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A Sample of Effective <i>Voir Dire</i>
In Parts One and Two of this article, we discussed the strategies involved in deciding when to question the opposing party's expert; during preliminary voir dire or during cross examination. We noted that, in a jury trial, it is usually prudent to wait until cross-examination to attack the expert, so that the jury can see where the holes in the witness's qualifications and conclusions are. But sometimes, questioning during voir dire is preferable, especially when the result is likely to be the witness disqualification to testify as an expert.
Questioning During Voir Dire
The following exchange is a slightly modified transcript of a voir dire that was effective in precluding a proposed witness from testifying as an expert. For purposes of this exchange, a brief description of the case is necessary: The plaintiff was a patient of the defendant physician, a family practitioner, for several years. In July 1997, the plaintiff presented to the defendant physician indicating his desire to have an orthopedic surgeon perform elective surgery to address his chronic neck pain. The plaintiff had a history of HIV/AIDS; however, because he was stable, there was no contraindication to the proposed surgery, and the defendant physician cleared the plaintiff for surgery. The co-defendant orthopedic surgeon performed the surgery that same month. Following surgery, the plaintiff developed sepsis and lung infection and ultimately died of septic shock. The plaintiff's expert criticized the defendant's management of post-operative wound and lung infections.
Q: You have been practicing in the county HIV clinic since you finished your training in 1994?
A: Yes I have.
Q: Your training after medical school included a 1-year rotating internship and 1 year of what is supposed to be a 3-year neurology residency?
A: Yes, I chose not to complete the program at that time.
Q: During that 1 year of internship you rotated through a number of different specialties?
A: Yes, I was fortunate enough to see a wide variety of specialties.
Q: The purpose of which was to give you enough exposure to decide what kind of medicine you wanted to practice?
A: Yes, that was the idea. And to give me experience, of course.
Q: That 1 month of exposure to the various specialties during training did not leave you qualified to practice any of those specialties?
A: That's right.
Q: You would not, for instance, deliver babies without completing a residency training in OB/GYN, would you?
A: No, of course not.
Q: You would not perform surgery without completing a general surgery residency?
A: No.
Q: The only residency training you have had is an unfinished neurology residency?
A: Yes.
Q: The only training you have had in pulmonology was that 1-month rotation during internship?
A: Formal training, yes.
Q: The same is true for infectious diseases?
A: Again, that is the only formal training I have had in the area.
Q: During that 1 year of neurology residency you had no additional infectious disease or pulmonary training?
A: No.
Q: There are specialists who practice pulmonology or infectious disease medicine?
A: Yes, there are.
Q: Those specialists have completed residency programs in those areas?
A: I am not sure of the requirements offhand.
Q: They can get special certification in those areas by organizations that test them and certify them?
A: I believe so, yes.
Q: By the American College of Pulmonary Medicine?
A: Sure.
Q: By the American College of Infectious Diseases?
A: Yes.
Q: You do not have any of those?
A: No, I do not.
Q: There is also a specialty certification in internal medicine, correct?
A: Yes, there is.
Q: There is also one in family practice medicine, correct?
A: Yes.
Q: You do not have either of those board certifications?
A: No, I do not.
Q: In fact, you are not even eligible to take any exams because they require completion of a qualified residency program, correct?
A: That's true.
Q: You understand that the defendant physician is Board Certified in Family Practice after having completed a Family Practice residency?
A: Yes, I am aware of that.
Q: Is that specialty recognized by the American Board of Medical Specialties?
A: I am not sure. I assume it is, yes.
Q: The only specialty credentialing you have is in HIV medicine?
A: That's right.
Q: That specialty is not recognized by the American Board of Medical Specialties, is it?
A: I don't believe so.
Q: Unlike other certification programs, yours was an open book exam?
A: It was.
Q: You were able to use a study guide and could look up the answers?
A: Yes. We were able to refer to the literature, just like you are able to do in actual practice.
Q: Was this the study guide? (produce exhibit)
A: Yes, I think that is the same version.
Q: I looked up a few things in the index but was unable to find any mention of sepsis, shock, septic shock, treatment of septic shock, or asthma. You were not tested on those topics for your certification?
A: No, that is not specific to HIV medicine.
Q: You do not treat patients who are in the hospital?
A: No. I treat patients in the health clinic.
