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Providing expert witness testimony
Medicolegal Issues
Providing Expert Witness Testimony Alan M. Scarrow, M.D., J.D.,* and Meera R. Scarrow, M.D., J.D.† *Department of Neurological Surgery, University of Pittsburgh, UPMC Presbyterian Hospital, Pittsburgh, Pennsylvania; †Department of Obstetrics & Gynecology, University of Pittsburgh, Magee Women’s Hospital, Pittsburgh, Pennsylvania 15213
Scarrow AM, Scarrow MR. Providing expert witness testimony. Surg Neurol 2002;57:278 – 83.
The frequency of medical malpractice litigation in neurosurgery creates an opportunity for those in the profession to provide their opinion to courts on professional standards of care in the form of expert witness testimony. Providing expert witness testimony in a thorough and objective manner is difficult. This paper discusses the process of providing expert witness testimony as well as techniques the neurosurgeon can use to testify more effectively. © 2002 by Elsevier Science Inc. KEY WORDS
Expert witness, testimony, neurosurgery.
here is little doubt that most neurosurgeons in the United States have been affected by medical malpractice. As one of the most frequently litigated specialties, neurosurgeons are commonly forced to defend their actions and judgments in a court of law. The courts, by virtue of their role as a trier of fact, are in the unique position of determining whether a standard of care is breached in these cases. As a result, courts become the venue where standards of care are discussed and established. This process is done largely through the testimony of expert witnesses. Providing quality expert witness testimony can be a difficult task for a neurosurgeon. It requires the neurosurgeon to be objective, diligent in their preparation of reports and testimony, and above all, honest in the presentation of opinion to the court. This paper will discuss methods and techniques that a neurosurgeon may use in preparing and delivering expert witness testimony.
T
Address reprint requests to: Dr Alan M. Scarrow, Department of Neurological Surgery, University of Pittsburgh, UPMC Presbyterian Hospital, 200 Lothrop Street, Suite B-400, Pittsburgh, PA 15213. Received October 27, 2000; accepted November 28, 2001. 0090-3019/02/$–see front matter PII S0090-3019(02)00640-7
Discussion Rule 702 of the Federal Rules of Evidence establishes an expert witness as one who possesses scientific, technical, or other specialized knowledge that will assist the trier of fact in understanding evidence or determining a fact in issue [1]. The wording of this rule is purposefully broad to allow a variety of individuals to provide testimony without having met specific qualifications. For example, a medical malpractice case filed against a neurosurgeon for breach of the standard of care in an instrumented spine case may have expert witness testimony given by other neurosurgeons, orthopedic surgeons, metallurgic engineers, salesmen with specific knowledge of spinal instrumentation, nurses, surgical assistants, physician’s assistants, or other persons with knowledge of the design, indications, surgical application, and care of patients undergoing spinal instrumentation surgery. Expert witnesses may be called by the defense, plaintiff, or judge. In the latter instance (an unusual circumstance), an expert may be asked to testify if the judge feels the court has not heard adequate testimony to decide an issue in question. More typically, counsel for defendant or plaintiff contacts the prospective expert witness to provide consulting or testifying services. A consulting expert is asked to provide background information regarding the technical aspects of the case while a testifying expert is used by either defendant or plaintiff to persuade a judge or jury toward their respective point of view. Importantly, an individual called to be an expert witness cannot be compelled or subpoenaed to provide testimony. Expert witness testimony is strictly a voluntary activity. Generally, expert witnesses are the only witnesses that are allowed to give their opinion in court. Non-expert witnesses must confine testimony to that which they have observed or to opinion that is not based on scientific, technical, or other specialized knowledge. This would include © 2002 by Elsevier Science Inc. 655 Avenue of the Americas, New York, NY 10010
Expert Witness Testimony
opinion as to intoxication, state of emotion, or general appearance of a person as outlined in Rule 702 [1]. In the course of providing the court with their opinions expert witnesses are asked to do four separate things. After reviewing the evidence of the case, the expert will be expected to 1) establish the facts, 2) interpret the facts, 3) define the standard of care and measure the care exercised in the case against that standard, and 4) comment on the opposing expert’s facts and opinion. Before accepting an offer to provide expert testimony, it is important for a neurosurgeon to make an honest assessment of the relative risks and benefits of providing testimony. While an expert witness is on the stand he or she is, as a practical matter, the one who is on trial. The trial of an expert witness centers on establishing or dismantling his or her credibility. The means of accomplishing this can touch all aspects of a neurosurgeon’s life. All matters both private and professional that establish credibility, believability, and truthfulness can be subject to intense outside investigation and incourt interrogation. Thus, a neurosurgeon can expect any prior litigation against him or her for malpractice or professional misconduct to be brought to the attention of the court. Likewise, any crime that reflects on truthfulness such as fraud, embezzlement, tax evasion, or perjury may be used to discredit them. Any felony conviction, whether or not involving dishonesty, may be used to impeach an expert witness. Opposing counsel may also inquire in good faith about prior “bad acts” that may affect an expert’s character or worthiness to be believed. Examples include acts of deceit or lying to employers, patients, or professional colleagues, although inquiry into these bad acts is limited to confrontation by the opposing counsel and may not be proved by other witnesses or extrinsic evidence. This broad investigation gives the jury an opportunity to listen to the relatively simple issues of credibility and truthfulness. Although the technical issues of a typical neurosurgical malpractice case may be confusing, credibility and truthfulness are concepts that even the least technically adept jurors can grasp. Credibility in large part rests on reputation and credentials. An expert witness can expect to have his or her academic record, research, publications, honors, association membership, caseload, and professional reputation in the community closely examined. Access to this information has improved substantially in the last 5 years as a result of on-line data sources. Likewise, on-line availability makes it easy for opposing counsel to check prior testimony and academic publications that may be inconsistent with testimony being
