In my last post, I discussed readings that could help improve your knowledge and analytical skills in addressing statistical data. Below is a check list of items to consider summarized from the Manual on Scientific Evidence Third Edition, Reference Guide on Epidemiology. Here is the list:
CHECKLIST OF PROBLEMS WITH THE USE OF STATISTICAL DATA AND ANALYSIS
I. What Sources of Error Might Have Produced a False Result?
A. What Statistical Methods Exist to Evaluate the Possibility of Sampling Error?
1. False positives and statistical significance,
2. False negatives,
B. What Biases May Have Contributed to an Erroneous Association?
1. Selection bias: Selection bias refers to the error in an observed association that results from the method of selection of cases and controls (in a case-control study) or exposed and unexposed individuals (in a cohort study).
2. Information bias: Information bias is a result of inaccurate information about either the disease or the exposure status of the study participants or a result of confounding. In a case-control study, potential information bias is an important consideration because the researcher depends on information from the past to determine exposure and disease and their temporal relationship.
3. Other conceptual problems:
a. Issue or hypothesis is improperly defined: Sometimes studies are limited by flawed definitions or premises.
b. Publication bias: the tendency for medical journals to prefer studies that find an effect. If negative studies are never published, the published literature will be biased.
c. Financial bias / Conflicts of Interest: the source of funding of studies have been shown to have an effect on the outcomes of such studies by researchers.
d. Observer bias: Is bias is with the “observers” of the research (i.e., the research team) rather than the participants. In other words, observer bias occurs when the observers (or researcher team) know the goals of the study or the hypotheses and allow this knowledge to influence their observations during the study. For example, if an observer knows that the researcher hypothesized that females speak in more complex sentences, they may believe they hear females speaking that way during the study even if it’s not really true.
e. Participant bias: This occurs when participants adjust their behavior to what they think the experimenters expect. This can be a significant problem in that, if participant bias occurs, then the results of an experiment may not be entirely due to the experimenters’ manipulation of the independent variable.
f. Research bias: (also called experimenter bias): Is a process where the scientists performing the research influence the results, to portray a certain outcome.
g. Sampling bias: (also called ascertainment bias) is a bias in which a sample is collected in such a way that some members of the intended population are less likely to be included than others. It results in a biased sample, a non-random sample of a population (or non-human factors) in which all individuals, or instances, were not equally likely to have been selected. If this is not accounted for, results can be erroneously attributed to the phenomenon under study rather than to the method of sampling. Examples include: Self-selection, Pre-screening, Advertising, etc.).
h. Exclusion bias: Results from exclusion of particular groups from the sample, e.g. exclusion of subjects who have recently migrated into the study area (this may occur when newcomers are not available in a register used to identify the source population). Excluding subjects who move out of the study area during follow-up is rather equivalent of dropout or non-response, a selection bias in that it rather affects the internal validity of the study.
i. Healthy user bias: when the study population is likely healthier than the general population, e.g. workers (i.e. someone in ill-health is unlikely to have a job as manual laborer).
j. Overmatching: matching for an apparent confounder that actually is a result of the exposure. The control group becomes more similar to the cases in regard to exposure than the general population.
k. Symptom-based sampling bias: The study of medical conditions begins with anecdotal reports. By nature, such reports only include those referred for diagnosis and treatment. A child not function in school is more likely to be diagnosed with dyslexia than a child who struggles but passes. A child examined for one condition is more likely to be tested for and diagnosed with other conditions, skewing comorbidity statistics. As certain diagnoses become associated with behavior problems or intellectual disability, parents try to prevent their children from being stigmatized with those diagnoses, introducing further bias. Studies carefully selected from whole populations are showing that many conditions are much more common and usually much milder than formerly believed.
C. Could a Confounding Factor Be Responsible for the Study Result? Confounding occurs when another causal factor (the co-founder) confuses the relationship between the agent of interest and outcome of interest. (e.g. Researchers must separate the relationship between gray hair and risk of death from that of old age and risk of death.) Confounding is a reality—that is, the observed association of a factor and a disease is actually the result of an association with a third, confounding factor.
