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Finding and Empowering Expert Witnesses

By Pat Greenstreet

*With special thanks to Gene Moen, J.D. forhis generous contribution
This paper is not intended to be an exhaustivereview of the law related to theuse of expert witnesses, but only as an outlineof a few practical suggestions I have foundhelpful in dealing with them. Since my practiceis limited to representing plaintiffs in medicalnegligence cases, I will most often refer to thosecases and medical-related experts. However,the suggestions I offer are applicable to mostpersonal injury cases.

I. LEGAL FUNDAMENTALS

Medical negligence cases, morethan any other, are often“battles of the experts.”With very few exceptions, you cannotpresent a medical negligence claimwithout having, and using, experts.Why you need an expert is reflected inER 702:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

In medical negligence cases, the“may” in this rule has been interpretedas a “shall,” since few lay persons haveknowledge of medicine or medicalstandards. To prevail in a medicalnegligence claim, RCW 7.70.030 requiresthat the plaintiff must establishthat “the injury resulted from the failureof a health care provider to follow theaccepted standard of care,” which isdefined as “failing to exercise thedegree of care, skill, and learningexpected of a reasonably prudenthealth care provider at that time in theprofession or class to which he belongs,in the State of Washington, acting in thesame or similar circumstances.” RCW7.70.040 also requires that the failurebe “a proximate cause of the injurycomplained of.”

Except in those rare cases wherethe negligence is observable by laypersons and describable without medicaltraining, expert testimony is alwaysneeded to establish the standard ofcare and to prove causation. Morinagav. Vue, 85 Wn.App. 822, 831-32, 935P.2d 637 (Div. 3, 1997). In fact, it isenough in a summary judgment actionfor the defendant to simply point out,without the support of affidavits, thatthe plaintiff lacks medical evidence tomake out a prima facie case of negligence,and thus to compel the plaintiffto present expert testimony. Youngv. Key Pharmaceuticals, 112 Wn.2d216, 226 (1989). “Without such expertmedical testimony plaintiffs couldnot prove negligence and could notrecover.” Shoberg v. Kelly, 1 Wn.App.673, 677 (1969), rev. den. 78 Wn.2d902 (1970). “[E]xpert testimony willgenerally be necessary to establish thestandard of care and most aspects ofcausation” Harris v. Groth, 99 Wn.2d438, 449 (1983).

Once the plaintiff has expert witnessesin support of negligence andcausation, the practical burden isshifted to the defense to counter withit own experts. Thus is created the“battle of the experts.”

II. WHAT TYPE OF EXPERT DO YOU NEED?

Case needs vary, of course, dependingon the complexity of the caseand the variety of disciplines involved.Obstetrical negligence cases are amongthe most complex cases and mayinvolve as many as 23 distinct medicaland allied disciplines. Slightly simplercases, such as a delay in the diagnosisof breast cancer, can require seven tonine different types of experts. Onceyou have identified the specific disciplinesyou require for your case, thereare several additional qualifications foryou to consider:

A. DO YOU NEED A PRACTITIONERIN THE SAME SPECIALTY AS THEDEFENDANT?

If it is a hospital-based case, youneed to determine which providers werenegligent: e.g., a nurse, a respiratorytherapist, an x-ray technician, or adoctor? If the negligence is that of anon-physician, you will probably seekan expert in that field. A recent caseholds that a physician director of an ICUwho works with and supervises ICUnurses may testify as to the standardof care for ICU nurses. Hall v.Dominican Sisters of Spokane, 2000 WL 297748, 995 P.2d 621 (Wash. App.Div. 3, 2000). But it is rare that you willrely on the testimony of someone otherthan an expert in the same field.

Questions also arise as to whethera specialist may testify as to the standardof care for a generalist and whether aphysician in some specialty may testifyas to the standard for another specialtywho performs the same procedure.Following is a brief summary of the keyWashington cases that deal with theseissues:

  1. McKee v. American Home Products,Corp., 113 Wash.2d 701, 706-7, 782P.2d 1045 (1989). Arizona physicianmay not testify to the standard of carefor Washington pharmacists whereplaintiff alleged negligent failure ofpharmacist to warn of drug dangers.

