Speeches

Finding and Using Experts In Medical Malpractice Cases

Medical Trial Skills College
Association of Trial Lawyers of America/National College of Advocacy
Miami, Florida January 2001

John Elliott Leighton
Leesfield Leighton & Partners, P.A.
2350 South Dixie Highway
Miami, FL 33133
(800) 836-6400
Email: JELmiami@aol.com
Internet:www.Leesfield.com
Miami and Key West, Florida

Introduction

Medical malpractice cases often hinge on expert testimony. An expert, with his or her knowledge can assist in evaluating the liability, causation, and the potential damages of the case.

Medical malpractice trial lawyers need experts not only to testify, but to also provide consulting services and assist in evaluating the merits of a case. The best money ever spent is on an expert who tells you that the case has a hidden fatal flaw... one that you would only learn about in many months and after spending a lot of time and money.

The primary role that an expert may play varies from case to case. While some experts are used at the pre-trial stages providing supporting affidavits, others help evaluate the merits of the case, or simply provide testimony at the trial. An expert can play a combination of any one of these roles.

How To Find An Expert?

There are many sources where experts cab be located. There are hundreds of web sites advertising the services of experts in various fields ranging from Acoustics to Zoning and Land Use. However, there are some experts who do not advertise their services due to the negative connotations associated with advertisements and turning the courtroom into a business. Some of the best sources of experts include:

• Online forums and directories
• Medical Schools & Hospitals
• DepoConnect
• Verdict Reporters
• ATLA Exchange
• ATLA Publications (Professional Negligence Law Reporter, ATLA Law Reporter, etc.)
• Trade and Professional Associations
• Referral Services

There are experts who will not meet your needs. Your needs will vary depending on the case and the parties involved. Some of the suggested criteria that should be used when selecting an expert are:

• Compatibility:

  • You should get along with your expert. If you do not like the style of your expert, you probably will not want to use him or her. There will be conflicts that will last throughout the process and will impede the progress of the case.

  • Presentation style. You want to select an expert who the judge and jury will understand, respect, like and especially trust, and who has the ability to explain to ordinary people the complicated medical or scientific theory of your case. If you use the expert for testimony in trial, his or her ability to convey to the jury the complexity behind the medical and scientific theory will have a great effect on how the jury perceives your case. This is why teachers make particularly good expert witnesses - they know how to teach and are comfortable in that position.

• Education, Training & Experience:

  • Competent and proficient in the necessary field(s). Part of the selection process involves screening education credentials and making sure that the expert has performed all of the necessary training in the necessary field. Not all experts need to have an advanced degree, this requirement depends on the field in which the expert works.

  • Practical experience, not only formal training. As attorneys, we all know how important practical experience is to our legal experience. The same applies to experts. Practical experience provides the expert with more credibility.

  • Publications and teachings. These are other components to experience because this usually illustrates that the expert's work product and theories have been tested and are generally excepted within his or her field.

• Other:

  • Willing to serve as an expert. Experts that are willing to assist in litigation can be found in various sources. If experts are in directories or reporters, generally, they have served and are willing to serve as experts. This prevents you and your staff from wasting time looking through the yellow pages and other general reference materials. There are negatives associated with this as well. The expert may be seen as too much of an advocate, or may have a "book" on him or her.

  • History with dealing with litigation. The history of the expert in previous cases is a factor that should be considered when selecting an expert. At this part of the selection process the expert's source of income is scrutinized. If the expert's income is derived primarily from providing testimony, he or she may be viewed as a "paid testimony" that may be given little weight by the jury. Has the expert taken consistent positions in the past or are there some depositions, reports, publications or trial transcripts is existence that will impeach this expert?

In addition, a complete screening of an expert's capability is necessary and continuous monitoring of his or her progress is crucial, because if the expert makes a mistake, it is your client who suffers. See Murphy v. Mathews, 841 S.W.2d 671 (Mo. 1992) (expert witness hired as an advisor to provide litigation support services in addition to testifying liable for professional negligence where the result is a lower verdict).

• Prior Contrary Testimony. You should find out whether an expert has had prior contrary testimony in his or her career. This can be extremely damaging to the case and the expert's credibility if he or she is serving as a witness, especially if your case relies heavily upon the expert's opinion.

• Ability to convey specialized knowledge to the trier of fact. An expert is almost like a "salesman" because he or she is teaching the jury your theory of the case and helping the jury understand the evidence and determine the facts in issue. This is where it is important to have a seasoned court expert, because he or she needs to have knowledge of the law and know how to relate to the jury and answer questions appropriately.

