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Selecting and Preparing Plaintiff’s Experts
by Jeffrey N. Roy
Contents
The Role of the Expert in
Litigation
Selection and Retention of Experts
in Multiple Chemical Sensitivities Cases
Sources for experts
Internet resources on experts
Checking Experts
Qualifications to Testify
Initial Preparation of experts
Spoliation of Evidence by Experts
Outline of
Examination of
Plaintiff’s Treating Physician
Suggested Further Reading
The Role of the Expert in
Litigation
Expert witnesses have become prominent players in the courtroom. The fact finder
in a case needs expert testimony to help it reach decisions in cases and to
guide it to the truth. Expert testimony is useful in allowing the fact finder to
figure out what happened in a case, when what happened is beyond ordinary
experience. The Federal Rules of Evidence embody a "strong and undeniable
preference for admitting any evidence having some potential for assisting the
trier of fact." DeLuca v. Merrell Dow Pharmaceutical, Inc., 911 F.2d 941, 956
(3d Cir. 1990). "Rule 702, which governs the admissibility of expert testimony,
specifically embraces this policy," United States v. Velasquez, 64 F.3d 844, 849
(3d Cir. 1995), and has a liberal policy of admissibility. In re Paoli R.R. Yard
Litigation ("Paoli II"), 35 F.3d 717, 741 (3d Cir. 1994). Together, Rules 702
and 104(a) instruct the district court in determining the admissibility of
expert testimony. Rule 702, which is the same as Rule 702 of the Massachusetts
Proposed Rules of Evidence, provides:
If scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise.
Under Rule 104(a), the district court makes preliminary determinations whether
the proposed expert witness is qualified and whether the testimony to be given
is admissible under Rule 702. See Daubert v. Merrell Dow Pharmaceuticals, Inc.,
113 S. Ct. 2786, 2796 (1993). This preliminary task ensures that the testimony
meets a minimum threshold of reliability and relevance. Id. at 2795; Velasquez,
64 F.3d at 829.
The same rules govern the admissibility of expert testimony in Massachusetts
State courts.
The trial judge has a significant function to carry out in deciding on the
admissibility of a scientific expert's opinion. If the process or theory
underlying a scientific expert's opinion lacks reliability, that opinion should
not reach the trier of fact. Consequently, the judge must rule first on any
challenge to the validity of any process or theory underlying a proffered
opinion. ''This entails a preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid and of whether that
reasoning or methodology properly can be applied to the facts in issue." Id. at
2796. The judge thus has a gatekeeper role.
Commonwealth v. Lanigan, 419 Mass. 15 (1994) (quoting Daubert v. Merrell Dow
Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993)).
Experts essentially have two functions in litigation, consulting and testifying.
The consultant expert can help counsel decide whether to take a case, and if the
case is accepted, what theories of liability to allege in the complaint.
Consultant experts may also help in framing discovery, and may also be used to
prevent a trial expert from developing information harmful to the case, which
may be discoverable by opposing counsel. Opposing counsel has a much broader
right to discovery from a trial expert than from a consultant expert.
Trial experts will be used to present opinion testimony to the fact finder. In
this case, when selecting, preparing and presenting trial expert testimony,
heavy consideration must be given to these basic rules of usefulness and
admissibility. During the preparation of a trial expert, careful attention must
be given to the discovery rules for experts. For example, under the Federal
Rules of Civil Procedure Rule 26(a)(2)(B), be prepared to provide the following
information concerning your experts:
1. A complete statement of opinions to be expressed and the basis and reasons
therefore;
2. The data or other information which s/he considered in forming the opinions;
3. Any exhibits to be used as a summary of or support for his/her opinions;
4. The expert’s qualifications;
5. A list of his/her publications within the preceding ten years;
6. Compensation to be paid for the study and testimony;
7. A listing of any other cases in which the expert has testified at trial or by
deposition within the preceding four years. The testimony listing should include
the following:
a. Date
b. Trial or deposition testimony
c. Caption
d. Court
e. Docket Number
If all rules are not complied with in disclosure of report, the court can
prevent the expert from being introduced to the case.
