CROSS EXAMINATION
By Daniel M. Hodes

INTRODUCTION

It is safe to say that effective cross exam at trial of the defense expert is pivotal to your likelihood of prevailing. Indeed, volumes have been written on the subject. Effective cross examination at trial, in this author's view, begins with a bullet-proof understanding of the medical issues, and then a thorough and probing deposition of the defense expert, exploring all arguably relevant areas of that expert's experience with the issue at hand, the reliable medical literature on the subject [in accord with EC §721(b)(3)], what records and depositions that expert has reviewed, what obvious or subtle biases the expert might harbor, and detailed questioning about that expert's prior medical-legal experience. Almost invariably, a weakness or break in one or more links of the chain holding that expert's testimony together will emerge. That weakness must be fortified, and then brought into absolute focus at trial in order for his or her testimony to be discredited. The importance of the defense expert's deposition cannot be overstated.

The purpose of this article will be to provide a practical approach to the subject in the context of delay in diagnosis of cancer cases, which I see with increasing and disappointing frequency.

KNOWING THE MEDICINE

It really starts with case selection. Screen your cases with utmost care. Get your standard of care and causation experts on board and committed to testify before you file. Personally meet with them (unless you have a long-standing working relationship, in which case a lengthy teleconference will suffice) and satisfy yourself to a high level of confidence that the diagnosis should have been made sooner, and that the delay was consequential in either causing death, or at least complicating treatment and compromising the likelihood of cure.

Have in your medical library at least the DeVita Oncology text, or, if it's a breast cancer case, the Donegan & Spratt, Cancer of the Breast text, or one comparably authoritative. Take the time even before the defendant's deposition to become thoroughly conversant with the issues, both standard of care and causation. It's often helpful to run a Medline search and obtain further literature that is squarely on point. Remember, you must prove that the standard of care required that the diagnosis should have been made earlier along the timeline and that the delay made a difference.

EC §721(b)(3)

Ordinarily, in cancer cases, there will be separate experts for the standard of care and causation issues. Carefully gather your supportive literature well in advance of their depositions.

In deposing the defense standard of care expert, without citing specific portions of the test, ask whether the text itself is a "reliable authority" on the issue at hand. ("Doctor, would you agree that Donegan & Spratt is reliable authority on the management of breast disease?"). If the answer is yes, you've laid your foundation for trial cross-examination. Go no further at that point. Make a large blow up of the pertinent portion of the text, and use it extensively on cross-examination at trial, and during closing argument. Even though that blow up is itself not admitted into evidence, it will sure seem like it has been if effectively used. The point, of course, is that the testimony of the defense standard of care expert should be discredited in its entirety because his testimony is contradicted by literature or texts, which the expert himself believes to be authoritative.

On the causation issue, the issue is typically whether, but for the delay in the diagnosis, the decedent would have survived. There is a plethora of statistical survival data for various stages of disease in the body of medical literature. But it is not completely consistent, interestingly. Get your favorable survival data in order, and simply ask the defense expert at deposition whether the staging and prognostic data in a given text is reliable data. If the answer is yes, stop, and cross-examine at trial as indicated above. Be aware, also, of clinical trials data that is helpful and explore that, too.

More than occasionally, a defense expert will be coached at deposition to answer that he/she "doesn't know" or has "no opinion" as the reliability of a text. In that case, you'll need to establish reliability through your expert before you can cross-examine the defense expert at trial. If this is raised for the first time at trial, beware of a "Kennemur" objection, with the defense arguing that cross examination on this issue at trial is improper, since it wasn't testified to at deposition. This is a further torturing on the "Kennemur" opinion. That objection should be overruled in light of the more recent revision to EC §721(b)(3).

EXPERIENCE IN TREATING THIS CONDITION

Firstly, be sure your own standard of care expert specializes in the issue at hand, even if the defendant does not. Since the defendant opted to treat the plaintiff/decedent, rather than refer, he/she is held to the standard of a specialist (See BAJI 6.04)

At the deposition of the defense standard of care expert, carefully explore that physician's experience in treating the condition at issue, both as a percentage of his/her practice and number of times treated.

If you can unequivocally establish that your expert has more experience than the defendant or his/her expert in the treatment and management of the condition at issue, you've gone a long way in proving to the jury that your expert's standard of care testimony should carry greater convincing force. On the causation issue, again, be certain that your expert spends a very significant portion of his/her practice treating patients with the type of cancer at issue. Ideally, you can find an expert who treats nothing but this disease.

At the deposition of the defense expert, establish, both as a percentage of practice and raw numbers, the frequency with which he/she treats this disease. If it's less than your expert, then whose testimony is more reliable? The obvious point is that the weak or broken link in the defense experts' testimony may well lie in the "experience" factor. Hopefully, you've got more than that, but even standing alone, establishing this, packaging it, and arguing it effectively in closing could be pivotal.

