Experts: Use Them or Lose Them? How Doctors and Specialists Shape an Injury Case

Welcome to Off the Record, Personal Injury Litigation with Michael Kopsick. Hello, and welcome back to Off the Record, Personal Injury Litigation with Michael Kopsick. Michael is a trial-tested Illinois injury lawyer who has taken more than 60 cases to verdict and handled hundreds of expert and doctor depositions. He brings a clear, straightforward perspective on how experts actually shape and sometimes don't shape the outcome of an injury case. I'm Kevin Rosenquist. And today we're looking at when an expert truly matters when they don't and how jury's react to the idea of paid experts in the courtroom. Michael, welcome back. Thanks so much for having me. Absolutely. You know, a lot of us have never been involved in a lawsuit. I'm going to knock on some wood right now. What does the term expert actually mean in an injury case and what kinds of experts usually appear in these trials? Yeah, it's a great question. In Illinois, there are three basic types of witnesses. There are fact witnesses like the plaintiff, like the defendant, like people who actually witness the incident take place. The second type of witness is kind of an independent expert witness, meaning someone who you are not paying, someone who is not necessarily on your team. This would be, you know, like a police officer or a treating physician who has actually treated the plaintiff. They are an expert, but they are not someone you are paying to give opinions. And then most importantly, what we're really here to talk about today are the controlled expert witnesses like doctors, like construction experts, people who specialize in a certain field to give certain opinions that make no mistake. The plaintiff or the defendant is paying them money to give those opinions. What do you look at to decide whether the treating doctors and medical records already provide what you need versus the situation where maybe an outside expert needs to come in and add something? Yeah, there's a lot of things you look at. With respect to the medical records, you need to know what this doctor is most likely going to testify to before making a decision to hire someone to give you that same opinion. I think most attorneys would agree that if we don't have to hire an expert, that would be probably the path of least resistance and ultimately a path that a jury is going to resonate with more so than if you pay someone. So when you look at the records and you see what the diagnoses are, or you can also look at the records and see who the doctor is and know that doctor's history with testifying. We have so many resources available to us like transcript banks, listservs, where we can have really stimulating conversations and get information about doctors and what they typically say, whether they're patient advocates as we like to say, someone who's going to get up there and fight for their patient, fight for the treatment that the patient had and fight for that causal connection, the connection between the accident and the injuries. So a lot of it is experienced based, a lot of it is what's contained within the medical records, but a lot of it is kind of feel for what you think is going to happen given the severity of the injuries and the severity of the accident. Is it more common to need experts, more common to not need experts, does it fall somewhere in the middle? Yeah, I think it's all dependent on case value. Typically you would see no experts, right, in a strain, sprain, rear-ender, typical run-of-the-mill case, and as the case continues to get complex even with respect to liability, but certainly with respect to damages and injuries, when that complexity increases, the amount of money and attorney spends increases and therefore the amount of experts that actually need to be retained in the case increases dramatically. You mentioned before, obviously we know medical experts, you mentioned construction, experts, different kinds of things. I would imagine these can be essential in certain situations to help jurors understand exactly what happened. Can you kind of talk about that a little bit? Yeah, with complexity increasing in a case, usually with respect to liability, let's say in a construction case, you're only going to get certain types of testimony from eyewitnesses, from your client, from the defendant's employees. They're going to testify to their observations, they're going to testify to what happened, what they remember, what they saw. But they cannot give legal conclusions, and only certain legal conclusions can actually be ascertained by using logic, right? I don't need an expert, for instance, to tell me that someone who rearended me caused an accident or caused my injuries, right? But with respect to a construction case, we talk about restatement of torts 414 and whether a general contractor has liability in a case where someone trips and falls on a multi-party construction site. I can't get opinions from an eyewitness as to whether that legal conclusion, whether that liability is present for a general contractor, you typically need experts to be able to give you that testimony. So it depends on the type of case, it depends on the layers and the complexity and the parties. But as the cases tend to get more complex and difficult, we generally need to see an expert give us those opinions to really put a bow on the liability of the case. The payment thing is interesting to me, because I think it would probably be pretty natural for someone to maybe the net crack a little bit when they hear that someone's being paid as far as how they trust or how they value their opinion. What do you see in juries when they know someone's being paid to be an expert and how do you deflect some of that pause that they might have? Yeah, there's so many ways to argue both sides of it. I always tend to gravitate towards not hiring an expert if I don't need to. The reason being, if the defense has an expert, I