Selection and Retention of Experts
in Multiple Chemical Sensitivities Cases
Before retaining any experts, make an assessment of the case’s value, budget
proposed expert expenditures, and carefully evaluate which experts will be
necessary. In these cases, as in any personal injury case, you will need medical
experts such as the following:
1. Treating physicians;
2. Occupational medicine specialists;
3. Clinical conditions of concern, such as:
a. Immunology
b. Neuropsychology
c. Psychiatry
d. Oncology/Hematology
e. Hepatotoxicology
f. Pathology
In addition to medical experts, you will need to consult with general toxic tort
causation, liability, and damages specialists, such as:
1. Toxicologist
2. Epidemiologist
3. Geneticist or teratologist
4. Occupational medicine specialist
5. Exposure assessment experts such as:
a. Industrial hygienist
b. Biostatistician
c. Laboratory chemist
d. Governmental personnel
e. Environmental engineer
f. Hydrologist
g. Meteorologist
h. Chemical engineer
6. Liability Experts (“Breach of Duty”)
a. Chemical applicator
b. Process engineer
c. Chemical engineer
d. Government inspector (for example, OSHA or state agency)
e. Human factors analyst
7. Damages Experts
a. Economist
b. Real estate appraiser
c. Accountant
d. Life care planner
e. Rehabilitation psychologist
f. Vocational rehabilitation specialist
Sources for experts
Experts can be located through various sources, including the following:
1. Other attorneys
a. Association of Trial Lawyers of America (ATLA)
Washington, D.C.
b. Jury verdict reporters
c. Philo, Lawyers Desk Reference (8th ed. 1996)
2. General sources
a. Experts revealed through academic literature review (for example Medline and
Toxline)
b. Local colleges and universities
c. Advertisements
d. Expert referral services
Internet resources on experts
The Internet offers lawyers a wealth of data -- law data, business data,
scientific data, demographic data. And very little of it is surcharged beyond
the costs of accessing the Net and the time of finding and acquiring the
information. Information comes in many forms other than the packages we
objectify as books, documents, or even data. The Internet offers powerful
mechanisms for asking questions and receiving answers, for entering into a more
extended consultation with an expert, and for finding the right person or
people. Here are some of the sources I have turned to when considering expert
testimony and preparing for a case, together with the relevant Internet
addresses:
1. LERN is the On-Line service of the Legal Research Network. The mission of
LERN is to network attorneys and expert witnesses in an on-line environment,
using the online technology to help the legal profession find experts more
economically than with conventional methods.
http://www.witness.net/index2.html
2. The information and links at http://knock-knock.com/forensic.htm are designed
to provide a free and centralized resource on the business, marketing, and
research uses of the Internet by both lawyers and expert witnesses. It includes
information from a seminar in Palm Springs, California at the 13th Annual
Conference of the National Forensic Center. The site contains an active
hyperlink version of the handout from the seminar, which contains a list of
useful Net sites and resources.
3. Registered Nurse Experts, Inc. is an association of approximately 80
specialists who represent all areas of healthcare. It takes pride in providing
experts in any field of nursing, radiation, physical, occupational, respiratory
and parenteral therapy, nutrition, pharmacy and more. Its goal is to assure
satisfaction by providing responsive professional services. If you would like to
learn more about its services, please visit the web site:
http://www.rnexperts.com or
you can contact RNE at 1 800 759-6938.
4. Try http://www.asme.org: The American Society of Mechanical Engineers (ASME)
has a number of committees that produce various codes and standards.
5. What's on the Web & the Internet for Experts: Try Zeno's Forensic Page at
http://zeno.simplenet.com/forensic.html.
