Episode #201 - Med Mal Litigation Part 2 - Expert Witness Testimony

Episode 201 – Med Mal Series part 2 – Expert Witnesses 

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<Bill Kanasky, Jr., Ph.D.>Welcome to another edition of The Litigation Psychology Podcast, brought to you by Courtroom Sciences.

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<Bill Kanasky, Jr., Ph.D.>This is Dr. Bill Kanasky.

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<Bill Kanasky, Jr., Ph.D.>Short podcast today, but important podcast, continuing on with our 2024 Med Mal series.

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<Bill Kanasky, Jr., Ph.D.>Let's talk about expert witness testimony in medical malpractice.

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<Bill Kanasky, Jr., Ph.D.>20 years of doing this, I have worked on thousands, thousands of Med Mal cases, and I got some bad news for you.

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<Bill Kanasky, Jr., Ph.D.>Expert witness testimony in medical malpractice does not get you very far, and there's a few reasons for this, relative to other areas of litigation.

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<Bill Kanasky, Jr., Ph.D.>The number one reason why it doesn't get you very far is that the expert witness never evaluated this particular patient.

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<Bill Kanasky, Jr., Ph.D.>Now, for example, in a product liability case, let's say a tire blowout, and they're suing the tire manufacturer, well, that tire is typically available for evaluation by both sides.

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<Bill Kanasky, Jr., Ph.D.>The expert witness can get in front of the jury and say, I looked at the tire from the accident, and here's my scientific assessment.

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<Bill Kanasky, Jr., Ph.D.>That doesn't happen in medical malpractice.

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<Bill Kanasky, Jr., Ph.D.>And so what I've seen in 20 years of doing litigation consulting, focus groups, mock trials, witness training, in medical malpractice is a heavy over-reliance on experts.

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<Bill Kanasky, Jr., Ph.D.>And both defense counsel, hospital systems, insurance companies that insure physicians really, really go big.

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<Bill Kanasky, Jr., Ph.D.>I got this great expert.

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<Bill Kanasky, Jr., Ph.D.>I got this great expert from Harvard or Yale or Cedars-Sinai or UCLA or Duke Medical Center, UNC Hospital, Shands at the University of Florida, and the jurors, they just don't care.

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<Bill Kanasky, Jr., Ph.D.>Now, right now, I've offended half of the audience because they're saying, no, I need my expert.

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<Bill Kanasky, Jr., Ph.D.>Expert survey purpose, it's not going to have a big influence on jury decision making.

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<Bill Kanasky, Jr., Ph.D.>So I'm going to make a very bold statement here, but this is a factual statement from my experience over 20 years.

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<Bill Kanasky, Jr., Ph.D.>I have interviewed thousands of jurors over 20 years on Med Mal cases, many of them post trial interviews.

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<Bill Kanasky, Jr., Ph.D.>Case goes to verdict, I call the jurors and I interviewed them.

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<Bill Kanasky, Jr., Ph.D.>Then on top of that, even more mock jurors, and we've collected data from our mock juries, focus groups, all kinds of Med Mal cases, birth injury cases, post-surgical infection cases, leaving surgical instruments inside of people cases, bariatric surgery, gone wrong.

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<Bill Kanasky, Jr., Ph.D.>All of them, you name it, worked on it.

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<Bill Kanasky, Jr., Ph.D.>They never once in 20 years of doing that, did any juror report to me, any of my colleagues, that one of the core factors in their decision making was the testimony of one of the expert witnesses ever in 20 years.

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<Bill Kanasky, Jr., Ph.D.>Product liability case, different.

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<Bill Kanasky, Jr., Ph.D.>Intellectual property case, different.

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<Bill Kanasky, Jr., Ph.D.>Commercial litigation, different.

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<Bill Kanasky, Jr., Ph.D.>Because these experts never saw the actual patient.

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<Bill Kanasky, Jr., Ph.D.>They were not there.

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<Bill Kanasky, Jr., Ph.D.>They're looking at medical records and giving an opinion.

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<Bill Kanasky, Jr., Ph.D.>So, I'm not saying experts in medical malpractice are useless.

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<Bill Kanasky, Jr., Ph.D.>You obviously need them.

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<Bill Kanasky, Jr., Ph.D.>You need one in many states just to file a lawsuit.

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<Bill Kanasky, Jr., Ph.D.>You have to have an expert, right?

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<Bill Kanasky, Jr., Ph.D.>However, their testimony is not going to win your case.