    1. Young v. Key Pharmaceuticals, Inc.,112 Wash.2d 216, 227 et seq., 770 P.2d182 (1989) (dissenting opinion omitted).Pharmacist may not testify to physicianstandard of care on proper dosageof medication.

    2. Hall v. Dominican Sisters of Spokane,2000 WL 297748, *3-4, 995 P.2d 621(Wash. App. Div. 3 2000). PhysicianICU director who works with and supervisesICU nurses may testify to thestandard of care for ICU nurses.

    3. White v. Kent Medical Center, 61Wash. App. 163, 169 et seq., 810 P.2d4 (Wash. App. Div. 1 1991). Specialistsmay testify to the standard of care forgeneralists.

    4. Miller v. Peterson, 42 Wash.App.822, 831 et seq., 714 P.2d 695, reviewdenied, 106 Wash.2d 1006 (1986).Orthopedic surgeon may testify tostandard of care of podiatrist where(1) methods of treatment in differentschools are the same, (2) where methodsof treatment should be the same, or (3)the expert’s knowledge is based on thedefendant’s school.

As established in these cases, thereare situations where you can use anexpert in another specialty to establishstandard of care for a defendant. Butwhy make things difficult for yourself?In the vast majority of cases it willmake sense to find an expert whosecredentials and background matchthose of the defendant.

B. OTHER QUALIFICATIONS TO CONSIDER

Once you have identified the expertdiscipline you need for your case,there are several other qualifications toconsider before you can commenceyour search.

  1. Do you want an academician or aclinician? Do you want someone whopractices in a university, or out in thecommunity? There is no clear answerfor every case. The academician mayhave participated in more relevantstudies, have an impressive curriculumvitae with more publications, and bean able teacher, but if the expert comesacross as an “ivory tower” researcherout of touch with the demands of privatepractice which is where your casearose, then their utility is limited inyour case. A busy community clinicianmay be more comfortable dealing withpatients directly (and hence with ajury) and may have far more practicalexperience dealing with the particularsituation involved in your case.

Part of your decision will dependon who you are trying to impress. Ifyour goal is for the defendant physicianto give consent to settle the case, go tophysicians he or she will respect andgive deference to. That expert may havepublished the national authoritativearticle or text on the topic at hand, orspoken at national professional meetingsattended by the defendant. If youare convinced that the case will likelyproceed to trial, choose an expert whowill be liked, respected and trusted bythe jury. In our office, we often try tohave one of each: one national expertfrom a leading university and one “inthe trenches” practitioner whose jobresponsibilities are similar to those ofthe defendant.

  1. Do you want a national or regionalexpert? Unfortunately if you representthe plaintiff you may not have the luxuryof a choice. The medical community inour nation is small and, thanks to theinternet, is growing smaller with eachpassing year. If you are looking for anegligence expert for a Washingtoncase, it is increasingly difficult to get aWashington state physician to testify.The situation is compounded if yourWashington defendant is the chair of adepartment for their renown may extendbeyond Washington and limit yourability to recruit a similarly situatedexpert in the western US if not nationally.I recently went through 45 experts whodeclined to review my case becausethey knew of the defendant who was apolitically powerful department chair.

The reluctance to testify extendsto entire institutions if the defendanthealth care facility participates withother national institutions in researchstudy groups. In a bone marrow transplantcase, 25 national experts refusedto even look at my case because of theidentity of the institution involved. Ifyou can succeed in securing only anout of state expert, you will hear at trialfrom defense counsel that if your casewas at all clear you would have beenable to find a local expert! Rubbish!

  1. Do you want an expert who isexperienced or inexperienced inforensic matters?

The benefit of dealing with anexperienced expert witness is thatit makes our lives as lawyers easier.The experienced witness knowswhat to look for, does a complete yetsuccinct analysis, and can offersuggestions for case developmentincluding approaches for overcomingdefenses. The experienced witness needslittle preparation for deposition or trialand is often a skilled communicator.If an acknowledged authority in theirfield, the experienced witness can bevery impressive to both the defense andthe jury. However, many experiencedwitnesses are not recognized authoritiesin their fields but are merely willing tofrequently serve as expert witnesses.Whether this is a detriment to yourcase depends in part on the topic ofthe expert’s testimony. If you selecta seasoned economist in your case,his or her prior testifying experienceis not likely to be a significant issue.The same may not be true if your keyliability witness has testified in manysimilar cases, however. Each candidatemust be evaluated individually, butuse caution to screen high volumeexperts. The risk is that they appear tobe professional witnesses rather thanpracticing professionals.