get to go up in a trial in an examination and say, okay, Dr. Smith, true, you were hired by the defense here, correct? Yes. Your rate, your going rate is $750 an hour to testify, is that true? And the defense is paying you this money to give your opinions. And your opinions, of course, are against my client, is that true? So the $750 times 10 hours that you've spent on this case, is it true? You build the defense $7,500 ultimately to render opinions against my client? Is that all true? So you could really start to stack the chips in your favor and make the defense look bad, especially when they're the only side that has an expert. Now, you can't really do that when you have an expert, too, because the defense can just very easily turn the tables and say, well, plaintiff has an expert, too, and they can go through that examination just like I did. Ways that we can sidestep that is, yes, Dr. Smith, my expert in this hypothetical, it's true that we are paying you to render these opinions, yes, but it's also true that we are paying you for the time that you are away from your patients, right? Because if you were in practice and if you were in the office today, you would be seeing your patients and you would be billing insurance companies for your work and your treatment of those patients. So it's not necessarily, we don't make it seem like we're paying you to render opinions, we're paying you to be away from your job where you of course make very good money and you do good work, and that's really what we try to show the jury rather than kind of an exchanging of money for opinions. There are ways around it if you have trial experience and you just have to position it the right way. Yeah, I can see that being tricky just because of the thing that pops into your head automatically when you hear someone's being paid for a testimony is a little bit of skepticism. It's kind of hard. It's human nature. Absolutely. Yeah. You know, we use the phrase higher gun, right? I mean, you're a higher gun, and what are you going to say if I hire you? Do you think you're going to give a bad opinion? Well, you're not going to hire someone who would, right? Exactly. You'd never do it. So, and that's what you try to explain to a jury. I mean, what do you think is going to happen? The defense found this guy. This guy, by the way, who has testified in 67 different trials and 67 different cases and 66 of which he rendered opinions for the defense. So, how did they find this guy? Because he's a popular person. He's a popular doctor or he's a popular construction expert with defense attorneys. And sometimes you can push that rhetoric. It really depends on what the judge allows in to evidence a trial. But you want to show that bias, and you want to show that ultimately receiving money for an opinion is not necessarily the most credible resource that we can have in a trial. Unless, of course, it's my expert, then it's a very, very, very credible resource. Absolutely. Yeah. For sure. I'm going to like that. Something like that. Yeah. You obviously deposed an exam in hundreds of experts over the years doing what you do. What are some of the biggest differences you see between testimony from a treating doctor versus an expert who are hired solely for litigation? Well, it's the bias, right? And the treating physicians sometimes are not patient advocates, but most times they are. They're going to defend their treatment as reasonable and necessary treatment, right? Someone gets in a car accident and they break their arm and they need surgery. You better believe that treating physician is going to say, of course, it was reasonable and necessary. And the reason is because doctors don't provide treatment that is unreasonable or unnecessary. So anything that treating physician does is going to be deemed reasonable and necessary by their own admissions and by their own opinions. They don't have bias. They were not paid in this case to come in and give opinions. They were just doing their job. The plaintiff came to their hospital and they needed a surgery. So that's what the doctor does. He's an orthopedic surgeon. He has no bias in this case. His opinions or her opinions are credible. Now with respect to controlled experts, there's bias there, right? What we talked about, there's money that's being exchanged. Typically, those types of doctors that are known, hired guns, those are doctors who testify religiously. Most times they're retired or on the tail end of their medical treatment career and starting this new journey as a hired litigation forensic gun. So we know there's implicit bias and we know that they are going to stick to their opinions and they are not going to give a shred of objectivity. They are not going to acknowledge the possibility that their opinions could be wrong. They're not going to acknowledge the possibility that something the plaintiff's attorney, the opposing counsel is suggesting could possibly be right. And the more that you show that they are just true believers that they are just on one side of the fence and cannot acknowledge the possibility of another side of the fence, that's where that bias comes in. That's where you can score points with the jury when the defense hires someone who just won't give up and is relentlessly on their own side. We've all seen law and order or other movies and stuff where you've got different experts that are so gung-ho about their position, but they're completely opposite from the two sides. How do juries pick the winner? What do you think are the biggest motivating factors for them and who they're going to believe when experts are brought in? Yeah, when it's expert versus expert, I think it's really hard to pinpoint something a jury is always going to cling on to or that will always resonate with them. That's why we need our skill in the courtroom and we look for kind of got you moments. We look for the smoking gun. I mean, some of the first things we do in an expert's deposition is try to