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Medical Malpractice Attorneys
Philadelphia, Pennsylvania
MEDICAL EXPERTS - WHEN & HOW THEY HELP YOU WIN
By, Norman Perlberger, Esquire1
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I. General Overview
As a trial lawyer, you know that the testimony of expert witnesses can make or break a civil case, and that complex personal injury cases almost always become a "battle of the experts." Experienced trial lawyers and good experts explore methodology, practical applications, and effective techniques in the preparation of and direct examination and cross-examination of experts.
How do you prepare your expert? How do you disarm your opponent's expert?
Jury trials require live testimony by court appearance or via video taped questioning at a deposition to be played for the jury at the trial. This differs from the written reports and taped and transcribed question and answer sessions which may be used in arbitrations or trials where a stipulation to a damage award is permitted (see discussion below).
Many doctors prefer testifying by deposition, usually at the end of the day. This preference may be based upon hospital rounds in the mornings, a reluctance to supplant surgery or office time slots, and the obvious time in traveling and at the courthouse waiting to be called. The latter concern need not be so. In fact, judges often are very willing to accommodate a doctor's schedule, and are willing to arrange for the doctor's testimony to be given at a specific time, even if it involves changing the order of the witnesses. Of course, the attorney involved must be proficient at anticipating how quickly the trial will proceed. Also, there is the rare time when something regarding the court's schedule, which could not be anticipated, causes a delay.
Deposition testimony is usually video-taped and shown to the jury during the course of the trial. If there is an insurance company opposing the plaintiff’s claim, often the defense has its medical expert(s) testifying live at the trial. A live witness is usually more effective than a videotaped one. A deposition is usually not allowed to be taken without giving the court reporter time to transcribe the notes and allow the other side to review the testimony with its expert. If you are plaintiff’s counsel and it is your expert that has been videotaped, this time lag between that testimony and time the defense doctor testifies will give the opposing medical experts plenty of time to review your deposition testimony and develop a rebuttal. Of course, if your expert testifies live in the courtroom, trial, the other witness will not have such an advantage in opposing your testimony.
If video-taping is too costly for the plaintiff, or for some other reason cannot be arranged, counsel will have to use someone to read the testimony from the deposition transcript at the trial. The potential disadvantage here is that the stand-in simply does not project the professional expertise, confidence and poise of the good expert.
Whether the expert is testifying by deposition or live at the trial, preparation is of utmost importance. Presenting a case in court is 90% preparation. That is why a pretrial or pre-deposition session with the expert is vital to the predictable success of his or her presentation. At least a month before the deposition or trial testimony, if possible, and if pre-trial settlement is unlikely, send a timeline, medical records, including prior related records, and a medical bills summary2 to the doctor(s) asked to testify for the plaintiff. These records should be organized and tabulated to facilitate this review. At the pre-trial (or pre-deposition) session with the expert, tell the doctor what questions he/she can expect to be asked by you and alert the doctor to possible areas of cross-examination.
A painfully critical point: Your expert’s knowledge of the plaintiff’s prior treatment (and treatment by other doctors) is usually critical to the effectiveness of expert testimony. The other side will cross-examine on this prior history and will try to defeat the claim by discounting any testimony that relates to and impacts upon the viability of the case.
1 Norman Perlberger is Managing Partner in Pomerantz Perlberger & Lewis, LLP, a Litigation firm with a substantial portion of its caseload in medical malpractice, mass tort, products liability and other personal injury cases. He was formerly a managing partner at Blank Rome, starting his legal career clerking at the Beasley Firm and for the Honorable Sydney Hoffman of the Superior Court. He is an author and frequent course planner and lecturer. He has been voted one of Pennsylvania’s Super Lawyers and is listed in the Best Lawyers in America.
2 It is good to provide the expert with a "medical bills summary". One question which may arise is whether the charges for a particular medical service were "reasonable and necessary." The summary allows the medical witness to identify any such problems and raise them at the conference with the patient's attorney.
