Thursday, May 28, 2009

The Trial, Part V

It was, then, the defense’s turn. The first witness to appear was another radiologist—the one who had appeared so casual and unfeeling in the clip from a videotaped deposition. In person, he seemed quite different, astute and confident, but ready to admit the limitations of his expertise. It was his opinion that the MRI and other tests he had seen showed no convincing evidence to prove that the plaintiff’s back problems resulted from the crash. Indeed, they showed little other than what could be attributed to the normal again process.

I think that the plaintiff’s attorney made a mistake when it came time for cross-examination. The defense had been generally gentle and respectful in questioning witnesses. True, there were implications behind some of his questions, most of them having to do with the considerable financial interest that might slant the testimony of expert witnesses. We had heard that the highest-paid could earn up to $800 an hour; with study and preparation time, that could soon add up to tens of thousands of dollars. But, as I say, he was generally quiet and respectful. The plaintiff’s attorney, by contrast, became hostile, even loud in his treatment of the witnesses. In the case of the radiologist, he literally accused the man of manipulating the evidence, darkening the films to serve his diagnosis of other examples of deteriorating disks. It struck me that he was trying hard for a Perry Mason moment, but never came close. Under questioning, the witness remained calm, refusing to sally into areas beyond his expertise, like the causation and extent of pain.

To offer an opposing opinion to that expressed by the plaintiff’s biomechanical engineer, the defense brought on its own expert in the area, equally well qualified in the field of automobile and human body structure, and in accident reconstruction—and even more experienced in the latter. This witness put forward a very different analysis of the crash and its effects. He had studied the defendant’s car—the plaintiff’s was no longer available for inspection by either side, having had minor repairs after the crash, and traded in—and concluded that the impact had been too insignificant to have caused the injuries claimed; and that, even had the plaintiff’s body been torqued in the manner earlier described, the injury would more likely have been to the neck than the lower back.

Was the plaintiff’s attorney aware of how convincing this testimony sounded to the jury, particularly in contrast to his own biomechanical expert, who had seemed to be really reaching to prove a point? Perhaps. In any event, his cross-examination of this witness was even more hostile in tone, and his hostility produced nothing but calm, unshaken responses that contrasted, frankly, unfavorably with his questions. It came down, with reference to that “slip-and-fall” incident, to a petty quarrel on the distinction between a “hip” and a “butt”! If there was a single moment during the trial when he lost the jury, this was probably it.

The defendant’s orthopedic surgeon seemed like a practical guy, as impressively qualified and experienced as any others we had heard. He testified that he and his associates had given up doing spine surgery some years before. He was not asked to explain the reasons, but by now the jury could readily speculate about the risks involved and the uncertainty of success. He described himself as conservative in his practice, and said that his own advice would have been to try the epidural option and other medications before venturing into the operation room for back surgery. Had we come down to a new school/old school controversy among surgeons, I wondered as I listened? And it occurred to me that expertise can be a dangerous thing, creating its own, very possibly blinkered reality that sets up a chain of self-justifying actions. Just a thought…

And finally, finally—this is now Friday, the eighth day of the trial—the defense calls the defendant to the stand. The now twenty-year old driver of the Honda Accord, a college student who had flown in from Colorado for this one day of the trial, had been dressed in court-respectful suit and tie. He answered questions quietly and, I thought, truthfully. No question but that he had rear-ended the Mercedes, at what he estimated was no more than three miles per hour. There was not much, really, that he could say, in response to questions or to cross-examination, other than simply describe the accident. He was not asked to apologize or express regret, nor did he. On cross examination, the plaintiff’s attorney tried to make a big point out of the fact that the windshield of the Honda had been broken by a music stand, whose weight and height the witness was unable to estimate, but at this point the only outcome was to make him seem like he was grasping at irrelevant straws.

And the defense rested… My next episode, Part VI, will be the last, I promise. We have only the closing arguments to cover, and the jury’s deliberation. Then I can give you the verdict that you may already have guessed. Tomorrow, then…

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