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<Bill Kanasky, Jr., Ph.D.>It's not going to lose your case either.

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<Bill Kanasky, Jr., Ph.D.>So, using the expert to evaluate your case, to help you with how you're going to try the case, how you're going to work up the case, good stuff.

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<Bill Kanasky, Jr., Ph.D.>However, do not rely on them to win your case.

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<Bill Kanasky, Jr., Ph.D.>That's not how jurors make decisions in Med Mal cases.

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<Bill Kanasky, Jr., Ph.D.>Period.

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<Bill Kanasky, Jr., Ph.D.>You may not, in the words of Ric Flair, right?

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<Bill Kanasky, Jr., Ph.D.>The words of Ric Flair, you may not like it, but you better learn to love it.

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<Bill Kanasky, Jr., Ph.D.>Because it's the best thing going today!

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<Bill Kanasky, Jr., Ph.D.>Right, okay.

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<Bill Kanasky, Jr., Ph.D.>All of you Ric Flair fans know exactly what I'm talking about.

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<Bill Kanasky, Jr., Ph.D.>If you have no idea who Ric Flair is, now you think I'm crazy.

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<Bill Kanasky, Jr., Ph.D.>Go Google, go YouTube, Ric Flair, you'll get it.

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<Bill Kanasky, Jr., Ph.D.>If you don't like it, you better learn to love it.

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<Bill Kanasky, Jr., Ph.D.>Because that is what...

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<Bill Kanasky, Jr., Ph.D.>But you need one, okay?

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<Bill Kanasky, Jr., Ph.D.>But largely, they're going to cancel each other out to the jurors.

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<Bill Kanasky, Jr., Ph.D.>Different type of case, very, very different.

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<Bill Kanasky, Jr., Ph.D.>When the expert can analyze that blown out tire, or they can analyze that contract and the contract dispute, okay?

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<Bill Kanasky, Jr., Ph.D.>Very, very different.

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<Bill Kanasky, Jr., Ph.D.>Med Mal, not so much.

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<Bill Kanasky, Jr., Ph.D.>So, what are you trying to get out of your expert in front of these juries?

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<Bill Kanasky, Jr., Ph.D.>Well, they got to defend your case, but the thing is there's going to be a competent, well-trained, prestigious expert on their side.

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<Bill Kanasky, Jr., Ph.D.>The jury hears two really, really smart, qualified physicians or nursing experts, and they kind of go, okay, they both sound good to me.

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<Bill Kanasky, Jr., Ph.D.>Yeah, and so what happens is cancel out effect, and they move to the next variable.

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<Bill Kanasky, Jr., Ph.D.>Your fact witness performance and medical malpractice will determine your fate.

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<Bill Kanasky, Jr., Ph.D.>Far more than the expert witness performance.

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<Bill Kanasky, Jr., Ph.D.>We know that.

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<Bill Kanasky, Jr., Ph.D.>Hence why we spend so much damn time training nurses and physicians and allied healthcare professionals for their depositions and for trial testimony.

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<Bill Kanasky, Jr., Ph.D.>It's the number one driving factor in med mal.

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<Bill Kanasky, Jr., Ph.D.>But everybody's just got this, got to have the best expert.

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<Bill Kanasky, Jr., Ph.D.>I got this best expert.

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<Bill Kanasky, Jr., Ph.D.>You need an adequate expert to appropriately defend the care of the health care provider, and that's it.

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<Bill Kanasky, Jr., Ph.D.>They are not going to win your case, period.

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<Bill Kanasky, Jr., Ph.D.>Now, can they lose the case?

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<Bill Kanasky, Jr., Ph.D.>Yeah, if they really suck on the stand, I've seen that before.

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<Bill Kanasky, Jr., Ph.D.>They've got a great CV, and they're just dogshit witnesses.

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<Bill Kanasky, Jr., Ph.D.>Yeah, that can really hurt you, but they could be phenomenal witnesses, and it's really not going to help, because typically you have a phenomenal witness on the other side, cancels each other out.

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<Bill Kanasky, Jr., Ph.D.>Now, here's a trick.

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<Bill Kanasky, Jr., Ph.D.>Where I have seen some movement in jury decision making when it comes to the experts, are the visual aids being used by the experts, okay?

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<Bill Kanasky, Jr., Ph.D.>So their expertise, their testimony, generally cancels each other out.

