How to Properly Use Literature to Support Your Expert Witness Opinion
Excerpted from SEAK’s Course: How to Excel as an Expert Witness in Medical Malpractice Cases
So, potential reasons conflicting literature wouldn’t be applicable. It’s outdated, or it doesn’t apply. Statistics aren’t based on a large enough control group. Publication isn’t peer-reviewed. Publisher isn’t reputable. It’s not a respected minority opinion. Some of these examples come from Daubert hearing opinions that the courts have written, so you see how the courts analyze literature and find it to be reputable or not. So, these are ways to assess conflicting literature to distinguish it and show why it wouldn’t apply in your case, why it wouldn’t negate your own opinion.
You got to be ready to identify what literature supports your position. It’s not enough to say, “There’s a lot out there. There is enough out there.” It’s just not appropriate. It’s certainly not enough to say, “It’s in Wikipedia. Just look it up in Wikipedia.” Let me show you an example. This expert got himself in trouble. It’s not a medical malpractice case, but it’s a case where the guy was being asked to describe where he got his methodology. He was asked, “Where did you get your methodology from? How did you calculate the confidence interval? It’s a standard calculation if I want to check you on it, where do I check?” And the guy replies, “You can look on Wikipedia. You can look on Wikipedia.” So he asked him to identify, “Where did you get this from?” And the guy just couldn’t answer. He just kept going back to Wikipedia. It could be found in literally any textbook, but he didn’t disclose any textbook.
So, he says it could be in any textbook. So, of course, the attorney’s like, “So, which ones are you referring to? Where would I go?” “Virtually anyone.” “Give me one.” “I wouldn’t know right now. I can’t tell you right now.” So, that just totally undermines what he’s saying, right? “Oh, it’s in any textbook.” “All right, name one.” So what happened to this expert? He wasn’t allowed to testify.
Listen, you need to ready beforehand. You can’t be looking it up right there, right? I’m gonna be very unhappy with my expert who is starting to do a Google search in response to a question. You got to be ready to… This is how you set yourself apart, right? This is why we’re talking about this. See, I’m not just saying this, I’m showing you. Attorneys ask you these questions. “If I wanted to check you on it, where would I go? Tell me a source. Where’d you get it?”
Why are those questions asked? Because they can be so effective in knocking people out. Because of those questions and the inartful answers of the expert, that expert wasn’t allowed to testify. The attorney succeeded in excluding that expert because of him saying, “Oh, it’s on Wikipedia, but I can’t tell you any other source.”
So, it’s a really effective area of questioning, which is why attorneys go there. You gotta be ready for it.