The Battle of Experts

The first installment of this article discussed how facts and opinions are not the only things a jury considers in deciding the outcome of a medical malpractice case; jurors also pay close attention to large and small gaffes that may show an expert is biased. How can you best exploit these lapses when showing that the other side's experts are less reliable than they might appear?

Reviewing the Materials

When you review the expert's opinion and decide what he or she has done to create credibility issues, focus your attention in discovery on exposing these problems. To exploit an expert's credibility problem stemming from a faulty factual analysis, you must establish at the outset of a deposition exactly what he reviewed prior to forming the opinions set forth in his report, and what facts the expert considered important to his analysis.

Make sure that you establish unequivocally at the outset of a deposition everything that was reviewed by an expert prior to the formation of the opinions set forth in his or her report. (Frequently, an expert will review supplemental materials after he or she has authored a report. By then, however, they are already wed to their position in the case. This creates a credibility problem in its own right, because a fair analysis requires an expert to review all pertinent data before forming conclusions about a case. This is something that is usually reflected in the ethical requirements pertaining to expert testimony.) This is a prerequisite to exposing credibility problems because until you establish this baseline information, you will not be able to demonstrate that the expert ignored, minimized or overemphasized evidence. Do not merely confirm that a list of materials set forth at the beginning of an expert report is a complete accounting of what an expert reviewed. Establish that when the expert went through the trouble to list what he reviewed in his report, he attempted to be accurate and comprehensive. Confirm that when the expert prepares reports in other cases, he also lists the materials he reviews. This establishes that the process is not unique to your case, it is something he does as a matter of course when he acts as an expert in every litigation. Confirm that he tries to be careful when he lists what he reviewed in other cases too. Take the preparation of an expert report out of the realm of a single task and turn it into a mode of operation.

Establish that the expert did not intentionally leave materials off his list because the materials were either harmful to the litigation posture of the party that retained him, or helpful to the other side. Confirming this is an important step because intentionally discounting unfavorable sources of information would be violating the rules governing how experts must behave in litigation. Go beyond merely asking an expert if the list of materials in his expert report is accurate, and ask all of these ancillary questions because it makes it harder for an expert to say later in the deposition (when you confront him with materials he failed to list) that it is possible he reviewed things that he inadvertently failed to mention. Further, if the expert disregards his prior testimony on the subject and later indicates he reviewed something he failed to list, all of these other questions amplify the inconsistency between the expert's report and his testimony.

Establishing the Facts

Expert reports always contain a factual chronology. Establish at the expert's deposition that, when the expert prepares reports in other cases, he sets forth factual chronologies in those reports as well, and this process is not unique to your case. Confirm that the expert tried to be accurate when listing the facts in the chronology in his report, and that he tries to be accurate in other cases when he does this. Establish that the expert did not leave out facts in the chronology that were either harmful to the litigation posture of the party who retained him, or helpful to the other side. Confirm that the expert did not do either of these, because this would be violating the rules governing how he should behave as an expert.

Confirm with the expert that the facts set forth in his chronology are facts he believed were important. An expert will often resist committing to this position because he recognizes that you are attempting to wed him to his factual analysis, and he is aware it is not objective. If an expert resists admitting that the facts listed are the ones he considered important to his analysis, ask enough additional questions about the factual chronology to turn the expert's resistance itself into a credibility problem.

You can usually get an expert to stop resisting the idea that he listed important facts in his chronology by attempting to establish the converse conclusion. Ask the expert whether the facts listed in the chronology of his report were unimportant. Ask the expert whether the facts in the report were selected in an arbitrary fashion. Get the expert to identify those facts in the chronology that he thinks are unimportant to his analysis. Have the expert identify important facts he reviewed that are not in his chronology. Ask him if he can provide a single important fact that he failed to list in his chronology. Eventually, the expert will either concede the point, or he will look evasive.

If the expert does provide you with a fact that he left out that is important, make sure to ask him why he left the fact out of the report, because it will invariably be a fact harmful to his position. Then, ask him how frequently he leaves important facts out of his expert reports when he serves as an expert in other litigations.

Combating the Opposing Expert's Testimony

To expose credibility problems inherent in a faulty expert analysis, arm yourself with data from: 1) previous similar analyses performed by the same expert in and out of the context of litigation; 2) analyses performed by other experts involved in the particular litigation; or 3) analyses suggested by experts outside the scope of the litigation in the form of clinical practice guidelines or published literature.

