Today I’m sharing an excerpt of my cross examination of one of the medical experts the defense called in my last trial. I am sorry the format is not perfect, but transferring it from the transcript to here was a problem. The reason I am showing you this is because it is an example of what I would call a “soft cross examination” of a defense expert on a collateral attack. The point is to demonstrate his bias and lack of knowledge about the patient without drawing obvious conclusions, but leaving that to the jury. The main reason was the demeanor of the witness on direct which did not justify a frontal attack.
The defense position was that the plaintiff didn’t require the amounts we were seeking in economic damages for her future care because she could be weaned off the ventilator which her treating doctor, Dr. Green, had failed to do. In addition, they claimed a tube device, called a “T tube”, their Toronto expert, a Dr. Gilbert, maintained could be inserted which would free her from the need for supportive care we claimed she needed over her life. They also claimed her life expectancy was greatly reduced. As a result the defense said she didn’t need the financial support we claimed of $9,804,374.00.
What was interesting was the fact the jury had asked extensive questions of every witness when they had completed testifying. This is the only witness they no questions for at all which led me to conclude they placed little or no weight on his testimony. Since the jury ultimately awarded close to the exact amount I had recommended in economic loss it would suggest the jury did not place weight on the defense medical witnesses including this one.
EXAMINATION BY MR. LUVERA:
11 Q.Dr. Chestnut, I represent Becky Anderson. Let me give you your deposition.
17 Q. Doctor, I have spent some time looking at your sworn testimony in your deposition in August, and Ididn’t see one word about T-tube in that deposition. Did I miss
21 A.I don’t think you did. I wasn’t asked about it then.
22 Q.Oh, you had no opinions about T-tubes or anything dealing with Dr. Gilbert at all at that time, did you, sir?
A. I don’t know if I even knew about Dr. Gilbert at that time.
Q Let’s talk about that now. Let’s make this really clear.You believe that Dr. Green is a good
3 doctor, correct?
4 A. Correct
5 Q. You are in no way being critical that Dr. Green should have done something on weaning that was below the standard of care or which has helped keep her on the ventilator in any fashion, are you?
6 A Can you repeat that again? I’m not sure I understand the standard of care.
Q. Sure. Well, I will ask you. Are you suggesting that Dr. Green’s efforts at weaning have somehow kept her on the ventilator when she could have been weaned off?
18 Q. Did you read his trial testimony about his efforts at weaning that he told this jury about?
A. Yes, I did.
Q. Did you see that his efforts at weaning, he said, had not been successful. That he was — he had a glimmer of hope, and he was continuing to work on it. Did you accept that as being valid testimony from him?
A. Valid, but I was a little puzzled because when I went back and looked at her actual ventilator settings, there has been some weaning. So her ventilator settings had changed more than I thought that testimony reflected.
1 Q. That sounds like you think Dr. Green missed something that you picked up; is that what you are saying?
3 A. No. I’m saying that when I looked at the ventilator settings Yes.- that they went from an assist control to a pressure support, and that maybe he doesn’t regard that as much weaning or I don’t know that he was asked percentages or whatever, but the ventilator has been weaned in part from a year ago until now.
5 Q. But would you expect the jury to accept the testimony of Dr. Green regarding weaning efforts and its success, since he’s the one who is treating, and you have never even seen this patient?
6 A. Sure.10
11 Q. Okay. Now, as far as getting her off the ventilator, and I’m going to come back to this, to spend the day free from the ventilator, and then have some ventilator at night. This woman was in the Harborview hospital for 5.5 months.You knew that, right?14
15 A. Yes.
16 Q. And they did not get her off the ventilator during that time, right? Correct20
21 A. She has been in — on a ventilator ever since this fire in her throat, correct?
22 A. Yes.
Q. And you believe her doctors are competent, qualified physicians who have her best interests at heart?
25 Q. And if they could get her off the ventilator surely they would try to do that, right?
A. I think they are trying to do that, yes.
Q. Let me ask you this question, and I hope you are biased about it, I got the impression from Dr. Gilbert that maybe doctors in Spokane weren’t as qualified as doctors somewhere else. Do you think that Dr. Green, and yourself, and other doctors in Spokane are qualified physicians in the state?
A. Sure. We don’t have some of that specialty expertise that other specialized centers do, but you bet I think they are.
Q. You didn’t get to see that two and a half minute video, did you?
A. I was shown a video before my deposition that was — and I don’t remember for sure. But I think it was titled a day in the life of her, something like that, which was a video of her at the bedside where they were — they had her stand up and — so it was a brief video that I was shown of her at the nursing home.
1 Q. With regard to the people that you say you had off of a ventilator at night, have you ever had one burned the way Becky Anderson was burned in this airway fire?
4 A. No. I’ve never taken care of anybody who had that kind of severe airway injury.
Q. Will you permit me to ask you about your role here, Doctor. Your practice, as we found, has been quite limited since 2006, correct?
Q. In terms of this area that you are testifying? Yes.
Q. You have never acted as an expert in an airway fire case, have you?
14 A. No. I’m not an airway fire expert.
24 Q. And you have never seen a patient with an airway injury like Becky Anderson’s, have you?
25 A. Nope.
Q. Your testimony in cases has been on behalf of the defendant exclusively? We are the plaintiff. We are suing. (gesturing) They are the defendant.They are being sued. Your testimony has always been for the defendant in malpractice cases, correct?
A. In court, yes.
Q. Well, you have given twenty malpractice depositions as an expert and all of them were on behalf of the defendants, weren’t they sir?
Q. Okay, I think it’s probably obvious, but you have not been asked to consult in this case by any of the treating doctors of the family?
A. No, I have not
Q. Have you been to Regency where she is?
A. I have been. But it has been a long time.
Q. You have never, I think we accept this, you haven’t seen Becky and of course, you haven’t examined her, correct?
Q. And your connection with this case is because the defense lawyers contacted you about it, and are paying your fee for it, correct?
Q. Okay, so with regard to the matter of responsibility for care, that, of course, is not something that involves you when you leave and go back to Spokane. The Becky Anderson problem is that of her family and her doctors correct?