As you can tell by some of my recent blog posts, I have been spending a lot of time lately cross-examining defense medical experts. Today I want to talk about using defense experts to bring in favorable opinions.
In cases where the plaintiff has had complicated or prolonged medical treatment, it is often not possible to present testimony from all the treating medical professionals that had favorable opinions. This can be because of time constraints, because there would be overlap in the testimony, or because the economics of the case doesn’t allow it. But that doesn’t mean that there is no way to get these favorable opinions in front of a jury.
One way to do this is through the testimony of the defense medical expert. Usually, these witnesses are provided with a complete set of the medical records in the case prior to examining the plaintiff and/or writing their report. Often, the report itself lists and/or summarizes everything they reviewed. The witness will usually agree that they reviewed all of the medical records and considered them in formulating their opinions.
Then I simply take the defense expert through every favorable opinion expressed by a treating doctor.
Did you review the reports of Dr. X’s treatment of the plaintiff?
The reports of the 23 visits he had between July 1, 2016 and August 28, 2017?
You agree that Dr. X had a greater opportunity to observe and evaluate the plaintiff than you did?
Did Dr. X reach a diagnosis?
What was his diagnosis?
Do you agree with that diagnosis?
This can be a very effective approach, especially where there are several favorable opinions to work with. You have brought out that there are favorable opinions from other doctors. You have established that the other doctor(s) saw the plaintiff many times over a long interval. Finally, you have “polarized the case” by making the defense expert specifically disagree with these favorable opinions.
I can’t claim credit for these techniques. They are derived from the writings of Rick Friedman, David Ball, Dorothy Clay Sims, and others. But I am sure having fun incorporating them into my practice.
Pro Tip – Fight the Medicine as Little as Possible
You are a great trial lawyer. You know the medicine of your case frontward and backward. You may know the medicine better than the doctor you are examining on that particular issue. I’ve seen so many lawyers who think this who race into the weeds with the expert. It is also pretty fun because it gives you a real chance to show off and demonstrate to everyone how smart you are.
But stay out of those weeds because you cannot win there. Get the defense expert’s help on damages. Get out the concessions you know you can get. Get out the financial bias testimony. Perhaps most importantly, get the expert to concede there are things that she could have done to provide more accurate testimony to the jury but did not bother to do (examine the patient, read a deposition, know a study, etc.).