PREPARATION

It's axiomatic that your experts should have reviewed, at a minimum, all pertinent medical records and depositions, and hospital protocols, if relevant.

In deposing the defense expert, find out what he/she reviewed. See if he/she was provided with all necessary percipient information. How much time was spent reviewing the plaintiff's deposition, for instance. This takes on critical importance if your liability case turns on the jury's acceptance of a finding or symptom which plaintiff insists was discussed. More generally, ask at deposition how much time was spent reviewing all materials. In a case involving volumes of records and depositions, and if the defense expert - standard of care or causation - has spent only five hours reviewing, how credible can those opinions be. Remember, an opinion is only as good as the reasons on which it is based. (BAJI 2.40).

MONEY

Although questions at deposition as to how much an expert has charged for review, and will charge for trial testimony, should be asked, I am typically loathe to make this issue a central one at trial. I will typically stipulate with defense counsel that the dollar issue is off limits. The main reason, of course, is that my folks have charged me essentially what the defense experts have charged. A lot, in other words. There are instances, though, where the defense expert has obviously "churned" the file, or charges such an absurd rate for his time (read: a lot more than mine) that it's worth bringing up in cross exam at trial. I've seen instances where a defense expert has run up a $15,000.00 bill, or greater. The amount sometimes approaches what some jurors earn in a year! Make the point concisely on cross-examination, and then hammer the point in summation. ("Dr. Smith had 15,000 reasons for his opinions...")

TRAINING

Avoid a lot of headache by being certain that your expert is board certified in his specialty. Ideally, he/she has subspecialty boards, as well. At the defense expert's deposition, explore this. Is he/she boarded? Did he/she pass his boards on the first attempt? If not, what areas of deficiency did the examiners identify? This is generally a low yield area, but you've nothing to lose - at deposition. If you're lucky enough to get anywhere in this area, it can be used as collateral ammunition at trial.

BIAS

This covers several areas. As for your own experts, never use one with whom you have a social or truly personal relationship, and are sure he/she maintains a relatively even balance as between plaintiff and defense expert witness work.

At the defense expert's deposition, explore whether he has a personal relationship with anyone in the defense firm. Has he ever been to their Christmas party? (If your expert has never been to yours!) Does he know the defendant? If the defendant and expert practice in the same county, he may well. If so, I always ask, "If I had asked you to review this case against Dr. Doolittle, given your professional relationship, you would have told me you weren't comfortable even reviewing the case, true?" The honest expert will agree. A clearer instance of bias is hard to imagine. Similarly, what percentage of the defense expert's time, professional time, is consumed by medical/legal work? Anything more than 10% is, in my view, suspect. A "professional witness", in other words.

Likewise, what's the breakdown, plaintiff versus defense work. Anything greater than 60% either way creates a very tidy opportunity to assert bias.

In Kaiser cases, ask at deposition whether the expert has, or has ever had any professional or financial dealings with Kaiser. The wonderful thing about bias is that, regardless of the expert's actual testimony, or his/her training or preparedness, you can destroy his/her credibility, and with it, all of his opinions, if true bias can be demonstrated.

IMPEACHMENT

Impeachment comes in several forms, from citing prior contradictory deposition or trial testimony to impeachment with that expert's own professional writings. Only through thorough preparation can you demonstrate this.

At deposition, always obtain a copy of the expert's CV, including a complete listing of all presentations and publications. Always ask whether he/she has testified at deposition and trial in similar cases. Often the expert "doesn't specifically recall."

In preparation for trial cross-examination, carefully examine the list of publications. If any seem arguable relevant, run a Medline and read them carefully. It's low yield typically, and time consuming, but it's a stone that shouldn't be left unturned. If you're fortunate enough to discover writings in true conflict with deposition testimony, you've hit a home run.

Give serious consideration to obtaining prior deposition and trial testimony of the expert. Several litigation support firms can assist with this, as can the CAOC Practice Group. Put an e-mail out on any given expert and you'll be surprised by the response.

I have found it somewhat difficult to impeach with prior testimony, largely because no two cases are identical. But if there is testimony out there that Dr. Grim has offered on prognosis for Stage IIIA breast cancer specifically, and his survival numbers are different than expressed at the deposition you took, that's certainly worth tracking down. Again, this area tends to be time/money intensive and of limited yield, but truly impeaching prior testimony can have a devastating impact. Be conversant with EC §§ 769, 770, 1235.

CONCLUSION

Knowing the medicine, and taking a very thorough deposition are the foundation for effective cross-examination of the defense medical expert. At trial, refine this down and focus on the two or three areas of real vulnerability. Resist the notion that you must go tete-a-tete on all issues. That's plain unrealistic. But if you take out two chains in the link of defense expert's testimony, or even just one, thoroughly, you've gone a long way towards successfully serving your client.