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provided for the case in question as well as finding others in the profession who have opinions opposing those of the expert. Opposing counsel will also attempt to expose an expert as a “hired mouth” of the opposition. It is important for the expert witness to assess their biases and determine whether they have an interest in the outcome of a case. For example, expert witnesses who have consistently provided testimony for defendants only are more likely to be perceived as less objective and more as advocates for the defendant. Similarly, experts who have a financial interest in the outcome of a case (e.g., shares of stock in a closely held medical equipment company in a case where that company’s product is at issue) risk having that exposed during cross-examination as a source of bias in their testimony. Only after making an honest, objective assessment of the potential merits, risks, and biases inherent in providing testimony, should a prospective expert witness accept the offer to provide testimony and begin preparation. THE PROCESS OF PROVIDING EXPERT WITNESS TESTIMONY The initial step in providing expert witness testimony is the preparation of an expert report. This is typically presented to the hiring attorney months before a case is scheduled to be presented in court. The expert report is a summary of the expert’s findings of fact, conclusions about those facts, the reasoning behind those conclusions, and references to support the reasoning and conclusion. Importantly, any reference cited by the expert is discoverable evidence that is closely scrutinized by the opposing counsel and experts. The art of writing a good expert witness report lies in balancing between writing with sufficient detail to support conclusions and leaving enough intellectual freedom to argue in court. For example, a case involving an acute spinal cord injury would include a summary of the events leading up to the accident, the clinical findings recorded by the ambulance team, arrival times and care provided in the emergency room, a description of corticosteroids used to treat the patient, and a reference to articles supporting the use of corticosteroids in acute spinal cord injury. What would not be necessary in such a report would be reasoning and references that detail the dosing, timing, and contraindications for the use of corticosteroids for acute spinal cord injury or articles that refute the use of corticosteroids altogether. Although this should be left out of the expert witness report, the latter information should be gathered and reviewed in the
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event the case proceeds to a court so that the expert can make arguments supporting his or her position or refuting those of the opponent. The expert report should be written in short sentences that briefly state the expert’s opinion and the reasoning behind the opinion. Long compound sentences provide the opposing counsel with an opportunity to lift passages and construe them in ways more favorable to their side. The report should avoid generalizations about illnesses or procedures and should provide reasoning specific to the case. Errors in grammar, spelling, and punctuation should be avoided because of the implication that the author of those errors lacks attention to detail and will expose the expert to more rigorous cross-examination by opposing counsel under the presumption that details in preparation for court were also overlooked. DIRECT EXAMINATION Courtroom testimony by the expert begins with a direct examination by the hiring attorney. Most often, the attorney and the expert agree to a list of questions to be asked in a way that aids the delivery of the testimony. While agreeing to a progression of open-ended questions will provide for a smooth delivery, experts should be cautioned that deliveries that appear rehearsed or scripted are likely to be perceived by the jury as contrived. This will undercut the objectivity of the expert and make his or her testimony less persuasive. Once an attorney asks the expert a question, the expert should acknowledge the attorney and then turn his attention and direct the answer to the jury. Typically, the list of questions begins with a summary of the expert’s academic credentials including education, training, licensure, specialty areas, research, publications, honors or awards, surgical caseload, and membership in professional associations. This is done to establish the witness as an expert with evidence supporting that claim. Next the expert should state his or her current job title and whether he has provided expert witness testimony in other cases. Disclosing prior expert witness work that the neurosurgeon has done will bolster his credibility by demonstrating to the jury that he has nothing to hide. Failing to mention such work (likely to be noted by opposing counsel) will result in the expert appearing as if he is hiding something from the jury that makes them less objective. The expert should then explain the facts of the case as he or she understands them and what sources were used to establish those facts. Upon