6. The Forensic Consultant's Association home page address is
http://www.forensic.org/
7. To all of you who are interested in the construction area - and specifically
construction defects I would like to suggest you check the following web sites:
http://members.gnn.com/avimor/Assochom.htm
http://members.gnn.com/avimor/dravi.htm
You will find information and links to a wealth of data and direct Q&A on-line.
8. If you ever need a toxicologist, check website:
http://earthlink.net/~bendix/
9. The American Society for Testing and Materials (ASTM) has recently put up its
homepage at http://www.astm.org. The page includes general information about
ASTM, as well as an on line application form.
10. Attorneys Seeking Expert Witnesses. Refer to Home Page:
http://www.starworld.com/mindsource/experts.html
11. Are your attorneys are in need of data about state sanctions and
disciplinary actions about any medical provider (physicians, nurses, dentists,
chiroprators, etc.) in the US to help them develop a medical malpractice or
personal injury case? The Managed Care Advisory Group can supply this data
on-line at a very low cost. See it at http://www.goodmed.com
12. Do you want a single BOOKMARK that contains over 30,000 legal resource
links? LawResearch's FREE TEST DRIVE, of Version 2.0 with 20,000 links is
available at http://www.lawresearch.com/afree.htm
13. The mission of the United States Environmental Protection Agency is to
protect public health and to safeguard and improve the natural environment -
air, water, and land - upon which human life depends. Check out its Web site at:
http://www.epa.gov/
14. As the world's largest trial bar, the Association of Trial Lawyers of
America (ATLA) promotes justice and fairness for injured persons, safeguards
victims' rights -- particularly the right to trial by jury -- and strengthens
the civil justice system through education and disclosure of information
critical to public health and safety. With about 60,000 members worldwide, and a
network of U.S. and Canadian affiliates involved in diverse areas of trial
advocacy, ATLA provides lawyers with the information and professional assistance
needed to serve clients successfully and protect the democratic values inherent
in the civil justice system. http://www.atlanet.com/
15. New Junk Science Homepage at www.junkscience.com. Visit
www.junkscience.com
for the latest in public health and environmental junk science! Read about:
a. What's hot!
b. What's current!
c. Special guest commentary
d. The junk science hall of shame (the truly infamous!)
e. The junk science pennant race (institutions and funders)
f. Running roster of junk scientists (They name names)
16. National Technical Information Service. The Official Resource for U.S.
Scientific, Technical, Engineering, and Business-Related Information:
http://www.ntis.gov.
17. ABA's Tort and Insurance Practice Section (TIPS) The Section is the only
national professional group to bring together plaintiffs attorneys, defense
attorneys and insurance company counsel for the exchange of information and
ideas. In this unique non-adversarial setting, TIPS members have the opportunity
to interact on a personal basis with nationally renown experts in tort and
insurance matters. http://www.abanet.org/tips/home.html.
18. FindLaw Index of Legal Resources:
http://www.findlaw.com/index.html.
19. Lawyers Weekly: Over 125,000 Lawyers Across the USA Read Lawyers Weekly
Newspapers: http://www.lweekly.com.
20. Center for Disease Control and Prevention: www.cdc.gov.
21. Expert Witness Mailing List: The Expert List is an Internet mailing list
conference for the various technical professionals that engage in expert witness
activities. If you perform expert witness services now, want to start offering
your services as an expert witness, are in the legal profession and use expert
witnesses, then this conference is for you.
To join the list, simply send an e-mail message to:
MAJORDOMO@LIBERTY.HARVARD.NET
and place the phrase
SUBSCRIBE EXPERT-L (your e-mail address)
in the message body. A file will be e-mailed back to you giving more information
about the list, and how it works.
