3.  Legal Basics

a.  Introduction

There are certain legal rules that apply to all cross-examinations and others that apply to expert cross-examinations in particular. We will briefly review these below.

 b.  Phrasing  and ordering your questions

Cross-examination is essentially a series of statements made in the form of questions to which you know the correct answer and can hurt the expert if he or she disagrees. You should rarely if ever ask a question in any other format when cross-examining a witness. For example:

Q: In treating patients you are required to document significant medical events, right?

Q: One of the reasons for that is to document what you have done so it is available for review where pertinent, correct?

Q: The other reason is to communicate information to other health providers involved in the patient’s care, is that right?

Q: In the course of your practice you read and interpret notes and reports every day, is that a fair statement?It is important to phrase your questions in an instantly comprehensible and uncomplicated way. This makes it more difficult for the witness to avoid answering the question. It is also important to limit each question to a single point or fact. Asking long rambling compound questions is like giving the witness a free pass to avoid answering without the jury appreciating the avoidance and holding the witness accountable. 

Leading questions can also be asked to a hostile witness called during your direct case so long as a foundation is laid for the adverse relationship. In the case of an adverse party, who is per se hostile to your case, leading questions are always appropriate. See Richardson on Evidence, 11^th Edition, §6-228.

Avoid using equivocal words that will also give the witness room to equivocate. For example: Asking: “That was a pretty big tumor?” allows the witness to answer “Well I am not sure what you mean by ‘pretty big’”. You must be literal and specific so there is no room for escape. “The tumor in the plaintiff’s brain measured 5 cm by 3 cm by 4 cm didn’t it?”  “Yes”. “That is bigger than a golf ball isn’t it?”

Your leading questions should be grouped into chapters that lead to a point you want to make. You should have a number of chapters for your cross-examination. We will discuss arranging these chapters when we discuss strategy below.

 c.  Foundation

One of the important legal principles to keep in mind is that an expert’s opinion must have a proper foundation. It is well settled that the facts on which opinion evidence must be either found in the record or personally known to the witness. Hambsch v. N.Y. City Transit Authority, 63 NY2d 723, 725 (1984). The Court of Appeals has recognized two limited exceptions to this rule, holding that an expert witness may rely on out-of-court material only if: 1) it comes from a witness who is subject to full cross-examination at trial, or 2) “it is of a kind accepted in the profession as reliable in forming a professional opinion.” Id. at 726, quoting People v. Snugden, 35 NY2d 453, 460-461 (1974). In order to qualify for the “professional reliability” exception, there must be evidence at trial establishing the reliability of the out-of-court material on which the expert relies. Hambsch, 63 NY2d at 726. Where an expert cannot or will not identify the studies on which he relied in forming his opinion, there is no evidence to establish their reliability, and the expert’s opinion is inadmissible. Id. at 725-726. If the deficits in the expert’s testimony are revealed after he has stated his opinion, the testimony should be stricken. R. Farrell, Prince, Richardson on Evidence §7-308 at p. 470-471 (11^th ed., 1995).

In Hambsch, for example, the issue at trial was whether the plaintiff had sustained a “serious injury” within the meaning of the “No-Fault Law.”  The plaintiff claimed that she met the serious injury threshold because she had sustained a fracture. At trial, the only evidence of a fracture was the testimony of the plaintiff’s physician that plaintiff was suffering from spondylolistheses and that spondylolistheses is caused by a fracture. The basis for the latter opinion was the physician’s discussion with a radiologist, who held that opinion based on an unidentified study. On appeal, the Appellate Division found the opinion testimony of the physician to be inadmissible, and dismissed the complaint. The Court of Appeals affirmed, noting that the plaintiff had presented no evidence of the reliability of the out-of-court material used by her physician as the basis for his opinion. Hambsch, 63 NY2d at 726.

In Santiago v. Veloso, 3/1/93 NYLJ 32, col. 1 (Sup. Ct., Nassau Co., 1993), a medical malpractice case, the court ordered a new trial where the defendant’s expert testified that there was “fairly extensive literature” from Germany, England and the U.S. supporting the defendant’s use of ordinary table sugar to treat a surgical wound infection. On cross-examination, however, the expert was unable to identify any controlled studies concerning the use of sugar in wound infections published in the U.S. prior to 1985, the date of the alleged malpractice. Because the expert “did not identify or establish that any of the published data or literature upon which he relied is of a kind accepted in the profession as reliable in forming an expert opinion,” the court held that his testimony “cannot be afforded any weight.” Id. See also, Nickerson v. Winkle, 161 AD2d 1123, 1124 (4^th Dept, 1990) (in action against a well operator for trespass and unfair pooling, trial court erred in failing to require plaintiff’s expert, on cross-examination, to specify the data, sources and other criteria for his opinion); Matter of Frontier Park v. Assessor of the Town of Babylon, 2000 WL 622579 (Sup. Ct., N.Y. Co., 4/17/2000) (in tax certiorari proceeding, petitioner’s expert’s failure to specify data underlying his opinion on valuation deprived respondent of any real opportunity to cross-examine him regarding the data’s applicability to the proceeding and the comparability of the sales therein to the subject properties).

