It's a medical malpractice trial.

You sued your doctor.

You believe your doctor was careless.

You believe his careless caused your injuries.

Your injuries are permanent.

Our medical expert confirms all this.

Your doctor denies he did anything improper.

Your doctor says your own actions contributed to your injuries.

Your doctor also says your injuries are not as bad as you say.

You feel your case is worth $5 million dollars.

Your attorney agrees with you.

The defense refuses to negotiate.

They view this case as 'no pay'.

They're not even going to begin settlement discussions.

They say "We'll see you in court!"

At trial we are required to have our medical expert testify.

He needs to explain to the jury what happened here.

He needs to explain what your doctor did wrong.

He needs to explain what injuries you suffered because of your doctor's carelessness.

He also needs to explain what your doctor should have done.

He needs to tell the jury how your injuries would not have occurred had your doctor done the right thing.

Before trial starts, each side is required to notify the other which medical experts will be testifying.

We must disclose which experts will testify.

We do not need to disclose their names.

We are required to disclose this information within a certain time period before trial.

We also have to disclose their credentials and a summary of what they'll be talking about.

Credentials include where they went to medical school and where they did their post-graduate training known as an internship and residency.

Credentials also include if the expert did a specialized fellowship (advanced post-graduate training); where the expert is licensed to practice medicine and whether he's board-certified.

We also need to share if he has published in his field of medicine and what hospital affiliations he has.

This information allows each side to do intensive research to identify exactly who this expert is.

Once we have identified their expert, we then dig for dirt.

We try and obtain transcripts where this expert has testified in the past.

We want to see if this expert has contradicted himself in prior testimony.

The defense does the same exact research of our experts for the same exact reason.

What happens though if the defense fails to give me sufficient time to identify their medical expert?

What if the defense does this intentionally?

What if the defense springs a trap by claiming that their original expert is no longer available and they had to hire a new medical expert the day before he is scheduled to testify?

Can I argue that the defense didn't timely notify me which medical expert would be testifying?

Can I claim that I didn't have enough time to do my research to prepare for cross-examination of this expert?

The answer is that I must make that argument.

The defense will likely argue that

  1. This was not wilful and intentional. "Our original expert got sick Judge. This new expert will be testifying about the same thing as our original expert."
  2. The defense will also argue that they notified me as soon as their expert confirmed he was available for trial.

That's a compelling argument.

However, it flies in the face of what is required prior to trial.

This is similar to trial by ambush that used to happen half a century ago.

The judge has to do something to penalize the defense.

At least that's the argument I will raise.

I will argue...

  1. I don't have sufficient time to dig up dirt on this expert.
  2. I don't have time to prepare a thorough cross-examination.
  3. The defense should be penalized for failing to follow the court rules requiring timely notification of experts before trial.
  4. That this witness should be prevented from testifying. Legally, we argue that this witness should be precluded from testifying.
  5. If the judge allows this medical expert to testify, at the end of his questioning by the defense attorney, I will ask the judge to strike this witness' entire testimony.

Now, let's get back to trial...

I have finished putting on all our witnesses and evidence.

I say "The Plaintiff rests, Your Honor."

That means I have completed my obligation to put on our proof.

It is now time for the defense to put on their witnesses.

The defense lawyer called Dr. Nogood Nick to the witness stand.

I know Dr. Nogood Nick.

The Judge knows Dr. Nogood Nick.

He's well known in the legal community.

He testifies often.

Always for the defense.

We'd call him a defense hack.

The defense calls him Dr. Reliable.

He can be counted on to always say that the doctor did nothing wrong.

Yes, he's well credentialled.

Yes, he's has more trial experience than most attorneys.

Yes, he's a savvy doctor on the witness stand.

Yes, he knows how to outmaneuver most lawyers on cross-examination.

As soon as the defense stands up and says "Your Honor, the defense calls Dr. Nogood Nick to the witness stand," I immediately jump up and say "Objection Judge! The defense failed to timely provide an expert witness response that this doctor would be testifying. I ask the court to preclude this expert from testifying."

The judge commands the attorneys to approach the bench.

He now has a sidebar conversation with us.

Off to the side.

The jury can't hear what we're saying.

They can see us arguing.

The court reporter is not recording any of this conversation yet.

Let's listen in to this sidebar argument...

