Cross-Examination of Defense Medical Experts in Traumatic Brain Injury Cases:

A Diligent Search for the Truth

By: E. Marcus Davis, Davis, Zipperman, Kirschenbaum & Lotito

Introduction:

The cross-examination of a defense expert in a traumatic brain injury case is not as daunting

a task as might be first assumed. The first step in contemplating and organizing the cross-

examination is to ask, "What am I as the cross-examiner afraid of?" The fear that the expert will

destroy your client’s meritorious case is the biggest impediment to an effective cross-examination.

Fear can cause a lawyer to lose judgment and attack the witness in an argumentative, hostile way,

provoking the witness to mirror the examiner's aggression with counter-aggression, and to fight the

perceived personal assault rather than making, legitimate concessions. Juries tend to identity with

the witness, not the lawyer, and we must treat the witness with respect or risk a backlash from the

jury. Jurors are not usually thinking, "Oh what a magnificent cross, he destroyed the witness." but

more likely, "‘Thank God I'm not in the witness chair, the SOB would do it to me what with all his

verbal tricks. He’d make me look like a fool.” The trial lawyer should consider the dynamic created

in the confrontation between the witness and the attorney. In a contest between a lawyer, who in his

or her fear and outrage, attacks and brutalizes a witness who is a threat to the case and the client, the

witness can seem reasonable to the jury. "To the jury, the witness seems calm, informed, well-

schooled in his area expertise and a man or woman with years of experience. Why would anyone

attack him so? The lawyer can unwittingly transform himself/herself into the villain in the

courtroom. Suddenly the jury may want the witness to win. The problem is that no one has advised

the young lawyer that you cannot attempt to "kill” any witness until the jury wants him killed-until

he has been carefully, quietly exposed as a fake." The reasonable lawyer must slowly, deliberately

and with respect and compassion put himself in the shoes of the expert and try to understand what

motivates him or her. With patience the lawyer can put the witness in the "black hat" by causing the

witness to display anger, frustration, arrogance, hostility, bias, greed, exaggeration or evasiveness.

At a minimum the witness must agree to some of the basic scientific principles of brain function and

cause of brain damage. The lawyer must, as the director of this play (this trial), control not only the

substance of the cross, but the interpersonal dynamic including the body language between the

lawyer, the witness, and the client. The jury views all verbal and nonverbal communication as being

as important as words spoken. The lawyer should use real words and language and not become so

bound up in having mastered the jargon of brain injury that he or she comes across as stilted or fake.

Realness, caring, and compassion for the client must come across to the jury in the direct and cross

of this witness, as well as other witnesses in the case. Above all, be cognizant of what is

communicated in the case through the play, the drama that is being presented in the trial. Do not

only pay attention to the mere words, which are but part of the communication. Remember to pay

attention to the answers, both verbal and non-verbal, that the witness gives so that appropriate

follow-up questions will be asked. The lawyer must he prepared enough so that he or she is not so

focused on the page of` written questions that the answers of the witness are only partly heard and

understood, The second goal of the cross-examination is to set goals for the cross. The lawyer

should develop an achievable number of finite goals for the cross-examination, such as showing bias

because of financial incentives, prior inconsistent writings or testimony, lack of preparation, etc.

Spence, Gerry: With Justice for None: Destroying an American Myth, pg. 254, N.Y.,1989.

I . Focused finite goals, rather than arbitrary meandering approaches, in preparing for and cross-

examining the expert are extremely important, especially when the outcome of the cross-examination

can have such a profound effect on the overall verdict.

Basics of Cross-Examination of Defense Expert:

I. Master all of your client‘s medical records, so that any errors of the expert in reviewing them

can be pointed out in deposition or trial.

2. Obtain expert's written report before the deposition.

3. Obtain any testing data from the expert. (Halstead Reitan raw test data, etc.)

4. Review the defense expert’s report in conjunction with the report of your own plaintiff's

expert. (Compare similarities and differences.)

5. If possible, find prior testimonies, depositions, articles, and seminar presentations before the

deposition, i.e., www.trialsmith.com. In the expert's deposition, ask questions sufficient to

find these source materials for cross-examination at trial.

6. Prior to the deposition, review the defense expert's entire file, including correspondence and

billing. Ask the expert if any materials have been removed from the file.

7. Master the science of traumatic brain injury especially areas of brain function,

neuropsychological testing and cause of TBI.

Preliminary Questions to Explore:

l. How many patients with traumatic brain injury has the expert treated or evaluated?

2. What involvement has the expert had in brain injury rehabilitation?

3. What education, training, and research in traumatic brain injury has the expert completed?

Is he or she board certified neuropsychologist?

4. Has the expert written any articles regarding traumatic brain injury?

5. What familiarity does the expert have with medical literature?

a. What articles, authors, or authoritatives are on the expert‘s bookshelves?

b. What has the expert reviewed?

c. Are there similar cases in which the expert has given testimony/depositions?

