Selecting Expert Witness in Personal Injury Cases
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Effective use of an expert witness in personal injury cases can make the difference between winning and losing. In some cases, like medical malpractice, expert witnesses’ opinions are required even before a lawsuit can be filed.
I have found the selecting of appropriate experts to be vitally important. Many lawyers, depending on the area of law they practice, maintain a book or bank of experts they call upon with regularity. For instance, an auto insurance defense firm or a cruise line may use the same three or four experts in different cases several times a week. It is not unusual, for instance, to see a neurologist or an orthopedic surgeon hired by a defense firm or cruise line spending more time and making more money testifying than actually seeing and treating patients.
While this may also be true of the plaintiff’s practice, I can only base my experience on what I have seen and heard. I personally try to utilize different doctors or experts as often as I can, so as to deflate the defense’s potential arguments of bias or prejudice. The benefit of using tried and true experts versus the risk of the unknown is difficult for any lawyer to weigh. Therefore, thoughtful selection of experts is important in maximizing your client’s potential for success both in and out of the courtroom.
Perhaps the most valuable trait I look for when selecting an expert is his or her ability to articulate opinions in a manner that is believable, likable, modest, and honest. In nearly 25 years of litigating cases across the United States, I think I may have seen it all.
The Ivory-Tower Expert Witness
This expert is the leader in an academic field. Usually, he or she has authored books on the subject that are used at the best universities and schools in the world. Often, the expert is a guest speaker at international conferences and has a general reputation as the preeminent voice on a particular skill set or narrow subset of medicine or science. Imagine a Dr. Sheldon Cooper, the “know-it-all” star of The Big Bang Theory. Sheldon lives a sheltered life in academia, having skipped grades in school and being regarded as a prodigy. However, just like Sheldon, many Ivory-Tower Experts have little or no ability to connect with others–particularly a jury. Such experts are easily frustrated and even annoyed by those they regard as intellectually inferior–and that includes almost everyone else.
I have opposed such experts in depositions and trials. They are usually found in the bowels of notable institutions, like Brigham and Women’s Hospital, or the MIT Department of Physics. Many of the most prestigious bastions of great intellectual thought, experience, and knowledge–like the Mayo Clinic–actually prohibit their physicians from testifying as paid consultants in personal injury cases, at least the last time I checked on behalf of a plaintiff.
Consequently, it seems ironically tragic to me that defense teams for doctors, hospitals, pharmaceutical makers, and cruise lines enjoy unfettered access to such experts from around the world . . . in addition to those who already work for them.
Therefore, we who represent the plaintiffs are often left to the rest, the second tier, those who may have gone to Harvard but teach at the local state university. Perhaps they published an article but not the book, or they may simply want and need to make extra money by offering expert services and opinions to those willing and needing to pay for them.
The Virgin Expert Witness
I used to think I could be clever by going off the beaten path and finding a true advocate for justice to serve as my expert. I thought that out of the blue I could contact someone purporting to have the qualifications to render an opinion on the minute facts at issue in a particular case.
I imagined I could outsmart the system, using Google as my Sherpa to lead me to the person who would be qualified and willing to stand up to the corporate monster I was trying to slay. A product design engineer willing to testify that a box of water sold by the local grocery store was defectively made and lacked the appropriate warnings. Or a high school gym teacher who would be willing to testify against the largest cruise line in the world that one of their onboard youth activities was inherently dangerous.
The virgin experts have never been deposed by a well prepared and highly paid defense lawyer. Never have their lives been crudely cut open by the abusive subpoena power wielded by the defense to “learn everything” about this virgin expert daring to dip his or her toe in the pool against the leviathan corporate defendant who owns the deep end.
Once I found a young and courageous neurologist who was willing to testify against one of the largest medical schools in the country that their star faculty members had failed to properly diagnose and treat a debilitating brain injury. After her deposition, the hospital’s lawyer snarled at me, “She did a good job–but she will never practice medicine in this town again.” He was right; her referrals dried up, her privileges were never renewed, and she moved away. I never heard from her again.
The problem with virgin witnesses is that–no matter how much preparation you may give them–they have never played under the glaring lights, in front of a hostile crowd, in a big game, on the road. In other words, I have seen one too many crack, retract their opinions, or worse, simply refuse to go on stage when needed the most.
Now, many years older, grayer, and wiser, I want an expert who knows where the courthouse is, likes the work, can handle him- or herself under the most intensive situations, and no matter how much he or she wants, is worth every penny.
The Non-Conceder a.k.a.the Combatant
I have deposed many opposing experts who must have been told “concede nothing.” Accordingly, they take the most absurd positions, in the belief that they simply cannot agree with anything I say lest they be seen as helping the plaintiff’s case.
For instance, one of my favorite lines of questioning, which I have used dozens of times in medical malpractice cases involving the failure to diagnose or treat cancer, runs as follows:
Q: “Doctor, would you agree the sooner a cancer can be diagnosed, the sooner it can be treated?”
Q: “Doctor, would you agree it is always best to diagnose a cancer, no matter what kind, sooner rather than later?”
Q: “Doctor, can you give me some examples of a cancer that you do not feel it would be better to diagnose sooner, rather than later?”
A: “Sure, there a many kinds.”
Q.: “Okay, Doctor. I have my pencil poised and ready. Please list with specificity each and every type of cancer for which you believe a later diagnosis would be more beneficial than an earlier one.”
A: “What? I never said that. You are putting words in my mouth.”
Counsel for Defendant: “Objection to Form, mischaracterization of testimony.”
Q: “I am sorry, Doctor. Did I mischaracterize your answer in my question?”
Counsel for Defendant: “Objection. Argumentative. Move on counsel.”
Q: “Doctor, let me ask it again, and I apologize to you and your lawyer if I am in any way making this confusing for you.”
A: “Go on, just ask the question.”
Q: “Doctor, wouldn’t you agree that it is always in the best interest of a patient with cancer to be diagnosed sooner rather than later.”
Q.: “Doctor, why is that so?”
A: “There is a thousand reasons why.”
Q: “Would one of the thousand reasons why it would be in the best interest of a patient with cancer to be diagnosed sooner rather than later be to provide that patient with care and treatment for that cancer sooner rather than later.”
A: “Yes, one of the thousand reasons, yes.”
Q: “And that is because you cannot treat what you haven’t diagnosed, true?”
And it goes on and on, hour after hour, with the clock ticking, and the doctor trying to break me down, or hoping that his rambling will just confuse and dilute any information that may have been relevant or useful. It all costs the plaintiffs and their opponents thousands of dollars in time and money.
One can and should propound experts discovery–interrogatories and request for production; in the hopes of narrowing the opinions and obtaining vital background information.
Consult with an Experienced Attorney
We encourage you to consult with an experienced attorney before selecting an expert witness in a personal injury case. If you or a loved one have been involved in an accident and need legal representation, please call our personal injury law firm today toll free at 1-866-597-4529 or email us for a free initial legal consultation.