ABCs of Deposing the Adverse Expert

1. ABCs of Deposing the Adverse Expert Ritchie E. Berger, Esq. Gregory Weimer, Esq. Eileen Blackwood, Esq.

2. The “Discovery Deposition” or “Let the adverse expert talk”

3. Q. In fact, many people think that would be a breach of the standard of care to do a therapeutic or an elective procedure in that setting, right? A. You know, I'm not big on breach of standard of care concept. Q. Okay.

4. A. Again, it has varied over the 16, 17 years that I've been there, but at this point probably 10 to 15 percent at most is research. Q. And how long has that been the approximate percentage? A. Oh, it's probably been that way for the last three to four years. Prior to that I looked at my job description being closer to 60 to 70 percent clinical research. Q. Why the change, out of curiosity?

5. A. Only two motivators of human behavior, sex and money. And there wasn't sex involved in this; it was solely money.

6. Q. Housekeeping, Exhibit 11 is your letter to Mr. Smith containing your invoice for the work you've done in the case as of that date. A. It is.

7. Q. And the $500 per hour you were charging Mr. Smith for that work, how long have you been charging that rate for medical legal reviews? A. Ten years or so.

8. Q. And for this deposition I understood that initially you wanted $750 per hour; is that right? A. Yep. Q. And when did you create that rate?

9. A. Oh, a few years ago when I was told by one of the lawyers I was working with that one and a half times your standard fee was a fairly standard price to charge for this sort of thing. And I got paid for it then so I thought I'd try for it this time. Q.You're dealing with a frugal Vermonter. A.Hey, this is capitalism at work here.

10. Attacking/Challenging The Adverse Expert

11. Q. All right, so let me just get this straight. You're saying for any patient post-angioplasty with a right brachial artery cut-down site, who has a small hematoma without bleeding, has to have a prescription for oral antibiotics on discharge. MR. JONES: Objection. A. No.

12. BY MR. BERGER: Q. Where did I go wrong?

13. A. Well, you described pretty much the usual situation, you know, post-angioplasty with a small - he used the world "small" - hematoma. I don't think that would qualify, but in a patient who had a larger hematoma and lot of dissection, 47 minutes of, you know, catheterization time, difficult dissection, I think that comes to surface here that it was a difficult dissection, mobilizing, isolating the patient’s brachial artery, indicating a lot of potential tissue damage. That's the setting in which infections flourish, and that's the setting that demands a little extra care.

14. Q. Doctor, you would agree with me that was one of the more ridiculous opinions you've ever offered under oath. MR. JONES: Objection! A. No.

15. BY MR. BERGER: Q. How large was this hematoma that it necessitated an antibiotic? A. Ridiculous? Ridiculous opinion? (witness rising) Q. That's right, Doctor. A. I take offense at that. Q. You probably should.

16. THE WITNESS: Let me calm down, otherwise we'll have him inthe hospital. BY MR. BERGER: Q. How large was the hematoma such that it necessitated a prescription of antibiotic? A. Oh, a few centimeters.

17. Q. Was it a small hematoma? A. No, it was a large, record described it as large. Q. Does the record describe it as large? A. I don't know, maybe. Q. Doctor, did you read this record before testifying today? A. Yes, I did.

18. Q. Dr. Johns, Ph.D., M.D., what do you know about her? A. It has been asked and answered. I know nothing about her. Q. Do you know that she is a women's health specialist with a focus on oncology? A. So am I.

19. Q. Did you know that? I asked you a question. A. I told you I know nothing about her. Why do you keep asking the same question? I don't know who she is. I never heard of her. Congratulations on who she is. Q. Doctor, there is no need to be flip here. If you are going to answer the questions … A. You don't need to keep asking the same questions twice and three times.

20. Q. When I get the answers to the questions, I will cease asking them. A. I will continue to answer this way. What are you going to do about it? Q. I will move to exclude your testimony for being … A. Fine. I just told you, go ahead and exclude my testimony. I've got other things to do.

21. Q. Did Dr. Johns also recommend that this patient have a laparoscopy? A. I don't know.

22. Q. Well, why don't you know? You are the so-called expert. A. Because I was only given so much information. If you read what I sent to the attorney, I said I may change my opinion with additional information. I am merely relating to you what I'm aware of. And do you think I like sitting here and being put in a position where half the records were not made available to me? And the answer to that is, of course not.