Q: You have not treated a patient in the hospital the entire time you have been practicing since your training?
A: No. Again, I see patients in the clinic.
Q: The only time you have ever treated a patient in the hospital was when you were a resident in training?
A: Yes.
Q: Even those patients you treated in the hospital during your residency would have been patients who were in the hospital for neurological issues, and you reported to an attending physician, correct?
A: Yes.
Q: You do not have privileges to practice in any hospitals and have not since leaving neurological training?
A: No, I do not have hospital privileges.
Q: So you have never treated a patient in a hospital for a respiratory infection?
A: That's right.
Q: You have never treated a patient in a hospital for post-surgical complications?
A: No, I haven't.
Q: You have never treated a patient in a hospital for septic shock?
A: I believe I had one patient in septic shock during my internship.
Q: And at the time you were in your internship, you were not yet licensed as a medical doctor?
A: That's right. The licensure comes later.
Q: You have never been in the position that the defendant physician was in during the plaintiff's first hospitalization when the defendant physician saw him for respiratory issues?
A: That's true.
Q: You have never been in the defendant physician's position as the attending physician for a patient in septic shock?
A: No, not as the attending.
Q: Only during training?
A: Correct.
Q: You can only recall being involved with one patient during training with septic shock, correct?
A: There is one I remember, but it has been quite a while.
Q: In that single case, you were not the attending in charge; you were an intern in training reporting to an attending physician like the defendant physician, correct?
A: Yes.
Q: On Sunday you and plaintiff's counsel drafted an affidavit for you to sign saying you think you probably were involved in treatment of patients with septic shock in ICU when you were in your first year of training?
A: Yes.
Q: But you cannot remember anything about the condition of the patient or how they were treated?
A: No. As I said, quite a bit of time has passed.
Q: The last time you were involved with a patient with sepsis was in training?
A: Yes.
Q: In forming your opinions in this case, you did quite a bit of Internet research?
A: Yes, I wanted to be able to give a thorough opinion.
Q: You relied on that research to form an opinion regarding what the standard of care was in 1997 on various topics?
A: Yes.
Q: You looked up a number of steroids you were not familiar with?
A: Yes, some.
Q: You started looking at things on the Internet from the very first day of your review, as you were first going through medical records?
A: I do not recall for sure. But that sounds about right.
Q: For instance, you wanted to know what the standard of care was in 1997 for acute exacerbation of bronchititis?
A: Yes.
Q: You did that because you needed to find out what the standard of care was in 1997 to treat acute exacerbation of chronic bronchitis?
A: To brush up on the details, yes.
Q: You did the same thing to find out what was being done in 1997 with regard to use of corticosteroids in septic shock?
A: Yes.
Q: You learned the standard of care in 1997 on that issue by the reading you did between your first and second depositions?
A: Yes. Again, I am not sure about the exact dates.
Q: You did not know what the standard of care was on those issues until you looked it up?
A: Not specifically.
Q: You also researched the standard of care for the use and effect of certain steroids?
A: Yes.
Q: For the treatment of shock?
A: Yes.
Q: For the time course of septic shock?
A: Yes, I read some information on that.
Q: In addition to looking up answers to some of these questions on the Internet you also consulted with other people?
A: Yes, I consulted with several colleagues.
Q: Your colleague Dr. Brown is an internist?
A: Yes, that is correct.
Q: You talked to him to find out the time course of septic shock?
A: Yes, we discussed that.
Q: You also talked to him to find out what he could tell you about some of these steroids?
A: Yes, I was not familiar with all of them. There are so many.
Q: You also spent quite a lot of time meeting and talking with plaintiff's attorney preparing for deposition?
A: Some, yes. I would not call it a lot.
Q: And you shared opinions back and forth about many of these topics?
A: Yes, we discussed the relevant topics.
Q: And you worked together to come to the opinions you have expressed today?
A: We discussed the opinions I have shared today, yes.
Q: You are not the one to clear a patient for surgery if the patient needs it?
A: No, I am not.
Q: You refer a patient to a clinic at the hospital if you think that patient might need surgery and the hospital makes the decision, correct?
A: That is correct. After I have made the referral, of course.
Conclusion
Following this exchange, plaintiff's proffered expert was excluded from testifying.
