Cross-Examination of a Medical Expert

SECTION: JURY SELECTION STRATEGY; Pg. 3

HEADLINE: Cross-Examination of a Medical Expert

BYLINE: By Ben Rubinowitz and Evan Torgan; BEN RUBINOWITZ IS A PARTNER AT GAIR, GAIR, CONASON, STEIGMAN & MACKAUF. HE ALSO IS AN ADJUNCT PROFESSOR OF LAW, TEACHING TRIAL PRACTICE AT HOFSTRA UNIVERSITY SCHOOL OF LAW, AND IS A TEAM LEADER AT THE NATIONAL INSTITUTE FOR TRIAL ADVOCACY. EVAN TORGAN IS A MEMBER OF EVAN TORGAN P.C. HE IS AN ADJUNCT PROFESSOR OF LAW, TEACHING TRIAL PRACTICE AT BENJAMIN N. CARDOZO SCHOOL OF LAW, AND IS AN INSTRUCTOR AT THE NATIONAL INSTITUTE FOR TRIAL ADVOCACY.

BODY: 

CROSS-EXAMINATION of a medical expert is not the daunting task many think it is. To be successful, one must merely learn the anatomy, the medical issues and all there is to know about the opposing expert. Those basics, together with effective technique, will make for a compelling examination. This article is the first in a series.

Pretrial Preparation

Learning the Medicine. The old adage about staying clear of the doctor’s expertise is true only for the lazy lawyer. In just a few long nights’ work, you can gain extensive knowledge about the narrow areas of medicine that relate to your cross-examination. When a properly prepared cross-examination begins, the lawyer will be more familiar with the literature on a discrete medical topic than will the expert witness.

You cannot possibly attack the expert’s findings without first knowing what a proper physical examination should contain. Learn the appropriate tests and diagnostic studies that an expert would rely on to confirm or rule out a specific medical condition.

Learning About the Expert. It is good to know all about the expert witness before you cross-examine him. First, call the Jury Verdict Reporter, a great source of information, and request a search on the specific expert. That alone will be helpful in showing the amount of times and for whom he has testified, any pro-defense bias he has and the type of expertise he claims to possess.

The verdict search is merely the starting point, so do not stop there. You must then procure some of his actual testimony. Find out if he has testified on the opposite side of the same issue. That will give you ammunition for prior inconsistent statements. It may also be helpful for you to get a transcript where he is testifying for a defendant in a case involving similar injuries. This will give you a good indication of how he will testify against you in your case. At best, prior transcripts may provide the basis to show perjurious testimony. At worst, they will allow you to get into the expert’s head, forcing him to reflect on all prior statements he has made that may be contradictory to what he wishes to state in court.

There are many ways to get prior testimony. You can contact the New York State Trial Lawyers Association to see what transcripts they have in their expert bank, or call fellow attorneys who have accumulated transcripts on the “regulars.” Once you do the jury verdict search, identify the lawyers involved and contact them to see if they ordered their transcripts. If you have no success there, identify the cases that have been appealed. Then go to the record on appeal of the particular case and photocopy the entire testimony of the expert. If there is no record on appeal, identify the index number, the date of verdict and call the clerk in the part where the case was tried. The clerk can go to the minute book in the court room and tell you whom the court reporter was on the day of the testimony. You can then order the transcript from the reporter. As you can imagine, this can be a weighty expense, but one well worth the investment.

To further prepare for the cross, go on-line. Run a MEDLINE search. Find out what articles the expert has published, and copy the ones that are relevant to your case. Use the relevant articles as ammunition to impeach with prior inconsistent statements. If he has not published in a pertinent area, use that as a basis for cross-examination as well.

The Actual Cross-Examination

Control. When dealing with a medical expert, do not forget the methodology of cross-examination. Always ask leading questions to exercise control over the witness. If you fail to do this, the expert will destroy you. A leading question is defined as either one that contains the answer, suggests within it the answer, or calls for a “yes” or “no” answer. The last thing you ever want to do is ask a high-risk, open-ended, nonleading question during the cross of a medical expert.

