CROSS EXAMINATION OF DEFENSE LIFE EXPECTANCY EXPERT

     Here in very rough draft form, is an outline from one of my cases involving a defense expert on life expectancy. Modify and revise it to fit your case situation. The issue of both economic and non economic damage are impacted by this kind of witness

 CROSS EXAM DEFENSE LIFE EXPECTANCY EXPERT

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A.COLLATERAL ATTACK
NOTE: SEE DEPO OUTLINE FIRST

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1.HOW MANY HOURS TO DATE HOW MUCH IS HOURLY RATE
2.TOTAL FEES TO DATE
3.NUMBER OF TIMES TESTIFIED FOR PLAINTIFFS VS DEFENDANTS NUMBER OF TIMES TESTIFIED FOR DEFENDANTS RELATIONSHIP TO DEFENDANT
B.AS NO RESPONSIBLITY OF A TREATING DOCTOR

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1.ISN’T IT TRUE THAT YOUR SOLE AND ONLY CONNECTION WITH THIS TRAGIC CASE IS THROUGH THE LAWYER DEFENDING (DEFENDANT)?

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2.THE DEFENDANTS LAWYER HIRED YOU TO BECOME INVOLVED IN THIS LAWSUIT?

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3. AND IN FACT YOU ARE TESTIFYING AT TRIAL AT THEIR REQUEST AND IN THE DEFENSE OF THEIR CLIENT?

(WE SURE DIDN’T CALL YOU AS A WITNESS IN OUR CASE? THE ONLY OTHER CHOICE IS THE DEFENDANT?

  4. YOU ARE BEING PAID FOR YOUR INVOLVEMENT AND TESTIMONY FOR THE DEFENSE?

    5. (PLAINTIFF) DIDN’T ASK YOU MAKE AN EXAMINATION AND ACT AS HIS DOCTOR?

  6. THE FAMILY OF (PLAINTIFF) DID ASK YOU TO EXAMINE HIM AND BECOME INVOLVED IN HIS CARE AND TREATMENT EITHER, DID THEY?

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    7. NO DOCTOR OF (PLAINTIFF) EVER ASKED YOU TO BECoME A CONSULTANT IN THIS CASE AND ADVISE THEM ABOUT HIS CARE OR TREATMENT?

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C.  WHEN YOU WERE HIRED YOU KNEW IT WAS NOT TO HELP (PLAINTIFF) GET BETTER

1.IN OFFERING YOUR OPINIONS YOU KNOW THAT WHETHER YOU WERE RIGHT OR WRONG THIS WASN’T YOUR PATIENT?
2.IN OFFERING YOUR OPINIONS ABOUT WHAT YOU THINK THE FUTURE HOLDS FOR (PLAINTIFF) YOU ARE FULLY AWARE OF THE FACT THAT SOME OTHER DOCTOR -NOT YOU -WILL BE RESPONSIBLE FOR PATIENT’S CARE?
3.YOU ALSO KNOW, THAT IT1S (PLAINTIFF) FAMILY THAT WILL HAVE THE FUTURE BURDEN OF CARING FOR HIM WITHOUT ANY RESPONSIBILITY FROM YOU IN ANY WAY?
4.WHEN YOUR FINISHED GIVING YOUR OPINIONS YOU WALK AWAY FROM HERE TO DO SOMETHING ELSE WITH NO FURTHER ACCOUNTABILITY FOR WHAT HAPPENS TO (PLAINTIFF) OR HIS FAMILY IN FUTURE YEARS?

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B. HASN’T TALKED TO ANY TREATING DOCTORS ABOUT PLAINTIFF

1. HAVE YOU EVER TALKED TO ANY OF THE DOCTORS WHO ARE RESPONSIBLE FOR TREATING (PLAINTIFF) ABOUT THEIR CARE OF HIM?
2HAVE YOU EVER TALKED TO ANY OF THE DOCTORS RESPONSIBLE FOR HIS TREATMENT ABOUT THEIR OPINIONS BASED UPON THEIR PERSONAL EXPERIENCE AS HIS PHYSICIAN?
2.NEVER TALKED TO THE FAMILY ABOUT WHAT THEY KNOW?

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4 . NEVER TALKED TO ANYONE HE WORKED WITH BEFORE HE WAS INJURED?

(1) WOULD AGREE ALL OF THESE PEOPLE HAVE SPENT CONSIDERABLE MORE TIME WITH (PLAINTIFF) THEN YOU DID?