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conclusion of that explanation, the expert should establish the professional standard of care applicable in the case and compare the standard used in the case against that professional standard. This is followed by the reasons behind the expert’s conclusions with references to the literature or citation of similar professional experiences. The expert should also point out weaknesses in his or her opinion. Once again, by making a pre-emptive effort to highlight points of contention, the expert is more likely to be perceived as an objective clinician rather than an advocate for the hiring side. Finally, the expert should comment on the opposing expert’s facts and opinions found in that expert’s report and justify differences between them. Throughout the expert’s testimony, a demeanor should be maintained that is matter-of-fact and not boastful or arrogant. Juries are particularly sensitive to feeling lectured or “talked down to” by expert witnesses. In addition, the expert must tell the technical side of a story in language that is understandable to a layperson. Juries that appear confused after listening to testimony don’t need to be subjected to a cross-examination of that witness because the lack of clarity in the testimony neutralizes its potential effect on the case. In light of that, an expert should observe the jury closely during the testimony. Noting which jurors are paying attention, which ones are taking notes and appear to be engaged in the content of the testimony may help direct the expert’s attention toward those individuals. Hand gestures and voice inflection should be used to emphasize points of importance in the testimony and may focus the jury’s attention at the appropriate time. Visuals, diagrams, and models may be used by the expert, after properly entering them into evidence, to help create a clearer picture of what is being explained. CROSS EXAMINATION Cross-examination by the opposing counsel follows the direct examination by the hiring counsel. This is likely to be the most crucial time in either bolstering or undermining the credibility of an expert witness. The expert should be relaxed but attentive to the details and subtleties of the questions that will be asked. Questions should be answered in a clear, firm manner and answers should always be addressed to the jury after acknowledging the attorney. Before answering the question, the expert should pause briefly to allow the hiring attorney to make any objections. There are several ground rules that an expert should observe and never breach when responding to cross-examination. First, it is imperative that the
Expert Witness Testimony
expert maintains self-control. A common tactic used by attorneys in cross-examination is to engage the expert in an argument. An expert engaging in an argument with a nonexpert such as an attorney risks losing credibility and the air of objectivity in the minds of the jury. Although experts may argue with other experts during the course of a case, experts should not be pulled into arguments with nonexperts. Another common tactic is to engage the expert in a hypothetical case similar to the one being litigated. By changing the facts of the case slightly, the attorney tries to draw an expert into a line of reasoning that will lead to a conclusion opposing the stated view. This cannot be allowed. The expert may answer the hypothetical but only after highlighting the differences between the hypothetical and the case at hand. An attorney may also try to draw an expert into contradicting his conclusions by getting him to agree that experts are known to disagree about issues in the case. Although this may be true, it may be pointed out by the testifying expert that under the specifics of the case at hand, opinions contrary to that being offered are less compelling. However, an expert should avoid making sweeping, idyllic statements about a standard of care when one does not exist. For example, while many neurosurgeons may agree that aggressive resection of a glioblastoma multiforme provides a patient with the best chance for increased longevity and improvement in quality of life, not all agree with this point of view. Thus an assertion that all glioblastoma multiforme tumors should be initially resected would be easily refuted by the opposing counsel and would cast the expert making that assertion in an unfavorable light. Similarly, an expert should not be drawn into a question by opposing counsel that requires a “yes” or “no” answer. A distinct privilege extended to expert witnesses and withheld from nonexpert witnesses is latitude in explaining their opinions. The judge typically allows an expert witness to interrupt the opposing counsel to fully explain an answer. If a question cannot be answered with a simple yes or no the expert will be allowed to explain the answer despite the opposing counsel’s directions to forego explanation. Likewise, the expert should point out to the court when his words are being taken out of context by the opposing counsel. Once again, a judge is very likely to allow experts to break in and explain himself because the matter at issue involves opinion that requires explanation. Finally, an expert should be aware of the subjective message he projects to the court. A litigator is
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trained to both make opposing witnesses uncomfortable and sense when that witness is uncomfortable. Unconscious behaviors such as excessive blinking, shifting of weight, playing with a watch or ring, or stuttering during an answer are all signs that the expert is uncomfortable. An attorney may try to generate this uncomfortable feeling by leading the expert into areas outside of their expertise. For example, opposing counsel may ask a neurosurgeon about ventilator settings, electrocardiograms, or nutrition to either persuade the neurosurgeon to say things that do not support his or her prior conclusions or simply to make the neurosurgeon uncomfortable. In this situation it is best for the neurosurgeon to remind the opposing counsel that he is an expert on issues of neurological surgery and while he has a general knowledge of other specialties related to the care of neurosurgical patients, he is not an expert in those fields. Moreover, it is important for the expert to acknowledge when he does not know the answer to a question. In those cases the best strategy is to either simply say, “I don’t know” or to ask for additional time (including a recess if necessary) to give more concerted thought to a question before answering. Hedging answers, putting up smokescreens, or feigning knowledge are clear signs that an expert is