Successful Cross-examination of defense expert

The letter below was reproduced with the permission of its author - Honorable Edward W. McCarty III who at the time was a Justice of the New York State Supreme Court in Nassau County and is now the Nassau County Surrogate.  He wrote it to the senior partner of the law firm after a case in which I appeared before him as trial counsel to the firm was resolved.

The case involved perforation of the sigmoid colon during screening colonoscopy on a healthy woman.  The defendant inserted the scope and had difficulty advancing the scope beyond the splenic flexure.  He withdrew the scope and reinserted in “at which time peritoneal structures were observed and the scope withdrawn”.  An ambulance and surgeon were called and the patient was transported to the hospital and underwent surgery to repair the hole in her colon.

The defense expert was the Chief of Colon and Rectal Surgery at a major hospital in the community.  On direct examination he defended the case saying there was no departure from accepted standards of care.  He believed that the difficulty passing the scope was due to “looping” where the tip of the scope does not advance despite the hose being moved forward because a loop develops in the hose.  He expressed the opinion that adhesions may have caused a problem in the sigmoid colon as the scope was advanced resulting in the perforation.

The cross-examination brought out several points favorable to the plaintiff.

First, the expert agreed that the defendant had given untruthful testimony in asserting that although he did not pass the splenic flexure with the tip of the scope, he had been able to observe the mucosa all the way to the hepatic flexure, a distance of at least 12 inches.  He also agreed with the testimony of the plaintiff’s expert on this point that if the defendant thought he was able to see all the way to the hepatic flexure from the splenic flexure it was “pure fantasy”, and that he had told as much to the defense attorney, who nevertheless questioned the plaintiff’s expert on that point aggressively suggesting that he was being dishonest.

The expert was successfully impeached with prior inconsistent testimony on two occasions; first, having testified to the jury that he had performed 500 colonoscopies per year for many years, he was impeached with a statement that he performs 350 to 400 colonoscopies per year.  Secondly, having testified that he performed surgery on Chron’s patents on a weekly basis he was confronted with a statement that he operated on Chron’s patients every day – which he explained as having possibly “misspoken”.

It was suggested that the witness may be biased because he had been sued himself on 9 occasions and had a twenty year attorney client relationship with the defense attorney and his firm in connection with those cases.

The witness also conceded the authoritativeness of a “Consensus Statement” published in the American Journal of Gastroenterology representing a joint effort by the American College of Gastroenterology and the American Society for Gastroenterologic Endoscopy on quality indications for colonoscopy.  He conceded that he knew the document states that “looping” usually causes a “large rent” in the colon when he testified to his opinion that looping caused the tear in the case at hand, even though the perforation at surgery was described a 1cm hole with clean edges and he knew there was no large rent in the colon in this case.

He also admitted that the surgeon who repaired the colon (who he happened to know personally) did not describe taking down any adhesions in the process of extracorporealizing (lifting out of the body through the incision) the colon and repairing the perforation, even though that would be expected because adhesions would increase the amount of time and difficulty of the operation if they were present.  He then admitted that

he knew there were no adhesions according to the operative report when he expressed his opinion that adhesions may have caused the perforation.

According to the records in the case, the report of the colonoscopy was complete at 9:30 even though the scope had been removed at 9:24 and the defendant had recognized that a perforation had occurred and called 911 and a surgeon to meet the patient in the emergency room.

The expert agreed that the standard of care mandated that if a physician knows the cause of a complication such as colon perforation, it should be included in the records.  He was reminded of his testimony on direct examination to the effect that a colonoscopist knows when looping occurs because they can see on the monitor screen that the tip is not advancing despite the fact that the hose is being advanced.  He was then confronted with the defendant’s testimony that he was uncertain what caused the perforation.

The expert also conceded that when the scope cannot be advanced and the physician does not know what the problem is, it is a departure from accepted standards of care to try to overcome the resistance by reinserting and advancing the instrument anyway, which is what the defendant did.

Finally, he testified that the defendant departed from accepted standards of care in having the patient sign a consent form on the day of the procedure, while gowned and surrounded by medical personnel immediately prior to being put under sedation – a set of facts which he was unaware of prior to cross-examination.

