By MATT CHANDLER
Buffalo Law Journal

Two homicide victims, a relatively new technology called DNA testing and an NFL Hall of Fame murder suspect introduced a television audience of 150 million to the role of expert medical witnesses in the American judicial system. Fifteen years later, with the specter of the O.J. Simpson trial a distant memory, expert witnesses remain an intricate component of most personal-injury and medical-malpractice cases.

Though highly dramatized on television shows such as "Law and Order," attorneys say the role expert witnesses play in a trial, while critical, is not as dramatic as it may appear. Still, most consider a professional, believable expert witness with a polished pedigree to be worth his or her weight in gold. Finding those experts, integrating them into a case and selling them to the jury is where the art of the job comes into play.

Kevin Wicka, a personal-injury attorney with Brown & Tarrantino LLC, says the value of a medical expert in a personal-injury case is twofold.

"First, you need them to establish a serious injury, because you are required under New York state law to establish a serious-injury threshold or you cannot recover for the client," he said. "Once you establish that issue, they are an important witness for damages. They are not only going to help you establish what the injury is, but how painful is it, what kind of residual injury is this person going to have, what will their long-term limitations be, things like that."

While most people consider anyone with a medical background who testifies at trial to be an "expert witness," Wicka says there is a distinct difference.

"A true expert is someone you would hire independently," he explained. "But often, who you are going to use as an expert is the client's treating physician. So under the law, they are not considered expert witnesses, they are fact witnesses."

It's gonna cost you

Expert medical witnesses, regardless of their relationship to the plaintiff, carry a steep price tag for their time. By law, witnesses are paid for their time, not their testimony.

James Morris spent 20 years working as a defense attorney for doctors facing malpractice lawsuits. Today, he works as a plaintiff's attorney handling personal-injury cases.

"If you've got a neurosurgeon who is doing a lot of surgeries and he has to prepare for a day and spend the better part of a day on the stand, he might charge you $10,000, $15,000 to testify," Morris said.

A higher price tag doesn't always equate to a more persuasive witness, he noted.

"The defense physicians tend to be retired, and they will spend all the time you need going through the records for hours on end," he said. "The treating physician, who has an active practice, doesn't have the time to do that. So the defense experts may often turn out reports that are 30, 40, 50 pages long and document everything that ever happened to this patient. The plaintiff's physician is not devoting his life to testifying."

The money issue can get "incredibly frustrating" when it overshadows the case at hand, Wicka says.

"You have practical considerations that just can't be ignored," he said. "If someone has a very limited policy, and if the defendant doesn't have very many assets, that's really what you are looking at. If you have a $50,000 policy, are you going to spend $10,000, $15,000, $20,000 on expert witnesses when you are cutting into the client's potential award?"

Wicka said those limitations come into play long before a case makes it to trial.

"Candidly, the defense knows roughly how much you are going to have to spend to bring these experts in," he said. He told of a case where the cost of expert witnesses was leveraged against him to the detriment of his client. 

"The case involved a $100,000 policy, and (the defense) knew the case was probably beyond what the policy was worth," said Wicka. "Not only were they not going to offer the policy in that case, they were going to factor off what it was going to cost me to go to trial. Theoretically, you want to say you are going to do everything you can for each and every client, but does it serve the client if their whole recovery gets eaten up in expert-witness costs?"

Matching wits

Finding an expert witness to match your needs at trial can be tricky. As with other areas of the business, Morris said it depends a lot on which side of the fence you are on.

"If you are on the defense side, you will have the cooperation of the local medical community, but if you are representing the plaintiff, the difficulty you have is, the local medical community is loyal to each other," Morris said. "They refer cases back and forth, and you end up with the question of will a local neurologist want to testify against another local neurologist?" Faced with that situation, he said, attorneys often bring in out-of-town experts. "In those instances, the defense is able to characterize the out-of-town physician who is testifying as a paid charlatan."

Handling expert witnesses can be a delicate trade. For the plaintiff's attorney, how do you sell your highly qualified expert to the jury, then cross-examine and poke holes in the testimony of the equally qualified expert the defense has retained?

James Scime, a lawyer who's been practicing since 1977, says it comes down to creating some distance between the dueling experts in the minds of the jurors.

"If you were deciding who to believe on a contested issue, who would it be, the doctor who came to see the patient and whose primary goal is treatment, or somebody who, based on a single examination and the review of records, offers an opinion for a handsome fee?" said Scime, a partner in Lipsitz Green Scime Cambria. "Add to it the fact that they want this type of consultation work in the future, and does it color their opinion? It may or may not be true. I don't call people liars, but it may be so subtle as to emphasize one aspect of the case over another."

Diane LaVallee spent 13 years in the Erie County District Attorney's office and now serves as the deputy director of the special-investigations unit for the New York Department of Taxation and Finances, Western Division. LaVallee teaches aspiring lawyers the art of examining expert witnesses through a between-semester "bridge" course at the University at Buffalo Law School, and says there are cases where the most effective way to create that separation between expert witnesses is by not putting one of your own on the stand.

"When you know the other side is calling an expert witness, do you put one on or not?" she asked. "Sometimes, the expert is somebody you don't want to give credence to, anything they are testifying to. Typically this would be in the soft sciences like psychiatric or psychological testimony.

"So do you want to just do your best to attack their witness and devalue their testimony, or try to bring in your own expert to go head-to-head?"

LaVallee also said it is the attorney's job to act as the bridge between the medical expert and the jurors to ensure that nothing is lost in translation. She views how an attorney handles the expert witness as a critical component of any case.

"The most important person a jury has to believe is the attorney," LaVallee said. "If I put an expert witness on the stand and that person is talking over the jury's heads, or I'm not asking the questions of that witness that the jury wants to hear, it is going to reflect on me." She said despite what people see on television and in the movies, dramatic attacks on expert witnesses are rare, and often ineffective.

"When you get a witness up there who is lying through their teeth or is just being vile, and you treat them with kid gloves, the jury is going to say, ‘What are you doing,' " she said.

"Worse, I think, is when you've got a nice witness that you come after with a sword instead of a scalpel. The jury will end up angry with you."