CROSS EXAMINING THE DEFENSE EXPERT
By Paul R. Kiesel, Esq.

The approach to cross examining the defense medical expert varies on a case-to-case basis. Although there are no specific, articulable standards to be rigidly applied in all cases, this article will suggest some areas of focus which may be appropriate to your case and which may spark you to consider other new approaches of your own. Perhaps the only (but foremost) rule to follow is to be adequately prepared for your examination of the expert, whether for purposes of deposition or trial. My own practice is not to cross- examine the medical expert in deposition but, rather, to simply elicit the opinions and conclusions reached by the doctor, to the extent that they are not set forth in any prior defense medical examination report.

Qualifications

Many lawyers simply accept the proposition that an expert identified by the defense and prepared to testify on his/her behalf is qualified. Frequently, counsel fails to adequately study the medical expert's curriculum vitae. It is most important carefully scrutinize the curriculum vitae both for appropriate foundation for the opinions the doctor is attempting to offer as well as the experience upon which the doctor relies to justify the his/her opinions and conclusions.

Certainly, at the time of trial, prior to cross-examination, the curriculum vitae should be carefully examined. The curriculum vitae may reveal that the expert has been essentially out of the actual practice of medicine for some years and has chosen to substitute forensic medicine in its stead. Forensic medicine is typically viewed as the consultation with attorneys coupled with medical review and perhaps one physical examination of plaintiff. It is important to know what percentage of time the medical expert devotes to forensic medicine as opposed to actual treatment. One of the most fertile areas for investigation into a medical expert's qualifications is a review of the expert's published articles or presentations. I cannot emphasize enough how important it is to identify all articles written by the defense medical expert and to review these prior to cross- examining the expert at the time of trial. On more than half a dozen occasions, a review of the medical examiner's published writings has unearthed statements and opinions inconsistent with the defense position in the case at bar.

To the extent that none of the articles written by the expert are relevant to the issues being litigated, the doctor's lack of expertise in the subject matter of the trial should be emphasized. This fact, considered in conjunction with the considerable expertise of plaintiff's expert in the area disputed at trial, provides an excellent basis for discrediting the defense expert's opinions.

Sometimes, doctors include personal information which, while having no bearing on the testimony offered, may provide another interesting area of inquiry. Do not be afraid to explore the curriculum vitae for any potential pressure point which could be applied during cross-examination.

Prior Trial and Deposition Testimony

At the defense expert's deposition it is important to inquire into the witness' prior activities as an expert witness. The inquiry should focus on the following issues:

* The number of forensic cases, i.e., non-treating cases that the witness is involved in each year.
* The number of times the witness has testified as an expert as a treating physician in the prior year.
* The percent allocation between work for plaintiffs and work for defense.
* The charges on the particular matter at issue and the breakdown of those charges.
* The average charge in a litigation case (using broad estimates, if necessary).
* The total number of litigation cases worked on per year.
* The number of cases reviewed for this particular defense firm.
* The number of cases reviewed for this particular insurance carrier.

 A Notice of Taking Deposition of the defendant expert might be helpful in acquiring some of this information pre-deposition.

Obtaining prior deposition and, whenever possible, trial testimony of the expert witness is essential in preparing to cross-examine the witness. I recommend that you use the jury reporting services to find the number of times a particular witness has testified at trial and that you contact the respective parties to obtain transcripts of the witness' prior testimony. There is a gold mine of information to be discovered from the prior testimony of an expert witness. Therefore, you should always attempt to obtain any available transcripts of prior testimony for use in your case. I recommend that you refrain from cross- examination of the expert witness at the time of the deposition, if adverse information exists in prior testimony, and, instead, save this bullet for trial. Additionally, if the expert has his doctoral degree, you should inquire as to the nature of the doctoral thesis. In one case, an expert witness wrote a thesis which contradicted most of the important opinions and conclusions he offered for the defense.

Developing Background Information

Sometimes background information can be developed from sources apart from the deposition inquiry in the particular case. For example, some organizations and lawyers keep banks of past deposition transcripts of certain witnesses whose names appear frequently in lawsuits. While those depositions may not be on point for a particular medical issue, they may provide background about the witness which may be useful at the time of trial and which may impeach the witness' testimony.