• Talk to more than one expert. You should not hire the first expert that you consult, there is a lot to be learned from many different views. Keep your client involved in selecting and retention of any expert because your client also needs to feel comfortable with the expert's capabilities. Communication with your expert is essential in order to keep him or her informed of any changes and critical facts of the case. This will ensure that everyone is on the same page and eliminate inconsistencies.

• Interest Important. Your expert should be interested in the entire matter, not just interested in some of the narrow issues. He or she should read all of the depositions, pleadings and motions in order to get a sense of the strategy of the case and the preferred outcome fo the case. This will enable the expert to address the subtleties of opposing arguments and presentations and judge's rulings.

• Understanding of Case Law. It is important that the expert have a understanding of the relevant case law. Experts may know of case law in a specific area that the attorney may be unaware. This is an asset when faced with an unfamiliar area of law or a novel issue or claim.

• Monitor Progress. You should keep informed of the progress that the expert is making with data, research and other pertinent information. Likewise you need to advise the expert of what is taking place from a procedural posture so the expert is not placed in the position of receiving a call that his deposition is taking place in 3 days.

• Verify Results. After the results are given, decisions should be made regarding the conclusions, advice and implementation.

• Compensation. Experts are usually paid for their time. Usually this is time spent evaluating materials, analyzing documents and evidence. And if the expert is serving as a witness, this can be time spent waiting to get on the witness stand and their time while on the witness stand. However, this a just a fraction of the expert's total fee. Most of an expert's time is spent assisting in the litigation process and evaluating evidence. It is important to set boundaries for the fees at the outset - find out how much the expert charge, put a limit on the bill or have the expert provide you updates on what the charges are. And always make sure the experts are paid in a timely manner.

When Do I Need An Expert?

Experts can also be used as consultants for attorneys, in addition to providing testimony. However, before deciding whether testimony is needed, you need to decide whether the case is worth pursuing and how you will proceed with the case if it is taken.

• Timing is crucial. Whether you are using the expert for assistance in investigations, evaluation, or settlement, you need to contact an expert sooner rather than later. Timing is crucial when determining whether to proceed with a case, and especially when engaging in settlement negotiations.

• Save Money. Consulting an expert early will save you and your client money by decreasing the amount of time the expert will have to spend on the case, and possibly repairing any damage done to the case through the delay.

• Preliminary stages. Experts can provide invaluable assistance with evaluating and performing investigations of cases in order to determine their merits. Not only do experts provide much needed information in a specific field, they also assist in the direction of the investigations of the cases.

• Specific & Technical Information. Information that is specific to the technical field usually is not known to the attorney, and the assistance of an expert will ensure that questions and facts that are needed to proceed with the case are discovered early in the litigation process.

• Depositions. Experts can help formulate questions for depositions.

• Interrogatories

• Discovery. Experts assist in determining what facts are needed and which questions to ask in order to get these facts.

• Technical Analysis. They can help determine which documents need to be searched.

• Summing up Complex Facts for Jurors

• Analyzing Documents in Settlement and Medical Cases

• Attending Depositions: Under the Federal Rules of Civil Procedure, exclusion of someone from a discovery is done only under exceptional circumstances.

• In addition to assisting with preparing questions for depositions, experts can attend depositions unless the opposing party can demonstrate an objective reason way the expert should be barred from attending the deposition. See Brignola v. Pei-Fei Lee, 192 A.D.2d 1008 (N.Y. App. Div. 1993).

• A Florida federal district court found that not only good cause must be shown, but also that "the protection is limited to circumstances where justice requires such exclusion to protect a party from annoyance, embarrassment, oppression or undue burden on expense. See Skidmore v. Northwest Eng'g Co., 90 F.R.D. 75, 76 (S.D.Fla. 1981).

• More recently in Texas, the court of appeals held that a party is required to give notice that an expert witness, that is an independent contractor rather than employed by counsel, will attend the deposition of another witness. See Burrhus v. M & S Supply, Inc., 933 S.W.2d 635 ( Tex. App. 1996).

Why Do I need An Expert?

• Experts are needed to help explain information that is not commonly known to lay individuals as a trial witness, but also provide cost-effective solutions as a consultant under many conditions.

• Work Overload. New cases can produce a lot of work that can overload permanent staff that have other duties to attend. An expert can assist with unique projects to help permanent staff.

• Innovation. Experts can provide a fresh look at facts, in addition to providing technical skills and expertise.

• Training. When needed, experts can provide training in areas that frequently arise and for issues that are specific to a case.

