Preparation and Discovery for Cross-Examination of the Opposing Medical Experts at Trial
by Michael Maggiano
Developing a good cross-examination begins long before the eve of trial.
Frequently Asked Questions:
Q. How do you determine whether to depose or not depose the defense medical expert?
A. You cannot answer that question until you have answered the following questions:
- Who is the Witness?
- Why is he there?
- Is he substantially telling the truth?
- What information is already available to you
Q. What resources are available to explore the background and credentials of the medical expert?
A. Start with the Doctor’s Curriculum Vitae. Use it as a resource for obtaining information on the expert.
- Board Certified or Board Qualified:
- Does the Board have a web site.
- What standards it has promulgated or what position papers it has issued that relate to your medical issues.
- Hospital Affiliations and Appointments
- Internet Searches: Search the MD at www.askmedi.com
- Literature written by the expert? Go to www.ncbi.nlm.nih.gov/pubmed and enter the doctor’s last name and first two initials.
- Teaching positions: Check the accuracy of his CV. What does he teach? Check the published courses and programs. Check the school’s website to see if it lists all professors and lecturers to see if and how the expert is listed. Determine the reference books and course materials used or recommended in order to establish learned treatises recognized by the physician.
- Medical Societies: Check web sites of all medical societies in which he is a member and obtain any position papers by the society relative to the medicine involved in your case
- Lectures: Has the expert written or spoken on the subject matter involved to any medical or bar associations.
- Copies of reports from other cases
- Expert Witness Banks:
- Depo Connect
- ATLA Expert Witness Forum
- ATLA Medical Malpractice Forum
- Lexus/Nexus Searches of Jury Verdict Research
- State and National Jury Verdict Review Search Services.
- Advertising: Yellow Pages, Internet – Web Site/Page.
Q. What can you ask of the Defense Expert to establish bias?
- Data from physician providing services
- What is the understanding of the witness as to what he or she has been hired to do and what the compensation is to be.
- The Expert’s field and scope of practice.
- An approximation of the amount of his professional time/work devoted to service as an expert.
- List of cases testified in over past 5 years.
- The names of the law firms and carriers that he or she performs examinations for and the length of time doing work for each carrier.
- Seminars or lecturers given to carriers on medicine or the performance of a physical examination and related topics.
- 1099 information from Carriers.
- Charge per exam
- Charge per report
- Charge per hour
- Charge per deposition
- Charge for trial testimony
- Charge to office patients
- Number exams per day, per week, per month
- Number of depositions per week, per month
- Number of times testify for trial per year
- Subpoena Appointment Book for day and week of exam.
- What is the most important thing that you need to know about the defense examiner?
- Does he play fair and square?