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MedMal Notes: Doctor Depo Problems

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During deposition, defendant doctors often fall victim to plaintiff counsel’s attempts to badger them into becoming defensive and argumentative, thereby turning Marcus Welby, M.D., into someone closer to Dr. Hannibal Lecter.  This outcome is usually unnecessary.

Doctors who are inexperienced or uncomfortable testifying need to understand that opposing counsel is merely playing a word game with them and that they can take a lot of control back from the attorney (a concept that should appeal to most physicians) if they simply learn the  rules of the game, and devote some time to practice sessions before being deposed.  With a better deposition performance, they will spare themselves some uncomfortable time during trial by minimizing the need to explain poor deposition answers, and they will also give themselves more time to testify on the defense case themes.  

Stow v. Dodgers: Weak Liability Overcame High Sympathy

Following the Giants-Dodgers opening day game in 2011, Giants fan Bryan Stow was beaten by two Dodger fans in the parking lot at Dodger Stadium.  The brutal attack left Stow disabled with severe and permanent brain injuries.  Yesterday, an LA jury returned a nearly $18 million verdict against the Dodgers (or more precisely, former owner Frank McCourt's defunct Dodger corporate entity).   While $18 million is by no means chickenfeed, it was sure a lot less than the roughly $75 million LA plaintiff lawyer extraordinaire Tom Girardi asked jurors to award.

The case was highly publicized in Los Angeles over the past three years with plaintiff Bryan Stow becoming a deeply sympathetic figure and his assault a source of embarrassment for many Angelenos. 

The case is also a good example of how jurors don't automatically allow sympathy to trump liability.  Though jurors love to "make a statement," this fact pattern didn't seem to give them a clear path for doing so. 

First, the two assailants were apprehended, pled guilty and are currently in prison. So there was no mystery left for jurors to solve and no way to punish Stow's actual attackers.

Second, the plaintiff was unable to show jurors any "smoking gun" evidence against the Dodgers, such as a reduced security budget or a failure to follow established security procedures. This likely made it much harder for plaintiff jurors to generate the high levels of anger toward the Dodgers that would have been necessary for a "statement" verdict. 

Third, the attack took place following the game in the parking lot. This is certainly a much less supervised environment than inside the stadium itself during a game and is on the periphery of the area the Dodgers controlled.  This likely further lowered the expectations that jurors' were able to place on the Dodgers.

So, the jury had the attackers identified and in jail, no truly incendiary evidence against the Dodgers or McCourt, and an attack that took place on the fringes of the ballclub's property. On balance, plaintiffs had an extremely strong damages case and a moderately weak liability case with the weak liability case keeping damages down to about a quarter of plaintiff's suggested amount.

The moral of this story: Sympathy doesn't necessarily trump liability.

 

 

 

Juror Perceptions of Hospitals: For-Profit vs. Non-Profit

Unfortunately for non-profits, jurors in med mal cases are just as critical of them as they are their for-profit cousins and don't perceive non-profits as any more caring, or any less greedy.

Jurors are also generally unmoved by a university affiliation or whether a facility is a teaching hospital and do not credit defendants with being better corporate citizens just because they care for under-served areas or populations.

Med mal jurors usually spend considerable time focusing on the knowledge differential--and therefore the inherent power differential--between the physician (or other medical professional) and the patient, and their analysis isn't affected by what corporate structure the defendant operates under.

In fact, in some cases a teaching hospital can actually face an additional burden in proving it met the standard of care if a resident physician (sometimes called a "trainee doctor") was a prominent treater.

Sad perhaps, but true. So don't expect any bonus points from jurors just because your hospital doesn't have shareholders.

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What Makes A Good Expert Witness

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Conventional wisdom holds that jurors don’t trust expert witnesses because they perceive them to be…well, adjunct practitioners of the world’s oldest profession. While it may be true that many people profess this attitude about expert witnesses in the abstract, that cynicism all but disappears when people are sworn as jurors and are then charged with deciding a defendant’s fate. In these concrete circumstances, jurors find themselves looking for all the help they can get. They also quickly realize that one of the best sources of that help is the expert witness.

The more complex and technical the case, the more jurors rely on experts to help them understand case facts and issues. In turn, one of the primary metrics jurors use to judge an expert witness is their evaluation of the witnesses’ credibility.

Simply put, credible experts influence jurors positively about the merits of your case.   

So...

  • How can you tell if jurors are likely to see your expert witness as credible?
  • How do you begin applying some level of objectivity to your witness evaluations?
  • What signs should you look at as you evaluate your expert’s performance?

Research on expert witness credibility by Dr. Stanley Brodsky of the University of Alabama offers some hints. The research of Brodsky and colleagues (Brodsky, Griffin & Cramer; 2010) indicates that jurors’ perception of an expert witnesses’ credibility has four primary components.  They are listed here in descending order of importance:

  1. Confidence. Does the witness demonstrate reasonable confidence in their opinions?
  2. Trustworthiness. Does the witness inspire trust?
  3. Likeability. Do jurors find the witness likeable?
  4. Knowledge. Does the witness seem informed?

Brodsky’s findings suggest that the component confidence accounts for about 50% of expert witness credibility, trustworthiness for about 9%, likeability about 7%, and knowledge about 5%.  Taken together, these components account for nearly 70% of a witness’ credibility with jurors.