1. What techniques can be used to prevent or limit confounding?
2. What techniques can be used to identify confounding factors?
3. What techniques can be used to control for confounding factors?
II. General Causation: Is an Exposure a Cause of the Disease?
A. Is There a Temporal Relationship?
B. How Strong Is the Association Between the Exposure and Disease?
C. Is There a Dose–Response Relationship?
D. Have the Results Been Replicated?
E. Is the Association Biologically Plausible (Consistent with Existing Knowledge)?
F. Have Alternative Explanations Been Considered?
G. What Is the Effect of Ceasing Exposure?
H. Does the Association Exhibit Specificity?
I. Are the Findings Consistent with Other Relevant Knowledge?
I would urge you to check this free and comprehensive source of information on scientific evidence.
More and more, figures and statistical information finds it way into litigation, both criminal and civil. At some point in your career as an attorney you will need to understand what can and cannot be accomplished in utilizing statistics. Most laypersons and attorneys are ill-equipped to handle such information. Oftentimes experts can find refuge in statistics which may or may not be truly relevant to the legal issue you are confronting. As Mark Twain (a/k/a Samuel Clemons) famously noted:
“Figures don’t lie, but liars figure.”
Another often quoted quip is:
“There are three kinds of lies: lies, damn lies and statistics.”
In litigation, you will often hear someone argue that the odds of being injured in a particular fashion are so low that a jury should not compensate them. However, there is a real risk in engaging in such post hoc analysis. How would you feel for example, if the State of Indiana came into court refusing to pay the Lotto Jackpot on your winning ticket by arguing that you could not have won it because the odds of winning are one in seven million.
Another way to point this same principle out, is the fallacy of using statistics to explain away a plaintiff’s untimely and unexpected demise:
“Your honor and ladies and gentlemen of the jury. Research has established that 90% of individuals involved in similar accidents survive. Accordingly, we must conclude that in spite of the evidence of lack of respiration, heartbeat, and brain wave activity, and in spite of the unfortunate burial of the decedent, in my expert opinion I conclude that he did not really die, and therefore the plaintiff estate cannot recover.”
Even though this sort of logic is flawed to its core, such arguments regularly find their way into our justice system… sometimes with disastrous effect. In order to spot such problems, you need to read about statistics, understand their limitations and how they can be misused. In this regard I would recommend the following reading:
1. Trial by Mathematics: Precision and Ritual in the Legal Process by Laurence Tribe, Harvard Law Review, 1971. This is an informative law review article addressing this topic. Mr. Tribe was the law clerk who assisted a California justice in writing a seminal opinion in this area. The court reversed a criminal conviction where a prosecutor improperly used statistical arguments in a robbery case involving a multi-racial couple. People v. Collins, 438 P.2d 33, 36-37 (Cal. 1968). Tribe had a math degree from Harvard in addition to his J.D. This opinion is often cited by courts as a prime example of how statistics and “scientific” evidence can be misused and down right dangerous to the pursuit of justice.
2. Naked Statistics by Charles Wheelan. The author strips away the arcane and technical details and focuses on the underlying thinking that drives statistical analysis. The author also clarifies key concepts such as inference, correlation, and regression analysis, reveals how biased or careless parties can manipulate or misrepresent data. Memorable examples of problems with statistics are discussed as well.
3. Calculated Risks: How to Know When Numbers Deceive You by Gerd Gigerenzer. This book does exactly what the title infers, it shows you in a concrete fashion how faulty thinking leads to people drawing incorrect conclusions from statistics and data. One of the problems discussed in the book is the famous dilemma presented by the Monty Hall Let’s Make a Deal Problem.
4. Math on Trial: How Numbers Get Used and Abused in the Courtroom by Leila Schneps. This book reviews the facts and outcomes of ten trials spanning from the nineteenth century to the present day, in which mathematical arguments were used, abused and disastrously misused resulting in unjust outcomes.
