On a damages trial, the goal of plaintiff’s counsel is to maximize damages. Frequently, insurance company managers and claim representatives ask, “How much can plaintiff put up on the board?”, meaning what can the plaintiff prove in special damages. The amount a plaintiff can show for past and future medical expenses, past and future lost earning, and other economic damages are critical components of a plaintiff’s direct case. The theory being, a jury will be more apt to award hard numbers for actual damages than a large pain and suffering award. What the plaintiff, “puts up on the board” can also be a springboard to a request for a pain and suffering number. If your special damages are at or near seven figures, your pain and suffering numbers for past and future damages, can easily be three to five times that number. Or at least that’s the theory.
Frequently we find on high exposure cases, plaintiffs will call a life care expert, a doctor of physical medicine and rehabilitation, to testify to future medical care required for the injured plaintiff and an economist to give the jury actual numbers for the cost of future medical care over the plaintiff’s lifetime. How does the defense attorney approach this effective combination of expert witnesses?
An approach we have found effective is to contrast and compare ‘made for litigation costs’ with the reality of what the plaintiff is doing for future medical care. If the plaintiff stopped treatment two years ago, is on no medications, not seeking any further P.T., has not returned to any surgeon in two years and has resumed normal daily activities, the life care expert on expounding the necessity of future medical care at exorbitant prices can be made to look less than credible before a jury. Take for example our recent exchange with Dr. Edwin Richter on the case discussed above.
Q Doctor, you’ve testified over a hundred times, correct?
Q So you know the rules of cross-examination?
Q If I ask you a yes or no question, you’ll answer it yes or no?
Q And am I correct that you are not Miss Kim’s treating physician? You saw her once for purposes of this lawsuit, correct?
Q The treatment plan that you put together, this is just for this lawsuit, correct?
Q That has nothing to do with her actual treatment by her own physicians, this is purely for litigation purposes, correct?
Q The recommendations that you made to see a spine specialist, pain specialist, physical therapy, medications, MRIs, 20 EMGs, x-rays, MRIs, surgery, future surgery, that’s all just for litigation, it’s not endorsed by any of her doctors; is that fair to say?
A I don’t know if any of her doctors have seen it, but I would not know.
Q Well, let me ask you that. Did you talk to any of her doctors?
Q Other than seeing Miss Kim last October — was it October 2016?
Q August, last August, over a year ago, for one hour, did you talk to any of her doctors, Drs. Berkowitz, Das, Shiau, Rafiy, Schneider, her primary care physicians, about what they felt her treatment plan should be going forward?
Q Do you think it would be a more accurate portrayal of what her future medical needs are if you interviewed any of those doctors?
A Not necessarily, no.
Q Now, as part of your fee, I would anticipate that before you came to testify you would see her again, so you could give this jury an accurate representation of what her current condition is. Did you do that?
Q Would it have been more accurate to give a portrayal to the jury if you had a conversation and an interview with her contemporaneously with your testimony?
Q And nothing prevented you from doing that, correct?
Q Did you discuss any of these recommendations with her?
Q Let me get this straight, you’re telling the jury that this is what she needs (indicating)?
Q And you never told her?
A That she would need those? No.
Q You’re just coming in to say it this one time for this lawsuit?
Q Is it fair in your mind, Doctor, to award the plaintiff future medical costs for things that she doesn’t need?
MR. HOLBROOK: Objection.
THE COURT: Sustained.