Steven Babitsky, Esq.
Opposing counsel may make a mistake during cross-examination of an expert witness. Experienced expert witnesses know how to take advantage of these opportunities.
Here is how two experts capitalized on the mistakes of opposing counsel.
“Sometime ago I was asked to be a defendant’s expert witness in a medical malpractice case. The allegation was that the urologist injured the femoral nerve in the course of an open operation to remove a lower ureteral stone. Immediately after the operation, the patient/plaintiff complained of weakness and pain in the ipsilateral thigh. The prosecution’s position was that this was a “res ipsa loquitor.” The contention was that the patient had no problem with the femoral nerve prior to the surgery and, afterwards, did have femoral neuropathy. The possibility that the alleged injury could have occurred from position on the table or transfer from the operating table to the stretcher or the epidural spinal injection used for anesthesia was not entertained.
As an expert, I had a large rendering of the urinary tract and its relation to the spine and other intra-abdominal organs. It was mounted on an easel, and I pointed out to the jury where the ureter was and where the stone had been removed. The plaintiff’s attorney then stepped up to the picture and said, “Dr. Strauss, could you show the jury where the femoral nerve is located?” My response was, “That’s the whole point. This portion of the ureter does not come anywhere near the femoral nerve.”
The outcome was a jury decision in favor of the defendant. I feel that my graphic demonstration of the anatomy was far more effective than a verbal description and was probably instrumental in leaning the case of the physician defendant.”
I was testifying in court on asphyxiation deaths resulting from failure of a diesel-powered generator on a yacht. This was the third such failure which involved a total of 8 fatalities. The failure was in the exhaust line from the onboard, diesel engine which caused carbon monoxide fatalities.
I was asked by opposing (defense) counsel, if I were aware of any complaints regarding similar failures. I was not aware of any written or voiced complaints. My incredulous response was “How could you possibly ask me if there had been any written complaints, when this is the third such incident of fatalities, and the total killed, so far, is eight.”
The jury ordered compensatory damages plus $25 million in punitive damages to the estates of the deceased.