6. Are there transcripts from other lawyers to obtain?

7. What are all the injury/impairments that this expert attributes to the traumatic event?

8. What is the expert‘s hourly rate for preparation, depositions, trials?

9. What percentage of the expert’s income is derived from testimony as an IME or other expert?

10. What percentage of the expert's time is spent actually evaluating and treating brain injured

clients?

11. Has the expert actually seen and examined the patient?

I2. What percentage of testimony is a treating neuropsychologist vs. what percentage is a defense

expert?

Client Credibility:

1. Is the client faking, malingering, exaggerating symptoms? (MMPI malingering scale)

2. Does the client express a desire to get better?

3. Is the client still working despite deficits?

4. What coping strategies is the client using to continue living?

expert your understanding and knowledge base of TBI will tend to keep him or her honest in the

cross-examination.

A very basic summary of brain anatomy and TBI mechanics is as follows: Brain injuries can

result from a traumatic event. These include skull fractures, contusions of the gray matter,

lacerations of brain tissue, shearing injuries, diffuse axonal injuries, intra-cranial/intra-cerebral

hemorrhages.

Delayed or secondary brain injuries can arise from post-injury elevated intra-cranial pressure,

epidural subdural and arachnoid hemorrhages, hypoxic injuries, ischemic injuries, excito-toxicity

injuries, status epilepticus,

Skull fractures may be linear, with or without displacement of bone fragments, or depressed

when fragments of bone are forced towards the brain. Diastasis fractures occur when a blow to the

head causes plates of bone to separate from each other. Damage to the brain may occur without

fracture to the skull, causing permanent damage. Even fatal injuries occur without skull fracture (i.e.

shaken baby syndrome).

The brain itself may be injured in an Acceleration/Deceleration injury even in the absence

of a blow to the head, where the brain tissue strikes the interior of the skull, which is not smooth, but

has many sharp boney protrusions or where the tissue is twisted, torqued, or sheared. The skull

decelerates faster than the brain, which is floating within cerebral-spinal fluid. Tears of the brain

may occur when the brain strikes boney protrusions within the skull, or when the mechanism of the

injury causes twisting, shearing, or deformity of the brain tissue, which has the consistency of

oatmeal or jello. Microscopic damage to brain tissues (neurons, axons, dendrites) may or may not

appear on CAT scans or MRIs. Moreover, tearing or shearing injuries may take place at the time of

the initial injury or the injury may take as long as 24-48 hours for the process to be completed

because of swelling secondarily causing lack of profusion and excito-toxicity.

Intra-cranial hemorrhages are caused by the result of direct tearing of brain tissue, or tearing

of thin-walled bridging veins within the brain. Damages result from direct tearing of brain tissue,

or compression by the expanding mass of blood and chemical damage to surrounding brain tissue

(excito-toxicity). Increased pressure within the brain is caused when bleeding occurs within the

brain. The brain is surrounded by a rigid structure of the skull, and the swelling compresses the brain

tissue. Blood, glucose, and oxygen supplied to brain tissues are diminished as intra-cranial pressure,

relative to mean arterial blood pressure, increases. As intra-cranial pressure rises, cerebral blood

flow decreases. MRI or CT may demonstrate shrinking ventricles or midline shift showing increased

intra-cranial pressure.

Hypoxia or anoxia injuries are caused when oxygen is cut off from brain cells, which need

oxygen and glucose for survival. Below certain critical levels, permanent brain damage occurs.

Such injuries can occur from lack of oxygen or blood flow.

Intra-cranial hemorrhages can occur in different fibrous membranes, creating several

compartments. The dura mater is the thick, outer-most membrane surrounding the brain. The pia-

arachnoid is a thin, inner membrane. Hemorrhages (epidural, subdural, or subarachnoid) can occur

within the epidural space (the space between the inner surface of the skull and the dura mater, in the

subdural space (the space between the dura mater and the pia-arachnoid), or the sub-arachnoid

space (the space between the pia·arachnoid and the surface of the brain). When brain cells are

injured, damaged neurons release their neuro-transmitters, the chemical messengers by which brain

cells communicate and transfer information. Excessive release of excitatory neuro-transmitters,

including glutamatensaspartate, over-stimulate neighboring neurons, causing a chain of events

culminating in death of brain cells over 24-72 hours.

Sometimes brain injuries cause seizures such as status epilepticus, a condition in which an

individual experiences a single seizure lasting more than 30 minutes, or a series of seizures lasting

at least 30 minutes, where the individual does not regain consciousness between seizures. The

brain’s need for blood flow, oxygen, and glucose can increase five fold during such seizures. An

enormous increase in metabolic needs, which may not be met, may result in an additional brain

injury.

Once you have been retained to represent a client in a brain injury case, and the defense has

named its neurosurgery/brain injury expert or neuropsychologist, you should follow these basic

guidelines in preparing for the cross-examination of this most vital and pivotal expert, who can make

or break a brain injury case.

Continue Reading >> Mechanics of the Closed Head Injury