• Temporary Help. Experts can also provide assistance during peak time in areas other than litigation.

How To Use An Expert

• There is a distinction between a consulting expert and an expert witness. These roles may overlap. As a consultant, an expert may be in the background serving only as a consultant to the attorney without his or her name ever being known to the other side. Or an expert may solely serve as an expert witness at trial.

Experts, whether consultants or testifying witnesses, perform a wide variety of services for attorneys, including:

• Educate Counsel
• Case Evaluation
• Testing & Experimentation
• Provide Written Statements
• Prepare Demonstrative Evidence
• Testify at Deposition or at Trial

A consulting expert's greatest asset is his or her assistance in evaluating a potential lawsuit. The sooner you retain a consultant expert the more prepared you will be for the opposing parties defenses. A consultant expert can assist in creating a written discovery plan, review materials and help in deposing opposing experts. Consultants perform tasks, such as:

• Situation Analysis
• Research
• Planning
• Evaluation
• Problem Definition
• Idea Generation
• Implementation
• Design
• Selection
• Testing and Training
• Reporting

In addition, as a consultant, experts increase the chances for a successful result through providing:

• Cost-Effective Solutions
• Unique Skills and Specialized Expertise and Knowledge
• Interpretation of Complex and Technical Data
• Define Strengths and Weaknesses of the Case
• Define the Issues (helps saves time and guides crucial initial decisions)
• Provide Support

However, there are three primary areas where you want an expert's assistance which continue throughout the litigation process: the beginning stages for evaluation and investigation and in the end during settlement.

• Evaluation: Evaluating a case is crucial to saving you and your client money. This is the point where you determine if the case has any strong merits and the chances of settling. Your expert will help you make these determinations and tell you what facts you are missing in order to create the theory of your case. For example, you may be inexperienced in a field of medicine and a client has approached you with a case in this field. You feel that the claim is meritorious and proceed to file a complaint and then send the records to a physician. The physician does not find any malpractice. This is a situation that may arise where an attorney has little experience in an area and proceeds with a case before consulting an expert. If an expert is consulted early in the process, this situation can be avoided. An expert can assist you in evaluating cases to determine their merit, such as was the standard of care breached, before you get into difficult and embarrassing situations.

• Assisting with developing discovery

• Preparing for and taking depositions

• Trial preparation/preparation for and use at trial

• Investigations. Experts should be consulted in the early stages of a case to assist with investigations, because they can tell you which facts are needed in order to prove your theory. This will not only shape your case, but will also guide your investigations to determine what facts you need.

• Settlement. The likelihood of your case getting to jury is slim. And the settlement process is substantially enhanced in you favor when you have the assistance of an expert in the early stages to help evaluate, investigate and identify strengths and weaknesses in your case.

• Once you have found an expert, there are some steps that you should take to ensure that there are no misunderstandings during the litigation process.

• Initial Contact. The initial contact should always be by phone. Never write to an expert because somehow this letter will eventually get into the hands of opposing counsel.

• Compensation. Be up front about compensation. Pay in stages in order to avoid surprises.

• Be Specific. Tell the expert exactly what you are expecting from him or her. You should narrow your objective in order to get just the experts opinion on the issue. All you want is the expert's opinion.

• Data & Documents. Give the expert all of the data, documents and materials, the good and the bad. You want the expert's professional opinion on the issue and the strengths of the case.

Conclusion

Generally, you should seek the assistance of an expert early in the developing stages of a case, whether the expert is used as a consultant and/or as a witness. Using an expert witness as a consultant early in the evaluating cases and during the litigation process, will give you and advantage. The expert will assist in identifying the merits of the case, and provide leverage to settle the case quickly, for the best result for you and your client. The more you know about the facts and circumstances of a case, the better you will be in the long run.

Experts can provide a wealth of knowledge in a particular field. Just remember to get to the point where the expert will be able to assist you, you must select the expert according to you and your client's needs. However, selecting an expert, should be done with a lot of thought and care. The outcome of your case may depend on this decision. There are numerous considerations that must be factored when making this decision in order to select the expert that is suitable for you, your case and your client.

*Reprinted from the Association of Trial Lawyers of America/National College of Advocacy, Medical Trial Skills College, Miami, Florida January 2001, with permission of the Association of Trial Lawyers of America. Copyright © Association of Trial Lawyers of America. Further reproduction of any kind is prohibited. For more information, please contact the National College of Advocacy, 1050 31^st Street, N.W., Washington, D.C. 20007, 800-622-1791.