My expert crashed, but I saved the case.

You've prepared an airtight case--solid liability theory, persuasive evidence compeling arguments--only to find out at the last minute that your indispensable expert witness can't provide the crucial testimony you need. These lawyers faced that predicament and prevailed. Read how they put their cases back together again.

Getting to know the skeletons in the closet

JARED P. BUCKLEY

I was working on an automobile clash case in which the plaintiff claimed to have sustained a traumatic brain injury. During my investigation, I learned that she had applied for Social Security disability and had undergone an "independent" medical examination by a psychiatrist on behalf of the Social Security Administration.

Much to my surprise, the examining psychiatrist had determined that my client had, in fact, sustained a traumatic brain injury. The psychiatrist had even undertaken a course of treatment. Could there be a better witness for the plaintiff than a doctor whose job was to find that there was nothing wrong with her--but who determined the opposite?

When I met this psychiatrist for the first time, I was impressed with his background and his careful examination and treatment of my client. Toward the end of the meeting, when I felt the psychiatrist had become comfortable with me, I asked him whether there were skeletons in his closet--anything I should know about that the defense could use against him in the upcoming trial. He said he wasn't aware of anything that would be a problem. During his deposition, nothing came up to concern me, and I prepared myself for what seemed like a routine case.

At trial, the psychiatrist, who was the key witness during the injury phase of the proceedings, testified strongly for the plaintiff. When I completed the direct examination, the defense attorney began his cross.

He asked: "Doctor, isn't it true that in 1980 you were found not guilty by reason of insanity of a cocaine trafficking charge in Oakland County, Michigan?" The psychiatrist conceded that this was true.

Trying to appear as if the question had not hit the fight between the eyes, I asked the judge to dismiss the jury and declare a mistrial. I suggested that the question was inappropriate because the doctor had not been convicted. There was no gap in the psychiatrist's licensure because his license had been retroactively reinstated.

After extensive argument, the judge ruled that a curative instruction would be appropriate, and trial would continue the next day.

Outside the courtroom, I confronted my expert. "Why didn't you tell me about this before?" He said he didn't think it was important because he had always had his license, and he never thought the issue would come up.

The following day, the judge directed the jury to disregard the defense counsel's question about the drug charge. However, once you throw a skunk into the jury box, it's hard to tell the jury to ignore the odor. I was convinced that regardless of any instruction from the court, the jury had heard the testimony, and the psychiatrist's credibility had been dealt quite a serious blow. I was able to rehabilitate him by pointing out that he had always been licensed and was board-certified.

The jury returned a verdict for the plaintiff, although it was less than the case's full value. I never encountered the psychiatrist again. Forewarned is forearmed. I routinely ask prospective clients and witnesses for any information about their background that could hurt us at trial. This prudent course served me better in a later case. A physician-plaintiff I represented in a medical malpractice action assured me there were no skeletons in his closet. But once he had relaxed a bit, he told me there was "one thing" he wished to say: He had once pleaded guilty to Medicaid fraud.

We fully discussed how to "handle the issue--and knowing the facts and circumstances of the guilty plea early on, I was able to address it and move the case to a successful conclusion.

Jared P. Buckley practices law with Charfoos & Christensen in Detroit.

Holding a case together after an expert flakes out

JOHN M. PARISH

One of the worst experiences I have had with an expert witness was in a case involving a client with long-term multiple sclerosis (MS). After allegedly acquiring hepatitis C from a drug prescribed to treat her MS, she was taken off other MS medications because of doctors' concerns that the drugs would damage her liver. This significantly accelerated the progression of my client's MS and, in her treating physician's opinion, resulted in her becoming totally dependent on others for her care.

The treating physician was well qualified and served on the faculty of a teaching hospital. He was willing to testify on his patient's behalf, but he was not aware of any published research supporting the opinion that hepatitis C would worsen MS and speed its progress. Noneconomic damages are capped in my state, and the opinion that my client's hepatitis C caused several additional years of total dependency was critical to enhancing the economic damages she could recover. I sought the opinion of an expert who had conducted research or published articles regarding the impact of hepatitis C on MS.

I scoured the literature and found a couple of articles written 20 years earlier, indicating that contracting a virus could exacerbate the progression of MS. I contacted one of the authors and discussed the facts of my client's case. The physician, who was still treating MS patients, was located several hundred miles away. Since my client was not able to fly to meet with him for an examination, I provided the doctor a copy of her medical records and flew him to her home to conduct a physical examination.

After reviewing the records and examining my client, the expert reported that, in his opinion, the hepatitis C had exacerbated her MS, and if she had not contracted it she would have been able to continue living independently for at least another decade. Armed with these opinions, I filed the case.

As the litigation progressed, I sent my expert updated medical records and a copy of the treating doctor's deposition. I scheduled a deposition at the expert's office and agreed to meet with him two hours beforehand to review the additional materials.

I traveled to his town the night before so I would make the early-morning meeting. Carrying a load of medical records, I arrived at his locked office door in a dark corridor about 15 minutes early. I set down my bundle and waited.