uncomfortable, thus leaving him more open to attack. Before ending a cross-examination, opposing counsel is likely to ask the expert about the fee being charged for his or her services. The appropriate way to address this issue is to be very honest, using simple and dispassionate terms that maintain the expert’s integrity. Importantly, the expert is being paid for his or her time, not testimony. The fee to be charged should be clearly established between the expert and the hiring attorney before accepting the case. This fee should be commensurate with the market rate for neurosurgical expertise in the community and that of similar cases. The exact terms of the fee for reading documents, literature reviews, writing, traveling, and testifying should be disclosed. The expert may want to point out to the jury that because of the fee being charged, records and references are doublechecked to remove as much bias as possible from the analysis. Once again, the overriding principle during this discussion is to maintain dignity and credibility. RE-DIRECT AND RE-CROSS EXAMINATION Once the cross-examination is completed the hiring counsel will have the opportunity to ask additional questions not raised in the direct examination or to
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restore credibility that has been called into question. The opposing counsel will then be given a final opportunity to ask questions of the expert. The tone and format for these final questions are the same as the direct and cross-examinations and usually are a response to issues raised during those initial examinations. If there is a break during any of these periods, the expert should never make comments to anyone other than the hiring attorney. This exclusion from public comments is especially important in regard to the media, who should not know the expert’s thoughts until the completion of the case and then only if the expert is prepared to have those comments brought up the next time the expert is involved in a court case.
what a retained expert can expect to face when agreeing to participate for either the plaintiff or defendant in cases dealing with alleged deviations from acceptable standard of care. The authors provide a step-by-step guide for what is involved in such medical/legal actions, from the initial assessment of the case through the delivery of expert testimony. For those in the neurosurgical community who have been involved in the litigation process either directly or indirectly, I would highly recommend taking the time and effort to read through this article, as I believe it would be time well spent.
Conclusions
This paper presents an excellent summary of what it takes to be an appropriate expert witness and some of the behavioral methods one should adopt as an expert witness. Although the authors have oriented their topic to neurosurgical malpractice cases, the same phenomena and behaviors apply to physicians as expert witnesses in other legal circumstances, such as civil cases related to personal injury or workmen’s compensation cases. In the latter two instances, there is one departure from malpractice cases: expert witnesses are almost always hired by the defense, since the plaintiff’s attorney has the treating physicians to use as experts. Rarely does a plaintiff’s attorney need an additional expert to present the case. In those circumstances, an expert witness will have to say that the testimony he or she has given as a purely expert witness is almost always for the defense in those types of cases. However, that admission should be couched in terms that that expert witness often represents the plaintiff as an expert in instances in which he or she has been a treating physician.
Providing expert witness testimony is a potentially damaging process for a neurosurgeon to undertake. Damage to the neurosurgeon’s reputation and credibility is always possible and in cases of high stakes, even probable. Despite these risks, medical malpractice in neurosurgery occurs and in some of those cases, both patient and neurosurgeon may find themselves in court to settle their differences. In these cases, the role of the expert witness is important and necessary to assess the facts, define the professional standard of care, and apply the standard of care provided in the case against that professional standard. Neurosurgeons who feel they are objective, without bias, and comfortable engaging in written and verbal argument should be encouraged to provide testimony for both plaintiffs and defendants to promote standards of excellence in the profession. REFERENCES 1. Weissenberger G. Federal evidence. Cincinnati, OH: Anderson Publishing Co., 1998. 2. Matson JV. Effective expert witnessing. A handbook for technical professionals. Chelsea, MI: Lewis Publishers, 1990. 3. Brodsky SL. Testifying in court. Guidelines and maxims for the expert witness. Washington, DC, American Psychological Association, 1991. 4. Imwinkelried EJ. The methods of attacking scientific evidence. Charlottesville, VA: Michie Co. Law Publishers, 1982.
COMMENTARY
This article should be valuable reading for those engaged in medical/legal review work involving allegations of medical negligence or malpractice. It is easy to read and provides an excellent synopsis of
Marshall I. Matz, M.D. Neurosurgeon Chicago, Illinois
Ronald P. Pawl, M.D. Neurosurgeon Lake Forest, Illinois Dr Scarrow’s paper addresses a timely and important subject. Technical matters in litigation (such as neurological surgery) require expert witnesses to educate both attorneys and jurors. Proper functioning of our civil judicial system requires that this information be competent, balanced, and accurate. Areas of medical disagreement must be recognized as such and distinguished from genuine violations of the accepted standard of care. The role of unbiased educator should never be subverted by a sense of team loyalty to the attorney requesting and
Providing Expert Witness Testimony Alan M. Scarrow, M.D., J.D.,* and Meera R. Scarrow, M.D., J.D.† *Department of Neurological Surgery, University of Pittsburgh, UPMC Presbyterian Hospital, Pittsburgh, Pennsylvania; †Department of Obstetrics & Gynecology, University of Pittsburgh, Magee Women’s Hospital, Pittsburgh, Pennsylvania 15213
Scarrow AM, Scarrow MR. Providing expert witness testimony. Surg Neurol 2002;57:278 – 83.
