A good medical expert can be the difference between freedom and life behind bars, said leading Michigan personal injury attorney Mike Morse in his most recent “Open Mike” podcast.
But when medical experts testify for opposing sides at trial, and one says “left” while the other says “right,” how does the jury decide who to believe?
“Assuming we’ve got two equally matched experts, and they reach an exact opposite opinion, a lot goes to the character of the expert and the credibility of their testimony, how believable, how likable is that person, how they resonate with the jury,” said Dr. Burton Bentley, who was Mr. Morse’s featured guest on the podcast. “Countless times, when the jury was interviewed afterward, it has come down to, ‘I just liked that expert,’ or ‘I trusted that one’ or ‘That’s a doctor who I would let treat me.’”
Dr. Bentley knows a thing or two about expert witnesses. A board-certified emergency medicine physician, he is also the founder of Elite Medical Experts, a 10-year-old Tucson, Ariz.-based firm that has aligned top professors of medicine and surgery with nearly 8,000 expert witness engagements. Elite has served plaintiff and defense attorneys, insurers, corporations and governmental entities in all 50 states and abroad.
Some medical experts make better witnesses than others.
Attorneys bring experts in to testify about complex issues that can’t be decided by a layperson unless they are explained by someone with expertise in that area. The role of the medical expert is not to decide if the defendant is innocent or guilty, but to provide complex education so that others can make that decision.
When two experts have opposing opinions, a “hired gun” – someone who earns most of his income from providing expert testimony – is going to be less credible than a practicing professional who only rarely serves as an expert witness.
If someone is an “advertised expert” – such as if they hang a shingle that says “Dr. Smith, Legal Expert” – it’s “one of the telltale signs” that the expert is “not a medical professional who is there to educate the trier of fact in the interest of justice” but someone who is “there to earn a living,” Dr. Bentley said. An advertised expert will come across as markedly less credible than a board-certified, licensed physician or surgeon with a full-time clinical practice who focuses mainly on treating patients and activities like teaching the next generation or conducting research.
Expert testimony can be the difference between conviction and exoneration, and when defendants’ attorneys do not seek out proper experts to support their case and the prosecution does, it can lead to injustices, as is often the case with indigent defendants.
“It’s astonishing how often facts are glossed over because an expert isn’t brought in,” said Dr. Bentley, whose firm has provided expert testimony for indigent defendants. “Depending on who you are, you may have access to the best experts in the world…or no experts.”
Further, when there are no experts testifying on behalf of the defense theory and the prosecution has several, “It looks like you couldn’t produce someone to defend your side,” Dr. Bentley said. “So you’ve already got one strike against you before we even get to the facts of the case.”
Dr. Bentley is in the middle of a case that he said has intrigued him on many levels.
An Ohio man is serving a 30-year prison sentence after he was convicted in 2008 of aggravated murder, aggravated robbery and other charges stemming from a 2000 incident in which a man was stabbed 51 times.
The evening before the body was discovered, the defendant, James Brenson, admitted to being at the victim’s home, purchasing fireworks.
“I was intrigued by the homicide itself. I’m an emergency medicine specialist, and I have dealt with some pretty gruesome forensic situations. In this one, there was such a degree of overkill, what we often see in a crime of passion,” Dr. Bentley said. “If you’re robbing someone…you don’t stab them 51 times.”
Dr. Bentley read on and discovered from the autopsy report that the victim had five pills in his stomach that had not yet been digested, which indicated he had taken them very proximately to his death.
This made Dr. Bentley ponder, as he has in his emergency medicine practice, the suddenness by which someone’s life can completely change.
“Here’s a man who takes his medication and before he can even digest it, he’s stabbed 51 times,” said Dr. Bentley, who went on to read that it came up in testimony that the man takes his medications in the morning.
“If he took them in the morning, it looks like he was killed shortly afterward, not 10 or 11 hours earlier when Mr. Brenson was there,” Dr. Bentley said, adding that the pills were not a focus of the trial.
“When I looked at it I was stunned,” Dr. Bentley added. “I couldn’t understand that no one had addressed these pills.”
Mr. Brenson’s lawyers are likely headed toward filing a motion for relief from judgment.
Medical experts are often called in to testify at child abuse cases, for which the core question is whether a child’s injuries were accidental or inflicted by someone. Experts look at patterns of injury to determine if they are consistent with inflicted trauma.
“There are a lot of children who are clearly the victim of child abuse,” Dr. Bentley said. “But the important thing is to make sure everyone is treated fairly, victim or accused.”
In a recent case, a baby had an “incredibly suspicious pattern of head trauma,” Dr. Bentley said. “If you look at it, in two seconds, it is child abuse.”
But the family claimed that the baby frequently banged its head on its crib. And they had video from a baby camera to prove it.
“This baby can hold onto the crib and go ballistic banging its head on the crib,” Dr. Bentley said. “They recorded it, thinking ‘if one day this baby gets hurt, someone’s going to think we did this.’”
He added, “In two seconds, my mind had to go 180 degrees… to I now have not only a plausible theory but I’ve got the most probable theory. In fact I think I’ve got the answer.”
In a situation like this, however, it’s important to still delve further through the facts and go over the entire body of evidence, he said. After all, there could still be abuse in addition to the self-inflicted trauma.
But this case illustrates the need for medical experts to check their preconceived notions and prejudices at the door.
“It shows how important it is to really enter these things with a clean slate,” he said.