Facing the 'Expert'

Although any trial lawyer would like to be Atticus Finch in “To Kill a Mockingbird” ' to make the world's most eloquent argument to a jury on the client's behalf ' the reality is that a trial creates a situation in which the risks of losing, in general, do not outweigh the safety to be found in a negotiated settlement. In effect, both parties win when a case settles. A methodical deposition that has been carefully prepared serves the client's interests, since it favors a controlled settlement.

If you want to settle cases or to win at trial, the “crux move” in medical negligence litigation is the deposition of the opposing medical expert witness. This article provides the theory you need to conceptualize the deposition, to decide what you need, and to create an intricate, yet effective method that will pin down the opinions and, simultaneously, allow weaknesses in the opposing case theory to surface. This type of a deposition will encourage settlement, or, if the case does go to trial, the trial lawyer will have the best ammunition. These techniques may be applied in any deposition for any witness.

The Rules

Discovery depositions are an opportunity to probe the opposing party's case theories, to learn strengths and weaknesses, and to assess whether the medical expert witness will dazzle a jury with his or her expertise and demeanor, or sink like a stone. How do you do it?

Rule 1: Preparation

The key to doing an expert witness deposition is preparation. Your preparation. In order to proceed, you must have a viable case theory that makes medical sense. How to evaluate cases? Every lawyer has his or her own style, but no matter what that style is, unless you know your own case and know what you need from the opposing expert witness, the deposition will inevitably conclude but remain inconclusive.

Rule 2: Develop a Cohesive Medical Case Theory

Your case theory must be well founded within accepted medical science, and include a precise version of who did what, and when. It is unsatisfactory to enter a deposition without this preparation. For instance, in the following case, after the plaintiff took ten depositions, an acceptable case theory emerged: On Jan. 1, 2002, at 3:52 a.m., a respiratory tech discovered that the patient's endotracheal tube had become dislodged and was extending 6 cm from the previous mark on the tube. The respiratory tech advanced the tube into the mouth and the patient then struggled. The respiratory tech found that nobody was in the Intensive Care Unit room. She left the patient alone and attempted to find a nurse, but there was no nurse available. The respiratory tech returned to the room where the patient was still struggling, and then a nurse entered the room.

The nurse also found the tube extending 6 cm beyond the proper mark, and she introduced the tube, blindly. The patient continued to struggle but became cyanotic. The nurse hit the code alarm at 4:01 a.m. The resident doctor arrived at 4:06 a.m. and the patient began complete cardiorespiratory arrest at 4:08 a.m. The attending doctor had arrived at 4:06 a.m., virtually simultaneously with the resident, but the attending doctor permitted the resident to handle the code situation. The resident attempted to verify the tube position but was unsuccessful. Meanwhile, the team twice defibrillated at 200 joules, administered atropine, did not give xylocaine, and then administered epinephrine through the endotracheal tube The epinephrine bubbled in the tube, the resident then realizing that the tube was not in the trachea. At 4:10 a.m., the resident attempted an intubation and failed. No witnesses supported the possibility that during the 4-minute period the patient received any form of airway, any oxygen, any mask or oropharyngeal airway. At 4:13 a.m. a CRNA arrived and intubated the patient. The patient quickly “pinked up.” The patient, however, remains in a persistent vegetative state.

This theory contains the ingredients to complete the tort action against the hospital and the attending physician. These facts and the chronology were developed from the medical records and from testimony from the individual facts witnesses.

In the expert witness deposition, the goals are: 1) to have the expert witness accept your version of the case theory, or, 2) in the alternative, to provide another version of the facts. Then, move to step 3: standard of care, step 4: causation, and into step 5: damages. Unless the attorney can pin down the expert witness on each relevant fact, it will be impossible to move, with confidence and precision, into the standard-of-care analysis.

The standard of care rests on the facts, doesn't it? See how important this step becomes?

What do you want to learn from the discovery deposition? You need to learn: 1) on what facts the expert witness bases his or her opinion; 2) precisely what those opinions are; 3) on what evidence from the medical record and other discovery the expert found support for his or her opinions; and 4) with reference to medical literature or other forms of medical authority (such as standards in the profession), precisely with what the expert supports these opinions. To what degree is the opinion that this expert witness expresses accepted in the general medical community? Is the opinion novel?