Checking Experts
Qualifications to Testify
When you have located and identified an expert you must then analyze whether
this person is qualified to do job you want. In performing that analysis,
attempt to do the following:
1. Review expert’s publications
2. Get clear understanding of billing practices
3. Check with other attorneys or experts
4. Check on expertise regarding chemical of concern
5. Judge the expert as a witness
a. Consider articulation, credibility, sincerity, authoritativeness, and
strength on cross-examination
b. Review prior transcripts of testimony
c. Unearth any skeletons in expert’s closet
d. Find out how often expert testifies for plaintiffs and defendants
Initial Preparation of experts
You should retain your experts early on in the litigation. If there is a site to
be viewed and examined, accompany the expert on the initial visit and learn from
the experience. Have the expert give you a guided tour of the place and
substances in issue and describe the testing that will be performed at the
location.
Also, at the outset, make sure that the expert is comfortable with the
qualifying words for the legal standards regarding admissibility of evidence. An
expert must testify to probabilities, not possibilities or conjecture. Therefore
it is important that opinions be expressed in terms of "reasonable certainty or
probabilities." The actual phrasing of an opinion need not follow any rigid
formula. In Massachusetts, almost any language is permissible as long as the
court interprets it as meaning that the occurrence is more probable than not.
See e.g. 1 Mottla, Proof of Cases in Massachusetts, §349 (3rd ed. 1995); Afienko
v. Harvard Club of Boston, 365 Mass. 320, 333-334 n.6 (1974); Sevigny's Case,
337 Mass. 747 (1958); Kerr v. Palmier; 325 Mass. 554 (1950); Josi's Case, 324
Mass. 415 (1949); Duggan's Case, 315 Mass. 355 (1944); DeFlippo's Case, 284
Mass. 531 (1933).
In a product liability case specifically, there is no requirement that plaintiff
prove with precision the defect which caused an injury. Carey v. General Motors
Corp., 377 Mass. 736, 740 (1979). Further, the precise manner in which the harm
occurs does not have to be foreseen. Solimene v. B. Grauel and Co., K.G., 399
Mass. at 798. Instead, plaintiff can fully satisfy his burden of proof by
showing that there was a probability that the harm which occurred was due to one
or more defects for which defendant was responsible. Id.
The holding and analysis in Carey v. General Motors Corp., 377 Mass. 736 (1979)
is compelling in this regard. In Carey, plaintiff's case rested largely on the
testimony of a mechanical engineer. He described three defects that could have
caused the plaintiff's injuries. In particular, the expert testified that "since
each defect would cause the same occurrence in a similar way," he could not
identity with certainty the defect which caused the injuries Id. at 740. Each
defect, in the expert's opinion, was as probable as the other, and "surely it
had to be one of them" which caused plaintiff's injury. Id. Against this
backdrop the Carey court ruled that the evidence was sufficient to satisfy
plaintiff's burden. Id. at 740-741. In so doing, the court reasoned that jury
verdicts may not be based on conjecture or surmise; however, because plaintiffs
are "not required to eliminate entirely all possibility that the defendant's
conduct was not a cause....," proof that the harm was probably due to causes for
which defendant was responsible is sufficient. Id. See also Solimene, 399 Mass.
at 797-798 (plaintiff advanced alternative theories of design defect---burden of
proof satisfied).
You should maintain your own library on the expert’s subject matter. For one, it
will help you learn and become somewhat fluent in the topic in question.
Additionally, it is far less expensive to supply an expert with material than it
is for multiple experts to hunt for materials on their own. In that regard, ask
your experts what texts or materials are authoritative in the field.
Authenticating these texts will enable you to read from them and offer them into
evidence during the trial of the case. In addition, be aware of any scientific
studies or compilations that may be independently admissible if properly
authenticated by your expert.
You must review all medical records and exposure records, index them, and supply
them to the expert for review. During the preparation phase, the expert will
assist you in understanding this chemical, engineering, damage, and medical
information. The expert will also help in case development, including initiating
and responding to discovery. At some point, the expert will also be able to
provide testimony by affidavit (at the summary judgment stage), deposition, and
eventually at trial.
