Expert-aganza ’17: Planning to Fail, Part 3

Monday’s post discussed the problems that arose for a liability expert in a slip and fall case because the plaintiff had not conducted adequate liability discovery before the expert disclosure deadline.  This post discusses the problems the plaintiff’s damages expert encountered, but for different reasons.

What does it feel like when your expert is crossed on material documents he was never presented?  I don’t know and hopefully never will, but this particular opposing counsel may know.

What pre-existing conditions?

The plaintiff alleged the fall had caused shoulder and knee problems that led to surgeries.  She had her treating orthopedist author a brief report.  The report was problematic, but the doctor could not have known that, nor was it his fault.

Strike 1: The expert was not given the depositions.

There were two witnesses to the fall, the plaintiff and her boyfriend. The medical expert was never provided their depositions. Sure, the non-retained expert was a treater and had spoken with the plaintiff.  However, it seems that inevitably there are differences between what a personal injury plaintiff tells the treater and what she tells the opposing lawyer under oath.  That had happened here, which led to this series of questions.

7:13        Q.    Okay.  If depositions are available in a
14   case, do you usually review them in preparing for a
15   report like this?
16        A.    I typically do.  I didn’t follow my
17   schedule.
18        Q.    Okay.
19        A.    So my assistant told me I have a depo
20   literally 15 minutes ago.
21        Q.    Okay.  Why is it — is it helpful for you
22   to review the depositions of at least the patient in
23   preparing a report like this?
24        A.    Usually it is, but this report, I did it
25   January, so it’s pretty fresh.  So, for the most,
8:1   part I almost — I did review this because I did
2   this report, what, January 13th, yeah.
3        Q.    In other cases where you’ve reviewed
4   deposition transcripts, why have you found they can
5   be helpful?
6        A.    So you — I’ll have kind of basic idea of
7   what — how this case started and the course of
8   treatment and last follow up.
9        Q.    Does it also help you understand the
10   mechanism of injury?
11        A.    Mechanism of injury usually I can pretty
12   much get within 30 seconds as soon as I go through
13   my history, yeah.
14        Q.    Is it helpful — if there are witnesses
15   to the fall, is it helpful to read their
16   depositions?
17        A.    If there is deposition for witness, it
18   does help.
19        Q.    What does that help do?
20        A.    Just confirm the injury.

These types of questions should get your attention because they are generally setups. The stakes are high for the expert and the questioning attorney because the setup had better lead to something material that is going to get a jury’s attention.  If the punch line isn’t all that good, then the attorney loses credibility.  I was relatively comfortable proceeding.

Strike 2: The expert couldn’t link the knees to the fall even with the information he had.

To the expert’s credit, he was loyal to the facts of the case and not a litigation position.  The facts he had been given did not allow him to relate the knee problems to the fall.

12:8        Q.    On the last page of your report, you give
9   your opinions.  I want to start with the knees
10   because it was kind of interesting to me.
11        A.    Okay.
12        Q.    You say, However, I cannot directly
13   relate her knee injuries, slash, pathological
14   findings to the slip and fall accident which
15   occurred on August 15, 2015.
16              Why not?
17        A.    Because orthoscopically, a lot of the
18   findings more consistent with wear and tearing.
19   Even though pain may get triggered by accident, but
20   a lot of findings are degenerative findings.
21        Q.    So is any of [plaintiff]’s
22   treatment for her knee, left knee, caused by the
23   accident, then?
24        A.    So a lot of the changes I find during the
25   surgery more consistent with wear and tearing.  But
13: 1   the trigger, she has pain, I can’t say for sure, if
2   it’s for sure the accident or more from preexisting.
3   I can’t put a number on it.
4        Q.    So is it fair to say in your mind, in
5   your opinion, having reviewed all the records that
6   you have, it’s as equally probable that the left
7   knee problems that you treated were caused by the
8   fall as they are by the degenerative conditions that
9   you found during the surgery?
10        A.    It’s triggered by fall, but to be — for
11   her to be so symptomatic, I don’t know which one has
12   higher contribution.
13              Does that make sense?
14        Q.    If we got to a trial, will you be giving
15   any opinion saying, well, I believe at this point
16   70 percent of it is due to one thing or 30 percent
17   is due to the other or anything that you pick?
18        A.    Well, I can’t put a number.  Put it this
19   way, based on the history, definitely the accident
20   triggered her pain.  But a lot of findings, I find
21   is more degenerative findings.  So I can’t put
22   exactly number saying you know what, the fall is
23   80 percent reason why she has to have a surgery or
24   the fall is 20 percent the reason to have surgery,
25   but definitely it’s a trigger, but I can’t
14:1   proportion it.

Whether this was sufficiently specific for a causation opinion would be a very close call, probably coming down to which judge is assigned to a given case.

Strike 3: Plaintiff didn’t give her prior treatment records to the expert.

I then asked the medical expert if the information he had been given contained any indication that the plaintiff had knee or shoulder problems before the fall.  He replied it did not.  I also asked about the records he had been provided.  He acknowledged he had not been provided any records dated before the fall and had not received any additional records after writing his report.  I then asked if records of prior treatment to the shoulders and knees would be relevant to his analysis.

8:21        Q.    Okay.  If a patient has previously
22   treated for the injuries that you are seeing her
23   for, in his case shoulders and the left knee, is it
24   relevant for you to have records of their prior
25   treatment?
9:1        A.    Depends.  Let’s say if a patient
2   previously had a surgery, it would definitely help
3   to have a previous surgical report.  And if patient
4   just previously seen someone and if the patient can
5   tell me exactly what happened, so not as necessary.
6        Q.    In that situation, you’re relying on the
7   patient to tell you what happened?
8        A.    Correct.