When the attorney concludes the deposition, then, with answers to these questions, the attorney knows the opinions and the bases for them with certainty and the attorney is able to decide, in the event that the opposing counsel brings motions to exclude the witness, how best to defend the motions. This would include the defense of a Daubert challenge.

Rule 3: Time the Deposition So It Is Limited to Tort Elements

Wait until you know sufficient facts so that you do not attempt to have an expert witness “create” them. Fact witnesses create facts; expert witnesses complete tort elements. The defense often attempts to take an expert witness's deposition prior to the conclusion of discovery. For the defense, this is a terrific advantage, since the expert will express important opinions without knowing the facts. What could be better than to impeach an expert witness at trial with his or her willingness to criticize another practitioner without the benefit of knowing the whole story? Additionally, suppose some facts come out later? The attorney may ask for and get another opportunity to take the expert witness' deposition; a second bite of the juicy apple.

When an expert witness testifies without knowing all the facts, the defense will often cast this line of impeachment to strike at the very heart of fundamental fairness. The expert witness is unfair and has an ax to grind against vulnerable practitioners, argues the defense. And, he or she did it for what reason? Money!

The plaintiff is able to use “premature deposition” tactics, as well. Generally, no medical negligence case contains only one issue. What are the medical issues? Typically, this would involve times, places, actors and acts. A medical negligence case is a play and there is an ebb and flow to the medical care. In the expert witness deposition, require the expert witness to view the case three-dimensionally, rather than sequentially. When a patient receives care in the hospital, nurses, radiology technicians, laboratory personnel, and physicians are “on stage” at once, much like a play, where actors interact. Negligence frequently springs from these interactions – or failures to interact.

Rule 4: Look for an Unprepared Expert Witness

Pin down through “facts witnesses” what actors were doing at questioned time periods. Then, probe inconsistencies from the expert witnesses. Precisely what did the expert witness review in preparation for the deposition? What did he or she discuss with the opposing counsel? How did the witness prepare the report? To what degree did the opposing counsel assist in the preparation of the report, if one has been written, or in the preparation of the testimony?

Recently, an expert witness testified that he met with the defendants in the preparation of his testimony and that he, personally, went to the hospital to examine the premises. It is important to discover these additional facts, since this will support bias: The defendants implored the expert witness to help them in their time of need. Examine the file and see what has been underlined, what has been annotated in some way. Save these for the end of the deposition. The wedge into any argument is inconsistency and, generally, the poorly prepared expert witness who does not know the precise facts will make many mistakes with respect to fundamental facts. So far as the witness is willing, have him or her testify from memory, and do not provide medical records. The more inaccuracies and inconsistencies you can point out, the better. Save this for the end of the deposition.

Filet of Expert Witness: Medical Records

For an expert witness to appear “expert” – to retain that authority and prestige that comes with the court admitting a witness as an expert – that witness must know the medical records “cold.” Typically, unless an attorney understands this point, the expert witness will arrive at the deposition with an imprecise understanding of the medical records or, worse, an inaccurate understanding of the medical records. When an attorney is able to get an expert witness to hem and haw over his or her understanding of the medical record, it will provide cross-examination ammunition for trial or settlement purposes.

In another example, a physician failed to diagnose a testicular cancer. Here are the questions the attorney asked the expert witness:

• On how many occasions did Dr. X see Mr. H prior to Oct. 16, 1998?
• Did he see him on April 4, 1997?
• On Aug. 20, 1998?
• On Oct. 5, 1998?
• Did Dr. X engage in a differential diagnosis on those occasions?
• In the admission history and physical of Oct. 16, 1998, how did Dr. X characterize the tumor mass?
• What was the size of the tumor on the CT scan of Oct. 14, 1998?
• Was this tumor, in your opinion, present on Oct. 5, 1998?
• But Dr. X didn't diagnose the tumor on that day?
• Was this tumor, in your opinion, present on Aug. 20, 1998?
• But Dr. X didn't diagnose the tumor on that day?
• Was this tumor, in your opinion, present on April 4, 1997?
• But Dr. X didn't diagnose the tumor on that day?
• On Aug. 20, 1998, Mr. H saw Dr. X for what problem?
• Were the patient's testicles painful?
• Dr. X diagnosed prostatitis, even though the patient's prostate was not tender?
• Dr. X described testicle pain on the left side with radiation into the inguinal area and along the anterior flank on the left side?
• Isn't that description compatible with referred pain from an intra-abdominal tumor?
• Did Mr. H have marked low back pain?
• Didn't the patient say he felt like he was “urinating razor blades”?
• Aren't those complaints compatible and consistent with referred pain from an intra-abdominal tumor?
• His urinalysis was negative on that day?
• When a patient says that urination feels like razor blades, wouldn't you expect to find a positive urinalysis with some bacteria?
• With this historical finding of dysuria, and an inconsistent urinalysis – negative – wasn't Dr. X required to include another possibility, apart from prostatitis, in his differential diagnosis?
• Did Dr. X question Mr. H about his sexual experiences?
• Isn't it true that urethritis is very frequent in males who engage in sexual activity?
• Didn't Dr. X depart from the standard of care when he didn't
• ask one question about sexual exposures?
• Did Dr. X record prostatic tenderness?

These questions were cobbled from the medical record, such that unless the expert witness really knew what happened, he would not be able to answer them with facility. In that case, the attorney may probe the lack of knowledge as it relates to lack of expertise and to bias, as shown by a willingness to express an opinion while unprepared.

Generally, I recommend having questions in written format, double-spaced, to record the responses. The attorney does not have to “think up” the questions, and is able to concentrate on hearing the answers and moving ahead in a comprehensive manner.

Conclusion

No soldier would enter a battle without a concrete plan. Taking the opposing expert witness' deposition requires preparation and planning. Intensive medical record understanding, insight, and analysis will win the day when the attorney then applies those skills to the interrogation. To enhance the likelihood of pre-trial settlement, if one carefully and effectively examines the opposing expert witness, the opposition will be forced to examine the strengths of its case. Often, if the attorney is successful in taking the opposing expert witness' deposition, the opposition will see the light and will reasonably respond to the situation in the form of a settlement offer.

Although any trial lawyer would like to be Atticus Finch in “To Kill a Mockingbird” ' to make the world's most eloquent argument to a jury on the client's behalf ' the reality is that a trial creates a situation in which the risks of losing, in general, do not outweigh the safety to be found in a negotiated settlement. In effect, both parties win when a case settles. A methodical deposition that has been carefully prepared serves the client's interests, since it favors a controlled settlement.

If you want to settle cases or to win at trial, the “crux move” in medical negligence litigation is the deposition of the opposing medical expert witness. This article provides the theory you need to conceptualize the deposition, to decide what you need, and to create an intricate, yet effective method that will pin down the opinions and, simultaneously, allow weaknesses in the opposing case theory to surface. This type of a deposition will encourage settlement, or, if the case does go to trial, the trial lawyer will have the best ammunition. These techniques may be applied in any deposition for any witness.

The Rules

Discovery depositions are an opportunity to probe the opposing party's case theories, to learn strengths and weaknesses, and to assess whether the medical expert witness will dazzle a jury with his or her expertise and demeanor, or sink like a stone. How do you do it?

Rule 1: Preparation

The key to doing an expert witness deposition is preparation. Your preparation. In order to proceed, you must have a viable case theory that makes medical sense. How to evaluate cases? Every lawyer has his or her own style, but no matter what that style is, unless you know your own case and know what you need from the opposing expert witness, the deposition will inevitably conclude but remain inconclusive.

Rule 2: Develop a Cohesive Medical Case Theory

Your case theory must be well founded within accepted medical science, and include a precise version of who did what, and when. It is unsatisfactory to enter a deposition without this preparation. For instance, in the following case, after the plaintiff took ten depositions, an acceptable case theory emerged: On Jan. 1, 2002, at 3:52 a.m., a respiratory tech discovered that the patient's endotracheal tube had become dislodged and was extending 6 cm from the previous mark on the tube. The respiratory tech advanced the tube into the mouth and the patient then struggled. The respiratory tech found that nobody was in the Intensive Care Unit room. She left the patient alone and attempted to find a nurse, but there was no nurse available. The respiratory tech returned to the room where the patient was still struggling, and then a nurse entered the room.