The Calendar

Most of the time, when I am working late, I allow telephone calls to go to voicemail.  People who are selling something know that it is a good time to catch someone who normally would not take their calls because the office staff has gone home.  On one particular day, I took my chances and answered the phone and was very glad I did.  It was the mother of a client I had represented many years earlier.  She was calling to tell me how much she had liked the holiday card I had sent.

It is January 2008.  The phone rings.  I pick it up and answer “Law Office”. 

A woman on the other end of the phone says “May I speak to David Pollack, please.

“Speaking”, I reply.

“Oh, Mr. Pollack, how are you?  This is Mrs. N, Stephanie’s mother”.

“Wow, Mrs. N., I’m so glad to hear from you!  How are you and your family”?

We spend a little time catching up – it has been about 10 years since I tried her daughter’s case.  Stephanie had been hospitalized at a Municipal hospital for a respiratory ailment.  She developed acute respiratory distress for which a nurse anesthetist attempted to intubate her in order to place her on a respirator.  The intubation was described as “difficult”.  Not long afterwards, Stephanie was noted to be paralyzed.

Her case was tried, but a settlement was reached while the jury was deliberating.   The case was memorable to me for many reasons, but one in particular involved a calendar.

A bank in the neighborhood had sponsored a contest in Stephanie’s school.  The idea was that the children would draw a picture illustrating “If I save a lot today….”.  The drawings of the winners were published as the picture of the month in the bank’s calendar. 

At the age of nine, Stephanie drew a picture of a bank with a line of customers at a teller's  window.  At the head of the line was a little girl in a wheelchair (a self-portrait by the artist).  Her caption was “If I save a lot today, in the future I could pay for college”. 

I had marked the calendar into evidence during the trial.

One of the first things I wanted to know from Mrs. N was “How is Stephanie doing?”

“She is going to graduate from Stony Brook University in the Spring”.  She was kind enough to add that it had been the settlement money which had made it possible for Stephanie to attend college.

After recovering from the amazement that so much time had passed I remembered the calendar which I had saved.  I insisted on returning it as something I thought Stephanie would appreciate now that she had accomplished her goal of so many years earlier. 

I did however, make a color copy which now hangs framed in my office.

Am I Boring You?

It was the summer of 1991.  I had been practicing law for 10 years and working for a plaintiff’s medical malpractice firm the entire time.  On the day in question I found myself sitting in the conference room of a law firm that was in-house counsel to one of the major insurance carriers for doctors in our state.  I was representing the plaintiff at the non-party deposition of a neurosurgeon. 

            The case involved a woman who was 8 months pregnant when she was involved in a serious automobile accident.  She was taken by ambulance to the Emergency Room of a local community hospital where she was evaluated by physicians of several different medical specialties.  The lawsuit was against the Obstetrician who attended to her in the Emergency Room and admitted her to the hospital and against the hospital.  The Obstetrician had ordered that an electronic fetal heart monitor be connected, but did not require that she be transferred to the Labor and Delivery suite of the hospital.  As the electronic fetal heart monitor tracings clearly demonstrated, the baby became increasingly distressed by what proved to be an occult placental abruption (the placenta separated from the uterine wall depriving the baby of oxygen).  The problem was that the nurses in the Emergency Department were not trained to interpret the tracings, and did not recognize a problem or call for help until the mother’s blood pressure dropped.  When the doctor was called she did not want to come in because she was packing to leave on a trip to her native country the next day to visit her husband.
               The baby was born with completely avoidable profound brain damage due to the lack of oxygen.

            The attorneys for the Obstetrician had served a subpoena on a Neurosurgeon who evaluated the woman in the emergency room for head trauma.  As the attorney asked ridiculous questions about why the Neurosurgeon had not noticed the abnormalities on the tracing, I found myself looking out the conference room window, bored mindless by the proceedings.  I suddenly realized that in ten years, I could not recall the last time I had been present at the deposition of a physician where someone other than myself asked the questions.  Immediately after that realization I was overcome by curiosity and chagrin.  Was it possible, I wondered, that when I am questioning a doctor, the other attorneys are as bored as I am now?