Previous Similar Analyses by the Same Expert in a Litigation Setting

There are certain things that you should do every time you begin your analysis of a defense expert's position in a litigation. Always Google the expert's name, because you inevitably find information about the expert that is not listed in his or her curriculum vitae, which may lead to other sources of information that contradict the expert's position in your case. Simple Google searches performed in the past have informed me that: 1) an expert “sells“ his services to the defense bar; 2) an expert has written publications pertinent to my case that are not listed on his curriculum vitae; 3) an expert has been disciplined for unethical behavior in another state; and 4) an expert has a personal relationship with a defendant physician he has been hired to evaluate. Additionally, Google has lead me to Web sites maintained by the expert or the expert's practice that contain substantive information pertinent to the issues in my case. Google searches seem to be reaping rewards more frequently lately, as more and more people are integrating their professional life with the Internet.

If available, you should also visit any Web site in your state that may help you to determine whether the doctor has been previously sued or professionally disciplined. If a doctor has been sued, attempt to obtain the details about the litigation so that you can secure all deposition or trial transcripts.

You should also visit TrialSmith (http://www.trialsmith.com/TS/) to look for transcripts of past testimony. Experts who testify in specialized areas often confront similar fact patterns. Occasionally, an analysis performed by an expert in another case involving similar issues is inconsistent with the analysis performed in your litigation. Even if you do not find testimony that you can directly use to contradict a defense expert's position in your case, you will often find other information in a deposition transcript relevant to the morality play at trial, including what literature the expert believes is authoritative and how much income an expert receives through providing his or her expert services.

Previous Similar Analyses by the Same Expert Outside of a Litigation Setting

You should perform a PubMed (http://www.ncbi.nlm.nih.gov/sites/entrez) search to make sure that an expert has provided a comprehensive list on his curriculum vitae of articles he has published. Obtain articles authored by the witness that are pertinent to the subject matter of your case to determine whether the analyses performed by the expert in your litigation is consistent with the one performed by the doctor in an academic setting.

When an expert performs an inadequate analyses in a litigation, he is often practicing his profession in a way that he would not do in “the real world.“ To expose the credibility issues that arise in these circumstances, do not merely establish during the deposition that the expert does something in “real life“ that he did not do in your case. Establish why the expert does the thing he failed to do in your case when he is acting as a professional in the real world. This will: 1) highlight the importance of the contradiction to the jury; and 2) make it more difficult for the defense to downplay the importance of the contradiction.

For example, don't merely ask the expert whether he looks at radiographic films in his medical practice when he failed to look at the films in your case; ask questions that establish the importance of the activity he neglected to perform as an expert. For example, ask, “Why do you like to look at the films yourself when you send your patient for an MRI? When you are going to operate on a patient, is it a good idea to look at his films to get a better understanding of his injury and anatomy? Have you ever disagreed with a radiologist's opinion?” Similarly, if a medical expert is disregarding important facts, establish that when he is actually caring for a patient he takes a careful history that investigates all of the pertinent facts, including the mechanism of injury. If an expert is opining beyond the scope of his specialty, establish that when he is practicing medicine he refers the patient to a specialist.

Analyses Performed By Other Experts in the Particular Litigation

Treating physicians who have opinions consistent with your expert's conclusions can provide powerful evidence in the morality play at trial by bolstering the credibility of your experts. If an expert ignored, minimized or overemphasized evidence to be in a position to conduct a faulty factual analysis, their analysis will often be at odds with that performed by the patient's doctors. It is important to place before the jury evidence that demonstrates that treating doctors, whose opinions were not merely the product of an academic exercise, but resulted in care or medication which had health consequences, disagreed with the the other side's expert and agreed with yours. Further, unlike experts, treating physicians usually form their opinions prior to litigation, “before the lawyers got involved.“

Analyses By Experts Outside the Scope of the Litigation

There may be pertinent analyses available from experts uninvolved with the litigation, in the form of practice guidelines or published literature. Some of these may be obtained from professional medical societies, at no cost, off of the Internet (i.e., from American College of Physicians Clinical Practice Guidelines; Practice Guidelines and Technical Standards of the American Academy of Radiology; American Academy of Neurology Practice Guidelines and Tools). These are excellent tools to use against an expert who conducts a faulty analysis, because they discuss the clinical importance of symptoms or findings. Further, the medical conclusions in these guidelines represent the consensus in the field. An expert who conducts an analysis at odds with a practice parameter of a medical organization with which he is affiliated will have a credibility problem by virtue of that fact alone. At the same time, practice parameters that are consistent with your expert's opinions are an asset to your case in the morality play at trial because they are from an independent source, generated without reference to your particular litigation. Google Scholar (http://scholar.google.com/schhp?hl=en&tab=ws) should be your first search source for medical literature, because many articles are provided free of charge. Sometimes you will be able to read an article, but it cannot be printed. At other times only an abstract of an article is provided. In these circumstances, if your review of the article indicates it is useful, you can purchase it from another source. Google Books (http://books.google.com/books) provides online access to many medical textbooks.

