Expert Witness Mistake – Expert reviews a case for both plaintiff and defense attorneys

An expert witness destroyed his credibility in a deposition. Here is what happened.

A woman suffered a stroke and had a cardiac arrest. The plaintiff contended that the treating doctor should have done diagnostic testing when the woman was first disoriented and been transferred to ICU where she could have been more closely monitored.

Expert witness mistake

The physician expert sitting in the deposition room on behalf of the defense had been contacted by the plaintiff attorney two years before he was contacted by the defense attorney and before the case was filed. He prepared handwritten notes for the plaintiff attorney that stated the case was meritorious as to both liability and causation. He had declined at that time to go on record as a plaintiff expert, because he knew some of the physicians involved. He forgot he wrote the notes (and apparently the case).

During the deposition, the expert testified that there had been no breach in the standard of care. After two hours of testimony at this expert’s deposition, the plaintiff attorney confronted the physician with his own handwritten notes. His notes proved that two years before he appeared at the deposition for the defense, he thought the case was meritorious.

The plaintiff’s attorney had made the strategic decision to say nothing until the expert was deposed. Questions for the deposition were crafted using the wording of the report that the plaintiff’s attorney had pulled out of his briefcase and had marked as an exhibit. The expert admitted that report was in his handwriting, with his signature affixed. A $1.1 million settlement was reached in this Michigan case.

Iyer’s Insights

How many cases do you think this expert is reviewing now? Attorneys talk and word of this expert witness mistake no doubt spread among attorneys.

Experts never want to get caught in this trap. Their credibility will be destroyed. This scenario might happen to a busy expert who reviews lots of cases and has sloppy records. Good record keeping is essential.

If you are an expert witness, make sure you have some type of record keeping system that allows you to look up the name of a plaintiff and defendant to ensure you have not already reviewed the case. If you run an expert witness referral service that provides experts, make sure you have not already provided the case to the expert before.

It is also a conflict for your expert witness referral service to supply experts to both the plaintiff and defense attorney for the same case. Be sure you check your records before you supply a CV of an expert. Avoid embarrassment by taking a few minutes to check.

Pat Iyer MSN RN LNCC ran an expert witness referral service for 25 years before selling her company in 2015. Pat wil show you the profitability of an expert witness location service in a free new webinar . Use this link to join the program. Pat Iyer is past president of the American Association of Legal Nurse Consultants.

She coaches LNCs who want to make more money, get more cases and avoid expensive mistakes. See www.LNCAcademyinc.com.