Relying on the patient was a mistake in this particular case.  At this point I said something that should have immediately grabbed the attention of the expert and plaintiff’s counsel.  “Q.    I want to go through some records that you don’t have, actually.”  These records all pre-dated the fall.  Plaintiff’s counsel had the records because I had disclosed them, but the expert didn’t have the records because presumably plaintiff’s counsel never gave them to him.  This was fun, but I fervently hope to never be on the receiving end of it.

19:16        Q.    All right.  Have you ever seen this
17   record before?
18        A.    No.
19        Q.    Okay.  If Ms. [plaintiff] is
20   complaining of right-sided pain, seeing a pain
21   specialist, being referred to Dr. Ong, might that
22   have an impact on your causation opinion?
23        A.    I would say yes.
24        Q.    How so?
25        A.    Because she could have some rotator cuff
20:1   issues.
2        Q.    What about the records that I’ve shown
3   you thus far from Southern Nevada Pain Center gives
4   you the impression she may have rotator cuff issues?
5        A.    Because she’s having shoulder pain.

Houston, we have a problem.

22:9        Q.    Okay.  What is a Hawkins Test?
10        A.    Hawkins is when you test whether patient
11   has impingement when you examine their arm.  So it’s
12   the same thing as impingement sign, so that’s just
13   repetitive there.
14        Q.    Is it good or bad to have a positive
15   Hawkins Test?
16        A.    It means patient is having pain, it’s not
17   good.
18        Q.    In the assessment block below that, what
19   was the physician’s assessment at that point?
20        A.    It says partial tear with rotator cuff.

“Can I use a lifeline to phone a friend?” The expert tried to use an MRI as an escape route.  It didn’t work.

23: 4       Q.    Would you like to have seen this record
5   before you authored your report?
6        A.    This record doesn’t really tell me too
7   much other than patient told me she had history of
8   pain and then with cortisone shot.
9        Q.    Okay.
10        A.    Because the diagnosis there, partial
11   rotator cuff tear, it doesn’t have any base.  I
12   don’t diagnose patient with partial rotator cuff
13   tear unless I have ultrasound or MRI.
14        Q.    Okay.  I’ll show you a record from
15   Dr. Ong, dated January 25th, 2014.
16              Have you ever seen this record?
17        A.    I have not.
18        Q.    Okay.  I will tell you the part — you’re
19   free to look at the whole thing, the part I
20   highlighted is on the last page.
21        A.    Yes.
22        Q.    Okay.  What was Dr. Ong’s diagnosis, at
23   least when he saw her at that point?
24        A.    She has symptoms of right shoulder
25   impingement, AC joint arthropathy, possible rotator
24: 1   cuff tear, as well as possible cervical
2   radiculopathy.

“Launch Maverick on Alert 5!”

26:14        Q.    Okay.  I’m going to show you a record
15   from Southern Nevada Pain Center, dated May 17,
16   2013.
17              Ms. [plaintiff]’s primary
18   complaint at that point is left knee pain, correct?
19        A.    Correct.
20        Q.    All right.  And was she provided
21   treatment on that visit?
22        A.    Yeah, patient was given corticosteroid
23   injection.
24        Q.    What is corticosteroid injection?
25        A.    What is corticosteroid injection?
27: 1        Q.    Yes, sir.
2        A.    It’s a specific medicine they use called
3   Depo-Medrol, it’s one type of a steroid to reduce
4   inflammation.

27:21       Q.    Okay.  I will hand you a record from
22   Southern Nevada Pain Center, dated October 16th,
23   2013.
24              Have you seen this record before?
25        A.    I have not.
28:1        Q.    Ms. [plaintiff] is still
2   complaining of left knee pain?
3        A.    Correct.
4        Q.    Is she provided another injection?
5        A.    Correct.
6        Q.    What does that mean?  In the grand scheme
7   of what we’re looking at, what does that mean when
8   compared to her prior injection?
9        A.    It just means she has ongoing knee pain,
10   it’s getting relief by cortisone.
11        Q.    Okay.
12        A.    Periodically.
13        Q.    I’m going to hand you a record from
14   Southern Nevada Pain Center from January 17, 2014.
15              My only question about this is, did she
16   get another injection?
17        A.    I think she was just referred for
18   orthopedic evaluation.
19        Q.    Did I misread that record?  I thought she
20   got another injection on that treatment date, that’s
21   why I highlighted the sentence on the first page.
22        A.    Last injection help about 75 percent for
23   about a month.
24        Q.    So after a month, it came back — or the
25   pain returned?
29: 1        A.    Correct.
2        Q.    I’ll hand you a record from Southern
3   Nevada Pain Center, dated July 18, 2014.
4              What is Ms. [plaintiff]’s primary
5   complaint on that visit?
6        A.    Left side neck and left shoulder pain for
7   three weeks.
8        Q.    I’ll show you the next record from
9   Southern Nevada Pain Center, dated October 17, 2014.
10              My only question is, is Ms.
11   [plaintiff] still complaining of left-sided
12   shoulder pain?
13        A.    Left-sided neck shoulder pain.

“Goose, EJECT, EJECT, EJECT!!!!”

I kept going like this for a while and went through every single record the expert had never been provided.  Each one documented ongoing treatment in the shoulders and knees before the fall for symptoms that were not improving.  I can’t say the deposition eliminated the damages case, but it at least weakened it, all because plaintiff failed to provide her pre-existing records to her own medical expert. Not only was her expert analysis weakened, but the credibility of plaintiff and her attorney was also weakened.