an expert:
- The witness must stay within the bounds of his or her
expertise. Don’t try to have your standard of care
witness in a medical negligence case also try to give an
opinion on causation.
- Give the witness the documents or records in an
organized fashion.
- Make sure the witness understands the difference between
“probability” and “possibility.” He or she should
avoid such phrases as “it might be true,” “it is
possible,” it “might have” that effect, it “could
have” that effect.
- Can the witness bolster his or her opinion with examples
of scientific or medical literature?
- In a medical case make sure the witness has material to
enable him or her to express a sufficient familiarity with
the locality of the negligent act or omission.
- Caution the expert about the following defense
techniques:
- In a medical malpractice case, opposing counsel may try
to put the alleged malpractice into terms of a simple
difference in judgment between two physicians. The case
should be framed in the context of good/acceptable
judgment vs. bad/unacceptable judgment.
- “That’s just your opinion, isn’t it?”
- Beware of the “retrospectroscope.” Medical
malpractice expert opinions may be attacked because they
are based on “20-20 hindsight.” The expert should be
able to testify that he or she, to the extent possible,
considered the case based on what the defendant knew or
should have known at the time. Hospitals and managed care
organizations use this type of review regularly to monitor
quality of care. The expert should explain how this is
done and how his or her work in your case used the same
type of analysis.
- Use your expert to assist in drafting discovery
responses, or at least have him or her review your
responses before they are served. This will avoid
inconsistency later.
- Have the expert paid up to date before deposition and
trial.
- Encourage the expert to refer to the record or to other
documents if necessary, since source materials enhance
credibility. Be certain the expert understands that he or
she will be cross examined on whatever is used. (Make sure
YOU know what is there, too.)
- Review with the expert the definition of such things as
“standard of care” and “proximate cause.”
- Make sure you have a clear understanding of the
financial arrangements with the expert.
Much of this, obviously, is common sense. One of the ATLA
list mates encourages us to have an “out of body”
experience, meaning to detach ourselves as much as possible
from our position as plaintiff attorney, and try to view the
case from the other side. If you were defending your case, how
would you approach this expert?
V. Conclusion:
Nothing is more devastating than listening to your own,
expensive, expert witness effectively throw your case under
the bus. The witness must understand his or her role, and play
that role honestly and effectively. The lawyer and the expert
are engaged in a dance of mutual reliance and each must help
the other each step of the way, or all is lost.
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