Keep the questions tight and clear. Declare the truth of one fact per question and seek the expert’s confirmation, by adding at the end of your statement words like “correct,” “right” and “true.” Insist upon responsive answers. Do not permit the expert to add gratuitous remarks at the end of an otherwise responsive answer. Add phrases to your arsenal of questions like: “That wasn’t my question. My is question is this.” Or choose to repeat the same question over again until you get a responsive answer, changing your tone each time. If the witness still refuses to answer responsively, move to strike the unresponsive answers to protect your record. As a last resort enlist the judge’s help – but only if it is absolutely necessary – and only if that judge is likely to help. It is sometimes preferable to let some unresponsive answers stand before seeking judicial intervention, so the judge and jury can observe that the expert is being evasive.

The Structure of the Cross

At its best, your cross should sound like summation; at a minimum, the cross should be done with an eye toward summation. Although it is imperative that you sum up on your doctor’s testimony, it is far more compelling to comment on what the defense experts conceded. Here are some ideas for the outline of your cross-examination:

* Bind the expert by getting the following admissions: that his report is full and complete; that it contains all of his significant findings and nonfindings; that since he has no independent recollection of the examination, it serves as the only proof of that examination;

* Seek concessions the expert must make based upon his report, such as the basic medical facts;

* Discuss the anatomy involved in the case by leading the expert through it;

* Get the expert to admit the positive findings on physical examination found in his report;

* Demonstrate the benefit of serial examinations (examinations over time) rather than just the one so-called ” independent medical examination,” by procuring admissions that patient complaints and physical findings can change over time;

* Show that the information and materials reviewed by the expert prior to rendering his report were inadequate, outdated and supplied by none other than defense counsel;

* Reveal that the expert relied on certain facts which support his conclusion, while ignoring other evidence (testimony, reports, etc.) that contradict his opinion;

* Pursue a collateral attack at the appropriate time showing the amount of forensic evaluations, forensic reports, forensic testimony, and forensic-generated income.

Setting Up the Witness

You must lay the groundwork early in the cross so that you can break the witness at a later point in time. This groundwork or “set up” includes securing admissions to simple and probative questions that will prevent the witness from wiggling out later. This will ensure that the witness has no avenues of escape.

Work With His Omissions. Take the concept of the typical Independent Medical Examination or IME. Assume, for example, the examining doctor never reviewed the magnetic resonance imaging studies (MRIs). Notwithstanding this failure to review, the doctor wrote up his conclusion, minimizing your client’s injuries. While some attorneys might immediately attack this omission, the better approach is to set up the witness before inquiring about the failure to review. Without a proper “set-up,” the witness can easily wriggle out of a seemingly difficult position.

The following demonstrates the risk you run by not conducting a proper set up:

Q: Doctor, you never reviewed the MRI’s, true?

A: It was not necessary because I read the radiologist’s report.

The better approach is to be patient. Lock the witness into an inescapable position. Start with basic questions about general procedure:

Q: Doctor you examined my client?

Q: You conducted a fair and complete examination?

Q: You took the time that was necessary?

Q: You took the time to review the records?

Q: You made detailed inquiry about his history?

Q: You gathered sufficient information so you could reach a clear and supportable medical opinion?

Now work with the “negatives” to lock the witness in as part of the “set-up,” making your examination air tight.

Q: You would agree wouldn’t you, that you would never render an opinion without gathering a complete history?

Q: Without reviewing all the necessary medical records?

Q: Without taking the time to carefully examine my client?

Q: The reason you do this is because you know that your opinion would be less than valid if you did not review the appropriate medical records?

Q: The reason you do this is because you know that your opinion would be less than valid if you did not review the appropriate medical reports?

Q: Being complete you took the time to review the records, the reports and the diagnostic studies, correct?

Next, stress that the expert’s own personal standards demand that he be thorough:

Q: You sir, would find it unacceptable to render an opinion without such review?

Q: We can agree that without such review, your opinion would be less than valid?

Finally, after a thorough foundation has been laid, you can make inquiry about the failure to review. Because you have patiently taken the time to secure admissions and lock the witness in, you can now aggressively make your point.

Q: Doctor, in conducting this complete exam of my client, you personally reviewed the records?

Q: You chose not just to rely on the reports of other doctors?

Q: You took the time to reach your own conclusions?

Q: Based on a thorough and complete review of diagnostic studies, true?

Q: Now being complete and thorough, you chose not to review the MRIs?

A: I read the radiologist report.

Q: You never reviewed the MRIs yourself?

Q: You chose to rely on another’s opinion?