5. Reference Manual on Scientific Evidence prepared by the Federal Judicial Center. This is a free handbook that covers a number of areas of science that regularly appear in federal courtrooms. This manual is utilized by the federal judiciary as a reference book and covers both the law and science underlying a number of disciplines including epidemiology which is statistically based. This is must reading for any trial attorney who is going to take on an expert in a courtroom. This manual is regularly updated as well.
6. A Systematic Approach to Clinical Determinations of Causation in Symptomatic Spinal Disk Injury Following Motor Vehicle Crash Trauma by Michael D. Freeman, PhD, MPH, DC, Christopher J. Centeno, MD, and Sean S. Kohles, PhD. is an article which critically examines the misuse of data and pseudo-science to undermine claims of personal injury in motor vehicle accidents by defense “experts” and studies conducted in this area of litigation. This article provides an excellent survey and critic of the literature dealing with medical causation in motor vehicle collisions.
This list of reading should be both interesting and informative to the trial attorney confronted with the use of statistics. Just as it is helpful to “think like a lawyer”, it is equally useful to “think like a statistician”. Remember, numbers don’t lie, but liars figure…
The defense has enlisted the aid of a hired gun “expert” who insinuates or is going to testify that your client is a malingerer or a fraud. What can you do to address such tactics? Can you exclude the testimony? Should you address it head on or skirt the issue? Hopefully, this blog will offer some strategies to address this sort of tactic.
Motion in Limine
This is one approach that you could take. File a motion in limine to exclude such testimony. Indiana Rule of Evidence 704(b) provides:
Witnesses may not testify to opinions about intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.
In contrast, Indiana Rule of Evidence 608(a) provides:
Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
So how do you reconcile these two conflicting provisions? Well, Rule 704(b) applies to expert opinions, while Rule 608(a) deals with opinions of lay witnesses. The Federal counterpart to Indiana Rule of Evidence 704 is limited to criminal cases in instances where the mental state or sanity of the Defendant is at issue. This rule provides:
(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
The advisory committee notes indicates that this limitation prevents experts from invading the province of the jury in criminal cases where sanity or the mens rea is at issue. The rule prevents a confusing “battle of the experts” and preserves the decision on the ultimate issue of state of mind for the jury, rather than leaving it in the hands of retained experts. The rule promotes reliability by preventing testimony on the legal connotations of a medical diagnosis, a role the American Psychiatric Association admits that psychiatrists are not qualified to fill.See United States v. Austin, 981 F.2d 1163, 1166 (10th Cir.1992); see also United States v. Wood, 207 F.3d 1222, 1236 (10th Cir.2000) (Rule 704(b) is intended to prevent “intrusion[s] into the province of the jury”). Another court has similarly written:
The theoretical effect of Rule 704(b) is to make it possible for juries to find a defendant not guilty by reason of insanity even if no expert would draw that same conclusion. Conversely, the rule also permits juries to find a defendant sane and guilty even if every expert would opine that the defendant was insane. The purpose of Rule 704(b) is to have jurors decide whether the defendant was sane or not without being told what conclusion an expert might draw. United States v. West, 962 F.2d 1243, 1247 (7th Cir.1992).
While there is not much in the way of case law in Indiana interpreting this provision, at least one jurist. See Sears Roebuck v. Manuilov, 742 N.E.2d 453 (Ind. 2001)(upholding admission of medical testimony under I.R.E. 702 establishing post-concussive syndrome). In his dissenting opinion, Justice Boehm stated:
“Dr. Blinder testified, among other things, that in his opinion Manuilov was not a malingerer. This opinion was not based on observation of physical symptoms or scientifically valid tests, but on Blinder’s observation of Manuilov’s behavior and accounts of that behavior furnished by Manuilov or his counsel. Among the latter was the assurance that Manuilov had no criminal history or anti-social behavior.