The nurse also found the tube extending 6 cm beyond the proper mark, and she introduced the tube, blindly. The patient continued to struggle but became cyanotic. The nurse hit the code alarm at 4:01 a.m. The resident doctor arrived at 4:06 a.m. and the patient began complete cardiorespiratory arrest at 4:08 a.m. The attending doctor had arrived at 4:06 a.m., virtually simultaneously with the resident, but the attending doctor permitted the resident to handle the code situation. The resident attempted to verify the tube position but was unsuccessful. Meanwhile, the team twice defibrillated at 200 joules, administered atropine, did not give xylocaine, and then administered epinephrine through the endotracheal tube The epinephrine bubbled in the tube, the resident then realizing that the tube was not in the trachea. At 4:10 a.m., the resident attempted an intubation and failed. No witnesses supported the possibility that during the 4-minute period the patient received any form of airway, any oxygen, any mask or oropharyngeal airway. At 4:13 a.m. a CRNA arrived and intubated the patient. The patient quickly “pinked up.” The patient, however, remains in a persistent vegetative state.

This theory contains the ingredients to complete the tort action against the hospital and the attending physician. These facts and the chronology were developed from the medical records and from testimony from the individual facts witnesses.

In the expert witness deposition, the goals are: 1) to have the expert witness accept your version of the case theory, or, 2) in the alternative, to provide another version of the facts. Then, move to step 3: standard of care, step 4: causation, and into step 5: damages. Unless the attorney can pin down the expert witness on each relevant fact, it will be impossible to move, with confidence and precision, into the standard-of-care analysis.

The standard of care rests on the facts, doesn't it? See how important this step becomes?

What do you want to learn from the discovery deposition? You need to learn: 1) on what facts the expert witness bases his or her opinion; 2) precisely what those opinions are; 3) on what evidence from the medical record and other discovery the expert found support for his or her opinions; and 4) with reference to medical literature or other forms of medical authority (such as standards in the profession), precisely with what the expert supports these opinions. To what degree is the opinion that this expert witness expresses accepted in the general medical community? Is the opinion novel?

When the attorney concludes the deposition, then, with answers to these questions, the attorney knows the opinions and the bases for them with certainty and the attorney is able to decide, in the event that the opposing counsel brings motions to exclude the witness, how best to defend the motions. This would include the defense of a Daubert challenge.

Rule 3: Time the Deposition So It Is Limited to Tort Elements

Wait until you know sufficient facts so that you do not attempt to have an expert witness “create” them. Fact witnesses create facts; expert witnesses complete tort elements. The defense often attempts to take an expert witness's deposition prior to the conclusion of discovery. For the defense, this is a terrific advantage, since the expert will express important opinions without knowing the facts. What could be better than to impeach an expert witness at trial with his or her willingness to criticize another practitioner without the benefit of knowing the whole story? Additionally, suppose some facts come out later? The attorney may ask for and get another opportunity to take the expert witness' deposition; a second bite of the juicy apple.

When an expert witness testifies without knowing all the facts, the defense will often cast this line of impeachment to strike at the very heart of fundamental fairness. The expert witness is unfair and has an ax to grind against vulnerable practitioners, argues the defense. And, he or she did it for what reason? Money!

The plaintiff is able to use “premature deposition” tactics, as well. Generally, no medical negligence case contains only one issue. What are the medical issues? Typically, this would involve times, places, actors and acts. A medical negligence case is a play and there is an ebb and flow to the medical care. In the expert witness deposition, require the expert witness to view the case three-dimensionally, rather than sequentially. When a patient receives care in the hospital, nurses, radiology technicians, laboratory personnel, and physicians are “on stage” at once, much like a play, where actors interact. Negligence frequently springs from these interactions – or failures to interact.

Rule 4: Look for an Unprepared Expert Witness

Pin down through “facts witnesses” what actors were doing at questioned time periods. Then, probe inconsistencies from the expert witnesses. Precisely what did the expert witness review in preparation for the deposition? What did he or she discuss with the opposing counsel? How did the witness prepare the report? To what degree did the opposing counsel assist in the preparation of the report, if one has been written, or in the preparation of the testimony?