The frequency of medical malpractice litigation in neurosurgery creates an opportunity for those in the profession to provide their opinion to courts on professional standards of care in the form of expert witness testimony. Providing expert witness testimony in a thorough and objective manner is difficult. This paper discusses the process of providing expert witness testimony as well as techniques the neurosurgeon can use to testify more effectively. © 2002 by Elsevier Science Inc. KEY WORDS
Expert witness, testimony, neurosurgery.
here is little doubt that most neurosurgeons in the United States have been affected by medical malpractice. As one of the most frequently litigated specialties, neurosurgeons are commonly forced to defend their actions and judgments in a court of law. The courts, by virtue of their role as a trier of fact, are in the unique position of determining whether a standard of care is breached in these cases. As a result, courts become the venue where standards of care are discussed and established. This process is done largely through the testimony of expert witnesses. Providing quality expert witness testimony can be a difficult task for a neurosurgeon. It requires the neurosurgeon to be objective, diligent in their preparation of reports and testimony, and above all, honest in the presentation of opinion to the court. This paper will discuss methods and techniques that a neurosurgeon may use in preparing and delivering expert witness testimony.
T
Address reprint requests to: Dr Alan M. Scarrow, Department of Neurological Surgery, University of Pittsburgh, UPMC Presbyterian Hospital, 200 Lothrop Street, Suite B-400, Pittsburgh, PA 15213. Received October 27, 2000; accepted November 28, 2001. 0090-3019/02/$–see front matter PII S0090-3019(02)00640-7
Discussion Rule 702 of the Federal Rules of Evidence establishes an expert witness as one who possesses scientific, technical, or other specialized knowledge that will assist the trier of fact in understanding evidence or determining a fact in issue [1]. The wording of this rule is purposefully broad to allow a variety of individuals to provide testimony without having met specific qualifications. For example, a medical malpractice case filed against a neurosurgeon for breach of the standard of care in an instrumented spine case may have expert witness testimony given by other neurosurgeons, orthopedic surgeons, metallurgic engineers, salesmen with specific knowledge of spinal instrumentation, nurses, surgical assistants, physician’s assistants, or other persons with knowledge of the design, indications, surgical application, and care of patients undergoing spinal instrumentation surgery. Expert witnesses may be called by the defense, plaintiff, or judge. In the latter instance (an unusual circumstance), an expert may be asked to testify if the judge feels the court has not heard adequate testimony to decide an issue in question. More typically, counsel for defendant or plaintiff contacts the prospective expert witness to provide consulting or testifying services. A consulting expert is asked to provide background information regarding the technical aspects of the case while a testifying expert is used by either defendant or plaintiff to persuade a judge or jury toward their respective point of view. Importantly, an individual called to be an expert witness cannot be compelled or subpoenaed to provide testimony. Expert witness testimony is strictly a voluntary activity. Generally, expert witnesses are the only witnesses that are allowed to give their opinion in court. Non-expert witnesses must confine testimony to that which they have observed or to opinion that is not based on scientific, technical, or other specialized knowledge. This would include © 2002 by Elsevier Science Inc. 655 Avenue of the Americas, New York, NY 10010
Expert Witness Testimony
opinion as to intoxication, state of emotion, or general appearance of a person as outlined in Rule 702 [1]. In the course of providing the court with their opinions expert witnesses are asked to do four separate things. After reviewing the evidence of the case, the expert will be expected to 1) establish the facts, 2) interpret the facts, 3) define the standard of care and measure the care exercised in the case against that standard, and 4) comment on the opposing expert’s facts and opinion. Before accepting an offer to provide expert testimony, it is important for a neurosurgeon to make an honest assessment of the relative risks and benefits of providing testimony. While an expert witness is on the stand he or she is, as a practical matter, the one who is on trial. The trial of an expert witness centers on establishing or dismantling his or her credibility. The means of accomplishing this can touch all aspects of a neurosurgeon’s life. All matters both private and professional that establish credibility, believability, and truthfulness can be subject to intense outside investigation and incourt interrogation. Thus, a neurosurgeon can expect any prior litigation against him or her for malpractice or professional misconduct to be brought to the attention of the court. Likewise, any crime that reflects on truthfulness such as fraud, embezzlement, tax evasion, or perjury may be used to discredit them. Any felony conviction, whether or not involving dishonesty, may be used to impeach an expert witness. Opposing counsel may also inquire in good faith about prior “bad acts” that may affect an expert’s character or worthiness to be believed. Examples include acts of deceit or lying to employers, patients, or professional colleagues, although inquiry into these bad acts is limited to confrontation by the opposing counsel and may not be proved by other witnesses or extrinsic evidence. This broad investigation gives the jury an opportunity to listen to the relatively simple issues of credibility and truthfulness. Although the technical issues of a typical neurosurgical malpractice case may be confusing, credibility and truthfulness are concepts that even the least technically adept jurors can grasp. Credibility in large part rests on reputation and credentials. An expert witness can expect to have his or her academic record, research, publications, honors, association membership, caseload, and professional reputation in the community closely examined. Access to this information has improved substantially in the last 5 years as a result of on-line data sources. Likewise, on-line availability makes it easy for opposing counsel to check prior testimony and academic publications that may be inconsistent with testimony being