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<Bill Kanasky, Jr., Ph.D.>But if you want to get an edge, you want to get an edge here, make sure, and this is not just for the expert, this is for the overall case, so for defense counsel too, in opening, in closing, maybe with some fact witnesses, your visual presentation of your case must be superior to that of your adversary, must be superior, must be superior.

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<Bill Kanasky, Jr., Ph.D.>That will give you the edge.

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<Bill Kanasky, Jr., Ph.D.>If you just have two really smart MDs or PhDs or whoever, essentially testifying for each side.

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<Bill Kanasky, Jr., Ph.D.>Again, jurors just kind of shrugging, okay, that's nice.

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<Bill Kanasky, Jr., Ph.D.>Next, it's not enough.

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<Bill Kanasky, Jr., Ph.D.>But the way to get the edge here, assuming that the quality of testimony from both witnesses is roughly equal, body language, communication skills, eye contact with the jury, knowledge, the ability to explain complex medical processes, pathophysiology, assuming most of that's going to be equal, where can you get the edge?

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<Bill Kanasky, Jr., Ph.D.>The visual presentation, particularly if your expert's going to teach something to the jurors, okay?

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<Bill Kanasky, Jr., Ph.D.>So arm your experts with the very best visuals possible to be more persuasive to the jury.

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<Bill Kanasky, Jr., Ph.D.>That can give you an edge, but everything else being equal, these witnesses really don't make a big difference in jury decision-making, on liability, certainly not damages, okay?

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<Bill Kanasky, Jr., Ph.D.>Now, that being said, let's kind of dive a little bit deeper.

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<Bill Kanasky, Jr., Ph.D.>Okay, so yeah, your expert witness, right?

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<Bill Kanasky, Jr., Ph.D.>They're going to use whether it be anatomy and physiology, graphics or exhibits, right?

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<Bill Kanasky, Jr., Ph.D.>Those need to be super professional, but they also can't be overwhelming.

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<Bill Kanasky, Jr., Ph.D.>So you get a balancing act here.

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<Bill Kanasky, Jr., Ph.D.>You get really, really complicated things, but you can't overwhelm the jurors.

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<Bill Kanasky, Jr., Ph.D.>It can't be too complicated, okay?

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<Bill Kanasky, Jr., Ph.D.>It can't be too complicated.

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<Bill Kanasky, Jr., Ph.D.>So their ability to teach.

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<Bill Kanasky, Jr., Ph.D.>Now, I've had several, and this is really important for the actual defendant too, in some of these cases, particularly surgeons.

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<Bill Kanasky, Jr., Ph.D.>But this is for the expert as well.

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<Bill Kanasky, Jr., Ph.D.>If your expert is able to teach something, and I've had several, both defendant physicians, usually surgeons, and experts, get a whiteboard and colored markers, and they could actually draw things, just like they would with a real patient.

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<Bill Kanasky, Jr., Ph.D.>I found that to have a real impact.

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<Bill Kanasky, Jr., Ph.D.>I've seen jurors go, wow, wow, that was a blank whiteboard five minutes ago, and now there's the anatomy of the cardiovascular cistai.

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<Bill Kanasky, Jr., Ph.D.>Oh, jeez.

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<Bill Kanasky, Jr., Ph.D.>Wow.

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<Bill Kanasky, Jr., Ph.D.>I knew there was four chambers of the heart, but this guy just drew a heart for me.

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<Bill Kanasky, Jr., Ph.D.>Wow.

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<Bill Kanasky, Jr., Ph.D.>That's a way to get an edge.

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<Bill Kanasky, Jr., Ph.D.>But going into this, I see this overreliance on the experts.

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<Bill Kanasky, Jr., Ph.D.>Okay.

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<Bill Kanasky, Jr., Ph.D.>Get what you need from them.

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<Bill Kanasky, Jr., Ph.D.>Put your focus towards the presentation, the preparation, and the training of the fact witnesses, particularly the named defendants, but all these other folks, you know, treating physicians, nurses, okay.

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<Bill Kanasky, Jr., Ph.D.>They come across as authentic, confident, compassionate providers.

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<Bill Kanasky, Jr., Ph.D.>That's going to go a long, long, long way with the jurors.

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<Bill Kanasky, Jr., Ph.D.>Now, Plaintiffs' Council knows this.

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<Bill Kanasky, Jr., Ph.D.>Therefore, their number one goal will be to wake these witnesses uncomfortable, to get under their skin.