Cross-examination seeking the factual basis of an expert’s opinion and must be contrasted with attempts to impeach an expert’s opinion because it differs from something in a learned treatise. (See below section 3(f)).

d.  Scientific Certainty

An expert’s opinion must be based upon a reasonable degree of scientific certainty. Although courts no longer require that the phrase “reasonable degree of certainty” be repeated with each question asked, the expert’s opinion must still be based upon that level of certainty. As stated by the Court of Appeals in Matott, v. Ward, 423 NY2d 455, 459-460 (1979):

“Dr. Millard exhibited a degree of confidence in his conclusions sufficient to satisfy accepted standards of reliability. Granted that “a reasonable degree of medical certainty” is one expression of such a standard and is therefore commonly employed by sophisticates for that purpose, it is not, however, the only way in which a level of certainty that meets the rule may be stated. For, an overview of New York case law reveals that the requirement is not to be satisfied by a single verbal straightjacket alone, but, rather, by any formulation from which it can be said that the witness’ “whole opinion” reflects an acceptable level of certainty (Martin, Uncertain Rule of Certainty, An Analysis and Proposal for a Federal Evidence Rule, 20 Wayne L Rev 781, 790). To be sure, this does not mean that the door is open to guess or surmise, and admittedly, “a degree of medical certainty”, taken literally and without more, could very well be so characterized.”

Opinions expressed as “could be” or “it is possible that” are generally not admissible. See Neidert v. Austin S. Edgar, Inc., 204 AD2d 1030, 1031 (4^th Dep’t 1994); Duffen v. State, 245 AD2d 653, 654 (3^rd  Dep’t 1997).

e.  General acceptance – Frye and Daubert

Although the topic of Frye and Daubert challenges are beyond the scope of this article, this area must be considered when strategizing as to how to attack an expert. If the expert’s opinion is sufficiently novel to justify a motion under Frye or Daubert, it may provide you at best with a way to keep the expert’s opinion out, and at worst, an opportunity to learn more about the basis of the opinion.

 f.  Impeachment with learned treatises

In state practice impeachment with learned treatises is extremely difficult to do. This is because the witness has the ability to fend off the impeachment by merely refusing to concede that the text is authoritative. Experienced expert witnesses are trained to say that nothing is authoritative so that this device cannot be utilized. See Labate v. Plotkin, 195 AD2d 444 (2^nd Dep’t 1993). The only time you may be able to use a treatise in this way is if you are impeaching a doctor who is also a defendant and you were able to get him or her to discuss the treatise at a prior deposition before the witness knew about the rule. Sometimes this can be done by asking the doctor if he has reference books in his office in his area of expertise that he finds reliable and refers to from time to time as a reference.

Federal Rule of Civil Procedure 803(18) allows a cross-examining attorney to use a learned treatise so long as any qualified expert in a case vouches for its authoritative nature. Thus, your expert can refer to the text and then you can use it against the other expert.

g.  Impeachment generally and collateral matters rule

There are a number of areas of impeachment that are generally permitted, but these rarely come into play when impeaching an expert witness like a medical doctor. They include 1) reputation for truth and veracity; 2) prior bad acts, 3) conviction of a crime; 4) intoxication, drug use and mental illness. For these, except for the conviction of a crime example which is covered by statute(See CPLR 4513), you are stuck with the answer the witness gives because the collateral matter rule precludes you from disproving the witnesses’ answer on collateral matters. See People v. Alvino, 71 NY2d 233, 248 (1987).

There are other areas of impeachment where you can attack the witness after an untrue answer is given. These include prior inconsistent statement in either a deposition transcript or published article authored by the witness.

An area of impeachment that is frequently used with expert witnesses is bias, prejudice and interest. These all go to the money a witness is making as well as a tendency to always testify for one side or the other. For instance, “Doctor, you have testified in 48 trials in your career and 47 times it was for the plaintiff, correct?”  Or “Doctor  you have been paid $10,000 to provide your opinion to the jury today, is that correct?” [Part 4 coming Thursday, June 10, 2010]