PubMed (URL given above) is a comprehensive source for medical literature from periodicals. You may order any publication that is on PubMed through Loansome Doc (http://www.nlm.nih.gov/services/ldfind.html). To do this, you register with an ordering medical library, which obtains articles you order, either through its own collection or through other medical libraries. (To find an ordering library in your area, call 1-800-338-7657 Monday through Friday between 8:30 a.m. and 5:30 a.m. EST.) You list the price you want to pay for the article and the deadline for delivery, and the articles are then emailed or faxed to you within the parameters you set (although, generally speaking, if you do not bid at least $10 for an article, your order will not be filled). You are billed for the articles after they are delivered.

Conclusion

There are ethical rules that apply to experts opinions. In order for an expert's opinion to be fair, it should be based on a comprehensive analysis of the facts, be the product of an objective analysis and be formed in accord with accepted principles of science. Every time an expert gives a faulty analysis in a case, he is violating ethical principles. These principals need to be followed for the opinion to be fair and valid.

Jurors may not always completely understand complex medical issues, but they are quick to pass judgment on any witness who provides incredible testimony. Jurors have little tolerance for anyone who gives inconsistent evidence after swearing to tell the truth. Attorneys must be cognizant of how experts appear to a jury during a trial and should tailor their discovery efforts and case presentation with this fact in mind. By establishing the ethical requirements of an expert opinion in discovery, and demonstrating how a defense expert disregarded these ethical requirements at the time of trial, you can direct the morality play the jury sees so that it supports the other evidence that the jury will consider in its search for truth.

John Ratkowitz, a member of this newsletter's Board of Editors, is a partner at Starr, Gern, Davison & Rubin, P.C. in Roseland, NJ. He specializes in complex litigation with an emphasis on medical malpractice. For an interactive copy of this paper containing hyperlinks or for a complete copy of the deposition transcripts discussed in this article, e-mail a request to [email protected].

The first installment of this article discussed how facts and opinions are not the only things a jury considers in deciding the outcome of a medical malpractice case; jurors also pay close attention to large and small gaffes that may show an expert is biased. How can you best exploit these lapses when showing that the other side's experts are less reliable than they might appear?

Reviewing the Materials

When you review the expert's opinion and decide what he or she has done to create credibility issues, focus your attention in discovery on exposing these problems. To exploit an expert's credibility problem stemming from a faulty factual analysis, you must establish at the outset of a deposition exactly what he reviewed prior to forming the opinions set forth in his report, and what facts the expert considered important to his analysis.

Make sure that you establish unequivocally at the outset of a deposition everything that was reviewed by an expert prior to the formation of the opinions set forth in his or her report. (Frequently, an expert will review supplemental materials after he or she has authored a report. By then, however, they are already wed to their position in the case. This creates a credibility problem in its own right, because a fair analysis requires an expert to review all pertinent data before forming conclusions about a case. This is something that is usually reflected in the ethical requirements pertaining to expert testimony.) This is a prerequisite to exposing credibility problems because until you establish this baseline information, you will not be able to demonstrate that the expert ignored, minimized or overemphasized evidence. Do not merely confirm that a list of materials set forth at the beginning of an expert report is a complete accounting of what an expert reviewed. Establish that when the expert went through the trouble to list what he reviewed in his report, he attempted to be accurate and comprehensive. Confirm that when the expert prepares reports in other cases, he also lists the materials he reviews. This establishes that the process is not unique to your case, it is something he does as a matter of course when he acts as an expert in every litigation. Confirm that he tries to be careful when he lists what he reviewed in other cases too. Take the preparation of an expert report out of the realm of a single task and turn it into a mode of operation.

Establish that the expert did not intentionally leave materials off his list because the materials were either harmful to the litigation posture of the party that retained him, or helpful to the other side. Confirming this is an important step because intentionally discounting unfavorable sources of information would be violating the rules governing how experts must behave in litigation. Go beyond merely asking an expert if the list of materials in his expert report is accurate, and ask all of these ancillary questions because it makes it harder for an expert to say later in the deposition (when you confront him with materials he failed to list) that it is possible he reviewed things that he inadvertently failed to mention. Further, if the expert disregards his prior testimony on the subject and later indicates he reviewed something he failed to list, all of these other questions amplify the inconsistency between the expert's report and his testimony.