Before having the expert testify, be certain that you understand the bases for
the expert opinion. Look for the following when evaluating and considering the
bases for your expert's opinion(s):
1. Toxicological studies performed on animal populations;
2. Epidemiological studies;
3. Published, peer-reviewed data;
4. Data developed from case discovery;
5. Governmental reports and records;
6. Independent testing and analysis
You should be absolutely certain of all of the expert’s opinions before making
disclosure. You should also be cautious about having your expert formulate
opinions early on in the case. Often times, in a rush to judgment, we request
opinions from experts before giving them the opportunity to review all of the
case data. This makes great father fodder for cross-examination of the expert by
opposing counsel. In that regard, you should avoid securing written reports from
the expert early on in the case (if at all), unless submission of reports is
required. Any preliminary reports should be communicated to you orally if
possible. This helps you avoid the danger of having an expert committed to an
opinion without first having had an opportunity to review all of the case data.
You should meet with the expert prior to disclosure to go over the theories of
liability and expected expert testimony. Make sure the expert is aware of and
familiar with adverse studies and materials in the case. Make sure that you
expert is familiar with the pre-exposure medical history of your client. Discuss
the issues that will arise during cross-examination, including treatises which
may contradict your expert, prior experiences, prior engagements of your expert,
income from expert witness activity, and how to deal with a lack of hands-on
experience, if applicable. Finally, make sure that your expert's opinion(s) are
tightly confined and do not drift beyond areas of expertise.
As the trial approaches, your expert can assist you in the preparation of
demonstrative evidence. As expert testimony can get rather dull, be certain to
include graphic reproductions that can communicate effectively to a lay
audience. For example, I have spent many hours with doctors and medical
illustrators in the same room discussing models, pictures, x-rays, and overlays
which clarify the anatomical issues in the case. Allowing the doctor to
communicate directly with the medical illustrator produces the most effective
graphics.
At trial, your case will be most persuasive if your expert is a teacher. You
stand a better chance of winning the case if the jury fully understands the
issues your expert is addressing. Your interrogation of the witness should
facilitate and enhance this role by the choice and structure of the questions.
At the same time, you must strive to keep the testimony simple. In that regard,
try to keep the testimony of the expert focused and organized around one or two
unifying themes.
While the use of hypothetical questions is frowned upon by many modern practice
commentators, when carefully structured and used, they can be an effective tool
in a complex case. The hypothetical question can be used to summarize the
evidence persuasively, and to give helpful repetition to the essential points in
the case. The hypothetical question is not necessary under current practice
rules, but may be helpful at times in clarifying the issues for the jury. For
example, in an ozone contamination case, I found the following hypothetical
helpful in summarizing the evidence for the jury:
Mr. _____________, I am now going to ask you to consider certain facts that are
contained within the evidence of this case. During December 1987, the client's
home was equipped with two ___________ electronic air cleaners. One controlled
the air on the first floor of the home, one controlled the second floor. On June
27, 1988, representatives from ____________ tested the client's home for the
presence of ozone gases. For the three days prior to their arrival, the
electronic air cleaners had been constantly running and filtering the household
air. After testing on June 27, 1988, on the first floor of the home, the
defendant company found normal levels of ozone in the air. Outside of the home,
the defendant company found normal levels of ozone in the air. On the second
floor of the home, and in the master bedroom specifically, the defendant company
found high levels of ozone in the air. Those in that area of the home reported
smelling ozone. When the air cleaner controlling the upstairs are was turned
off, the level of ozone decreased. When the air cleaner was turned on again, the
ozone level increased. Upon further examination, it was found that the air
cleaner had a missing ionizer wire and two bent collector blades which were
arcing. The arcing was constant and resulted from the closeness of the blades
which produced 4,000 volts each. Following testing on June 27, 1988, the
electronic air cleaner and ventilation system were deactivated for the evening,
and the next morning the level of ozone had fallen to normal levels. Now, please
consider those facts, along with the results of the testing done in your lab on
the electronic air cleaner. Tell us whether you are able to reach an opinion,
with a reasonable degree of scientific certainty, on whether the electronic air
cleaner was defective and unreasonably dangerous.