I was not too concerned until nearly 45 minutes had passed, when I began to worry that I was at the wrong place. But I called my office, and a staff member confirmed the location of the meeting.

By this time, I had waited over an hour with no sign of anyone at the expert's office. I paced the hall, knocking on doors to see whether anyone knew where he was, but no one answered.

Thirty minutes before the deposition was scheduled to start, another physician wandered into the building. He told me that he hadn't seen my expert for several weeks and that, as far as he knew, the expert seldom used this office.

Five minutes before the deposition, my expert finally showed up, offering no explanation as to why he was two hours late; in fact, he seemed surprised to see me. Inside his office, piles of medical records were stacked around the room, seemingly never opened. The additional records and depositions I had sent him to review were not among them.

Although I was furious that we would not have sufficient time to prepare, at least he had already examined my client, reviewed the medical records, and given me firm opinions in the case. But when he turned to me and said, "We have a problem," panic set in. After I asked what the problem was, he answered, very slowly, "I don't think I can help you in this case after all."

When I managed to utter, "Why?" he replied that, after thin king it over, he did not believe that the literature supported his opinion that hepatitis C exacerbated MS after all.

I feared that he had totally jeopardized my client's case. I was rather stem in our 45-minute conversation, reviewing his work in the case and the reasons he had initially said he could help us. After some reflection, he said he could render an opinion that he believed was medically justified regarding the prognosis of my client's MS after contracting hepatitis C. But his causation opinion was extremely weak at best, and I doubted it would survive a challenge to admissibility at trial.

The defense attorney fortunately did not press him. If he had, the causation opinion would have collapsed.

Despite everything, I recovered from this fiasco. I would like to say it was because of some great lawyering on my part, but--as is so often true in litigation-it was better to be lucky than good. Fortunately, I was also handling a couple of other clients' cases against the same pharmaceutical company. In one of them, the defendant named an expert who had conducted unpublished research on the impact hepatitis C has on a patient's daily activities and overall well-being. In his deposition, he made several useful admissions regarding the debilitating effect hepatitis C can have on a previously healthy patient, and agreed that the adverse effects would be even more debilitating for a person with an underlying neurological disease such as MS; it could incapacitate the patient, he said.

Despite my expert's collapse, I was able to use the defense expert's opinions from that case to support the economic damages of our client with MS, whose case was ordered to mediation. His testimony buttressed the treating doctor's opinion that the hepatitis C worsened my client's illness, and it allowed me to convince the mediator that I would be able to get our life-care plan into evidence the case proceeded to trial.

The admissions of the defendant's expert helped me overcome my own expert's bailout and obtain a favorable resolution for my client.

John M. Parisi practices law with the Shamberg Johnson & Bergman firm in Kansas City, Missouri.

Crafting an 11th-hour Plan B

IRA H. LEESFIELD

No trial is perfect. Unforeseeable events occur, and you must be flexible and proactive to turn negative situations into positive ones. My cocounsel and I faced this challenge in a case that involved an infant who had suffered brain damage in utero when his mother used a defective, overheated hot tub at a spa.

We sued the spa, alleging negligent maintenance and control and failure to warn, and we screened aquatics experts carefully. We were fortunate to find one A who had an appropriate background to testify in our case. He would provide valuable testimony on the standards of maintenance and temperature regulation, and, most important, on warnings directed at pregnant women.

The evening before our expert was scheduled to testify in federal court, he received word that his twin brother had passed away. He was understandably devastated.

The first dilemma we faced was whether to call him as a witness. We knew our case could not survive a motion for a directed verdict without his test results and opinion. We could have requested a continuance--the judge was understanding and would have granted one--but our client needed a timely, favorable verdict to obtain the important medical treatment and rehabilitation services he desperately needed. The expert reassured us and agreed to testify as scheduled.

The results were predictably negative. It was apparent to the judge, jury, and counsel that our witness was too upset to present the compelling, concise testimony he had delivered throughout his distinguished career. Our expert just could not concentrate on either direct or cross-examination. He could not formulate answers to key questions.

It was too late to bring in a new expert, so we decided that our only options were to settle the case or to do our best to survive a directed verdict an d recover with the cross-examination of the defendant's engineering expert. We chose the latter.

The court reserved ruling on the defendant's motion for a directed verdict, forcing the defense to present its case and giving us the opportunity to cross-examine its expert. We spent the next 24 hours preparing. Our challenge was not only to destroy the defendant's theory of the case, but also to show that the defense expert's testimony supported our evidence.

Our preparation blitz included reviewing every article the defense witness had written or mentioned, obtaining every deposition he had given, and "creatively" using national and local standards and regulations for spas and pools. We obtained admissions from the defense expert's literature that fit our case theory. We found testimony transcripts from other cases in which the defense expert voiced opinions on maintenance and warnings that were consistent with our case theory.

The next day, our lengthy cross-examination forced the admission of valuable testimony that helped us survive the defendant's renewed motion for directed verdict. The defense expert admitted on cross that hot tub manufacturers and spas must fully and adequately warn pregnant women of the dangers of using hot tubs. He also testified to the importance of monitoring and checking water temperature. We obtained this testimony only by asking unorthodox questions that we might not have asked if our expert had come through.

