This is a partial transcript of the cross-examination of plaintiff’s medical consultant. Dr. Jerry Lubliner is a favorite expert witness for plaintiffs. He is often called as a consultant, with no treatment given to the plaintiff. He is polished, sincere, exceptionally well-spoken, talented and extremely bright. He likes to show he is the smartest guy in the courtroom. A defendant can use that narcissistic trait to their distinct advantage on cross-examination. A jury may be charmed and impressed by the direct examinations, but on the cross, defense counsel can show his true colors. Take, for example, this recent exchange between Tom Craven of our office and Dr. Lubliner in Kings County before Judge Dawn Jiminez-Salta during a July 2017 trial on a high exposure case with $2.3 Million in coverage and 100% liability against the defendant.

The plaintiff had a laminectomy and fusion from L3 to the Sacrum in 2011. The plaintiff also had a total left hip replacement in 2011. The plaintiff had a right knee arthroscopy in 2012 and a total right knee replacement in 2015. The plaintiff also had a left carpal tunnel release surgery in 2013. The 60-year-old plaintiff was out of work for over 300 days post-accident. This case could have resulted in a verdict above the policy limits. The case settled for $375,000 based on the strength of Tom’s cross-examination.

To set the stage, a jury should know the Doctor’s experience in the courtroom and counsel must take the upper hand having the Doctor agree to answer the simplest of questions with a yes or no. Here, Dr. Lubliner could not concede that simple point and made himself look foolish from the start of cross-examination:

Q.   In fact, you have testified in court more than 250 times, correct? 

A.   Over 30 years, correct.

Q.   Over those 30 years, over those 250 times, you know how the procedure is, right? 

A.   Correct.

Q.   So if I ask you a yes or no question, you know to give me a yes or no answer, correct? 

A.   I can’t answer that question the way you crafted it.

Q.   If I ask you a yes or no question, please just answer yes or no? 

A.   If I am able to, yes.

Q.   That was a yes or no question. You didn’t give me just a yes, so my question is this if I ask you a          yes or no question, can you answer it yes or no? 

A.   I can’t answer that question the way you crafted it.

Q.   If I ask you a straight yes or no question, you can’t tell this jury if you can answer yes or no? 
A.   If it is a yes or no question, I will answer yes or no. But if I can’t answer yes or no, maybe it is a maybe answer, I will have to answer maybe.

Then on the medicine, Dr. Lubliner, dropped the ball and lost the match by failing to concede the obvious:

 Q.   You don’t believe that he had a preexisting degenerative condition in his right knee; is that your testimony?

A.   I can’t answer the question the way you crafted it.
Q.   Yes or no, do you believe that the plaintiff had a preexisting degenerative condition in his knew,            yes or no? 

A.   I can’t answer the question the way you crafted it.

Q.   You can’t answer what you believe in? 

A.   I can. You are not allowing me to.

Q.   It is a yes or no, do you believe — 

A.   I can’t answer the question the way you crafted it.

Q.   Do you believe that he had a preexisting degenerative condition in his right knee, yes or no?

A.   I cannot answer the question the way you crafted it.
The transcript attached is worthy of a quick read. Rather than a frontal assault on the expert’s medical opinion, which defense counsel could not win, the winning cross-examination technique is to take the witnesses’ opinion to an extreme and show the absurdity of his position by his failure to concede points which everyone in the room knows is true. The “smartest man in the room” ends up looking much like the emperor with no clothes.

 

Read the transcript here.