            It was not until January of 2009 that my question was finally answered.  I had just commenced an association with a new firm on the 5^th of the month by selecting a jury on a case that settled during trial.  Now it was the 20^th – inauguration day.  I

was in the office of a law firm who represented an Obstetrician in a case where it was claimed that negligence during the labor and delivery had resulted in paralysis of the child’s arm.

            An attorney for a co-defendant showed up at the deposition with a laptop computer and advised all of those in attendance that she intended to use the computer to watch the inauguration speech of the new President and would take a break during the proceedings for that purpose.

            Fortunately for us, she was unable to obtain a video feed with the internet connection in the office.  She did take a short break to listen to a radio broadcast on a radio at the reception desk, but there was so much static that the rest of us agreed to return to the conference room and resume the deposition.

            At one point during my questioning, I glance over at the young lady’s computer screen.  SHE WAS SHOPPING FOR SHOES!

            During a break, I learned that she was soon to be married for a second time and was shopping for shoes and for favors to give the members of her wedding party.

            Now I know.

“We May Be Adversaries…”

I am in Supreme Court, Queens County.  My assignment is to pick a jury on the first medical malpractice case of my career (my second trial).  The case involves a young man who had a pilonoidal cyst.  He was admitted to a hospital in Manhattan that has long since ceased to exist and surgery was performed to solve the problem.  Unfortunately, he developed an infection of the lining of his heart called the pericardium.

He was treated successfully for the infection at a second hospital.  We are claiming that the surgery was performed negligently and led to avoidable infection.

It is 1982 and I am 28 years old.  My adversary is a white haired gentleman who is the last named (of five partners)  in a law firm that defends a lot of cases in our office.  Up to this point, I have not met a partner in any defense law firm other than acting as an assistant to one of the trial lawyers in our firm. 

When I was still in law school, I accompanied our senior partner on a trial in Brooklyn.  We were assigned to a Judge with a lot of “personality”.  During the testimony of one of the defendants (being questioned by his own attorney) my boss asked me to go out of the courtroom to use the pay phone to call the office about something.

I was proudly wearing a brand new pair of Florsheim ox-blood wing tipped shoes which I had purchased at an exorbitant price in order to look more like the lawyer that I hoped at that point I would soon become.  Unfortunately, the shoes were a little stiff and made a kind of clacking sound on the tile floor when I walked.  As I rose from the counsel table and began to walk out of the courtroom to do as I had been told, my shoes began to make a racket.

The Judge, apparently insensitive to the fact that the jury was in the box listening to testimony, interrupted the proceedings to address my boss.  “Mr [Plaintiff’s lawyer], tell your associate to get rid of those clod-hoppers.”

Of course the comment was greeted with a fair amount of laughter.  Of course the most expensive shoes I had ever purchased or owned were never worn again. 

That experience, of “second-seating” a trial lawyer was effectively how young trial lawyers apprenticed in those days.  It was in that setting only that I had met a partner in a defense firm prior to trying my first medical malpractice case in Queens.

When the case was called, both my adversary and I answered ready and were told to go to the jury part and select a jury.  As we were leaving the courtroom together, this venerable gentleman introduced himself to me and said “We may be adversaries, but that doesn’t mean we can’t be friends.”

I have thought many times over the years how fortunate I was to have started out on my career by having tried a case with a man such as he.  It was a great lesson which I never forgot; that we are professionals; we do our best to represent our clients zealously in the courtroom, but it need not be personal.  We can and should conduct ourselves with dignity and integrity, and then there is nothing to prevent us from admiring or even liking and respecting one another when we leave the courtroom.