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<Bill Kanasky, Jr., Ph.D.>Reptile stuff, right?

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<Bill Kanasky, Jr., Ph.D.>Negative reinforcement.

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<Bill Kanasky, Jr., Ph.D.>All the tricks and traps that we cover with these witnesses, when we train them.

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<Bill Kanasky, Jr., Ph.D.>But that is really, really important, is that your fact witnesses deliver and not go into a trial telling yourself...

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<Bill Kanasky, Jr., Ph.D.>When you're looking in the mirror, Defense Council, don't be looking in the mirror going, hey, I got the best expert here.

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<Bill Kanasky, Jr., Ph.D.>No one cares.

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<Bill Kanasky, Jr., Ph.D.>Let me repeat that.

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<Bill Kanasky, Jr., Ph.D.>No one cares.

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<Bill Kanasky, Jr., Ph.D.>When your client, the head of claims for the hospital system or the insurance company, says, what do you think?

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<Bill Kanasky, Jr., Ph.D.>And you go, well, I got this great expert.

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<Bill Kanasky, Jr., Ph.D.>Don't do it.

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<Bill Kanasky, Jr., Ph.D.>Don't do it.

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<Bill Kanasky, Jr., Ph.D.>When it comes to Med Mal Litigation, other things you need to be doing, they're going to be far more impactful with the jurors.

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<Bill Kanasky, Jr., Ph.D.>So, have your bases covered there, but watch the overreliance on it.

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<Bill Kanasky, Jr., Ph.D.>So I hope you guys are enjoying this Med Mal series.

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<Bill Kanasky, Jr., Ph.D.>I've done a lot of Med Mal in my career, continue to do so, along with other areas.

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<Bill Kanasky, Jr., Ph.D.>Obviously, you know our involvement in the transportation industry, product liability, premises liability, it's all over the place.

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<Bill Kanasky, Jr., Ph.D.>A lot of commercial litigation too.

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<Bill Kanasky, Jr., Ph.D.>But 2024, I want everybody to have a great New Year.

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<Bill Kanasky, Jr., Ph.D.>And I know everybody says, yeah, New Year's resolutions.

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<Bill Kanasky, Jr., Ph.D.>I hate New Year's resolutions.

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<Bill Kanasky, Jr., Ph.D.>I think they're dumb.

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<Bill Kanasky, Jr., Ph.D.>I think it sets you up for failure.

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<Bill Kanasky, Jr., Ph.D.>All right, go to your local gym in the month of January, right?

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<Bill Kanasky, Jr., Ph.D.>You're going to be waiting around for every machine, it's going to be packed.

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<Bill Kanasky, Jr., Ph.D.>By Valentine's Day, it's going to be empty.

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<Bill Kanasky, Jr., Ph.D.>I hate New Year's resolutions.

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<Bill Kanasky, Jr., Ph.D.>This is kind of a mini rant today.

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<Bill Kanasky, Jr., Ph.D.>Very, very don't like New Year's resolutions.

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<Bill Kanasky, Jr., Ph.D.>Idealistic goals.

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<Bill Kanasky, Jr., Ph.D.>I want to lose 40 pounds.

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<Bill Kanasky, Jr., Ph.D.>No, set yourself up for failure.

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<Bill Kanasky, Jr., Ph.D.>Focus on the first two pounds.

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<Bill Kanasky, Jr., Ph.D.>Lose two pounds 20 times.

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<Bill Kanasky, Jr., Ph.D.>I used to do research in this back in my psychology days in behavioral medicine.

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<Bill Kanasky, Jr., Ph.D.>Goal setting.

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<Bill Kanasky, Jr., Ph.D.>But what does that mean for attorneys, claims people listening to this?

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<Bill Kanasky, Jr., Ph.D.>I care about all of you.

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<Bill Kanasky, Jr., Ph.D.>I want everybody to be happy.

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<Bill Kanasky, Jr., Ph.D.>I want you to thrive in your careers, okay?

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<Bill Kanasky, Jr., Ph.D.>I would tell you this.

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<Bill Kanasky, Jr., Ph.D.>With your goal setting, be a combination of realistic, meaning small steps for the bigger goal.

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<Bill Kanasky, Jr., Ph.D.>But here's the bigger thing.

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<Bill Kanasky, Jr., Ph.D.>Set goals that are uncommon.

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<Bill Kanasky, Jr., Ph.D.>Mm-hmm, mm-hmm.

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<Bill Kanasky, Jr., Ph.D.>What's that sink in there?