23. Q. Do you think Dr. Defendant likes being sued and having somebody offer opinions against her without having the records before him? A. And what am I supposed to do if I'm not given the records? Q. Well, if it was you being sued, by God, you would hope the so-called expert had everything …

24. A. First of all, do not ever use God's name in vain in this room again, or I will get your ass out of here. Do you understand me? Q. What are you talking about? A. You just said by God. You just used God's name in vain, and we don't do that. Do you understand? Period, end of story. Q. Doctor, don't tell me how to ask questions, period.

25. A. I will. I will not answer those kind of questions, and I'm going to call hospital security in about two seconds if you are going to continue to curse and use the Lord's name in vain in this office. Q. That is not a curse where I come from. A. It is so. Read the Bible, sir. It is. Know your Ten Commandments.

26. Q. Doctor, I'm not here to get in a religious debate with you. A. This isn't a religious debate. This is my belief, and I don't have to put up with it from you or anyone else. Q. Doctor, don't point your finger at me. Do not point your finger at me.

27. MR. BERGER: Let the record reflect that Dr. Kelso four times pointed his right index finger in my direction I n response to my directive and request. THE WITNESS: Then you stop using the Lord's name in vain. You just said you didn't have to.

28. BY MR. BERGER: Q. Doctor, I'm not going to sit here and put up with this. A. Fine. Go. Leave. That's fine with me. Q. I will expect a refund of every penny that we sent to mymedicalexpertwitness.com. A. That is between you and Jane Levy. Q. Well, it will be between you, too. A. No, it won’t be.

29. Mr. Berger: I would like to take this opportunity to apologize for my actions and immaturity at the deposition held in my office on February 13, 2004. My anger was misdirected at you because of the misrepresentations made by the other attorney. She had represented to me that all pertinent records were made available to me, and that only one physician was involved with her care and decisions regarding the laparoscopy. I learned subsequently that she provided you with over 15 years of medical records and the Vermont Board of Medicine's action which I knew nothing about. In retrospect, I should have never begun the deposition and certainly once I became aware of the unseen records, I should have asked that the deposition stop. It was my mistake not to have done so. Please note that I have refunded the $500.00 and have advised her to stop payment on any checks that she has written to me regarding this case. Please accept my sincere apology. Sincerely yours,

30. Cross-Examination of the Adverse Expert Witness for Later Daubert Motion

31. DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF MARILYN PIKE, M.D. In this case, Dr. Pike’s testimony is anything but reliable. Specifically, Dr. Pike is unable to cite any peer-reviewed literature or credible studies to support her opinion. Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 253 (2d Cir. 2005); Robinson v. G.D. Searle & Co., 286 F.Supp.2d 1216, 1221 (N.D. Cal. 2003) (stating that even where methodology is reliable, underlying facts and data must be sufficient for expert testimony to be reliable).

32. More importantly, Dr. Pike openly admits that the causes of Lupus and Scleroderma are unknown; yet, regardless of this fact, she proposes to testify about a bacterial infection as the etiology of such autoimmune diseases without being able to cite any reliable sources of authority. (Expert Dep. 99:22-24.)

33. From Dr. Pike’s Deposition: Q. Have you been able to find anything to support your hypothesis in this case, yes or no? A. There is one article of a patient with sepsis, and I believe that there was another one I had where a patient developed lupus afterwards. Q. You seriously are citing the case report as supporting your opinions in this case? A. The etiology and causes of these diseases, the exact cause is unknown. We established that at the beginning of this deposition.

34. RULING ON DEFENDANTS’MOTION IN LIMINE Here, Dr. Pike has offered no evidence at all that her theory of causation has any scientific support. It basically consists of "well, other things like this can be caused by infection, and I can't see any other explanation, so it must be this even though no one has ever studied it or reached any clinically-supported conclusions about it”. This is precisely the sort of unsupported opinion evidence that Daubert directs courts to exclude from jury consideration.

35. ABCs of Deposing the Adverse Expert Ritchie E. Berger, Esq. Gregory Weimer, Esq. Eileen Blackwood, Esq.