I analogized it once in a Chapter I wrote to an episode of the roadrunner cartoon.  The roadrunner and Wiley Coyote are walking together wearing hard hats and carrying lunch buckets.  They are having a friendly conversation.  They pass through a gate and go up to a shed and pass their time cards through a clock to “punch in”.  From that point on, it is a normal episode of the cartoon with the Coyote trying his utmost to kill or capture the roadrunner, who manages to outrun and outwit his adversary at every turn, even making him the victim of his own boobytraps.  Suddenly, a five o’clock whistle blows.  The two of them return to the shed, “punch out” and leave together talking to each other once again as friends.

As lawyers we learn to disagree without disliking or disrespecting each other.  If only that were true in all other aspects of life where people disagree with one another!

Damages Are Not Meant To Be Funny

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The Bag of Jelly

             
I recently completed a trial in Bronx County.  The trial was characterized by a great deal of acrimony between defense counsel and me, and between me and the court.  Several of the incidents were so humorous that I decided to recount them here.

The first story is so improbable that if I hadn’t witnessed it myself – if someone told me about it; I don’t think I would believe it.  Therefore, rather than tell the story I am simply providing a short narrative to give context to the verbatim transcription of what took place in the courtroom by the court stenographer.

            The case involved a claim that a doctor had delayed the diagnosis of a GIST (gastrointestinal stromal tumor).  The doctor’s records included notes on an almost monthly basis starting in September 2001 up through March 26, 2002 which reflected that he felt something when he examined the surface of the patient’s abdomen which he described initially as a “fullness” and later as a mass.  On each occasion, the finding was followed by a notation that the patient had been advised to go for a gastrointestinal workup including abdominal CT or sonogram and that she refused to do so.

            Two days after the last visit the patient was seen by a surgeon who similarly examined the surface of the abdomen and documented a finding of a mass measuring 10 inches by 10 inches.  I had questioned the defendant about the fact that he had never documented any measurement of the mass or any increase in its size.  (At some point testimony was adduced that this type of tumor has a gelatinous consistency.)  On cross examination by his own attorney, the following is what transpired:

            DEFENSE COUNSEL:  I would ask that this white bag be marked as the next Defendant’s Exhibit, it is a bag of jelly, as Defendant’s “D” I think we’re up to.

            THE COURT:  Counsel?

            MR. POLLACK:  I haven’t seen it, Judge.

            THE COURT:  Okay.  Mark it as Exhibit “D” for identification.

            (Whereupon, the item referred to was received and marked Defendant’s Exhibit “D” for identification.)

Q.        Dr. Defendant, I would ask that you come off the witness stand.

            (Whereupon, the witness exits the stand.)

Q.        I want you to stand in front of the jury and I want you to look at the jury and I want you to put your hands behind your back, still looking at the jury, and I want you to touch this exhibit with your palm, and then Iwant you to tell the jury how big it is, what are the dimensions?  Touch the top of it, not the sides, just the top.  Can you tell me what the dimensions are?

A.        No.

Q.        Would you resume a seat on the witness stand.

            (Whereupon, the witness takes the stand.)

During summation I picked up “Exhibit D”.  I told the jury that I considered it to be symbolic of the “quality” of the evidence submitted by the defense.  I then re-enacted the scene recounted above by the court stenographer’s transcription to remind the jurors of what they had seen and I told them that it was the most ridiculous display I had witnessed in any courtroom in thirty years – a comment to which defense counsel objected.  The objection was sustained.  ( I can only assume the court had seen more ridiculous displays).

            At one point I was questioning the defendant about his notations indicating the patient’s refusal to follow his advice regarding the “finding” he made in her abdomen.
Q.        Did she get a sonogram in Jamaica?

A.        She got a sonogram in Jamaica.

Q.        Did it show the mass?

A.        It showed the mass.

Q.        And you say that for five months she was refusing your suggestion to have either a sonogram or a CAT Scan?

A.        That’s correct.

Q.        Did you ask her how come you refused to do it while you told her to and then you go and do it in Jamaica?  Did you ask her that?

A.        It was an inappropriate question.

Q.        You weren’t curious?

A.        She was now worried about the findings and I’m not going to make her feel any worse.

Q.        This patient that kept coming back to you since 1987,who you told us you had a good relationship with and she trusted you, you didn’t want to know why she refused your advice for five months and then did the same thing somewhere else?