Blinder told the jury that Manuilov had no criminal history and suggested he was not a “wife beater.” These assumptions were explicitly made a basis of his view that Manuilov was not a malingerer. This was not challenged under Indiana Evidence Rule 704(b), which provides that a witness may not testify as to whether another “witness has testified truthfully,” so, to the extent this is an issue, it is not presented here.”
. [Emphasis Added].
It seems likely that if a timely objection is made under Indiana Evidence Rule 704(b) to testimony regarding expert opinions on malingering that it, would be sustained, in an effort to preserve the jury’s autonomy in assessing the credibility of witnesses and avoiding problems associated with a battle of the experts. This dissenting opinion of Justice Boehm is the only discussion I have located on this specific topic in any judicial opinion in The State of Indiana. In Morse v. Davis, 965 N.E.2d 148 (Ind. Ct. App. 2012), trans. denied., the Indiana Court of Appeals held that no witness, lay or expert, is competent to testify that another witness is or is not telling the truth.
The Direct Approach – Polarizing The Jury
The is an important book which provides a comprehensive approach to this problem and in fact fully embraces the issue and in fact welcomes a clear claim of malinger. The book is called “Polarizing the Jury“. by Rick Friedman. This book provides an innovative approach to trying cases. Too often we allow the defense in personal-injury cases to hide behind ambiguities and insinuate that our client is not being truthful. This book provides you with concrete examples to force your opponent to either embrace fully embrace the position; that your client is “a liar, a cheat and a fraud” or completely abandon this position.
The book provides a comprehensive approach to simplify your case, focus the jury’s attention and deal with a single coherent theme… Is my client telling truth about his or her injuries? At each stage in the proceedings the defense is forced to either clearly adopt the position that your client is “a liar, a cheat and a fraud” or clearly reject the position. The defense and it’s experts are forced through questioning or discovery to either adopt or reject this position.
The defense is not allowed to hide behind ambiguous positions or attack your client through innuendo or vague and insidious suggestions of doubt. The primary weapon to combat such experts and a defense are lay witnesses who can provide a clear before and after picture of changes in your client’s life by the defendant’s tortious acts. The issue in opening is framed as follows:
This is the person that they want you to believe is a liar, a cheat and a fraud.
You will hear a lot of witnesses and see a lot of evidence in this case. But in the end, there is really on what only one major issue you need to decide is my client a liar, a cheat, and a fraud?
That is the defense in this case.
If he is a liar, a cheat and a fraud, you should send him out of this courtroom without a cent. But if you decide he’s telling the truth, that he is truly injured, and the defense is attacking him in order to avoid paying for the harm they have caused, then your verdict needs to ensure that they do not profit from this tactic and you should consider what would be fair compensation for the injuries and losses my client has suffered and for the impact this collision and its impact on their relationship as husband and wife.
I strongly recommend that you obtain the book as it effectively helps you frame the issue in a fashion that it is understandable to a jury and combats the false doubts raised through the use of veiled attacks and innuendos against your client’s integrity and honesty.
Closing the Deal – Addressing the Attacks in Closing Argument
Here are some arguments to present to the jury in your rebuttal:
WHEN THE LAW & FACTS ARE AGAINST YOU: In law school they say if the facts are in your favor, argue facts, if law is in your favor, argue law, if neither law or facts are in your favor, argue like a lawyer and try to confuse the jury about what the case is really about. It’s the oldest trick in the book. The defense took a nice simple case that is straight forward and tried to make it complicated by pointing to a bunch things that really have nothing to do with the case’s merit, in hopes that you’ll forget what this case is really about.
