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Selecting Expert Witness in Personal Injury Cases

Written by Spencer Aronfeld on . Posted in Medical Malpractice, Personal Injury News and Safety Resources, Qui Tam


Effective use of an expert witness in personal injury cases can make the difference between winning and losing. In some cases, like medical malpractice, expert witnesses’ opinions are required even before a lawsuit can be filed.

I have found the selecting of appropriate experts to be vitally important. Many lawyers, depending on the area of law they practice, maintain a book or bank of experts they call upon with regularity.  For instance, an auto insurance defense firm or a cruise line may use the same three or four experts in different cases several times a week.  It is not unusual, for instance, to see a neurologist or an orthopedic surgeon hired by a defense firm or cruise line spending more time and making more money testifying than actually seeing and treating patients.

While this may also be true of the plaintiff’s practice, I can only base my experience on what I have seen and heard. I personally try to utilize different doctors or experts as often as I can, so as to deflate the defense’s potential arguments of bias or prejudice. The benefit of using tried and true experts versus the risk of the unknown is difficult for any lawyer to weigh. Therefore, thoughtful selection of experts is important in maximizing your client’s potential for success both in and out of the courtroom.

Perhaps the most valuable trait I look for when selecting an expert is his or her ability to articulate opinions in a manner that is believable, likable, modest, and honest. In nearly 25 years of litigating cases across the United States, I think I may have seen it all.

The Ivory-Tower Expert  

This expert is the leader in an academic field. Usually, he or she has authored books on the subject that are used at the best universities and schools in the world. Often, the expert is a guest speaker at international conferences and has a general reputation as the preeminent voice on a particular skill set or narrow subset of medicine or science. Imagine a Dr. Sheldon Cooper, the “know-it-all” star of The Big Bang Theory.  Sheldon lives a sheltered life in academia, having skipped grades in school and being regarded as a prodigy. However, just like Sheldon, many Ivory-Tower Experts have little or no ability to connect with others–particularly a jury. Such experts are easily frustrated and even annoyed by those they regard as intellectually inferior–and that includes almost everyone else.

I have opposed such experts in depositions and trials. They are usually found in the bowels of notable institutions, like Brigham and Women’s Hospital, or the MIT Department of Physics. Many of the most prestigious bastions of great intellectual thought, experience, and knowledge–like the Mayo Clinic–actually prohibit their physicians from testifying as paid consultants in personal injury cases, at least the last time I checked on behalf of a plaintiff.

Consequently, it seems ironically tragic to me that defense teams for doctors, hospitals, pharmaceutical makers, and cruise lines enjoy unfettered access to such experts from around the world . . . in addition to those who already work for them.

Therefore, we who represent the plaintiffs are often left to the rest, the second tier, those who may have gone to Harvard but teach at the local state university. Perhaps they published an article but not the book, or they may simply want and need to make extra money by offering expert services and opinions to those willing and needing to pay for them.

The Virgin Expert

I used to think I could be clever by going off the beaten path and finding a true advocate for justice to serve as my expert. I thought that out of the blue I could contact someone purporting to have the qualifications to render an opinion on the minute facts at issue in a particular case.

I imagined I could outsmart the system, using Google as my Sherpa to lead me to the person who would be qualified and willing to stand up to the corporate monster I was trying to slay. A product design engineer willing to testify that a box of water sold by the local grocery store was defectively made and lacked the appropriate warnings. Or a high school gym teacher who would be willing to testify against the largest cruise line in the world that one of their onboard youth activities was inherently dangerous.

The virgin experts have never been deposed by a well prepared and highly paid defense lawyer. Never have their lives been crudely cut open by the abusive subpoena power wielded by the defense to “learn everything” about this virgin expert daring to dip his or her toe in the pool against the leviathan corporate defendant who owns the deep end.

