Lawyer Monthly - January 2022 Edition

What advice would you give to a litigator looking to hire a quality expert witness in a medical malpractice suit? My first recommendation for a litigator is to not make a decision based on a curriculum vitae (CV). Some of the worst expert witnesses I have encountered have had the most “impressive” CVs, but it is unfortunately not the CV that answers questions from opposing counsel. Personal references and word of mouth from other litigators are likely the best way to determine if an expert witness has the skills and temperament necessary for their particular case. I would also advocate talking to the expert witness about the case; ask questions about the imaging and related disease process to get a feel for their experience and how they would answer questions in a deposition. I welcome the opportunity to share my opinion and thoughts about a case prior to being retained – it also allows me to ensure I am the right person to serve as an expert witness. Are there any common signs of sub-par expert witnesses that litigators should beware? The main red flag I have encountered is when I am reading a deposition and the expert is struggling to account for inconsistencies between his or her opinions and the available information. They simply do not have a good answer and their language changes to things like: “A physician should never do that”, “That’s just terrible patient care”, and “Everyone knows not to do that”. They become defensive and, rather than using facts and logic to explain their rationale, they EXPERT WITNESS 57 JAN 2022 | WWW.LAWYER-MONTHLY.COM resort to aggressive statements that imply their expertise in the area, similarly to when a parent responds to their kid, “Because I told you so”. The arrogant expert is typically not an effective expert. Another red flag is when an expert witness becomes overly familiar with individuals involved in the malpractice process like opposing counsel. I recall one of the lawyers I was working with on a case telling me that the plaintiff’s expert had looked up personal information about her online and was discussing these tidbits with her during his depositions in an effort to be friendly. This was coupled with phrases like “What I would tell the jury is” in response to deposition questions, giving a sneak-peak of how well he would perform in front of a jury. What these types of behaviours likely point to again is arrogance and a lack of respect for the role. It would not be an exaggeration to say I have learned the most from these types of expert witnesses. This is also why I think personal references and word of mouth from other litigators are the best way to find the right expert witness. Honesty and credibility are the most important qualities for a good expert witness. Some of the worst expert witnesses I have encountered have had the most “impressive” CVs, but it is unfortunately not the CV that answers questions from opposing counsel. Jason Itri, MD, PhD Itri Consulting Group LLC 1582 Kendra St, Charlottesville, VA 22903 Tel: +1 267-844-3195 E: drjitri@gmail.com www.drjasonitri.com www.diagnosticerror.com About Jason Itri Jason Itri is the founder of Itri Consulting Group LLC, which specialises in providing medical expert witness services for malpractice cases involving imaging such as x-ray, ultrasound, CT, and MRI.