One expert I started to prepare cross examination for in my most recent case was never called. She was to testify that the reported cases to the company about patient airway fires weren’t enough to require the manufacturer to do anything and that the instructions provided with the tube were adequate to advise the doctors (who never bothered to read them). I wanted to show the doctors were also negligent for not reading the instructions. In anticipation of this defense witness  I began my outline, but never finished it. By the way, the questions about fees were included because one defense witness testified to a fee of $150 thousand to $200 thousand.  Here are my initial thoughts about this which are unfinished, rough concepts at best, but may stimulate a better outline for you if you have this issue

CROSS DRAFT

1.  Past experience as retained expert:

How many cases reviewed since starting as expert

• How many depositions given
• How many times testified
• How many times acted as an expert for defense
• How many times acted as an expert for plaintiff

2.  Percentage:  plaintiff vs defendant 

3.  What charge per hour for review

4.  What charge for deposition

5.  What charge for testimony

6.  Charges to date

7.  What percentage of annual income is from work as expert witness

More unreported cases than reported cases

1.  NO MANDATORY LAW IN ALL STATES  TO REPORT ALL AIRWAY FIRES

2.  THE EXACT NUMBER IS UNKNOWN

3.   NO WAY OF ACCURATELY MEASURING HOW MANY AIRWAY FIRES

4.   VALIDITY OF NUMBER DEPENDS UPON ACCURACY OF REPORTING

“ONE OUT OF FIVE DOCTORS RECOMMEND” – DEPENDS UPON HOW MANY DOCTORS ASKED & CREDIBILITY OF REPORT

5.   MAKER OF MEDICAL DEVICE OBLIGATION TO PATIENT SAFETY DOESN’T END WHEN PRODUCT MARKETED?

(1)     CONTINUE TO MONITOR PRODUCT

(2)     CONSIDER REPORTS OF PROBLEMS & EVALUATE EACH ONE

(2)     CAN’T IGNORE REPORTS & MUST CONSIDER ISSUING  ADVISORY OR WARNING WHEN APPROPRIATE. EXAMPLES:

(a)     E-COLI

(b)     HIP IMPLANTS

(c)      DRUGS

6.  NO MINIMUM NUMBER OF INJURIES BEFORE ONE MUST ACT?

7.  TRUE:  WHILE AIRWAY FIRES  ARE BELIEVED TO BE RELATIVELY UNCOMMON THEY ARE VERY SERIOUS AND CAN HAVE  DEVASTING CONSEQUENCES

8. TRUE:  IT APPEARS MANY AIRWAY FIRES GO UNREPORTED BECAUSE THE GREAT MAJORITY RESULT IN NO SERIOUS INJURY

Instructions were Adequate issue

1. BELIEVE INSTRUCTIONS WERE APPROPRIATE & FULLY INFORMED DOCTORS ABOUT WARNINGS AND APPROPRIATE USE OF THIS TUBE?

2.  THERE IS A REASON FOR PROVIDING INSTRUCTIONS FOR USE EVEN THOUGH MEDTRONIC CAN ASSSUME DOCTORS HAVE BEEN TRAINED IN THEIR USE?

3. IT PROVIDES THE INSTRUCTIONS BECAUSE IT ACTUALLY EXPECTS DOCTORS TO READ AND NOT IGNORE THEM?

4. SO, ASSUME DR. SCHATZ HAS TESTIFIED IT IS BELOW THE STANDARD OF CARE TO USE A NEW PRODUCT LIKE THIS WITHOUT READING THE INSTRUCTIONS. ASSUME ALSO  DR. SCHATZ AND DR. PAUGH HAVE BOTH SAID THE INSTRUCTIONS WERE AVAILABLE TO THEM BUT NEITHER TOOK THE TIME TO LOOK AT THEM OR READ THE INSRUCTIONS:

BOTH DOCTORS WOULD BE NEGLIGENT FOR NOT READING THE INSTRUCTIONS SINCE YOU BELIEVE THEY FULLY INFORMED THEM ON THE SAFE USE OF THE PRODUCT.