Host Sean Harris talks with Cincinnati attorney and OAJ member Sarah Tankersley about how to select the right expert witnesses.
Sean: Hello and welcome to Civilly Speaking, OAJ’s monthly podcast on practical and timely legal issues, I’m your host Sean Harris. Our guest today is Sarah Tankersley from the Cincinnati firm of Santen & Hughes and our topic today is selecting expert witnesses. Sarah Tankersley thanks very much for joining us here on Civilly Speaking.
Sarah: Oh my pleasure Sean, good to talk to you.
Sean: So let’s talk about from the beginning, kind of the basic legal requirements when it comes to who can be an expert and who cannot be an expert from the legal perspective.
Sarah: Well in Ohio, for experts who are going to testify on medical liability they have to be actively clinically practicing medicine at a credited University or teaching at a credited University, means they can’t be doing all administrative work and they can’t be doing more than about 50% of their time doing anything other than actively practicing medicine or teaching it and that’s not really too hard to find, but you have to be careful to be sure you don’t get somebody who is doing a lot of administrative work running a program in a hospital or so forth. That’s only for liability experts or proximate cause experts and damages experts there is no such requirement and of course they have to be licensed to practice medicine in some state, which does not have to be Ohio.
Sean: You know I often wonder and I haven’t had this come up, but when we are talking about this 50% requirement, do they just take the experts word for it or has there been times when the people kind of dig in when they really want to find out you know hours during the week and that kind of thing to figure out this 50%?
Sarah: Typically they take the experts word for it and the 50% requirement is kind of interesting by evidence rule 601 has to be 50%, by statute it has to be at least 75% of their time. Most of the time defense attorneys will ask how is your practice broken down, but they will believe the expert if he says I spend about 75% of my time practicing medicine or most often I spend about 90% of my time practicing medicine. They’ll believe that, they don’t really chase it down to hard most of the time. One thing is that a lot of experts don’t consider their medical legal work to be part of their professional time because they do it on the evenings or the weekends, but it is actually part of their professional time.
Sean: And I gather that not only does this 50% or 75% rule have to be true at the time of the deposition, but also continuing and not going to change later on.
Sarah: That’s correct, it has to be true at the time the mal practice occurred, of course the expert wasn’t involved then, but they have to have been practicing at the time that it’s occurred, and they have to have been practicing at the time of the deposition and they have to be practicing at the time of trial and that creates a lot of concerns sometimes because sometimes you have experts who have retired during the course of the trial and you sometimes have to get another expert. I recently had an expert, I found out at his deposition on the record that he was preparing to retire and move to Grand Cayman two weeks after the deposition. I thought well, that’s nice for you guy, not so helpful for me. So I continually ask experts even ones that I use on a regular basis I will just inquire from time to time you know you’re not planning to change your practice anytime so, you’re not planning to move and do something different. I had a radiologist I used to use all the time, he took a position in a different hospital where he was doing about 50/50 administrative work, he got an MBA and moved up the latter to doing more the business aspects of a hospital. He was no longer qualified to be an expert witness for me.
Sean: Yeah, that’s a good tip to kind of to tuck that away as far as when you are talking to your expert that’s kind of a question to ask on an ongoing basis.
Sarah: It is, it is because in their minds their still perfectly qualified to practice medicine, and they are still perfectly qualified to practice medicine. They don’t understand the intricacies of the evidence rules and laws in Ohio and there’s not particular reason that they should understand that unless you tell them.
Sean: Speaking on the intricacies of the law, talk to us about when it comes to the particular practice area that they will be opining on versus their own specialty and how similar do those have to be.
Sarah: They have to be pretty much same. You can’t have an infectious diseases physician for example come in and testify as to the standard of care for an orthopedic surgeon. It has to be someone who is doing basically the same kind of work that the defendant is doing and from a public policy perspective that kind of makes sense. You want someone who does the same sort of work that you’re criticizing so that they know what the rules and the standards are for that kind of work. There are some exceptions for example podiatrists who put the casts on a leg, that’s the same standard of care, whether that’s done by a podiatrist or an orthopedic surgeon or an emergency room physician. If you cast legs, then you know how to cast legs and you can use different experts and that can save you time and money if you can use an orthopedic surgeon both on the proximate cause aspects and to put fault on the podiatrist for the way it was casted. Sometimes you can use a neurosurgeon or an orthopedic spine surgeon because if you are doing surgery on the spine you’re doing basically the same surgery whether you’re called a neurosurgeon or an orthopedic spine surgeon. Neurosurgeons don’t want to hear that, but that’s really true, but you can’t call a neurosurgeon to talk about how to do a knee surgery because they simply don’t know.
Sean: And how about using the clients own treating physician as an expert?
Sarah: I used a client’s treating physician on damages, pretty much only on damages. I have very rarely come across any treating physician who wants to say anything bad about any other doctor around even if they think it’s true. They don’t want to go on the record and say that, they don’t want to talk to lawyers; they don’t want to get involved. Sometimes they will be helpful on proximate cause. Most often I find that they are the best expert for damages if they will work with you. They can talk about not just the typical patient with this kind of injury and not just what they see on the records, but what they’ve seen in this actual patient and what their prognosis for the future is, what they’ve seen, what they can expect for the future and they can talk about the patients pain, they can talk about the struggles the patient has had, and for damages they are really best if you can get them to corporate with you.
Sean: And what has been your experience as far as getting them too corporate? Are they generally able to do that?
Sarah: I have found that, for the most part, doctors who are with the bigger hospitals, the bigger teaching hospitals, they have a big legal department and those hospitals such as the Cleveland Clinic or University hospital aren’t real crazy about having their doctors participate with lawyers. However, sometimes you can get through the legal muck and get to that. More private doctors I have found are usually pretty helpful, and willing to talk to us. I typically call them up myself; I don’t have my secretary call to set up an appointment. I call them myself and I explain to the person who I am, what I want, who I represent. I offer to talk to them by phone or to go out and meet them at their office, whatever’s most convenient and I make it clear right from the get-go that I am willing to pay them for their time. They typically don’t charge a whole lot, but they are they should be compensated for their time and I don’t want any confusion about that and typically when I use a treating doctor, I will video tape the discovery deposition as well, nine times out of ten everything I want for trial is on the discovery deposition. I will qualify the doctor at the end of the deposition that their licensed to practice medicine and so forth and that way I’ve got a video to show at trial if for some reason they don’t want to come downtown, don’t want to come to trial. It’s not ideal, but sometimes especially if there’s somebody who didn’t really want to spend a lot of time talking to lawyers in the first place, it’s nice you can just talk to them once and get it all on tape and be done.
Sean: I want to go back to something you said and I think I know the answer, but I want you to kind of talk us through it, and that is that you make the call yourself and not delegate that to a staff person, why do you do it that way?
Sarah: I do it that way because I feel like it makes the doctor feel like I am taking this seriously. I am valuing their time, I am valuing my client, that this is an important phone call, this is not just a scheduling issue, it may become a scheduling issue after that first conversation, but that this is an important part of my case and that’s important to the patient that the doctor be willing to talk to us and that it’s not just something that can be dropped off or that I think can just be dropped off, but I think it’s important and that’s why I make the call myself. Often also I will have the patient call to talk to the doctor ahead of time and just kind of give them a heads up my lawyer might be calling you, you know I did ask her to do that and that way the doctor is less apprehensive about trying to get trapped within the patient and some lawyer.
Sean: Switching gears here, you know one of the things all trial lawyers try to do in front of a jury is to simplify their case and the presentation of their case, certainly when it comes to experts more can sometimes be less right and vice versa, talk to us about, thinking about, you know avoiding duplicative areas of expert testimony for presentation to a jury.
Sarah: Sure, absolutely. You have to have an expert for every area of expertise, if there is, if you have suit that’s against an orthopedic surgeon and an infectious disease doctor because they jointly failed to diagnose a treatment infection then you do need both the specialties. You need the surgeon and you need the infectious disease physician. You don’t need two infectious disease physicians, you don’t need necessarily a neurologist, you just need those two. One of them can probably address proximate cause if not you might need someone for proximate cause, but I found that you have more than one expert on any particular topic the chances of them having small differences of opinion that the defense can blow up into big differences of opinion, just every time you have another expert there’s another chance for little things to become big things and there’s also another chance for the defense to say well this person acts like they know everything about everything when really that’s not reasonable to expect them to know that. If I have a radiology case for example, I don’t want my radiology people to talk about anything other than reading the film and sometimes the defense will ask them in deposition, well if the film had been read to show this spinal fracture for example you know what would have happened and I want my radiologist expert to say well the standard of care for the radiologist is to read the film correctly, diagnose the fracture and call up to the emergency room or call up to the orthopedic surgeon or do whatever they need to do to get that in the hands of the orthopedic surgeon. After that, I would defer to an orthopedic surgeon as to what would happen next and what the end result would be. Sometimes it’s hard because some experts think they know a lot about everything and they want to talk about everything and I try very hard to rein them in to have them to stick to one, one topic, one area and say you know this is what an orthopedic surgeon should do. Sometimes they will say in my experience dealing with infectious disease I would anticipate or I would expect the infectious disease physician to start some antibiotics or start mitomycin or whatever they are going to do, but I would defer to an infectious disease physician about how to do that, I would defer to an infectious disease in my practice and I would defer to infectious disease in this case as well.
Sean: And experts can get tripped up from time to time when it comes to hypotheticals or questions from the defense about what’s possible and isn’t it possible that xy and z could have happened, but really the focus is and should always be brought back to this particular case that we are going to hear about.
Sarah: That’s exactly right. That’s exactly right and I tell people that the best expert is not always the smartest guy in the room. The smartest guy in the room may not be the person you want. You need an expert who is going to listen to a hypothetical question and of course there’s lots of stuff that’s possible and I have a lot of experts that I like, I like the way that they say it, they say yes what you have set forth is possible, but in this case it’s not probable. In this case what is probable is xy and z and keeps bringing it back to this particular case saying I understand what your hypothetical is, but my understanding of the facts of this case don’t match your hypothetical. Yes, there could be a complication that would result in a severed viaduct, but in this case the physician admitted in his deposition that he didn’t even look at any other ducts other than the one that he cut, he didn’t appertain where he was in the anatomy so in this case this wasn’t a complication and if that’s really important that the expert come back to that really at every question because otherwise you have a deposition transcript that is just full of your expert agreeing with yes or no answers to everything the defense lawyer says and that makes for nice sound bits, it’s much nicer if you can have the expert really bring everything back at every question.
Sean: We talked about simplicity as far as the number of experts and their areas of expertise, but obviously simplicity in the testimony and the opinions themselves is critical to jury comprehension as well. How do you talk with expert witnesses about the idea of simplifying their testimony using jury words so that it’s understandable?
Sarah: Some experts are better at that than others just naturally. I find that people that work in teaching hospitals are generally pretty good at teaching. I find that if they have visuals to work with that is very helpful and we all have to keep in mind these doctors have gone to school for eight or twelve years, we’ve spent two or three years learning this stuff the jury has a total of about a week and a half to learn all the medicine in addition to hearing the family members and so forth so it’s very important to keep it very simple and I have no problem interrupting an expert on the stand if he uses a medical jargon term and ask him to explain exactly what that means. I like to have the experts get up off the stand, especially if there is a demonstrative, you know a model of a heart or something and make them take it up and kind of get closer to the jury and point it out and get the jury involved in looking at what they’re talking about and it is kind of difficult sometimes to step back ourselves because we are so anxious to move into you know the guts of the case, what they did wrong and we have to keep in mind that the very first thing we have to do is explain just really basic anatomy and kind of keep the jury focused in there and I say I had a case several years ago with a radiology expert on the defense side, I just thought the guy was totally full of himself like a used car sales man. The jury just loved him. They thought that he was personable and engaging , they thought he could explain things clearly and they really connected with him on more or less personal level. So I think that it’s really important that you have somebody whose, who can engage the jury and be likable.
Sean: Talking about or I am thinking about selecting experts from the, from the beginning are there things that you are on guard for on the lookout for in, on a doctors or physicians resume or things that you look out for that are kind of red flags that would say gosh you want to be very careful before you hire this person?