Lawrie E. Demorest, Natalie S. Whiteman
In Parts One and Two of this article, we discussed the strategies involved in deciding when to question the opposing party's expert; during preliminary voir dire or during cross examination. We noted that, in a jury trial, it is usually prudent to wait until cross-examination to attack the expert, so that the jury can see where the holes in the witness's qualifications and conclusions are. But sometimes, questioning during voir dire is preferable, especially when the result is likely to be the witness disqualification to testify as an expert.
Questioning During Voir Dire
The following exchange is a slightly modified transcript of a voir dire that was effective in precluding a proposed witness from testifying as an expert. For purposes of this exchange, a brief description of the case is necessary: The plaintiff was a patient of the defendant physician, a family practitioner, for several years. In July 1997, the plaintiff presented to the defendant physician indicating his desire to have an orthopedic surgeon perform elective surgery to address his chronic neck pain. The plaintiff had a history of HIV/AIDS; however, because he was stable, there was no contraindication to the proposed surgery, and the defendant physician cleared the plaintiff for surgery. The co-defendant orthopedic surgeon performed the surgery that same month. Following surgery, the plaintiff developed sepsis and lung infection and ultimately died of septic shock. The plaintiff's expert criticized the defendant's management of post-operative wound and lung infections.
Q: You have been practicing in the county HIV clinic since you finished your training in 1994?
A: Yes I have.
Q: Your training after medical school included a 1-year rotating internship and 1 year of what is supposed to be a 3-year neurology residency?
A: Yes, I chose not to complete the program at that time.
Q: During that 1 year of internship you rotated through a number of different specialties?
A: Yes, I was fortunate enough to see a wide variety of specialties.
Q: The purpose of which was to give you enough exposure to decide what kind of medicine you wanted to practice?
A: Yes, that was the idea. And to give me experience, of course.
Q: That 1 month of exposure to the various specialties during training did not leave you qualified to practice any of those specialties?
A: That's right.
Q: You would not, for instance, deliver babies without completing a residency training in OB/GYN, would you?
A: No, of course not.
Q: You would not perform surgery without completing a general surgery residency?
A: No.
Q: The only residency training you have had is an unfinished neurology residency?
A: Yes.
Q: The only training you have had in pulmonology was that 1-month rotation during internship?
A: Formal training, yes.
Q: The same is true for infectious diseases?
A: Again, that is the only formal training I have had in the area.
Q: During that 1 year of neurology residency you had no additional infectious disease or pulmonary training?
A: No.
Q: There are specialists who practice pulmonology or infectious disease medicine?
A: Yes, there are.
Q: Those specialists have completed residency programs in those areas?
A: I am not sure of the requirements offhand.
Q: They can get special certification in those areas by organizations that test them and certify them?
A: I believe so, yes.
Q: By the American College of Pulmonary Medicine?
A: Sure.
Q: By the American College of Infectious Diseases?
A: Yes.
Q: You do not have any of those?
A: No, I do not.
Q: There is also a specialty certification in internal medicine, correct?
A: Yes, there is.
Q: There is also one in family practice medicine, correct?
A: Yes.
Q: You do not have either of those board certifications?
A: No, I do not.
Q: In fact, you are not even eligible to take any exams because they require completion of a qualified residency program, correct?
A: That's true.
Q: You understand that the defendant physician is Board Certified in Family Practice after having completed a Family Practice residency?
A: Yes, I am aware of that.
Q: Is that specialty recognized by the American Board of Medical Specialties?
A: I am not sure. I assume it is, yes.
Q: The only specialty credentialing you have is in HIV medicine?
A: That's right.
Q: That specialty is not recognized by the American Board of Medical Specialties, is it?
A: I don't believe so.
Q: Unlike other certification programs, yours was an open book exam?
A: It was.
Q: You were able to use a study guide and could look up the answers?
A: Yes. We were able to refer to the literature, just like you are able to do in actual practice.
Q: Was this the study guide? (produce exhibit)
A: Yes, I think that is the same version.
Q: I looked up a few things in the index but was unable to find any mention of sepsis, shock, septic shock, treatment of septic shock, or asthma. You were not tested on those topics for your certification?
A: No, that is not specific to HIV medicine.
Q: You do not treat patients who are in the hospital?
A: No. I treat patients in the health clinic.