Surg Neurol 279 2002;57:278 –83
provided for the case in question as well as finding others in the profession who have opinions opposing those of the expert. Opposing counsel will also attempt to expose an expert as a “hired mouth” of the opposition. It is important for the expert witness to assess their biases and determine whether they have an interest in the outcome of a case. For example, expert witnesses who have consistently provided testimony for defendants only are more likely to be perceived as less objective and more as advocates for the defendant. Similarly, experts who have a financial interest in the outcome of a case (e.g., shares of stock in a closely held medical equipment company in a case where that company’s product is at issue) risk having that exposed during cross-examination as a source of bias in their testimony. Only after making an honest, objective assessment of the potential merits, risks, and biases inherent in providing testimony, should a prospective expert witness accept the offer to provide testimony and begin preparation. THE PROCESS OF PROVIDING EXPERT WITNESS TESTIMONY The initial step in providing expert witness testimony is the preparation of an expert report. This is typically presented to the hiring attorney months before a case is scheduled to be presented in court. The expert report is a summary of the expert’s findings of fact, conclusions about those facts, the reasoning behind those conclusions, and references to support the reasoning and conclusion. Importantly, any reference cited by the expert is discoverable evidence that is closely scrutinized by the opposing counsel and experts. The art of writing a good expert witness report lies in balancing between writing with sufficient detail to support conclusions and leaving enough intellectual freedom to argue in court. For example, a case involving an acute spinal cord injury would include a summary of the events leading up to the accident, the clinical findings recorded by the ambulance team, arrival times and care provided in the emergency room, a description of corticosteroids used to treat the patient, and a reference to articles supporting the use of corticosteroids in acute spinal cord injury. What would not be necessary in such a report would be reasoning and references that detail the dosing, timing, and contraindications for the use of corticosteroids for acute spinal cord injury or articles that refute the use of corticosteroids altogether. Although this should be left out of the expert witness report, the latter information should be gathered and reviewed in the
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event the case proceeds to a court so that the expert can make arguments supporting his or her position or refuting those of the opponent. The expert report should be written in short sentences that briefly state the expert’s opinion and the reasoning behind the opinion. Long compound sentences provide the opposing counsel with an opportunity to lift passages and construe them in ways more favorable to their side. The report should avoid generalizations about illnesses or procedures and should provide reasoning specific to the case. Errors in grammar, spelling, and punctuation should be avoided because of the implication that the author of those errors lacks attention to detail and will expose the expert to more rigorous cross-examination by opposing counsel under the presumption that details in preparation for court were also overlooked. DIRECT EXAMINATION Courtroom testimony by the expert begins with a direct examination by the hiring attorney. Most often, the attorney and the expert agree to a list of questions to be asked in a way that aids the delivery of the testimony. While agreeing to a progression of open-ended questions will provide for a smooth delivery, experts should be cautioned that deliveries that appear rehearsed or scripted are likely to be perceived by the jury as contrived. This will undercut the objectivity of the expert and make his or her testimony less persuasive. Once an attorney asks the expert a question, the expert should acknowledge the attorney and then turn his attention and direct the answer to the jury. Typically, the list of questions begins with a summary of the expert’s academic credentials including education, training, licensure, specialty areas, research, publications, honors or awards, surgical caseload, and membership in professional associations. This is done to establish the witness as an expert with evidence supporting that claim. Next the expert should state his or her current job title and whether he has provided expert witness testimony in other cases. Disclosing prior expert witness work that the neurosurgeon has done will bolster his credibility by demonstrating to the jury that he has nothing to hide. Failing to mention such work (likely to be noted by opposing counsel) will result in the expert appearing as if he is hiding something from the jury that makes them less objective. The expert should then explain the facts of the case as he or she understands them and what sources were used to establish those facts. Upon
