Medical Malpractice

Expert witnesses involvement in litigation is becoming more and more prevalent, while the legal standards for evaluating the admissibility of the science upon which that testimony is based is still as vague as ever. Experts need to understand what goes on in the courtroom, the possible implications of their testimony, and the professional standards to which they are likely to be held. This guide is designed as a brief overview of some concepts the legal professional should follow in order to adequately train and evaluate a potential expert witness.

1. Qualifications.

An expert’s curricula vitae (CV) or resume should be current. It should show the expert’s continuing study in their field of expertise and that the expert is gainfully employed. Retired experts are extremely difficult to contend with as their knowledge may be called into question as out-of-date and unpracticed, and their motivations and involvement in the case may be characterized as purely money motivated.

The resume or CV should be comprehensive and provide all of the expert’s degrees and most of his or her scholarly articles. Additionally, it should reflect experience and expertise in the area(s)  upon which he or she will be testifying. For instance, if the expert will be testifying about DNA results, they should show experience working as a geneticist or in an appropriate lab, not simply that they are a general practitioner doctor with a generalized knowledge of DNA.

Furthermore, many medical specialties have their own widely recognized professional organizations. While these organizations are frequently entirely voluntary, without any authority to affect their members’ license, they are often highly influential in setting professional standards for their members’ conduct, education, and other policies. Indeed, deviating from the accepted standards of these organizations can be grounds for impeachment of the witness, and lead to an embarrassing outcome.

2. Confidentiality

Attorneys need experts that they know they can trust to keep quiet. Many jurisdictions have rules and case law that provide what can and cannot be disclosed in the preparation of experts and their reports. Indeed, in some jurisdictions, attorneys may engage in a practice of retaining expert consultants, even if they do not intend to call them as witnesses, simply to deprive the other side of those experts’ services thanks to their confidentiality requirements. These requirements are often reflected in the rules of the professional organizations for the witness’s chosen field.

Even so, all documentation should be treated as if it may be disclosed to the adverse party at some point. Candid discussions should be done face-to-face or, in some instances, over the phone (though phone records may be discoverable), and not via email or letter. If an expert is unable to comply with these requirements, either openly disclosing information to third parties or continuously ignoring requests to communicate verbally rather than in writing, he may jeopardize the entire case and it may be wise to retain another expert.

3. Assumptions

Experts should form their opinions based on evidence which they have been able to observe for themselves. If an expert is relying solely on representations made to him by the client or the attorney, the opinions will likely be biased, the foundations absent, and the testimony easily challenged or even excluded.

For that reason, in preparing to testify, the expert should state all of their assumptions and describe in great detail their methodology. If facts have been taken on faith, the attorney should ask the expert to attempt to independently verify them if possible. Additionally, if the expert is relying on a third party laboratory to test materials that will form part of their opinion, they should state the qualifications of the laboratory in their expert report. If they rely on scientific literature, manuals, or books, make sure they have reviewed the most current editions. Science changes and develops over time with new findings, and nothing would be more detrimental to a case dependent on expert testimony than to find that the expert relied on a theory that has since been disproved or called into question by widely accepted scientific standards.

4. Read the Expert’s Report

It may seem obvious, but all too often attorneys assume they know what an expert’s report will say and do not take the time to read it and carefully evaluate the findings and presentation. The basis of an expert’s oral testimony is (or should be) contained in his report. If oral testimony deviates from the report it could call the expert’s credibility into question and, again, provide a basis for an embarrassing impeachment.

Similarly, if conditional words such as “may” are used in the report, it opens the door to alternative interpretations of the evidence during cross-examination. In many instances, the expert will be ethically obligated to provide alternative theories, if they exist. If that is the case, the attorney should be aware of these theories and be able to account for them before trial. To the extent that the expert is capable, without violating any ethical standards, asking him or her to use definitive words such as “shall,” “cause,” “conclusively” and “the result of” may avoid any suggestion of equivocation that could clue the opposing attorney into the possibility of alternative theories.

5. Consensus

Typically a report is authored by one individual, as opposed to a group. However, some experts may head up a company, a lab, or other facility where others have contributed information upon which the expert’s opinion is based. If that is the case, everyone who contributed should be in agreement as to the results of the study. If there is dissent within the group, that should be disclosed before the report is submitted for consideration, and the attorney should be careful to directly ask the expert about this prior to submitting the report to the court or the opposing counsel. Discovering dissent within the ranks after that point may be a serious problem, given that the other side could simply call the dissenter and discredit the entire report and all resulting testimony.

6. Critiquing Other Experts

Since experts are usually not eyewitnesses to the events of a particular case, they are usually exempted from the rule of sequestration and may sit through the testimony of other witnesses, including opposing experts. In fact, using one expert to critique another expert’s methods is often the specific purpose for which a defense expert will be employed at trial. If the expert is not going to be available during the duration of the trial or is uncomfortable commenting on another professional’s work, this fact must be disclosed prior to preparing the report or the expert’s value as such may be significantly diminished.

7. Prepare for Cross-Examination

The most difficult part of a good expert’s performance is holding up under cross-examination. Leading questions, misleading suggestions, and other tricks of the attorney’s trade can have even the most seasoned expert flustered at times. A well prepared expert will have been coached on these techniques and allowed to practice responding to these types of questions. If the attorney fails to coach the expert on trial techniques, that is a failing of the attorney, not the expert.

A well-prepared expert will be taught not to guess where counsel is going with a line of questioning, nor attempt to avoid answering questions. The expert’s answers should be brief and to the point. The best experts tell a story on the stand, and make that story interesting and topical through references that the judge and jury can understand. The more complicated an explanation, the greater the likelihood of confusion, of losing the attention of the fact finders, and of providing the opposing counsel an opening to muddy the waters or trip the expert in a verbal trap.

The best expert testimony can be reduced in its entirety to between one and three sentences, possibly even a syllogism, like:

A.        When XYZ conditions are present ABC result is a virtual certainty.
B.        XYZ conditions exist as proven by 123 tests which are widely accepted scientifically.
C.        Therefore, ABC is the result.

8. Payment

Experts are being paid for a service, but there are limits. While it is true that the success of a case may rest on the expert’s performance, the expert should never attempt to negotiate, nor accept an offer, to share in a portion of the proceeds of any recovery or be given pay incentives based on the outcome of the case. Such a pay arrangement is likely to be banned by both the legal standards governing the attorney’s conduct as well as the ethical standards of the the expert’s profession. Similarly, the expert should never bill on a basis that will impair their objectivity (or appearance of objectivity), such as receiving a fee that is wildly out of line with the normal rate of pay for their services (either high or low). Ideally – and in some jurisdictions, legally – an expert’s retainer should be hourly and reflect industry standards and the witness’s own level of expertise.

By: Christopher Eri,  J.D.