Percentage of Work as Expert vs. Treating Physician

Perhaps the greatest area of vulnerability for a forensic expert is the degree to which his/her practice is devoted to expert testimony rather than medical treatment. Often, the non-treating physician is viewed as a "hired gun" when juxtaposed with plaintiff's actual treating physician. Sometimes the information concerning the extent to which the expert performs forensic work can be determined from the deposition, but often the true information can only be obtained through colleagues or former colleagues who have familiarity with the doctor's practice. Questioning the doctor as to how frequently s/he is in surgery and how many hours per week are spent in treating patients can be helpful in developing an accurate breakdown of the doctor's practice. If enough estimates are obtained during depositions concerning hours spent on forensic consultation and hours spent treating patients, the total number of hours may be such as to make it appear impossible for the doctor to do anything but work.

Conduct of the Examination

Some lawyers seek to reduce the defense medical examination to video tape or audio tape to preserve the information for use at trial. This strategy can cut both ways, however, and the decision whether to use it should be given careful consideration. Nevertheless, it is very important to require the doctor to accurately describe how long it took to perform the defense medical examination. Sometimes, the time spent on the examination is so short that the jury is shocked by the time and the charges claimed by the defense medical examiner.

The defense doctor will frequently characterize the plaintiff's complaints as "subjective." The doctor will have to admit, however, that many of his or her own determinations and evaluations (and even some of the testing) depend upon the doctor's subjectivity. For example, the examiner's testing of muscle tone, guarding, spasms, and straight leg raising all contain elements of subjectivity which the doctor interposes into the examination. In the event that the doctor is biased against the patient, his/her subjective views may be biased as well.

Blood tests, x-rays, MRI scans and the like are usually considered to be objective tests. The validity of such tests, however, can sometimes be questionable and may depend upon the fairness of the doctor in documenting the test. Certain organizations now exist which will send representatives to the defense medical examination to record the details of such testing and make suggestions as to how the doctor can be cross-examined.

Medical History

During most examinations, the physician will inquire extensively about plaintiff's history. By doing that, the defense doctor has recognized what all doctors have recognized, i.e., that history is important in determining the cause of certain injuries. Sometimes, history is the most powerful weapon in the plaintiff's arsenal to prove that this particular accident caused plaintiff's injury. Obviously, if plaintiff had no back problem before the automobile accident, and plaintiff has a herniated disc which can be identified on a CT scan after the accident, then the mere historical sequence of events will prove causation by a preponderance of the evidence.

Frequently, the defense doctor's own recordation of the history in his or her own report will be sufficient for cross-examination on the issue of history. Beyond that, the medical records the defense doctor will have reviewed may also provide helpful post- accident history concerning the injury and the scarcity or complete absence of similar history concerning the relevant area of the body prior to the accident.

It is important, however, to be sure that you carefully review all of the medical histories recorded by plaintiff's treating physicians before trial to ensure that they are consistent with the history the plaintiff has given you and other facts of the case. To the extent there is information which is inconsistent with the histories reported by plaintiff's treating physicians, it is important to determine the bases for such differences in order to be prepared explain any inconsistencies and rebut anticipated impeachment.

Tests Not Performed

Sometimes, defense doctors perform only certain tests but decline to administer others. It may be helpful to explore with the doctor in cross-examination the variety of tests available to the doctor which were not performed. It is important to discuss with your treating physicians the tests which they performed, determine the purposes of these tests and then compare them with the tests administered by the defense medical examiner. To the extent that other tests were available and the defense doctor chose not to conduct them, the defense examiner's opinions and conclusions are vulnerable to attack on this basis.

Preparation, Preparation and More Preparation

Preparation is the key to effective cross-examination of a defense medical examiner. The jury is aware that this expert is a paid consultant - not a treating physician - and, perhaps, that s/he is being very well paid for the services provided. The credibility of such witnesses and the foundation for their opinions and conclusions are very vulnerable to attack, but only to the extent plaintiff's counsel is willing to dig the background, education and prior experience of the particular witness, and thereby adequately prepare to conduct an effective cross-examination.