Recently, an expert witness testified that he met with the defendants in the preparation of his testimony and that he, personally, went to the hospital to examine the premises. It is important to discover these additional facts, since this will support bias: The defendants implored the expert witness to help them in their time of need. Examine the file and see what has been underlined, what has been annotated in some way. Save these for the end of the deposition. The wedge into any argument is inconsistency and, generally, the poorly prepared expert witness who does not know the precise facts will make many mistakes with respect to fundamental facts. So far as the witness is willing, have him or her testify from memory, and do not provide medical records. The more inaccuracies and inconsistencies you can point out, the better. Save this for the end of the deposition.

Filet of Expert Witness: Medical Records

For an expert witness to appear “expert” – to retain that authority and prestige that comes with the court admitting a witness as an expert – that witness must know the medical records “cold.” Typically, unless an attorney understands this point, the expert witness will arrive at the deposition with an imprecise understanding of the medical records or, worse, an inaccurate understanding of the medical records. When an attorney is able to get an expert witness to hem and haw over his or her understanding of the medical record, it will provide cross-examination ammunition for trial or settlement purposes.

In another example, a physician failed to diagnose a testicular cancer. Here are the questions the attorney asked the expert witness:

• On how many occasions did Dr. X see Mr. H prior to Oct. 16, 1998?
• Did he see him on April 4, 1997?
• On Aug. 20, 1998?
• On Oct. 5, 1998?
• Did Dr. X engage in a differential diagnosis on those occasions?
• In the admission history and physical of Oct. 16, 1998, how did Dr. X characterize the tumor mass?
• What was the size of the tumor on the CT scan of Oct. 14, 1998?
• Was this tumor, in your opinion, present on Oct. 5, 1998?
• But Dr. X didn't diagnose the tumor on that day?
• Was this tumor, in your opinion, present on Aug. 20, 1998?
• But Dr. X didn't diagnose the tumor on that day?
• Was this tumor, in your opinion, present on April 4, 1997?
• But Dr. X didn't diagnose the tumor on that day?
• On Aug. 20, 1998, Mr. H saw Dr. X for what problem?
• Were the patient's testicles painful?
• Dr. X diagnosed prostatitis, even though the patient's prostate was not tender?
• Dr. X described testicle pain on the left side with radiation into the inguinal area and along the anterior flank on the left side?
• Isn't that description compatible with referred pain from an intra-abdominal tumor?
• Did Mr. H have marked low back pain?
• Didn't the patient say he felt like he was “urinating razor blades”?
• Aren't those complaints compatible and consistent with referred pain from an intra-abdominal tumor?
• His urinalysis was negative on that day?
• When a patient says that urination feels like razor blades, wouldn't you expect to find a positive urinalysis with some bacteria?
• With this historical finding of dysuria, and an inconsistent urinalysis – negative – wasn't Dr. X required to include another possibility, apart from prostatitis, in his differential diagnosis?
• Did Dr. X question Mr. H about his sexual experiences?
• Isn't it true that urethritis is very frequent in males who engage in sexual activity?
• Didn't Dr. X depart from the standard of care when he didn't
• ask one question about sexual exposures?
• Did Dr. X record prostatic tenderness?

These questions were cobbled from the medical record, such that unless the expert witness really knew what happened, he would not be able to answer them with facility. In that case, the attorney may probe the lack of knowledge as it relates to lack of expertise and to bias, as shown by a willingness to express an opinion while unprepared.

Generally, I recommend having questions in written format, double-spaced, to record the responses. The attorney does not have to “think up” the questions, and is able to concentrate on hearing the answers and moving ahead in a comprehensive manner.

Conclusion

No soldier would enter a battle without a concrete plan. Taking the opposing expert witness' deposition requires preparation and planning. Intensive medical record understanding, insight, and analysis will win the day when the attorney then applies those skills to the interrogation. To enhance the likelihood of pre-trial settlement, if one carefully and effectively examines the opposing expert witness, the opposition will be forced to examine the strengths of its case. Often, if the attorney is successful in taking the opposing expert witness' deposition, the opposition will see the light and will reasonably respond to the situation in the form of a settlement offer.