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<Bill Kanasky, Jr., Ph.D.>Set goals, your professional goals, and your personal goals.

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<Bill Kanasky, Jr., Ph.D.>Would it be health or whatever?

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<Bill Kanasky, Jr., Ph.D.>Marriage, family, whatever?

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<Bill Kanasky, Jr., Ph.D.>Be uncommon with your goals.

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<Bill Kanasky, Jr., Ph.D.>Don't do what everybody else is doing.

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<Bill Kanasky, Jr., Ph.D.>Common goals lead to common outcomes.

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<Bill Kanasky, Jr., Ph.D.>You want to be unique?

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<Bill Kanasky, Jr., Ph.D.>You want to be a superstar?

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<Bill Kanasky, Jr., Ph.D.>You want to do something special?

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<Bill Kanasky, Jr., Ph.D.>Your goal has to be special, but you got to balance it with practical, right?

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<Bill Kanasky, Jr., Ph.D.>That's really what this is all about, with your professional development, with your personal development.

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<Bill Kanasky, Jr., Ph.D.>Now, at this point in the podcast, you're going, why is he going off on this tangent?

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<Bill Kanasky, Jr., Ph.D.>Because one of the things we talk about on this podcast, this podcast is mental health.

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<Bill Kanasky, Jr., Ph.D.>We talk about mental health of witnesses, mental health of defendants, mental health of attorneys, mental health of claims people.

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<Bill Kanasky, Jr., Ph.D.>Every couple weeks on LinkedIn, I read an article about the suicide rate in the field of law, particularly trial attorneys, rates of anxiety.

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<Bill Kanasky, Jr., Ph.D.>And death cases.

00:18:55.143 --> 00:18:58.903

<Bill Kanasky, Jr., Ph.D.>You defense counsel, you're doing the same thing.

00:18:58.923 --> 00:19:00.583

<Bill Kanasky, Jr., Ph.D.>This is not an easy job.

00:19:00.603 --> 00:19:03.283

<Bill Kanasky, Jr., Ph.D.>A lot of hours, a lot of stress.

00:19:03.623 --> 00:19:04.963

<Bill Kanasky, Jr., Ph.D.>You got to take care of yourself.

00:19:06.863 --> 00:19:07.703

<Bill Kanasky, Jr., Ph.D.>Claims people.

00:19:09.683 --> 00:19:13.183

<Bill Kanasky, Jr., Ph.D.>You're supposed to be managing 50 claims, and instead you got 80.

00:19:14.023 --> 00:19:15.263

<Bill Kanasky, Jr., Ph.D.>It's tough.

00:19:16.483 --> 00:19:20.223

<Bill Kanasky, Jr., Ph.D.>Playtef attorneys that are listening, hello, I know you're out there.

00:19:21.043 --> 00:19:21.943

<Bill Kanasky, Jr., Ph.D.>Welcome to the podcast.

00:19:23.783 --> 00:19:26.763

<Bill Kanasky, Jr., Ph.D.>You're under similar stresses, okay?

00:19:26.883 --> 00:19:27.863

<Bill Kanasky, Jr., Ph.D.>We're all under stress.

00:19:28.823 --> 00:19:34.143

<Bill Kanasky, Jr., Ph.D.>So I'm going to conclude this podcast with 2024.

00:19:34.283 --> 00:19:44.303

<Bill Kanasky, Jr., Ph.D.>I want each and every one of you to develop, to keep growing no matter how old you are, and to get better.

00:19:45.083 --> 00:20:01.563

<Bill Kanasky, Jr., Ph.D.>It's not going to be easy, but to get better, set unique, special, uncommon goals, and set up a plan that's practical, realistic, with short little steps to get there.

00:20:01.623 --> 00:20:05.003

<Bill Kanasky, Jr., Ph.D.>Not the big, I'm losing 40 pounds in the next six weeks.

00:20:05.023 --> 00:20:09.523

<Bill Kanasky, Jr., Ph.D.>No, that's what will set you up for failure.

00:20:11.363 --> 00:20:15.343

<Bill Kanasky, Jr., Ph.D.>All right, that's The Litigation Psychology Podcast for today.

00:20:15.983 --> 00:20:16.603

<Bill Kanasky, Jr., Ph.D.>I am Dr. Bill Kanasky.

00:20:17.683 --> 00:20:18.803

<Bill Kanasky, Jr., Ph.D.>We will see you next time!