A.        I did not want to offend her even more.

Q.        She wasn’t offended by being told it’s all in her head, was she?

            MR. DEFENSE LAWYER:  Objection.

            THE COURT:  Doctor, do you know whether they have nationalized health care in Jamaica?

            MR. POLLACK:  Judge, please, what are you doing?

            THE COURT:  Asking a question.

            MR. DEFENSE LAWYER:  Objection.

            THE COURT:  It might be a whole different system.  I don’t know.

            THE WITNESS:  I’m not aware.

            THE COURT:  Okay.

Q.        You are not an expert on the medical system, medical delivery system in Jamaica?

A.        No, I’m not.

            THE COURT:  But it wouldn’t have been HIP, would it?

Q.        Maybe she paid out of her own pocket, do you know if she did that, Doctor?

A.        I don’t know.

Q.        She refused to have a test that would have been covered when you suggested it, but she went to Jamaica and paid out of her own pocket, is that what you think happened?

            THE COURT:  We don’t know whether she paid out of her own pocket.

Here are a few other humorous examples of incidents which took place between myself, the court and defense counsel:

Q.        So, this is a false medical record, is what you are telling us?

            MR. DEFENSE LAWYER:  Objection.

            THE COURT:  I’m sorry, I was talking to my law secretary.

            MR. POLLACK:  I know, but I would have waited if I realized that.  I guess you want to hear the question again.

            THE COURT:  Okay.

            (Whereupon, the Court Reporter read back what was requested.)

            THE COURT:  If that’s your question?

            MR. POLLACK:  There was an objection.

MR. DEFENSE LAWYER:  Yes, there was an objection.

THE COURT:  And what was the primary answer?

MR. POLLACK:  He says the nurse writes down anything she wants even if that’s not so.

MR. DEFENSE LAWYER:  Objection, that’s not what he said.

Q.        Doctor, you are telling us - -

THE COURT:  Doctor, why don’t you explain the situation?

MR. POLLACK:  Judge, please.

THE COURT:  Excuse me.

MR. POLLACK:  This is in the nature of cross-examination, he’s an adverse party.  Ciaccio versus Houseman gives me the right to a cross-examination.

THE COURT:  Yes, Counsel.

MR. POLLACK:  So, can I ask my own questions and not have the Doctor explaining things.  He can do that when his attorney is questioning him.

THE COURT:  Oh, thank you Counsel.  Maybe we should just break for the day and get back together in the morning.

MR. POLLACK:  That’s up to you, Judge.  You wear the robe.

THE COURT:  No, it’s up to you whether you want to stop being spleenish or not.

MR. POLLACK:  I’m not squeamish.

THE COURT:  Spleenish.

MR. POLLACK:  I don’t have a spleen.

THE COURT:  I’m sorry if that’s the case.

MR. POLLACK:  Can I continue my examination?

THE COURT:  Yes, if you can get over your animosity, because, I have no animosity whatsoever towards you.

Q.        Doctor, are you telling us that the information recorded on this document that’s part of your medical records, that says that this patient had left quadrant abdominal pain is incorrect?

A.        Yes, it is in a certain sense.

Cross-examination of defendant by his attorney:

Q.        If the patient’s complaint of gas was due to a tumor displacing or pressing against the colon, the large bowel, would Pamine give her any relief?

            MR. POLLACK:  Objection.  Asked and answered.

A.    No

MR. POLLACK:  He’s signaling him to answer in spite of the objection.

MR. DEFENSE LAWYER:  Yes, I am.

MR. POLLACK:  And he is answering while you are trying to make a decision.  I’d like the answer stricken or a ruling on the objection.

THE COURT:  (Holding up a wooden gavel in one hand)  Let me instruct you on the purpose of a gavel.

MR. POLLACK:  As long as you don’t throw it at me.

MR. DEFENSE LAWYER:  Throw it at him.

THE COURT:  It gives a shock to everyone’s adrenal system, it gives you such a shock reaction.

MR. POLLACK:  Is that what it is?

THE COURT:  It really stops everyone in their tracks.  I don’t like using it.