Establishing the Facts

Expert reports always contain a factual chronology. Establish at the expert's deposition that, when the expert prepares reports in other cases, he sets forth factual chronologies in those reports as well, and this process is not unique to your case. Confirm that the expert tried to be accurate when listing the facts in the chronology in his report, and that he tries to be accurate in other cases when he does this. Establish that the expert did not leave out facts in the chronology that were either harmful to the litigation posture of the party who retained him, or helpful to the other side. Confirm that the expert did not do either of these, because this would be violating the rules governing how he should behave as an expert.

Confirm with the expert that the facts set forth in his chronology are facts he believed were important. An expert will often resist committing to this position because he recognizes that you are attempting to wed him to his factual analysis, and he is aware it is not objective. If an expert resists admitting that the facts listed are the ones he considered important to his analysis, ask enough additional questions about the factual chronology to turn the expert's resistance itself into a credibility problem.

You can usually get an expert to stop resisting the idea that he listed important facts in his chronology by attempting to establish the converse conclusion. Ask the expert whether the facts listed in the chronology of his report were unimportant. Ask the expert whether the facts in the report were selected in an arbitrary fashion. Get the expert to identify those facts in the chronology that he thinks are unimportant to his analysis. Have the expert identify important facts he reviewed that are not in his chronology. Ask him if he can provide a single important fact that he failed to list in his chronology. Eventually, the expert will either concede the point, or he will look evasive.

If the expert does provide you with a fact that he left out that is important, make sure to ask him why he left the fact out of the report, because it will invariably be a fact harmful to his position. Then, ask him how frequently he leaves important facts out of his expert reports when he serves as an expert in other litigations.

Combating the Opposing Expert's Testimony

To expose credibility problems inherent in a faulty expert analysis, arm yourself with data from: 1) previous similar analyses performed by the same expert in and out of the context of litigation; 2) analyses performed by other experts involved in the particular litigation; or 3) analyses suggested by experts outside the scope of the litigation in the form of clinical practice guidelines or published literature.

Previous Similar Analyses by the Same Expert in a Litigation Setting

There are certain things that you should do every time you begin your analysis of a defense expert's position in a litigation. Always Google the expert's name, because you inevitably find information about the expert that is not listed in his or her curriculum vitae, which may lead to other sources of information that contradict the expert's position in your case. Simple Google searches performed in the past have informed me that: 1) an expert “sells“ his services to the defense bar; 2) an expert has written publications pertinent to my case that are not listed on his curriculum vitae; 3) an expert has been disciplined for unethical behavior in another state; and 4) an expert has a personal relationship with a defendant physician he has been hired to evaluate. Additionally, Google has lead me to Web sites maintained by the expert or the expert's practice that contain substantive information pertinent to the issues in my case. Google searches seem to be reaping rewards more frequently lately, as more and more people are integrating their professional life with the Internet.

If available, you should also visit any Web site in your state that may help you to determine whether the doctor has been previously sued or professionally disciplined. If a doctor has been sued, attempt to obtain the details about the litigation so that you can secure all deposition or trial transcripts.

You should also visit TrialSmith (http://www.trialsmith.com/TS/) to look for transcripts of past testimony. Experts who testify in specialized areas often confront similar fact patterns. Occasionally, an analysis performed by an expert in another case involving similar issues is inconsistent with the analysis performed in your litigation. Even if you do not find testimony that you can directly use to contradict a defense expert's position in your case, you will often find other information in a deposition transcript relevant to the morality play at trial, including what literature the expert believes is authoritative and how much income an expert receives through providing his or her expert services.

Previous Similar Analyses by the Same Expert Outside of a Litigation Setting

You should perform a PubMed (http://www.ncbi.nlm.nih.gov/sites/entrez) search to make sure that an expert has provided a comprehensive list on his curriculum vitae of articles he has published. Obtain articles authored by the witness that are pertinent to the subject matter of your case to determine whether the analyses performed by the expert in your litigation is consistent with the one performed by the doctor in an academic setting.

When an expert performs an inadequate analyses in a litigation, he is often practicing his profession in a way that he would not do in “the real world.“ To expose the credibility issues that arise in these circumstances, do not merely establish during the deposition that the expert does something in “real life“ that he did not do in your case. Establish why the expert does the thing he failed to do in your case when he is acting as a professional in the real world. This will: 1) highlight the importance of the contradiction to the jury; and 2) make it more difficult for the defense to downplay the importance of the contradiction.