( 2) YOU ACKNOWLEDGE THAT THEY ARE NOT HIRED EXPERT WITNESSES?

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C.SAW HIM ONLY ONE TIMF;

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1.SAW HIM ONLY ONE TIME IN YOUR LIFE?

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2.THAT EXAMINATION LASTED _ MINUTES?

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3.THAT WAS ___ AFTER HE WAS INJURED?

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4.WHAT INFORMATION DID YOU REVIEW

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5.HOW MUCH TIME SPENT: a. REVIEWING INFORMATION b. TALKING c. EXAMINING?

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6.YOU HAVEN’T SEEN HIM SINCE THEN?

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7.AND YOU HAVE NO PLAN TO SEE HIM EVER AGAIN IN THE FUTURE?

FACTORS AFFECTING LIFE EXPECTANCY

1 . DOES THE QUALITY OF MEDICAL CARE MAKE A DIFFERENCE IN THE LIKELY LENGTH OF LIFE FOR SOMEONE LIKE THIS?

(1) IF WE “WAREHOUSE” SOMEONE LIKE THIS AND GIVE ONLY MINIMAL CARE AND ATTENTION RATHER THEN PROVIDING CLOSE MEDICAL MONITORING AND CARE, DOES IT IMPACT LIKELY LENGTH OF LIFE?

(2) DOES HIGHER QUALITY OF CARE COST MORE THEN MINIMAL CARE?

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2. WERE ANY OF HIS VITAL ORGANS, OTHER THEN HIS BRAIN HEART, LIVER, KIDNEYS -DAMAGED OR INJURED WHEN HE WAS HURT?

(1) SO THEY ARE NORMAL AND CAPABLE OF FUNCTIONING AND WERE NOT DAMAGED BY THE INJURY?

3. IF HE IS LIVING IN AN PROTECTED ENVIERIMENT, THEN HE IS UNLIKELY TO BE SUBJECT TO ANY MORE ACCIDENTS THAT MIGHT RE-INJURE HIM?

4. DO YOU FEEL THAT IN GENERAL 1 THE LONGER YOU LIVE THE LONGER YOU ARE EXPECTED TO LIVE IN THIS SITUATION?

Factors Affecting Longer Life Expectancy

GENERAL IMPROVEMENT IN LIVING SITUATION

DIET/NUTRITION

3.CONSTANT NURSING AND CUSTODIAL SUPERVISION OF MEDICAL CARE I MONITORING HEALTH AND PREPARED TO IMMEDIATELY ACT IF EMERGENCY
4.PROBABLE FUTURE MEDICAL ADVANCES: MEDICAL SCIENCE CONTINUING TO MAKE GREAT PROGRESS. ESPECIALLY IN FIELDS OF INFECTIONS AND OTHER COMMON CAUSES OF DEATH

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E. CAUSATION CONCLUSIONS

1. IN REVIEWING THE MEDICAL RECORDS AND CLIENT SITUATION, IS THERE ANY REASON BEFORE HE WAS BRAIN DAMAGED, HE WOULD NOT HAVE HAD A NORMAL LIFE EXPECTANCY?

(1) HAD HE NOT BEEN INJURED WE WOULD EXPECT HIM ON THE AVERAGE TO HAVE LIVED A NORMAL PERIOD OF TIME?

(2) DO YOU SEE ANY REASON WHY HE WOULD BE RESTRICTED IN ANY WAY IN HIS ENJOYMENT OF LIFE BUT FOR THIS INJURY?

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2.APPROXIMATELY WHAT AGE WOULD WE HAVE EXPECTED HIM TO LIVE TO IF HE HAD NOT BEEN INJURED?
3.YOU CLAIM HE WILL NOW ONLY LIVE YEARS. IF, IN FACT, HIS LIFE EXPECTANCY HAS BEEN SHORTENED OR REDUCED BY YEARS, WAS THE REASON THE INJURY HE RECEIVED IN THIS CASE?

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   (1) SO 1 IF IN FACT HIS LIFE HAS BEEN SHORTENED, THE CAUSE OF IT WAS THE INJURY HE RECEIVED?