A. Yes.
Q. What is your opinion?
A. ....
Q. What is the basis for your opinion?
The hypothetical was drafted prior to trial with the assistance of the expert.
The hypothetical was used in that case in order to assist the expert and make
him more comfortable in rendering the necessary opinion testimony. While I would
not advocate the use of the hypothetical question in every case, be aware that
it can be used and can be helpful in the appropriate circumstance.
Finally, another note about causation issues is important here since your
experts will provide the critical testimony on this issue. As noted above, the
plaintiff in a tort case must prove by a preponderance of the evidence that the
injury is the result of the defendant's negligent act or failure to act. This
standard is often more burdensome for toxic tort victims than for other
plaintiffs. Most toxicants do not produce unique injuries. Since the background
rates for the types of diseases associated with toxic exposures are not
insignificant, establishing that the plaintiff's illness resulted from the
exposure is difficult. Many plaintiffs will be able to show only that the
exposure increased the risk of acquiring the disease. Despite the near
impossibility of establishing that the exposure is the legal cause of harm, most
courts continue to use the preponderance of the evidence standard. Some courts,
however, have departed from this standard in latent disease cases. For example,
in Allen v. United States, 588 F. Supp. 247, 322 (D. Utah 1984), the court
proposed shifting the burden of proving causation to the defendant if the
plaintiff can show that the defendant created a risk to an identifiable group
and the plaintiff is a member of that group and developed a disease consistent
with the risk created by the toxic exposure. While such a rule has not been
adopted in Massachusetts, it is one worth exploring.
Spoliation of Evidence by Experts
During the course of the litigation, your expert may be required to examine and
possess valuable evidence in the case. The spoliation or destruction or material
alteration of evidence in a case can result in severe potential sanctions. In
Nally v. Volkswagon of America, Inc., 405 Mass. 191 (1989), the Massachusetts
Supreme Judicial Court confronted this issue directly, and announced the
following rule:
We conclude that, in a civil case, where an expert has removed an item of
physical evidence and the item has disappeared, or the expert has caused a
change in the substance or appearance of such an item in such circumstances that
the expert knows or reasonably should know that that item in its original form
may be material to litigation, the judge, at the request of a potentially
prejudiced litigant, should preclude the expert from testifying as to his or her
observations of such items before he or she altered them and as to any opinion
based thereon. The rule should be applied without regard for whether the
expert's conduct occurred before or after the expert was retained by a party to
the litigation. The reason for the rule is the unfair prejudice that may result
from allowing an expert deliberately or negligently to put himself or herself in
the position of being the only expert with first-hand knowledge of the physical
evidence on which expert opinions as to defects and causation may be grounded.
Furthermore, as is possible in this case, the physical items themselves, in the
precise condition they were in immediately after an accident, may be far more
instructive and persuasive to a jury than oral or photographic descriptions of
them. As a matter of sound policy, an expert should not be permitted to
intentionally or negligently destroy or dispose of such evidence, and then to
substitute his or her own description of it.
Id. at 197-198.
Outline of
Examination of
Plaintiff’s Treating Physician
Now that the trial is nearing, you need to meet with your expert to prepare for
his/her actual trial testimony. The following outline gives you a general
description of the topics with your treating physician. Use it as a guide an
your preparation meeting with the expert and tailor it to the specific issues in
your case.
A. Qualifications
1. Date and state of medical license,
2. When s/he attended school and medical school, including the dates of
graduation;
3. where s/he did internship and residency;
4. what specialized training was received;
5. a description of the doctor's specialty (with explanation of terms);
6. the witness' practice including military service;
7. hospital affiliations and the nature of each;
8. any membership in medical associations and academics;
9. any medical school affiliations;
10. the doctor's certifications including a description of the Board and its
certification requirements
11. any publications, professional journals or texts written;
12. any professional honors received.