The novice witness can be refreshinglysincere and knowledgeable,disarming in demeanor, and yet entailsfar more work for the lawyer. The rewardsof using an inexperienced witness aremany, but they often require significantguidance and support from counsel. Youmay need to instruct the inexperiencedwitness about the relevant law, yourexpectations regarding their casereview, whether you wish a writtenreport, and guidelines for the amountof time they are to spend on the project.Preparation for deposition and trialtestimony may be extensive and includerole-playing. If you have the personalor office resources to invest in a novicewitness, their testimony can be quiteimpressive in its sincerity.

  1. Can you use a professional alreadyinvolved with the plaintiff as an expertwitness?

Treating therapists, physicians,nurses, educators, vocational counselorsor other allied professionals make verypersuasive expert witnesses becausethey have knowledge which extendsbeyond the medical records. If you areseeking expert witness testimony on anegligence issue, you may be hardpressedto find a treating professionalwilling to express an opinion due tothe proximity of the defendant geographicallyand within the sameprofessional circles. If the issue iscausation or damages, however, subsequenttreating providers are oftenwilling to express opinions if youmake it clear that you do not expectthem to express any criticisms of thedefendant.

II. WHERE TO FIND THE EXPERT YOU NEED

Once you have determined whatkind of expert you need, how do youfind the expert? In general, there arefive ways of locating experts: reviewof the medical literature, referrals byother attorneys, referrals by otherexperts, web research, and expertservices. The only expert service withwhom I have experience and I recommendwithout qualification is the KingCounty Nurses Association Nurse LegalConsultant Clearinghouse. KCNAmatches attorney requests with possiblequalified nurses. The attorney pays asmall administrative fee to KCNA foreach curriculum vitae selected, butthe rest of the negotiation is up to theattorney and the nurse expert. Youmay reach the Clearinghouse by callingKCNA at (206) 545-0603. The nursesvary in experience and qualifications,so caveat emptor.

1. Medical Literature

If you are looking for a top expertin any field, you may want to find theauthors who have published in thatfield. Thus, if you need an expert incarotid endarterectomies, you caneither find current articles on thatsubject or check who authored thechapter on endarterectomies in avascular surgery text. (See the appendixon using the internet for ideas onlocating the literature). Be aware, however,that the top experts in a field areoften busy academicians or researchers,and may not want to, or be able to,participate as an expert witness.

The internet has afforded uniquedirect access to national experts. Goneare the days of unreturned phonecalls or letters of inquiry languishingunopened on desks. I contact mostexperts today by email using addressesgarnered from hospital or universityweb sites. By compressing the facts andissues into a one paragraph summaryand indicating what I am looking forfrom the expert witness, I can sendidentical emails to multiple experts andoften receive responses within anhour or two. The following is a recentexample of an email I sent to prospectiveconsultants:

Dear Dr. X: I am writing to inquire whether you might be interested and available to review a shoulder dystocia delivery case arising in Washington state. The case involves a vaginal delivery at 38 weeks in a 265 pound primipara who delivered after allegedly 15 minutes of vacuum extraction and 20-30 minutes of forceps instrumentation. The records are not yet in, but the baby weighed 10 pounds 14 ounces at birth and now has right brachial plexus injury and Horner’s syndrome. We are in the process of assembling all relevant medical records, but I wondered if you might be willing to review the records when they are available to determine whether the obstetrical care provided was reasonable. Please either call or send an email reply.

Thank you for your consideration of this request.

Note that I do not include anyidentifying information about the partiesto protect their privacy. In the distantpast I included the name of thedefendant to screen for conflicts, butan expert wrote an impassioned letterasking me to omit that information inthe future because the mere allegation ofnegligence is potentially damaging to areputation. I now reveal the names ofthe parties only after a potential experthas agreed to review the records.