F. MEDICINE DOESN’T HAVE LAWS LIKE PHYSICS

1.   LAWS OF PHYSICS SUCH AS OHM’S LAW, NEWTON’S LAWS OF MOTION AND EINSTEIN’S FAMOUS E = MC2 ALLOW ONE TO CALCULATE EXACTLY VALUES OF ONE VARIABLE TO STATED VALUE OF ANOTHER

2.   IN MEDICINE, SUCH RELATIONSHIPS ARE RARE. INSTEAD THERE ARE “STATISTICAL RELATIONSHIPS” THAT MAY HOLD TRUE ON THE AVERAGE BUT NOTR CASE BY CASE

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4.EXAMPLE:

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(1)   TALL PEOPLE TEND TO HEAVIER THEN SHORT PEOPLE

(2)   OLDER CHILDREN TEND TO BE TALLER THEN YOUNGER ONES

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G. THERE ARE LIMITS TO ASSOCIATIONS BETWEEN VARIABLES IN MEDICINE

1PROOF OF ASSOCAITONS BETWEEN VARIABLES IN MEDICINE HAVE LIMITS AS TO ACCURACY e.g. ASSOCIATE BETWEEN LUNG CANCER AND SMOKING
2.EXAMPLE: EXPIRIEMENTS IN WHICH SUBJECTS WERE GIVEN LARGE DRINKS OF WHISKY & WATER, RUM AND WATER, BRANDY & WATER AND ALL SHOWED SIGNS OF INTOXICATION: CONCLUSION: EFFECT DUE TO THE COMMON FACTOR -WATER.

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H. IMPORTANCE OF SAMPLE SIZE

1. SAMPLE SIZE EFFECTS ACCURACY. e.g. BASED UPON STUDY OF 4,000 FAMILIES CONCLUSIONS ARE REACHED ABOUT ALL FAMILIES IN U.S.

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2. SAMPLE SIZE DEPENDS UPON:

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(1) HOW VARIABLE THE DATA

(2) HOW PRECISE AN ANSWER IS NEEDED

(3) HOW MUCH CONFIDENCE IN THE ANSWER IS NEEDED

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I. STUDIES ~DRAW INACCURATE CONCLUSIONS

1. 1985 NEW ENGLAND MEDICAL JOURNAL PUBLISHED TWO PAPERS ON SAME SUBJECT: INCIDENCE OF CARDIOVASCULAR DISEASE IN WOMEN TAKING POST MENOPAUSAL HORMONES. EACH BY DIFFERENT AUTHORS & BASED ON DIFFERENT STUDIES

(1) ONE STUDY FOUND INCIDENCE TWICE AS HIGH OVER THOSE WHO DID NOT TAKE THE HORMONES

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(2) THE OTHER WAS IN DIRECT CONFLICT AND FOUND ONLY 1/2 AS HIGH

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J. UNCERTAINTY CAN COME FROM GENERALIZING RESULTS OF STUDIES

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1. INACCURATE CONCLUSIONS CAN RESULT FROM GENERALIZING THE CONCLUSIONS FROM THOSE IN THE STUDY TO PATIENTS OUTSIDE THE STUDY

K. CONCLUSION

1. DO YOU KNOW OF ANY METHOD OF MEASUREMENT KNOWN TO MEDICAL SCIENCE WHICH WILL WITH PERFECT ACCURACY PREDICT HOW LONG THIS MAN WILL IN FACT LIVE?

(1) OVER THE YEARS PHYSICIANS HAVE BEEN GIVING OPINIONS TO ALL KINDS OF PATIENTS ABOUT HOW LONG THEY MIGHT LIVE e.g. PEOPLE WITH CANCER OR OTHER LIFE THREATENING DISEASE OR PROBLEMS, HAVEN/T THEY?

(a) THESE PHYSICIANS GENUINELY BELIEVED THEY WERE RIGHT ABOUT PREDICTING HOW LONG THEIR PATIENTS MIGHT BE EXPECTED TO SURVIVE WITH THE LIFE THREATENING DISEASE?

(b) DO YOU THINK ANY OF THESE WELL TRAINED, SINCERE DOCTORS HAVE BEEN BADLY MISTAKEN IN THEIR PREDICTIONS?

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2. ARE WE TALKING ABOUT MAKING “GUESTlMATES” ABOUT THINGS WHICH ARE REALLY ONLY KNOWN TO GOD?

About Paul Luvera

Plaintiff trial lawyer for 50 years. Past President of the Inner Circle of Advocates & Washington State Trial Lawyers Association. Member American Board of Trial Advocates, American College of Trial Lawyers, International Academy, International Society of Barristers, member of the National Trial Lawyers Hall of Fame & speaker at Spence Trial College
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