B. MEDICAL HISTORY
1. Did the doctor conduct an examination of the plaintiff? (When/where?)
2. Did the doctor take a history at that time from the plaintiff?
3. Did the doctor have medical records available to review? (Which records?)
4. What is the purpose of taking a history?
5. Based upon his review of the records and interview of the plaintiff what was
the history that he obtained. (explain terms)
6. The history should include:
a. statistical data (name/age etc.)
b. any significant past medical history
c. the plaintiff's chief complaints
d. character of onset and the chronological development of symptoms including
cause, character, severity and location
C. EXAMINATION
1. Did the doctor conduct an examination?
2. What comprised the examination?
3. Significant findings upon examination
4. Were any diagnostic tests performed?
a. have the doctor explain the test and findings on exam.
b. have the doctor explain the significance of any positive findings.
5. Medical illustration
i. Doctor, would it assist you in describing the examination you made by using
or referring to a chart or diagram or model?
ii. Show exhibit and ask if it is a fair and accurate reproduction and
representation of a ___________?
iii. Would it be of assistance to you in communicating to us and in answering
questions I have asked you about your examination?
D. DIAGNOSIS
1. Following your examination and history, did you render a diagnosis?
2. What was the diagnosis?
3. What was the basis of your diagnosis?
E. PRESENT CONDITION
1. Doctor, based upon your most recent examination of the plaintiff do you have
an opinion to a reasonable degree of medical certainty as to the plaintiff's
present functional disability for medical condition)?
2. What is that opinion?
3. What is the basis of the opinion?
4. If the plaintiff has a measurable functional loss, ask the doctor how the
loss was measured? What is the significance of such a loss of function to a
person's ability to use the injured body part or to function.
F. THE CAUSE OF THE INJURY
1. Based upon your examination of the plaintiff, history obtained, treatment of
the plaintiff and review of the plaintiff's medical records, your education,
experience and training, do you have an opinion to a reasonable degree of
medical certainty as to the cause (proximate cause) of the plaintiff's
injuries/disabilities/loss of function?
2. What is the opinion?
3. What are the reasons for the opinion?
G. PROGNOSIS AND PERMANENCY OF INJURY
1. Do you have an opinion...as to the plaintiff's future ability to
work/function/use the injured limb?
Or
2. Doctor what is the plaintiff's prognosis?
3. Can we expect the disability to improve/get worse?
4. Inquire into:
- future pain
- future complications
- any future deterioration which would be expected
- the need for future medical treatment (and estimated cost)
- plaintiff's future disability and/or functional loss
For more information on specific testimony to be elicited from your other
experts, I refer you to the Rossi text entitled Expert Witnesses which his cited
in the Suggested Further Reading section of this paper. The book provides the
practical framework for the use of many different types of experts, including
specifically, experts in environmental, toxic tort, or drug cases. The book is
available from the American Bar Association.
Suggested Further Reading
1. Rossi, Expert Witnesses (American Bar Association 1991).
2. Philo, Lawyers Desk Reference (8th ed. 1996).
3. Harr, A Civil Action (Random House 1995).
4. Kirk R. Presley, “Stalking the Silent Killer: Carbon Monoxide,” TRIAL, August
1996, page 36.
5. Larry E. Coben, “The Daubert Decision: Gatekeeper or Executioner?” TRIAL,
August 1996, page 52.
6. Commonwealth v. Lanigan, 419 Mass. 15 (1994).
7. Rotman v. National R.r. Passenger Corp., 41 Mass. App. Ct. 317 (1996).
8. Mark Gottlieb and Richard A. Daynard, “Blowing Smoke Out of the Workplace,” ”
TRIAL, August 1996, page 24.
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