1. Referrals by Other Attorneys

This is a valuable means of locatinggood experts. If you know someonewho has handled a similar case, orcan find reference to such a case inthe medical malpractice publications,then call and ask the plaintiff’s attorneywho he or she would recommend.There are publications that report onmedical negligence cases, and theycan be a source of information onexperts. Medical Malpractice Verdicts,Settlements, and Experts is publishedby attorney Lewis Laska, and includesin each month’s report as many as200 cases nationally. They also will doan “expert search” or a “similar casesearch” through their database fora modest cost. Another publicationis Medical Liability Reporter, whichreports on selected cases (usuallyappellate cases) and has brief articleson each.

WSTLA’s Trial News has articles onoccasion about a medical negligencecase, and contact with the plaintiff’sattorney could elicit information aboutthe experts used in that case. Finally,Northwest Personal Injury LitigationReports (formerly Jury Verdicts Northwest)will publish reports of medicalnegligence cases and will includeidentities of experts used by each side. Acaveat is in order: when this publicationlists “medical experts” it often includestreating physicians who testified onlyabout the care they provided, and werenot expert witnesses as such.

The advantage of culling the namesof potential experts from these sourcesis that you can also call the attorneywho handled the case and ask whetherthe expert was effective in depositionor at trial. An expert who appearsqualified on paper may turn out to be adud when it comes to testimony.

A new means of locating expertsis the ATLA medical malpractice listserve,open only to plaintiff’s attorneyswho belong to the medical malpracticesection of ATLA. Like many list-serves,you get a lot of “garbage” stuff thatdoesn’t interest you. In fact, the limitof 60 messages a day is often reached,and it includes such items as queriesabout a good orthopedist in Omahaor “what is the statute of limitations inIowa?” But if you put out a query askingfor an expert in a particular field, youwill often receive dozens of responsesfrom attorneys who have handledsimilar cases and can recommend aneffective witness. Since joining the listserveabout a year ago, we have usedit at least once a week and, even whenwe don’t use it, we gather the namesof potential experts every week fromresponses made to other attorneys whoask about experts. Use caution in relyingon information from any list-serve:often the responses contain errors inthe expert’s discipline, present practicelocation, phone number or email address.We confirm all information prior tocontacting any expert for this reason.

3. Referrals by Other Experts

This is also a good means ofintroduction to potential experts. Ifyou can call “Dr. Smith” and say that“Dr. Brown” suggested you call him,you have an automatic entree and thereis a good chance Dr. Smith will at leastlisten to your request before hangingup the phone. We work often withexperts from certain medical schools,especially the University of Californiaat San Francisco, Stanford University,and the University of California atSan Diego. When we need an expertfor which we don’t have a source, wewill often contact the experts we haveworked with at those schools and askthem if they could suggest someone attheir institution. They can often steer usto the top people in their departmentsor those who have a special interest orexpertise in our area of medicine. Seethe appendix on “Using the Internetfor Medical Research” for ideas on howto find medical schools and names ofpotential experts.

4. Web Research

Lately I have been using the web forgeneral research to identify organizations,academic institutions, and supportnetworks which can serve as resourcesfor identifying individual expertwitnesses or centers which can steeryou to qualified experts.For instance, I represent a minorwho as a result of negligent caresustained a permanent hearing loss.A local vocational consultant advisedme that although she could speak ingeneralities about the vocational impactof hearing loss, she would be unable toquantify the impact of moderate hearingloss because there is nothing publishedon that topic.

Through the web I was able toidentify the nation’s leading centerswhich deal with the deaf and hard ofhearing. I sent email inquiries to theiremployment departments describingmy client’s hearing loss and asking ifthey had any suggestions as to where Icould turn for hard data on the impactof moderate hearing loss on futurecareer limitations, job market access,employment advancement opportunities,salaries, and employee retentionfor this child. I received severalresponses which ultimately led me toconsult with experts at the NationalTechnical Institute for the Deaf inRochester, New York. Since this is theirlife work, they were able to address ourissues in a comprehensive, persuasivereport.

There are also many web sites forpeople who suffer from certain diseasesor conditions. These sites can be atreasure trove of resources for yourclients and a source to identify potentialexpert witnesses.

III. EMPOWERING YOUR EXPERT WITNESS

Once you have identified a potentialreviewing expert witness, your challengeis to motivate the witness and maintaintheir motivation. Make them careabout your case and your client.Reviewing cases is difficult, especiallyfor busy professionals who are alreadyworking too many hours. The politicalfallout can be painful and lasting forthe reviewer, so they deserve respectfor their willingness to provide thisprofessional service. I try to buildcredibility and trust with our expertsby being meticulously straight withthem and avoiding embellishment,which as we have seen in our recentpolitical campaigns can be devastatingto credibility.