Q: You never obtained the MRIs before reaching your opinion?

Q: You never once looked at the MRIs before rendering your opinion?

Continue Attacking?

At this point in time, you have a choice. You can stop the line of attack and argue your point on summation (that the witness was not complete or thorough) or you can continue with sarcasm and draw out the fight.

Q: So when you told the court and jury that you are thorough and complete, what you really meant to say was that you were less than complete?

Q: You mean complete most of the time but not all the time.

The Collateral Attack

This same “set-up” can be used with many other areas of attack. Consider, for example, the fallacy inherent in the term “Independent Medical Examination.” We all know the expert was hired by the defense, paid by the defense and prepared by the defense. At no time did the plaintiff’s attorney prepare the defense expert nor did he even have an opportunity to speak with him about his findings and conclusions prior to trial. Moreover, the Court did not appoint the expert. Clearly, this witness is anything but “independent” and his lopsided dependence on the defense should be explored on cross-examination. But once again, you must patiently set up the witness before knocking him down.

Many lawyers make the mistake of beginning the cross with a collateral attack. But the collateral attack is much more effective when you save it for when you need it the most: the moment when the expert disputes a crucial element of your case. Indeed, if the expert is willing to concede important points on cross-examination, and appears fair and honest to the jury, you may well damage your own credibility more than his with an aggressive collateral attack.

Only after the witness demonstrates bias should the following type of attack begin:

Q: This isn’t the first time you’ve testified in court, is it?

Q: As a matter of fact, you’ve testified before?

Q: Tell the jury how many times.

Q: Correct me if I’m wrong, each time that you’ve testified, you were paid to do so?

Q: And each time you testified it was a lawyer, or an entity that hired the lawyer, that you testified for, true?

Then you can go into the amount of times per year the expert has testified, and the amount he is being paid for this court appearance as well as others. But do not stop there. Go right to the heart of the so-called “Independent Medical Examination,” with as much sarcasm as you can muster:

Q: Now, you consider yourself to be independent in this case, correct?

Q: And by that I mean, you do not favor one side or another, right?

Q: It would certainly be wrong to do that, right?

Q: During your independent medical exam, you called it like you saw it, true?

Q: But at that time, you knew you were retained by the defense, correct?

Q: It’s not as if the court appointed you to do this “Independent Medical Examination,” right?

Q: It was the defense who asked you?

Q: And the defense that paid you?

Q: At the time of the examination, you knew there was a lawsuit filed, true?

Q: You knew you would be rendering a report in the case, right?

Q: A report that you addressed to the defense attorneys, true?

Q: A report you knew might one day be evidence, right?

The topic of collateral attack is a broad one, and will be the subject of a future article.

Conclusion

DO NOT BE AFRAID TO CHALLENGE THE MEDICAL EXPERT ON HIS OWN TURF. TO DO THAT YOU WILL HAVE TO LEARN THE ANATOMY, THE MEDICAL ISSUES AND THE BACKGROUND OF THE MEDICAL EXPERT. READ ALL THE APPLICABLE MEDICAL TEXTS AND ARTICLES CONCERNING YOUR CLIENT’S INJURIES. PROCURE THE EXPERT’S PRIOR TESTIMONY AND MEDICAL REPORTS IN OTHER CASES. BY THE TIME YOU STAND TO CROSS-EXAMINE, YOU SHOULD BE VERY FAMILIAR WITH THE EXPERT’S MEDICAL THEORIES, TESTIMONIAL TECHNIQUES AND GENERAL MINDSET. LEAD THE WITNESS THROUGH THE ANATOMY, THE POSITIVE FINDINGS IN HIS OWN REPORT, AND THE POSITIVE FINDINGS OF YOUR CLIENT’S PHYSICIANS. LAUNCH A COLLATERAL ATTACK AT THE APPROPRIATE TIME,DEMONSTRATING HIS MOTIVATION TO SHADE THE TRUTH, HIS FORENSIC EARNINGS AND HIS BIAS. IF YOU DO THESE THINGS, YOU WILL KNOW THAT YOU HAVE DONE ALL YOU CAN. THE HARD WORK WILL BE WORTH THE EFFORT. PUTTING IN A GOOD MEDICAL CASE ON DIRECT CAN WIN IT; BEATING THE OPPOSING EXPERTS ON CROSS CAN WIN IT BIG.