By keeping these four components in mind as you evaluate your witness, you can begin to give yourself a more objective sense of jurors’ likely reaction to your witness, and help yourself isolate the areas you need to focus on during witness preparation.

If your evaluation reveals that your witness has a problem with likeability, then you’re probably in pretty good shape, since likeability is only 7% of credibility. But, if you find that they seem to have a confidence problem (about 50% of credibility), then you should probably plan to spend some more time with them, or, start looking for another witness.

A note about Confidence

In this context, the components of trustworthiness, likeability and knowledge are all pretty much self-explanatory.  But confidence is slightly different. Jurors set different confidence expectations for fact witnesses and expert witnesses.  They expect fact witnesses to be highly confident, while they expect expert witnesses to be reasonably confident in their opinions. Jurors, it seems, recognize a sort of “sweet spot” for expert opinions and are suspicious of highly confident opinions from people who, like themselves, weren’t actually there. Consequently, jurors give better confidence ratings to experts who are “reasonably confident” in their opinions than they do to experts who are either “highly confident” or “slightly confident” in their opinions.

 

Brodsky, S. L., Griffin, M. P., & Cramer, R. J. (2010). The Witness Credibility Scale: An outcome measure for expert witness research. Behavioral Sciences & the Law, 28, 892–907.

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Voir Dire Tips: Peer Pressure

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Trial attorneys know that witnesses routinely mis-remember, omit details and guild the lily to make themselves look better than they would if they just told the unvarnished truth. Trial attorneys, however, don't always consider that witnesses aren't the only truth-challenged people they will encounter in the courtroom. The others are prospective jurors.

It's not that prospective jurors intentionally lie...well, not usually anyway. But, like any of us who find ourselves in an unfamiliar setting, they feel pressure to conform to group norms, and to be viewed as reasonable and rational. To reduce this pressure, they adjust their behavior a little to fit in.

Psychologists call this tendency "social desirability bias"; but the rest of us just call it "peer pressure." 

So, what effect does social desirability bias have on juror behavior during voir dire and what should trial attorneys do about it?

First, prospective jurors are likely to make their voir dire answers as short as they can, giving "yes" or "no" answers whenever possible. This shortens the interaction and reduces their tension.  It also gives the attorney little, if any, useful information.  To combat this, never ask prospective jurors yes or no questions, always ask open-ended questions which call for a description or an explanation.

Second, a prospective juror is likely to moderate the views they express to make their attitudes seem more consistent with the rest of the panelists. To cut down on this behavior, ask jurors to explain why they hold a view, ask them to describe what has led them to hold a particular view. The more detail you can get from them, the more likely they are to disclose how they really feel and what they really think. 

Third, prospective jurors will virtually always agree with pro forma questions like: "Do you promise to be fair to my client?" or "If I prove ___ to you, would you be able to vote for my client?" Don't believe any promise you may extract from a prospective juror to be fair and impartial. Such promises are empty and are only made to get you to stop asking questions and leave them alone. Dispense with these generic questions entirely.

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Challenging The "Illusion of Understanding"

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Corporate defendants and their insurers know very well that jurors--especially plaintiff jurors--love to opine freely on topics that they genuinely know nothing about.

For example, in patent cases, jurors know exactly how the USPTO examines patent applications. In medmal cases, they know exactly why the plaintiff's rare cancer wasn't diagnosed.  In products cases, they know exactly why the manufacturer ignored an "obvious" defect.  Of course, nearly all these things that jurors know are really just illusions of knowledge, and coincidentally, happen to be good for plaintiffs and bad for defendants.

So, is there any way to combat this reliance on illusion?  Maybe.

Dr. Philip Fernbach, from the University of Colorado, and some colleagues, discovered a way to challenge and undermine some kinds of this illusory knowledge. They described the method it in their paper "Political Extremism Is Supported by an Illusion of Understanding." 

It's long been known that people think they understand complex phenomena in far more depth than they actually do (Rosenblit & Keil, 2002).  Whether it's an airliner, a lawn sprinkler, or local anesthesia, we may get the basic principles of how something works, but we don't know as many operational details as we think we do.  If you doubt this, just remember the last time you tried to repair a mechanical thingee around the house and found yourself saying: "Oh. So thaaat's how it works."

Anyway, Fernbach and his colleagues explored extreme political views and found that asking research subjects to explain their policy prescriptions in detail caused the subjects to recognize the limits of their knowledge and to then soften strident views.  Attempting to explain how a complex process worked when they really didn't understand it caused Fernbach's subjects to recognize the limits of their knowledge and opened them up to persuasion by opponents.

So, in cases with a complex process or procedure at issue when you truly think your explanation is best, ask jurors to decide not only what happened, but also the details of how it happened.

Sterling Stirs Things Up Again

Yesterday Donald Sterling announced that his suit against the NBA is back on.

Reaction to this flip-flop has been so limited that I think we've all begun to reach the same conclusion: that Mr. Sterling probably is suffering from the early stages of Alzheimer's or dementia, and that his erratic behavior is just a symptom of that condition.  

Something tells me that in the next few weeks or months, Mr. Sterling will be declared incompetent, and we will have finally heard the last from him.