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conclusion of that explanation, the expert should establish the professional standard of care applicable in the case and compare the standard used in the case against that professional standard. This is followed by the reasons behind the expert’s conclusions with references to the literature or citation of similar professional experiences. The expert should also point out weaknesses in his or her opinion. Once again, by making a pre-emptive effort to highlight points of contention, the expert is more likely to be perceived as an objective clinician rather than an advocate for the hiring side. Finally, the expert should comment on the opposing expert’s facts and opinions found in that expert’s report and justify differences between them. Throughout the expert’s testimony, a demeanor should be maintained that is matter-of-fact and not boastful or arrogant. Juries are particularly sensitive to feeling lectured or “talked down to” by expert witnesses. In addition, the expert must tell the technical side of a story in language that is understandable to a layperson. Juries that appear confused after listening to testimony don’t need to be subjected to a cross-examination of that witness because the lack of clarity in the testimony neutralizes its potential effect on the case. In light of that, an expert should observe the jury closely during the testimony. Noting which jurors are paying attention, which ones are taking notes and appear to be engaged in the content of the testimony may help direct the expert’s attention toward those individuals. Hand gestures and voice inflection should be used to emphasize points of importance in the testimony and may focus the jury’s attention at the appropriate time. Visuals, diagrams, and models may be used by the expert, after properly entering them into evidence, to help create a clearer picture of what is being explained. CROSS EXAMINATION Cross-examination by the opposing counsel follows the direct examination by the hiring counsel. This is likely to be the most crucial time in either bolstering or undermining the credibility of an expert witness. The expert should be relaxed but attentive to the details and subtleties of the questions that will be asked. Questions should be answered in a clear, firm manner and answers should always be addressed to the jury after acknowledging the attorney. Before answering the question, the expert should pause briefly to allow the hiring attorney to make any objections. There are several ground rules that an expert should observe and never breach when responding to cross-examination. First, it is imperative that the
Expert Witness Testimony
expert maintains self-control. A common tactic used by attorneys in cross-examination is to engage the expert in an argument. An expert engaging in an argument with a nonexpert such as an attorney risks losing credibility and the air of objectivity in the minds of the jury. Although experts may argue with other experts during the course of a case, experts should not be pulled into arguments with nonexperts. Another common tactic is to engage the expert in a hypothetical case similar to the one being litigated. By changing the facts of the case slightly, the attorney tries to draw an expert into a line of reasoning that will lead to a conclusion opposing the stated view. This cannot be allowed. The expert may answer the hypothetical but only after highlighting the differences between the hypothetical and the case at hand. An attorney may also try to draw an expert into contradicting his conclusions by getting him to agree that experts are known to disagree about issues in the case. Although this may be true, it may be pointed out by the testifying expert that under the specifics of the case at hand, opinions contrary to that being offered are less compelling. However, an expert should avoid making sweeping, idyllic statements about a standard of care when one does not exist. For example, while many neurosurgeons may agree that aggressive resection of a glioblastoma multiforme provides a patient with the best chance for increased longevity and improvement in quality of life, not all agree with this point of view. Thus an assertion that all glioblastoma multiforme tumors should be initially resected would be easily refuted by the opposing counsel and would cast the expert making that assertion in an unfavorable light. Similarly, an expert should not be drawn into a question by opposing counsel that requires a “yes” or “no” answer. A distinct privilege extended to expert witnesses and withheld from nonexpert witnesses is latitude in explaining their opinions. The judge typically allows an expert witness to interrupt the opposing counsel to fully explain an answer. If a question cannot be answered with a simple yes or no the expert will be allowed to explain the answer despite the opposing counsel’s directions to forego explanation. Likewise, the expert should point out to the court when his words are being taken out of context by the opposing counsel. Once again, a judge is very likely to allow experts to break in and explain himself because the matter at issue involves opinion that requires explanation. Finally, an expert should be aware of the subjective message he projects to the court. A litigator is
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trained to both make opposing witnesses uncomfortable and sense when that witness is uncomfortable. Unconscious behaviors such as excessive blinking, shifting of weight, playing with a watch or ring, or stuttering during an answer are all signs that the expert is uncomfortable. An attorney may try to generate this uncomfortable feeling by leading the expert into areas outside of their expertise. For example, opposing counsel may ask a neurosurgeon about ventilator settings, electrocardiograms, or nutrition to either persuade the neurosurgeon to say things that do not support his or her prior conclusions or simply to make the neurosurgeon uncomfortable. In this situation it is best for the neurosurgeon to remind the opposing counsel that he is an expert on issues of neurological surgery and while he has a general knowledge of other specialties related to the care of neurosurgical patients, he is not an expert in those fields. Moreover, it is important for the expert to acknowledge when he does not know the answer to a question. In those cases the best strategy is to either simply say, “I don’t know” or to ask for additional time (including a recess if