Once I found a young and courageous neurologist who was willing to testify against one of the largest medical schools in the country that their star faculty members had failed to properly diagnose and treat a debilitating brain injury. After her deposition, the hospital’s lawyer snarled at me, “She did a good job–but she will never practice medicine in this town again.” He was right; her referrals dried up, her privileges were never renewed, and she moved away. I never heard from her again.

The problem with virgin witnesses is that–no matter how much preparation you may give them–they have never played under the glaring lights, in front of a hostile crowd, in a big game, on the road. In other words, I have seen one too many crack, retract their opinions, or worse, simply refuse to go on stage when needed the most.

Now, many years older, grayer, and wiser, I want an expert who knows where the courthouse is, likes the work, can handle him- or herself under the most intensive situations, and no matter how much he or she wants, is worth every penny.

The Non-Conceder a.k.a.the Combatant

I have deposed many opposing experts who must have been told “concede nothing.”  Accordingly, they take the most absurd positions, in the belief that they simply cannot agree with anything I say lest they be seen as helping the plaintiff’s case.

For instance, one of my favorite lines of questioning, which I have used dozens of times in medical malpractice cases involving the failure to diagnose or treat cancer, runs as follows:

Q: “Doctor, would you agree the sooner a cancer can be diagnosed, the sooner it can be treated?”

A: “No.”

Q: “Doctor, would you agree it is always best to diagnose a cancer, no matter what kind, sooner rather than later?”

A: “No.”

Q: “Doctor, can you give me some examples of a cancer that you do not feel it would be better to diagnose sooner, rather than later?”

A: “Sure, there a many kinds.”

Q.: “Okay, Doctor. I have my pencil poised and ready. Please list with specificity each and every type of cancer for which you believe a later diagnosis would be more beneficial than an earlier one.”

A: “What? I never said that. You are putting words in my mouth.”

Counsel for Defendant: “Objection to Form, mischaracterization of testimony.”

Q: “I am sorry, Doctor. Did I mischaracterize your answer in my question?”

Counsel for Defendant: “Objection.  Argumentative.  Move on counsel.”

Q: “Doctor, let me ask it again, and I apologize to you and your lawyer if I am in any way making this confusing for you.”

A: “Go on, just ask the question.”

Q: “Doctor, wouldn’t you agree that it is always in the best interest of a patient with cancer to be diagnosed sooner rather than later.”

A:  “Yes.”

Q.: “Doctor, why is that so?”

A: “There is a thousand reasons why.”

Q: “Would one of the thousand reasons why it would be in the best interest of a patient with cancer to be diagnosed sooner rather than later be to provide that patient with care and treatment for that cancer sooner rather than later.”

A:  “Yes, one of the thousand reasons, yes.”

Q: “And that is because you cannot treat what you haven’t diagnosed, true?”

A: “Yes.”

And it goes on and on, hour after hour, with the clock ticking, and the doctor trying to break me down, or hoping that his rambling will just confuse and dilute any information that may have been relevant or useful.  It all costs the plaintiffs and their opponents thousands of dollars in time and money.

One can and should propound experts discovery–interrogatories and request for production;  in the hopes of narrowing the opinions and obtaining vital background information.

Consult with an Experienced Attorney

We encourage you to consult with an experienced attorney before selecting an expert witness in a personal injury case. If you or a loved one have been involved in an accident and need legal representation, please call our personal injury law firm today toll free at 1-866-597-4529 or email us for a free initial legal consultation.

royal caribbean cruise ship

Injured on Cruise Ship, Passenger Killed by Doctors Onboard

Written by Spencer Aronfeld on . Posted in Cruise Ship Accidents, Medical Malpractice

For decades, passengers who have been injured on cruise ships–like Carnival, Royal Caribbean, Celebrity or Norwegian–and received negligent medical care from the ship’s doctors have had a difficult if not impossible time holding the cruise lines accountable for the doctors’ errors.  Thankfully, this week a United States Appellate Court has issued an opinion that will make it far easier for passengers injured on cruise ships to sue cruise lines for medical malpractice.

The case involved an elderly cruise ship passenger who fell and bashed his head while on a cruise on RCCL’s Explorer of the Seas, which was docked at port in Bermuda. The passenger, Pasquale Vaglio, was wheeled back onto the ship, where he sought treatment in the ship’s medical center. The treatment was so negligent that he fell into a coma and died a week later.

According to the court’s records, the ship’s health care providers failed to diagnose his cranial trauma by not conducting any diagnostic scans.  The ship’s doctor did not even examine Mr. Vaglio for nearly four hours.

Mr. Vaglio’s daughter, Patricia Franza, sued Royal Caribbean Cruises, Ltd. (“Royal Caribbean”) for vicarious liability for the purported negligence of two of its employees, the ship’s doctor and its nurse, under one of two theories: actual agency (also termed respondeat superior) or apparent agency.

She filed her lawsuit against Royal Caribbean in the United States District Court for the Southern District of Florida in Miami, under 28 U.S.C. § 1333 and the general maritime law, but District Court judge Hon. Judge Joan A. Lenard dismissed her complaint on June 14, 2013 by applying the longstanding Barbetta Rule, from the case of Barbetta v. S/S Bermuda Star, which has long provided legal immunity to ship owners like RCCL when a crew member renders negligent medical care to its passengers.

In a very well reasoned 63-page opinion written by Judge Marcus, the court examined application of maritime law to complex legal theories of medical malpractice, personal injury, and employment law.  The court found that maritime law supports holding

Royal Caribbean Cruises, Ltd., vicariously liable for the medical negligence of its onboard nurse and doctor in the death of Ms. Franza’s father.  To read the court’s opinion, click here.

As a cruise ship passenger injury attorney, I applaud the 11th Circuit’s opinion and hope that it will send a strong message to the cruise ship industry that they can no longer hide behind outdated legal doctrines that serve to protect their profits at the expense of injured passengers. This opinion should encourage companies like Carnival and RCCL to provide injured passengers a higher standard of medical care.

If you have been injured on a cruise, we recommend that you contact an experienced and aggressive maritime attorney.  Since 1991, Spencer Aronfeld has fought hard to protect the legal rights of the injured.  If you have a question regarding a potential cruise ship personal injury case, call us to for a free initial consultation at 1-866-597-4529, or email us at

Medical Malprectice

Supreme Court Declares Florida’s Medical Malpractice Caps Unconstitutional

Written by Spencer Aronfeld on . Posted in Medical Malpractice, Personal Injury News and Safety Resources

I am a Florida medical malpractice lawyer who helps patients and their families when one of them has been injured or killed by careless doctors and hospitals. For most of my legal career, I have been unable to get victims full justice for their pain and suffering. Since 2003, Florida’s healthcare industry has slept soundly, knowing that regardless of what verdict a jury may return against them, they would be insulated by Florida Statute §766.118 and thereby would not be held fully accountable to pay any amount in excess of $500,000 for an injury, or $1,000,000 for the death of a patient, regardless of how many children or dependents were left behind.

Thankfully, all that has now changed. The Florida Supreme, after over a decade of challenges, has finally declared those caps unconstitutional. Their decision was based upon the case of Michelle McCall, who died after she bled to death following a caesarean section during the birth of her a son in February 2006 at a U.S. Air Force hospital in Fort Walton Beach, Florida.

A United States federal judge agreed that McCall had not received proper care and found that her parents and son should receive $2 million for their pain and suffering. But then that verdict award was reduced to $1 million to comply with Florida’s damages cap. The verdict was challenged on appeal to the 11th U.S. Circuit Court of Appeals in Atlanta as violating the U.S. Constitution. The appellate court upheld the verdict, ruling that it did not violate the federal law, but suggested that the Florida Supreme Court should consider if it violated the state’s constitution.

For more than 10 years, I have sat across the table from grieving spouses and parents with fatherless children and explained how the medical malpractice caps along with a series of other legal protections created to protect the powerful and influential healthcare industry obstruct the path to justice of those who need help the most—the injured.