"Judge, the defense sent me an expert witness response by email at 12:00 a.m. last night. That's outrageous! I had no time to do any research on this expert. I had no time to investigate him or dig up any dirt on him. I know there's a ton of contradictory testimony on this guy based on what I've heard about him over the years. I'm at a huge disadvantage right now, all because defense counsel failed to follow this court's order about when expert witness information must be disclosed," I fume quietly so as not to have the entire courtroom overhear this legal argument.

The judge turns to defense counsel...

"What do you have to say Mr. Defense lawyer?"

"Judge, we had an expert lined up. We notified Mr. Oginski months ago that we had retained him and provided him with all his credentials. I learned last week that our expert could no longer come into court and testify. So, I immediately began my search for another expert. He had to review the records, I had to meet with him and then he had to confirm his availability to testify in court. As soon as I knew this information, I immediately notified Mr. Oginski," the defense attorney says with conviction.

The Judge picks up on one phrase. "You said you learned last week that your expert was no longer available, right?"

"Yes," the defense lawyer replies with hesitation, sensing something bad about to happen. 

"Well, that's when you should have notified Mr. Oginski that your medical expert wasn't coming in and you were trying to get another expert. Since you failed to do that in a timely matter I have a number of options available," the Judge says firmly.

  1. I could prevent this expert from testifying.
  2. I could allow him to testify, but demand a monetary penalty for your failure to timely notify plaintiff's counsel, Mr. Oginski, of this new expert.
  3. I could allow him to testify and if I feel his testimony does not conform to the information you provided Mr. Oginski compared to your original expert, I could strike his testimony.

The defense attorney doesn't like any of these options.

He feels he did the right thing and did it timely.

I, on the other hand, think this was intentional and was downright sneaky.

I don't want this expert witness to testify.

If the judge prevents his expert from testifying, then I have a huge advantage at trial.

Then I will have a medical expert who has testified favorably for us and the defense will have no medical experts on their behalf.

Unfortunately for me, the judge will likely allow this expert to testify.

He will likely penalize the attorney for his failre to timely notify me.

That puts financial pressure on the attorney to pay thousands of dollars as a penalty.

But the jury will never hear about this.

Nor will this affect the expert and his ability to testify.

This won't help me get his expert testimony stricken from the record either.

Forcing the defense lawyer to pay a penalty, has no effect on the trial or the testimony. 

That option doesn't accomplish anything for me and my client.

From the judge's standpoint, it gives him a compromise that he can likely live with.

Trial judges are more inclined to allow testimony to go forward and ultimately let the jury decide whether we are more likely right than wrong.

In other words, most trial judges who handle these accident cases, medical malpractice cases and wrongful death cases want the jury to decide this case on their merits.

They often do not want to rule on a legal technicality that favors one side or the other before the jury gets the case to evaluate. 

However, when we argue that our opponent failed to follow court rules, there are some judges who are lenient and brush aside that rule violation.

This can be extremely frustrating.

If that happens, I can argue “What was the purpose of creating that rule in the first place? These rules are to be followed consistently. When an attorney violates the court rule you and your client will be penalized.”

That puts the judge in a precarious position of recognizing that the rule has not been followed but at the same time he wants this case to go to the jury and not be decided on a legal technicality.

My preference is that the judge decides this witness should not testify at all.

If the judge agrees with me, the defense will be at a significant disadvantage.

If the judge wanted to negotiate a settlement, this would be an ideal tactic to use.

It would put leverage on the defense.

If the defense had no experts to contradict anything our medical experts said, this would help our case.

On the other hand, if the judge were to allow this expert to testify but then decided the end of his testimony that it was different than what the defense lawyer said he'd be testifying to, the jury will have already heard these defense arguments.

If you tell someone after they have heard a bell ring to unring the bell from their minds, it's impossible to do so.

You cannot 'unring the bell'.

You've heard it.

The fact that you have asked them to forget about the bell ringing, simply highlights it and they focus on it even more.

If the judge tells the jury they are to strike the expert's testimony from their minds, again, it highlights his testimony.

It is physically impossible to unhear what they just heard.

When the judge says “Strike the witness's testimony from the record,” it does not mean that the court stenographer takes the expert's testimony, tears it up and throws it in the garbage.

Instead, it means that the jury is not to consider this expert's testimony when evaluating this case.

What will the trial judge do here?

I have repeatedly seen judges fashion a compromise.

They allow the defense expert to testify, but punish the attorney and his law firm for thousands of dollars for violating the court rules.

On the other hand, I have seen a few instances in my career where a judge actually prevented the defense expert from testifying for failing to follow the court rules.

To learn more about motion practice in civil lawsuits in New York, I invite you to watch the quick video below...



Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer