Medical Expert Witnesses: When is it Time to Empty the Stable?

Human nature compels us to use resources efficiently, but the recycling of medical expert witnesses often brings more problems than it solves. Reusing an expert is an inclination that typically occurs after an expert’s testimony leads to a favorable settlement or verdict. Should the attorney encounter a new case that seems relatively similar to a predecessor, the natural tendency is to rekindle the expert in anticipation of another victory. When enough experts are amassed in the fold, the path of least resistance is to pull the sure bet from the stable. While there is obvious efficiency in relying upon a stabled expert, there are several factors that should enter the calculus before making such a mission-critical, and perhaps costly, decision.

1. Am I choosing the correct specialty for the case? Given the fact that the skillset and credentials of the medical expert are paramount to the success of the case, this question forces one to consider whether the expert was considered for excellence or expediency. For example, an attorney may instinctively reach back to a general Orthopedic Surgeon who was a valuable resource in a prior case rather than seeking an Orthopedic Trauma specialist better suited for the current set of facts. This situation is increasingly common given that there are over 250 recognized medical specialties and subspecialties. Even within the field of Ophthalmology there are at least seven areas of focused specialization, and rarely do the subspecialties cross. Beyond the essential metric of specialty fit, one must also consider how often the expert diagnoses and treats the condition in question, and the extent to which the candidate is an unimpeachable subject matter expert. Exact alignment is not only a commonsense requisite, it is intuitively expected by the trier of fact and statutorily mandated in an increasing number of jurisdictions. For all these reasons, identifying the correct areas of expert specialization is the first step in identifying potential candidates. If a go-to expert doesn’t match, it is time to pass.

2. Is this the ideal expert for the unique variables of the case? Cases have varying degrees of complexity, record volume, urgency, value, exposure, combativeness, and risk. When considering tactical resources, it is improbable that the optimal expert resides in a limited stable of choices. Due diligence mandates an impartial exploration of each candidate’s singular fit for the assignment. While a perfect match is not an absolute requisite, shortcutting a key requirement risks the integrity of the case. Whether choosing from a stable or a fresh resource, be sure to fully discuss the scope of the task and ask essential questions regarding the candidate’s fitness for the case. This includes objective factors such as the expert’s immediate and long-term ability to commit to the case, their willingness to absorb the anticipated volume of records and pleadings in the case, and their freedom from any identified conflicts of interest. Subjective assessments of confidence, resiliency, persuasiveness, likeability, and raw intellect can be gleaned from the same conversation. By following these steps, the ideal expert is revealed and aligned rather than perfunctorily appointed.

3. What other subjective expert facets would benefit the case? Beyond core requirements, there are innumerable expert traits and attorney preferences to consider for every assignment. For some cases, an expert close to the trial venue facilitates travel and cost-savings, but for high-stakes litigation one typically opts for giftedness over convenience. Depending on the case’s venue, fact set, and parties, a skilled litigator may have a palette of expert preferences including demographics, depth of testimony experience, accessibility, academic title, and publications. While no single variable may be dispositive, one or more facets may tip the scale toward choosing a given candidate and ultimately strengthen the odds of winning the case. Rarely will a stabled expert meet all subjective preferences and requirements.

4. Is there an appearance of impropriety by using a “go-to” expert? Even the most impeccable expert may be tempted to favoritism or undue advocacy for an ongoing client. That is exactly why one of the first questions your expert will be asked on cross-examination is how often he or she has worked for your firm. Whenever the answer is more than one, there is risk. When the answer is “I review a lot of their cases,” Pandora’s Box has opened and your expert’s credibility is in the crosshairs of predictable questioning. How long have you known Attorney X? How many cases have you reviewed for their firm? How many times have you written a report or testified for them? How many dollars have you billed their firm for case reviews and testimony? Have you ever given them an opinion that didn’t support their side? Even if those questions don’t make you nervous, they will rile nearly any expert and cast an appearance of impropriety upon your relationship. If the insinuations resonate with the trier of fact, the expert’s integrity is threatened and the entire case is imperiled. Such costly risks are better avoided from the outset rather than remediated at the 11th hour. Cautiously reuse, but never overuse, an expert.

5. Is the expert still properly credentialled with an active clinical practice in the exact area in question? While longitudinal experience is what creates a go-to expert, it is ironic that the same longevity often derails the relationship if the expert’s credentials show signs of age. Reduced clinical hours, loss of Board Certification, and other practice modifications are often signs that an expert is at a different point in their career than when they joined your first case. While some factors are less relevant than others, it is imperative to assure that each candidate has maintained ABMS (American Board of Medical Specialties) certification along with full-time practice in medicine or surgery, particularly at the time that the claims in the case arose. Equally as important, the expert must be practicing in the exact same areas relevant to the claims and should have a depth of experience exactly on point for the issues. This is different than the less stringent requirement of simply matching the correct specialty. A common mistake is to use a poorly suited go-to expert for a first look or preliminary affidavit with the intention of pulling in a “real expert” later. This strategy wastes time and capital by securing an opinion that may be invalid from an expert who either can’t be disclosed or who ultimately may be disqualified. The best strategy is to properly screen candidates and secure a reasoned, reliable, and highly qualified opinion from the outset.

By valuing experts as strategic assets rather than mandated necessities, one quickly realizes that the optimal expert for any given case is chosen from a tactical arsenal rather than an overused stable. On rare occasions when the perfect expert comes from a prior list, then the benefits may outweigh the risks. The true test is to consider each physician and surgeon as a “candidate” rather than an “expert.” Even though you are already acquainted, take time to discuss the case, obtain an updated curriculum vitae, and ask tough vetting questions. If the familiar expert doesn’t pass the screening interview, or if either of you is intimidated by the process, it is time to explore more qualified candidates. Using this approach gives your case the best chance of success while avoiding costly mistakes.

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