For example, don't merely ask the expert whether he looks at radiographic films in his medical practice when he failed to look at the films in your case; ask questions that establish the importance of the activity he neglected to perform as an expert. For example, ask, “Why do you like to look at the films yourself when you send your patient for an MRI? When you are going to operate on a patient, is it a good idea to look at his films to get a better understanding of his injury and anatomy? Have you ever disagreed with a radiologist's opinion?” Similarly, if a medical expert is disregarding important facts, establish that when he is actually caring for a patient he takes a careful history that investigates all of the pertinent facts, including the mechanism of injury. If an expert is opining beyond the scope of his specialty, establish that when he is practicing medicine he refers the patient to a specialist.

Analyses Performed By Other Experts in the Particular Litigation

Treating physicians who have opinions consistent with your expert's conclusions can provide powerful evidence in the morality play at trial by bolstering the credibility of your experts. If an expert ignored, minimized or overemphasized evidence to be in a position to conduct a faulty factual analysis, their analysis will often be at odds with that performed by the patient's doctors. It is important to place before the jury evidence that demonstrates that treating doctors, whose opinions were not merely the product of an academic exercise, but resulted in care or medication which had health consequences, disagreed with the the other side's expert and agreed with yours. Further, unlike experts, treating physicians usually form their opinions prior to litigation, “before the lawyers got involved.“

Analyses By Experts Outside the Scope of the Litigation

There may be pertinent analyses available from experts uninvolved with the litigation, in the form of practice guidelines or published literature. Some of these may be obtained from professional medical societies, at no cost, off of the Internet (i.e., from American College of Physicians Clinical Practice Guidelines; Practice Guidelines and Technical Standards of the American Academy of Radiology; American Academy of Neurology Practice Guidelines and Tools). These are excellent tools to use against an expert who conducts a faulty analysis, because they discuss the clinical importance of symptoms or findings. Further, the medical conclusions in these guidelines represent the consensus in the field. An expert who conducts an analysis at odds with a practice parameter of a medical organization with which he is affiliated will have a credibility problem by virtue of that fact alone. At the same time, practice parameters that are consistent with your expert's opinions are an asset to your case in the morality play at trial because they are from an independent source, generated without reference to your particular litigation. Google Scholar (http://scholar.google.com/schhp?hl=en&tab=ws) should be your first search source for medical literature, because many articles are provided free of charge. Sometimes you will be able to read an article, but it cannot be printed. At other times only an abstract of an article is provided. In these circumstances, if your review of the article indicates it is useful, you can purchase it from another source. Google Books (http://books.google.com/books) provides online access to many medical textbooks.

PubMed (URL given above) is a comprehensive source for medical literature from periodicals. You may order any publication that is on PubMed through Loansome Doc (http://www.nlm.nih.gov/services/ldfind.html). To do this, you register with an ordering medical library, which obtains articles you order, either through its own collection or through other medical libraries. (To find an ordering library in your area, call 1-800-338-7657 Monday through Friday between 8:30 a.m. and 5:30 a.m. EST.) You list the price you want to pay for the article and the deadline for delivery, and the articles are then emailed or faxed to you within the parameters you set (although, generally speaking, if you do not bid at least $10 for an article, your order will not be filled). You are billed for the articles after they are delivered.

Conclusion

There are ethical rules that apply to experts opinions. In order for an expert's opinion to be fair, it should be based on a comprehensive analysis of the facts, be the product of an objective analysis and be formed in accord with accepted principles of science. Every time an expert gives a faulty analysis in a case, he is violating ethical principles. These principals need to be followed for the opinion to be fair and valid.

Jurors may not always completely understand complex medical issues, but they are quick to pass judgment on any witness who provides incredible testimony. Jurors have little tolerance for anyone who gives inconsistent evidence after swearing to tell the truth. Attorneys must be cognizant of how experts appear to a jury during a trial and should tailor their discovery efforts and case presentation with this fact in mind. By establishing the ethical requirements of an expert opinion in discovery, and demonstrating how a defense expert disregarded these ethical requirements at the time of trial, you can direct the morality play the jury sees so that it supports the other evidence that the jury will consider in its search for truth.

John Ratkowitz, a member of this newsletter's Board of Editors, is a partner at Starr, Gern, Davison & Rubin, P.C. in Roseland, NJ. He specializes in complex litigation with an emphasis on medical malpractice. For an interactive copy of this paper containing hyperlinks or for a complete copy of the deposition transcripts discussed in this article, e-mail a request to [email protected].