In the following excerpt from chapter 23, "Direct & Cross-Examination: Proving the Full Value of Noneconomic Damages," of Damages Evolving, trial lawyers Nicholas Rowley and Courtney Rowley discuss using the defense's own witnesses to prove their damages cases.
Imagine using the defense expert to show the jury that a large verdict is reasonable. A common defense tactic is to confuse and inject uncertainty in jurors through use of hired-gun expert witnesses. Don’t be afraid of these paid-for opinions. Instead, use them to your advantage. When you do the math and add it all up, medical experts often make millions, even tens of millions of dollars, working for the insurance companies. They get paid this money in exchange for “the time” they spend in court away from what they would rather be doing in life and “the inconvenience” they have to endure reviewing a legal case. We often begin cross-examination by bringing this to the jurors’ attention. The following excerpt is from the cross-examination of a medical expert in a spinal compression fracture and mild traumatic brain injury case:
NICK: You and I know each other.
DEFENSE EXPERT: For a long time.
NICK: Long time. I think close to twenty years.… You’ve done… 100 percent of your income has been forensic work. True?
DEFENSE EXPERT: Nearly—over the last ten or fifteen years overwhelming majority, 98 percent at least.
NICK: …To be fair, would you say 98 percent of the money you’ve made… has been doing work for the defense in cases like this. True?
DEFENSE EXPERT: Correct.
NICK: …Your income doing work for the defense has totaled more than $30 million. True?
DEFENSE EXPERT: Close to that.
The witness was a spine expert, but the defense lawyers stretched the scope of opinions to testify about brain imaging that was outside his wheelhouse:
NICK: Ninety-plus percent spine?
DEFENSE EXPERT: Well, left to my own devices, I always choose to do the spines.
NICK: Brain imaging, a lot less?
DEFENSE EXPERT: Correct.… I don’t do research on the brain. I don’t generally give lectures on brain imaging.
NICK: The technology has really advanced in brain imaging since [you left San Pedro]. Correct?
DEFENSE EXPERT: Well, the… whole field of imaging of the brain has changed a lot and grown a lot in the last fifteen years.…
NICK: And, if you were asked, Hey, let’s take this [brain] MRI… that was done. Let’s look at what is on it; let’s clinically correlate it, … [you would] not be qualified to do that. True?
DEFENSE EXPERT: I would not look at the DTI.
NICK: Something you have no education, training, experience?
DEFENSE EXPERT: Not something I do at all.
We educated the jurors on why diffusion tensor imaging (DTI) is important in recognizing abnormalities in brain tissue—such as the neural axons of white matter (omitted here for brevity). DTI is used to clinically correlate MRIs, and the defense expert honestly admitted he was not trained in DTI or clinical correlation.
NICK: Clinicians… are using DTI to clinically correlate what they see on the MRI and the DTI. They’re using them together.… True?
DEFENSE EXPERT: They’re using it from brain for sure. Epilepsy, brain tumor.…
NICK: And traumatic brain injury too?
DEFENSE EXPERT: That, I can’t tell you.
NICK: Clinical correlation is an important part of the whole process. Agree?
DEFENSE EXPERT: Yes, of course. Clinical correlation determines the clinical correlate. If you have something that matches a clinical sign, it doesn’t give you the etiology. It doesn’t tell you—it doesn’t make it more or less specific. It either does or it doesn’t match a specific syndrome.
NICK: We can look at a lot of things on an MRI and say, “That is nonspecific.” True?
DEFENSE EXPERT: Correct.
NICK: And then to make it something that matters, the clinician, like the neurologist, will look at the patient’s history and see if that is something that is useful in the diagnostic process. Correct?
DEFENSE EXPERT: …Yes, absolutely.
NICK: In this case have you done any clinical correlation work? You have not, have you?
DEFENSE EXPERT: That’s not my role.
When a witness admits that the question is beyond his role, allow it time to settle before moving on. When you make a point, give it some space to let it sink in. Jurors understand both sides have the obligation of putting their best case forward, and it begs the question: Why did they hire someone who cannot (or will not) answer the questions or who isn’t qualified? […]
Allow the expert to further diminish his role in the case with evasive answers. Jurors rapidly understand what is happening as long as you understand your client’s case, stay calm, and persist. […]
Always remember that cross-examining defense experts can be an opportunity to make your damages case, illustrate what happened to your client’s body, and show how the defense has not paid attention or taken the case seriously. Here, we have a defense expert who wasn’t even given the radiology report and doesn’t know whether the patient was misdiagnosed and sent home with a compression fracture in her spine.
Establishing facts through cross-examination of a defense witness can be very powerful, and also can be a lot of fun. But don’t get carried away with yourself or turn into a person who is a smart aleck or who is rude. Most of us have taken it too far on cross-exam, and some have yet to learn that lesson. We hope you learn from us.
In this case, the defense harped all over the fact that emergency room and acute care providers during the two nights our client spent in the hospital didn’t diagnose a brain injury, or even a slight concussion. We pointed out how these same medical professionals missed a fracture in her spine that the CT scan showed. The point being that even obvious things are sometimes misdiagnosed.
When you have a defense witness or expert, pick some of the items of harms and damages your client has been through or has to live with, and go through them. If the defense lawyer wants to talk with a doctor about the foot that has healed quite well, you should then take the time to address the headaches, loss of memory, or ongoing neck and back pain. It puts things in an entirely di erent perspective when a defense expert who says, “ e pelvic fracture has healed and this patient no longer needs any surgery or treatment for that injury,” is asked how it’s going to feel for your client to carry a baby with that pelvis or go through labor and delivery. It turns out that no reasonable physician would ever recommend that your client go through a vaginal delivery with that pelvis, meaning she has lost the freedom of choice and experience and now has to endure increased risk, pains, and complications with childbirth and won’t be able to have as many children. You’ve now taken the defense witness and established future harms and losses that many jurors will feel are worth millions.
The defense brain injury expert will say that brain injuries heal up after two years and there are only mild cognitive problems remaining. Use this defense expert to talk about the increased risk of cognitive decline and dementia with aging and how your client has less cognitive reserves than she did before her brain was concussed. […]
To learn more about how Nicholas and Courtney Rowley obtain amazing verdicts for their clients, and gain data driven and tested insights from trial consultants David Ball and Artemis Malekpour, click here or the link below to order your copy of Damages Evolving today.