MR. POLLACK:  I’d like a ruling without giving and signaling the answer before you gave your ruling.

THE COURT:  I gave a ruling, but you were talking during it.

MR. POLLACK:  He signaled the witness to answer while I made my objection before you ruled, and I didn’t hear your ruling.

MR. DEFENSE LAWYER:  Can we have the question read back?

THE COURT:  Can we strike this whole little bit of colloquy.

MR. DEFENSE LAWYER:  Yes.

THE COURT:  So stricken.  Let’s go back.

MR. POLLACK:  I want it on the record for a review.

Redirect examination

Q.  And the very first time that you ever saw this patient in May of 1987 you have anote about a sonogram being negative, do you remember that?

A.  Yes.

Q.  How  did you know she had a negative sonogram in May of 1987?

A.  I got a report from Dr. Prager.

Q.  Where is it?

MR. DEFENSE LAWYER:     Objection.  It assumes a fact.

THE COURT:  I don’t know if he would have kept the report.  I’m not sure - -

MR. POLLACK:  Then he can answer my question and we will know.

THE COURT:  No.  You would have to ask another question first.

Q.  Was it a written report or a verbal report?

THE COURT:  Or was it a report the patient had and he gave back to her?

MR. POLLACK:            Judge, why are you suggesting an answer to a witness?  This is so improper.  I can’t believe it.  (The Court bangs her gavel on her desk.)  You know what?  I can do that too.  (Plaintiff’s counsel bangs his fist on the table.)

THE COURT:  Good.  Then we will break for the day.  See you in the morning.  Ten o’clock, please.

The Buggy Whip Business

Henny Youngman had a joke that went something like this:

        A man calls a lawyer's office. The phone is answered, "Schwartz, Schwartz, Schwartz and Schwartz." The man says, "Let me talk to Mr. Schwartz." "I'm sorry, he's on vacation." "Then let me talk to Mr. Schwartz." "He's on a big case, not available for a week." "Then let me talk to Mr. Schwartz." "He's playing golf today." "Okay, then, let me talk to Mr. Schwartz." "Speaking."
       In January of 1986 I had a job interview in an office where two of the partners were father and son.  I was interviewed by the son (older than I was at the time by at least 20 years).  I was led into his empty office and left alone there to admire the many diplomas on his “vanity wall” and all of the other interesting souvenirs of a storied legal career.  I was well acquainted with this technique, as I had been routinely instructed to lead clients into the office of one of the partners in the first firm I worked for and leave them alone there to absorb the evidence of what a great man they were about to meet.  That office belonged to a man who had been a physician and became an attorney and then a partner in a very successful medical malpractice firm.

          The office had beautiful wood paneling on the walls.  Behind the desk were all of the diplomas, certificates and licenses that he had been able to accumulate by getting medical and legal licenses in every state that would offer one by reciprocity.  In the rear of the room was a sofa and coffee table with a very attractive and expensive chess set on it – a chess set that had never been used to my knowledge.  Part of that seating group included a replica of President John F. Kennedy’s rocking chair. 

          As my interviewer entered the room, he said “So you’re in the buggy whip business”.

AWKWARD!  I had no idea what he was talking about, and was forced to admit that, rather than try to have a conversation without doing so.  He was referring to the package of legislative “reforms” which had become effective on July 1, 1985.  These included shortening the time to start a suit and reducing the fees of attorneys who handle medical malpractice cases to name a few.  I did not really see how those changes would render our professional niche “obsolete” and I left his office wondering how the interview could have gone more poorly.

          Over the course of the ensuing twenty years I did begin to see an impact of those changes on the profession and thought of that interview many times.

          Now, thirty years later, a democratic Governor has submitted a budget bill to the legislature which contains a $250,000 limit on compensation for pain and suffering and would deprive children whose brains are damaged by negligent Obstetrical care of the same right to be compensated as other people injured by someone who is not a physician.  In other words, if Governor Cuomo has his way, I and many people like me will be as employable as a worker in a buggy whip factory.  Anybody know where I can find one of those?