necessary) to give more concerted thought to a question before answering. Hedging answers, putting up smokescreens, or feigning knowledge are clear signs that an expert is uncomfortable, thus leaving him more open to attack. Before ending a cross-examination, opposing counsel is likely to ask the expert about the fee being charged for his or her services. The appropriate way to address this issue is to be very honest, using simple and dispassionate terms that maintain the expert’s integrity. Importantly, the expert is being paid for his or her time, not testimony. The fee to be charged should be clearly established between the expert and the hiring attorney before accepting the case. This fee should be commensurate with the market rate for neurosurgical expertise in the community and that of similar cases. The exact terms of the fee for reading documents, literature reviews, writing, traveling, and testifying should be disclosed. The expert may want to point out to the jury that because of the fee being charged, records and references are doublechecked to remove as much bias as possible from the analysis. Once again, the overriding principle during this discussion is to maintain dignity and credibility. RE-DIRECT AND RE-CROSS EXAMINATION Once the cross-examination is completed the hiring counsel will have the opportunity to ask additional questions not raised in the direct examination or to
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restore credibility that has been called into question. The opposing counsel will then be given a final opportunity to ask questions of the expert. The tone and format for these final questions are the same as the direct and cross-examinations and usually are a response to issues raised during those initial examinations. If there is a break during any of these periods, the expert should never make comments to anyone other than the hiring attorney. This exclusion from public comments is especially important in regard to the media, who should not know the expert’s thoughts until the completion of the case and then only if the expert is prepared to have those comments brought up the next time the expert is involved in a court case.
what a retained expert can expect to face when agreeing to participate for either the plaintiff or defendant in cases dealing with alleged deviations from acceptable standard of care. The authors provide a step-by-step guide for what is involved in such medical/legal actions, from the initial assessment of the case through the delivery of expert testimony. For those in the neurosurgical community who have been involved in the litigation process either directly or indirectly, I would highly recommend taking the time and effort to read through this article, as I believe it would be time well spent.
Conclusions
This paper presents an excellent summary of what it takes to be an appropriate expert witness and some of the behavioral methods one should adopt as an expert witness. Although the authors have oriented their topic to neurosurgical malpractice cases, the same phenomena and behaviors apply to physicians as expert witnesses in other legal circumstances, such as civil cases related to personal injury or workmen’s compensation cases. In the latter two instances, there is one departure from malpractice cases: expert witnesses are almost always hired by the defense, since the plaintiff’s attorney has the treating physicians to use as experts. Rarely does a plaintiff’s attorney need an additional expert to present the case. In those circumstances, an expert witness will have to say that the testimony he or she has given as a purely expert witness is almost always for the defense in those types of cases. However, that admission should be couched in terms that that expert witness often represents the plaintiff as an expert in instances in which he or she has been a treating physician.
Providing expert witness testimony is a potentially damaging process for a neurosurgeon to undertake. Damage to the neurosurgeon’s reputation and credibility is always possible and in cases of high stakes, even probable. Despite these risks, medical malpractice in neurosurgery occurs and in some of those cases, both patient and neurosurgeon may find themselves in court to settle their differences. In these cases, the role of the expert witness is important and necessary to assess the facts, define the professional standard of care, and apply the standard of care provided in the case against that professional standard. Neurosurgeons who feel they are objective, without bias, and comfortable engaging in written and verbal argument should be encouraged to provide testimony for both plaintiffs and defendants to promote standards of excellence in the profession. REFERENCES 1. Weissenberger G. Federal evidence. Cincinnati, OH: Anderson Publishing Co., 1998. 2. Matson JV. Effective expert witnessing. A handbook for technical professionals. Chelsea, MI: Lewis Publishers, 1990. 3. Brodsky SL. Testifying in court. Guidelines and maxims for the expert witness. Washington, DC, American Psychological Association, 1991. 4. Imwinkelried EJ. The methods of attacking scientific evidence. Charlottesville, VA: Michie Co. Law Publishers, 1982.
COMMENTARY
This article should be valuable reading for those engaged in medical/legal review work involving allegations of medical negligence or malpractice. It is easy to read and provides an excellent synopsis of
Marshall I. Matz, M.D. Neurosurgeon Chicago, Illinois
Ronald P. Pawl, M.D. Neurosurgeon Lake Forest, Illinois Dr Scarrow’s paper addresses a timely and important subject. Technical matters in litigation (such as neurological surgery) require expert witnesses to educate both attorneys and jurors. Proper functioning of our civil judicial system requires that this information be competent, balanced, and accurate. Areas of medical disagreement must be recognized as such and distinguished from genuine violations of the accepted standard of care. The role of unbiased educator should never be subverted by a sense of team loyalty to the attorney requesting and