The parties agreed to settle just before closing arguments were to begin.

There was nothing my cocounsel and I could have done to predict that our expert would not be prepared to testify as we had hoped. However, instead of dwelling on the disadvantages we faced, we put our energy into repairing the situation and, in the end, obtained a favorable resolution.

Ira H. Leesfield is the managing partner of Leesfield, Leighton, Rubio, Mahfood & Boyers in Miami.

Whose side is the defense expert on?

GUY O. KORNBLUM

A few years ago, my firm was involved in a week-long underinsured motorist arbitration UIM). Our client, "Charlie"--a top amateur basketball player who had starred in college--had been driving a Chevy S-10 pickup when a left-turning vehicle struck his left front at about 35 to 40 mph. Charlie is a large man, about 6 feet 4 and 220 pounds, and his head hit the side of the cab with considerable force, resulting in very brief loss of consciousness followed by dizziness. Doctors later determined that he had suffered a concussion.

Charlie was an "Adonis." Beautifully built, he prided himself on his fitness and worked hard to remain a competent athlete--weight lifting, rowing, aerobics--maintaining a strong and well-muscled body into his mid-30s. He had traveled all over the western United States playing in amateur basketball tournaments and developing strong friendships with fellow athletes. He was also a "ladies' man" and was not bashful about it.

The accident resulted in a cervical strain that, together with Charlie's preexisting mild to moderate arthritis from athletics, prevented him from working out and playing basketball. For the first time, he had been injured to the point of being, at least partially, incapacitated. He wore a cervical collar and began taking anti-inflammatory drugs regularly. He gained weight and lost his muscle tone, along with his Adonis stature. His inactivity led to depression, but he did not seek psychological counseling. He even put off seeing a physician at the time of the accident except for some immediate treatment that was paid for under his auto insurance policy.

Charlie settled for the policy limit with the carrier of the other driver, who had violated his right of way. But Charlie's claim, because of mounting physical and emotional problems, was worth more. He filed a UIM claim against his own carrier, State Farm, and demanded arbitration.

We entered the picture three years after the accident. The UIM arbitration had not yet taken place. Within the previous year, Charlie had finally sought the care of a psychiatrist and psychologist, both of whom had diagnosed him as suffering from chronic depression. We wanted to call them to testify that the accident was the "trigger" for his depression and that he was the "eggshell" plaintiff for the psychological injury because of his family background (suicidal sister and mother; alcoholism; and depression). Because his doctors were shy and tentative and had become involved so long after the accident, I was concerned about their testimony. However, I knew our arbitrator would immediately see through any attempt to shop for a more effective psychiatric witness.

Unwittingly, State Farm came to the rescue. They wanted a psychiatric independent medical examiner (IME) who would also perform a forensic psychological examination. They requested it late, but we decided not to raise a fuss and allow it to take place--fortunately for us.

We got the report, which was very comprehensive. It contained a lot for us to use to establish the causation of the psychological injury. I decided against taking a deposition, choosing instead to cross-examine the defense psychiatrist without deposing her so she would not be prepared for my questions.

She appeared to be an honest defense witness, and I thought I might get her to provide the convincing testimony necessary to obtain a good award for the psychological injury. Charlie was not entitled to a huge amount for his physical injury, I believed, which had pretty much resolved itself within a few months after the accident, his physicians said.

The defense psychiatrist testified following the expectedly tentative testimony of Charlie's own mental health providers.

Relying on a battery of tests--including the Weschler Adult Intelligence Scale III (WAIS-III), Minnesota Multiphasic Personality Inventory 2 (MMPI-2), Patient Pain Profile, and Wahler Physical Symptoms Inventory--designated to evaluate cognitive functioning, personality style, degree of depression, and tendency to somatize or to exaggerate symptoms, she determined that our client was depressed, anxious, and very unhappy with his life. In addition, there was no evidence that he either exaggerated or minimized his psychological problems.

The defense expert found our client to be more depressed than the average person, which would probably deter treatment progress, and concluded that his responses were consistent with those of one who had a clear organic basis for pain symptoms. In other words, Charlie was not a hypochondriac.

At the arbitration, the defense psychiatrist testified that she had reviewed all his medical records and various reports of his treating physicians and their depositions, and found that our client had an unusually strong emotional reaction to his injuries: Psychological testing did not reflect malingering or magnification of symptoms, but rather a near-hypochondriacal preoccupation with his body and somatizadon of psychological distress.

She believed that the pain's severity and persistence were largely due to his depression. Although our client had been receiving adequate psychological treatment, in her opinion his depression needed to be aggressively treated with medication and intensive, not merely supportive, psychotherapy. Finally, she stated that until he was able to see himself as something other than damaged, helpless, and hopeless, his prognosis for physical recovery was poor. She felt he presented a very real, long-term threat of suicide if not treated aggressively.

The arbitrator awarded Charlie a significant sum for his emotional injury and for his pain and suffering resulting from the accident--including an award for future medical treatment, which our defense examiner described as likely to reduce the severity of his depression.

Guy O. Kornblum practices law in San Francisco.