Sarah: Yeah there are, you know most of the time I get my experts either from people that I have used in the past or from referrals from other lawyers because they kind of have some hints about how they are going to do at trial as well as just their basic qualification. We have an expert from Harvard that we’ve used several times in the past. He has run into some issues, had nothing with his ability to practice medicine, you know he had a political falling out the Harvard department and that’s just a distraction, that’s just something that you don’t need to have. There’s another expert who was being used quite commonly around here and he let his boards lapsed because he doesn’t need them for his practice and he didn’t realize how important that was for expert witness testimony and that was neither here nor there, but he inadvertently failed to update his resume again it’s not, it’s not really a big deal, but the jury doesn’t know it’s not a big deal and the defense makes it a bit deal, makes it look like he’s a liar and so we just really stick to people who have absolutely nothing that can be a distraction. Several years ago we had a case with, I think it was an emergency room physician and he had moved to New Orleans and we found out shortly before the trial that the reason he had moved to New Orleans was because he had had some professional and personal issues. He had started having an affair, he had begun prescribing medication to the woman that he was sleeping with when he tried to cut her off she threatened to tell his wife, she told his wife, she told his boss, he lost his job, he lost his marriage, he lost his house and it was ugly.
Sean: So that would be a bad expert to you?
Sarah: That would be a bad expert and he was a great doctor. He was a great doctor, he was likable, he knew a lot of medicine, he was easy to explain things to a jury, he was good looking, he was a great guy, but yeah he was distraction and a half and it was just an ugly trial with that going on and if we had more time we would have gotten a different expert in retrospect, probably we should have just 41a’d the case and tried it with somebody else, but we did not do that.
Sean: You know something popped into my head while you were talking about the person from Harvard and I often kind of have this internal debate with myself about whether you get somebody local, right somebody from around, in the area, versus “the best” person that may be geographically far away cause I’m always concerned you know the defense can say, well geeze they had to go all the way to Harvard or wherever it is to find this expert as compared to somebody from you know, University of Cincinnati or Ohio State or whatever it is, where do you come down on that?
Sarah: We actually use experts from both local and far away, other than treating physicians, I don’t think I have ever used an expert from Cincinnati for a Cincinnati case, partly because I don’t think it’s all that easy to find them. People who want to testify against somebody they might be seeing at the local medical board meetings or whatever. I have many experts from Columbus, Cleveland, Detroit, Saint Louis that area. Sometimes I do go a little further off because sometimes there are complicated cases and I am okay with because it’s not like we live in a really rural area, you know if I am using a doctor for a complicated case, if I am using somebody from Harvard or somebody from the west coast or something typically it’s a case where there was plenty of time for, if this case was so complicated you know you had plenty of time to get them to a major trauma center to deal with them, fiduciary care center, and I don’t have a problem with using experts who are well known in that field. One thing that I didn’t mention when I am looking for an expert to use, I want an expert who is going to tell me right off the bat if I don’t have a good case, you know I have no problem at all being turned down and that’s one of the things I look for in the experts I use over and over again is if I send you a case and you think I’m you know full of crap and there’s nothing there you know tell me before I spend two years and eighty thousand dollars or a hundred thousand dollars to get this case to trial. We had a case years ago where I sent a, cataract surgery case, I sent it to someone we knew locally, he gave us an affidavit of merit and then there was a motion for summary judgment based on my clients testimony, eighty-three years old had cataract surgery they filed a motion for summary judgment based on her testimony and I drafted up an affidavit from my expert saying that the guy gave a standard of care that probably cost her injuries and that and wrote out all the details and he refused to sign it and he said I didn’t realize that you wanted me to say that somebody committed malpractice and I said, oh, I’m sorry I thought that was what we were talking about so I thought that was kind of interesting that’s one of the reasons you want to make sure that you understand and your expert understands right off the bat what they’re expected to do, which is to show up, show up to trial. I don’t like to use experts who don’t want to come to trial and want to be videotaped at their place of business somewhere far away. I feel like we’re paying these people a lot of money and they should be willing to travel and obviously sometimes that just can’t happen for other reasons, but I don’t want somebody who has a refusal to show up and I want somebody who, whose will to take calls from me and willing to accept e-mails from me, but if I am preparing for deposition I like an expert that I can just call up and say hey I am preparing for this deposition, this is what I am thinking about, you know am I on the ball. I don’t expect them to do my job for me, but it’s nice to have somebody who’s available for conversation and I think a lot of the experts that I use are very happy to do that.
Sean: Well, Sarah Tankersley thanks very much for joining us here on Civilly Speaking.
Sarah: Thank you so much Sean, good talking to you.