discredit their opinions. I go through their resume line by line, something that I do as a matter of course, as I call all the professional organizations that they claim to be a part of and I verify that they're even a part of those professional organizations anymore. Most times you find that they're sitting on the resume, they haven't been a part of that specific group for years and years. The very first question I ask is, why did you lie on your resume? Why did you lie on your CV? You're not a part of this organization anymore and you kind of, it has nothing to do with the relevance of the trial, but what you do is you shock them and you jar them right up front. You let them know. I've done my research. I'm going to find something that's wrong with your opinion. I've already started with your resume. Let's wait till I get into the medical records. Wait till I get into your opinions and hopefully you can kind of find that moment that needle in the haystack that you're going to use in front of the jury and you try to back them into a corner. It does not happen all the time, but when it does, it's very useful. I can imagine that for sure. You mentioned before about, if the other side has an expert and you don't, you might try to use that to your advantage, what does it look like when one side has an expert and the other doesn't as far as the overall dynamic of the trial? Both sides play their cards the best way that they can. For someone, let's say if I don't have an expert and they do, we just go after the bias and the money that they've spent and show that they are just throwing money at this problem, trying to make it seem like this case is not legitimate. Our expert says this and they don't have an expert and our case is buttoned up and the plaintiff's case is not. That's how the defense will look at that situation. If I have an expert, I say, yeah, we have an expert because this case is serious and this case warrants an expert and this case warrants money being spent to counteract this party who we can't say this but who the jurors know that this party is not settling the case. They're not coming to the table with a reasonable amount of money so we have to do this. This is not our choice and this person, by the way, he doesn't have to give us those opinions. Sworn, Sworn medical expert or he's a construction expert and his reputation or her reputation is on the line. They're not just going to regurgitate old opinions just to get money and the reality is oftentimes they do but a jury doesn't need to know that. Whatever side you're on, there are strengths but there are weaknesses and being a part of so many trials, we've kind of seen it all by now and that's why it's so important to come to the right decision before you get to trial. It's so important to know whether or not you need an expert and that really takes getting back to what we were talking about earlier, experience and knowledge about what's to come. You said you prefer not to have experts if you don't need them. In what situations does it kind of push you towards, you know what, we're going to need an expert for this one. I think I can say with confidence that the type of case, the type of incident definitely dictates whether or not you're going to have an expert. It's not 100% all the time but you're really going to know based on the type of case. For instance, a medical malpractice case, you absolutely need an expert. You quite literally need to pay someone, you need to hire someone to file what's called a certificate, a meritorious claim, you attach to your complaint. If you don't have that, you will not have a legitimate case and it will get dismissed. For medical cases, as one outlier example, you absolutely need an expert. We talked about construction cases, right? There are nuances in the law and in the restatement of torts that say basically that experts need to be present in your case because you cannot get those legal opinions, those legal conclusions from eyewitnesses or regular fact witnesses in the case. If you were to say, hey Mike, you have a construction case, do you think you're going to have an expert, I'm going to say I better have an expert because I cannot just rely on the testimony I hope or I think I'm going to get from my client or the defendant's employees or subcontractors. I need an expert who is very, very knowledgeable in terms of OSHA violations or construction practices and procedures to give me that legal conclusion that survives summary judgment, right? Basically, survives a motion to dismiss so we can get to trial. With respect to car accidents and those more basic cases, that's where you don't necessarily see experts, I'm not going to get an automotive expert or a driving expert who is going to say the guy who rear-ended your client, he was at fault because we can use the logic in terms of those cases. But with respect to slip and falls, with respect to natural accumulation of snow and ice versus unnatural accumulation, that's where having an expert can really bolster a case and push the case forward. So yes, it's case dependent, but largely it's how valuable is the case. And if you have a $50,000 case, it's probably not really worth spending $10,000 or $12,000 to get an expert. If you have a case that's worth $4,000 or $600,000, spending $10,000 or $12,000 doesn't seem like a big deal. So there's a lot of factors. Yeah, a lot of factors each case is unique as you said, so yeah, that makes sense. All right, well that's it for today's episode of Off the Record, Personal Injury Litigation with Michael Kopsick to learn more about Michael's work representing injured people, visit law-mwk.com. Thanks for tuning in. Don't forget to like, subscribe, share the episode with someone who could use it. We would appreciate that as well. Michael always appreciate your time. Thanks so much. Thank you. I really appreciate it. Thanks for watching. Be sure to hit that like and subscribe button and leave us a review in the comments.