A. The Initial Review

Your packet of materials for expertreview is a reflection of you and yourfirm, so the materials should be wellorganizedand professionally presented.We send all medical records tabbed,indexed and in a three ring binder withidentifying information on the binderfront and spine. I enclose a letter outliningthe specific issues which I wouldlike the expert to evaluate. This letterwill serve as a helpful outline for ourfuture discussion of the expert’s review.If I am not providing all of the recordswhich we have available because thereview is limited to a particular issue, Iidentify the omitted records and invitethe expert to request them if theywould be helpful. I err on the side ofproviding too much information lest Iinadvertently omit a relevant document.If the records are voluminous, I enclosea detailed chronology which is clearlylabeled “Attorney Work Product;Intended as an Annotated Index Only;Not Intended to be Relied Upon.”I want to make the expert’s job as easyas possible which also serves to minimizecharges for their review.

Two weeks after sending therecords, I have a legal assistant contactthe expert to schedule a telephoneconference. I used to have experts callat their convenience, but too often Iwas not available or prepared at thetime of their call. By scheduling theconference both reviewer and attorneyare prepared and able to focusexclusively on the case. I initiate thecall so the reviewer doesn’t have toworry about the telephone bill and Icall on time.

At the conclusion of ourconversation discussing the merits ofthe case, I invite the expert to send mea bill for this initial work even thoughthe expert may continue to be involvedin the case for many months. Ouroffice pays expert bills within two weeksof receipt. All of these courtesies serveto underscore your professionalism,ease the burden for the expert, andmotivate the expert to work with youon this and other cases.

B. After the Expert is “On Board”

Empowering the expert involves notjust motivating them to want to workwith you on the case, but enhancingtheir effectiveness as an expert inyour case. I send the damages expertupdated records as they becomeavailable and periodically meet withthe treating physicians not only tolearn about the client’s progress, butalso to develop areas in which theywill later feel comfortable expressingexpert opinions.

I consult with liability expertsbefore drafting interrogatories ordeveloping deposition questions,asking “What do you want to know?Are there any additional documentsthat you want to see?” I provide theopponent’s discovery responses tothe liability expert if the responses arerelevant, as well as deposition transcriptsfrom parties, fact witnessesand opposing experts. I also send eachexpert a copy of my draft expertwitness disclosure for editing changesso that my disclosure accurately reflectstheir anticipated testimony.

By providing your expert withfull and complete records, relevantdiscovery documents and depositiontranscripts, and including the expertin framing discovery related to theirissue, your expert will be prepared toexpress opinions with confidence.

C. Preparing for Deposition Testimony

The degree of attorney-initiatedtestimony preparation varies dependingon the forensic experience of the witness.For every expert witness, we meet orhave a telephone conference a week orso before the scheduled deposition toreview the scope and details of theiranticipated testimony. An inexperiencedwitness, particularly a nurse or otherallied health care professional, mayneed to role play their testimony tobecome comfortable with differentexamination styles. An experiencedwitness who has previously testifiedin any similar cases should be familiarwith the prior testimony and beprepared to address any perceivedinconsistencies.

In rare cases, well-credentialedexperts have had personal mannerismsor habits which detract from the substanceof their testimony so we haveutilized the services of a trial consultantto maximize their credibility. This isreserved for key experts with veryannoying habits, fortunately the rareexception! I will not repeat the usualexpert witness pre-deposition instructionsother than to say that even themost seasoned of experts need regularrefreshers.

Although already covered in ourtelephone conference, I encourage thesoon-to-be-testifying expert to call meany time with further questions aboutthe underlying facts, scope of theirtestimony or anticipated challenges. Ialso explain that the time the expertspends preparing for the deposition isbilled to me and I want them to spendas much time as they need. I have yetto see an expert abuse this offer bypadding their hours.

The old adage “Knowledge isPower” in my experience applies toexpert witnesses. By providing the expertwith all relevant documents, invitingtheir participation in formulatingdiscovery requests and areas of depositionquestioning, and by preparingthem well for their depositions, theexpert will be empowered to providetheir most credible and persuasivetestimony for your client.

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