Q: You have not treated a patient in the hospital the entire time you have been practicing since your training?
A: No. Again, I see patients in the clinic.
Q: The only time you have ever treated a patient in the hospital was when you were a resident in training?
A: Yes.
Q: Even those patients you treated in the hospital during your residency would have been patients who were in the hospital for neurological issues, and you reported to an attending physician, correct?
A: Yes.
Q: You do not have privileges to practice in any hospitals and have not since leaving neurological training?
A: No, I do not have hospital privileges.
Q: So you have never treated a patient in a hospital for a respiratory infection?
A: That's right.
Q: You have never treated a patient in a hospital for post-surgical complications?
A: No, I haven't.
Q: You have never treated a patient in a hospital for septic shock?
A: I believe I had one patient in septic shock during my internship.
Q: And at the time you were in your internship, you were not yet licensed as a medical doctor?
A: That's right. The licensure comes later.
Q: You have never been in the position that the defendant physician was in during the plaintiff's first hospitalization when the defendant physician saw him for respiratory issues?
A: That's true.
Q: You have never been in the defendant physician's position as the attending physician for a patient in septic shock?
A: No, not as the attending.
Q: Only during training?
A: Correct.
Q: You can only recall being involved with one patient during training with septic shock, correct?
A: There is one I remember, but it has been quite a while.
Q: In that single case, you were not the attending in charge; you were an intern in training reporting to an attending physician like the defendant physician, correct?
A: Yes.
Q: On Sunday you and plaintiff's counsel drafted an affidavit for you to sign saying you think you probably were involved in treatment of patients with septic shock in ICU when you were in your first year of training?
A: Yes.
Q: But you cannot remember anything about the condition of the patient or how they were treated?
A: No. As I said, quite a bit of time has passed.
Q: The last time you were involved with a patient with sepsis was in training?
A: Yes.
Q: In forming your opinions in this case, you did quite a bit of Internet research?
A: Yes, I wanted to be able to give a thorough opinion.
Q: You relied on that research to form an opinion regarding what the standard of care was in 1997 on various topics?
A: Yes.
Q: You looked up a number of steroids you were not familiar with?
A: Yes, some.
Q: You started looking at things on the Internet from the very first day of your review, as you were first going through medical records?
A: I do not recall for sure. But that sounds about right.
Q: For instance, you wanted to know what the standard of care was in 1997 for acute exacerbation of bronchititis?
A: Yes.
Q: You did that because you needed to find out what the standard of care was in 1997 to treat acute exacerbation of chronic bronchitis?
A: To brush up on the details, yes.
Q: You did the same thing to find out what was being done in 1997 with regard to use of corticosteroids in septic shock?
A: Yes.
Q: You learned the standard of care in 1997 on that issue by the reading you did between your first and second depositions?
A: Yes. Again, I am not sure about the exact dates.
Q: You did not know what the standard of care was on those issues until you looked it up?
A: Not specifically.
Q: You also researched the standard of care for the use and effect of certain steroids?
A: Yes.
Q: For the treatment of shock?
A: Yes.
Q: For the time course of septic shock?
A: Yes, I read some information on that.
Q: In addition to looking up answers to some of these questions on the Internet you also consulted with other people?
A: Yes, I consulted with several colleagues.
Q: Your colleague Dr. Brown is an internist?
A: Yes, that is correct.
Q: You talked to him to find out the time course of septic shock?
A: Yes, we discussed that.
Q: You also talked to him to find out what he could tell you about some of these steroids?
A: Yes, I was not familiar with all of them. There are so many.
Q: You also spent quite a lot of time meeting and talking with plaintiff's attorney preparing for deposition?
A: Some, yes. I would not call it a lot.
Q: And you shared opinions back and forth about many of these topics?
A: Yes, we discussed the relevant topics.
Q: And you worked together to come to the opinions you have expressed today?
A: We discussed the opinions I have shared today, yes.
Q: You are not the one to clear a patient for surgery if the patient needs it?
A: No, I am not.
Q: You refer a patient to a clinic at the hospital if you think that patient might need surgery and the hospital makes the decision, correct?
A: That is correct. After I have made the referral, of course.
Conclusion
Following this exchange, plaintiff's proffered expert was excluded from testifying.
Lawrie E. Demorest,
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