Another argument to present to a defense request for the jury to make his arguments for him when he sits down as suggested by the noted Attorney Moe Levine:
Countless attorneys, skilled and persuasive each with their own acquired tricks to influence a jury by sowing the subtle seeds of cynicism. One of these is that when he sits down, he appoints you as his assistants and gives you permission to share with him the responsibility to represent his client in the jury room by answering each of my arguments to you. However, if this were truly the case, what need would there be to sum up at all? We would simply send you to the jury room and ask you to deliberate. This type of argument is not new to me. It is insidious and subtle. It ask you to take on the role of an advocate instead of that of a fair and impartial judge of the facts. Such comments subtly shape your view of the evidence. it moves you from a role where you are impartial, unbiased and neutral, to a role of where you act as an advocate for one side over the other. These techniques are subtle but effective.
When the defense attacks through the use of innuendos:
He attacks by innuendo asking how can we know what the evidence shows when my client says he is in pain from this collision. He has had problems before. How can this be different. This to is subtle because what he is really saying is my client is a liar and a cheat and a fraud. He won’t come right out and say because he knows such a statement is outrageous and unworthy of consideration. In fact it is insulting. Instead you subtly insinuate that something is not right, plant the seeds of cynicism and hope that back in the jury room they will sprout.
This flies in the face of the evidence presented. To buy into this argument you would have to conclude that:
A. If Their Goal Was Money: My client and his spouse have come into this Court and both lied. If this were about fraud would not you make greater claims? Wouldn’t you have run up unnecessary treatment? Would you be constantly complaining about your condition and claiming that your pain did not improve with treatment. Wouldn’t you do everything in your power to make you case more valuable. This has not occurred. My client has worked to get better and in fact has had periods of remission where his pain has improved even though it has never completely gone away.
B. Speculative and Unsupported Causes: He also has insinuated that something else must has caused his symptoms. He does this with evidence of any sort and again subtle plants the seeds of cynicism by asking questions and suggesting facts that no one has testified exist. It is undisputed that my client complained of symptoms at the scene and told the investigating police officer of this. The defense has no Doctor who has said such things. If the medical evidence is there, he could have hired an expert to say this is so. Instead of evidence, he has asked that you guess and speculate. This is not allowed.
I hope these strategies assist you in dealing with unfair attacks on your clients integrity.;
I plan on writing a series of posts dealing with motions in limine and the topics you may wish to cover. A Motion in Limine is a motion made for a protective order against prejudicial questions and statements, which if heard by the finder of fact, would prevent a fair and impartial trial. The focal issue in determining whether a motion in limine should be granted is whether the prejudice in allowing admission of the proffered evidence outweighs any relevance the evidence may have. Thus, the test involves weighing the relevance of the evidence against the possibility that the jury will consider the evidence improperly or be inflamed or confused by such evidence. The balancing test goes beyond mere relevancy. As stated by Professor McCormick:
But relevance is not always enough. There may remain the question, is its value worth what it costs? There are several counterbalancing factors which may move the court to exclude relevant evidence if they outweigh its probative value. In order of their importance, they are these: First, the danger that the facts offered may unduly arouse the jury’s emotions of prejudice, hostility, or sympathy. Second, the probability that the proof and the answering evidence that it provokes may create a side issue that will unduly distract the jury from the main issues. Evidence 2d, (1972) 438-439.
A motion in limine is also effective in smoking out bad evidence you are unaware of as well. Once you file such a motion in limine, the opposing party will have to disgorge their plans in response to your motion. Here is a list of some potential topics you should consider.
Prior Condition of Plaintiff.
You may want to precluded the defense from making any reference to a client’s prior physical or mental health unless such condition is causally connected or related to the injuries that plaintiff is claiming. To meet the threshold of relevance, and thus admissibility, the defendant must come forward with probative and competent medical testimony in support of the proposition that plaintiff’s pre-existing conditions or injuries are the cause of plaintiff’s symptoms and problems alleged in the lawsuit. When the issue of a causal connection is not normally within the life experience and understanding of the jurors, then the testimony of an expert witness may be required depending on your jurisdiction’s law. The mere existence of a pre-existing condition, without more, may be insufficient to make the evidence admissible as relevant to the “cause” of a plaintiff’s injuries. When a defendant chooses to allege that a plaintiff’s symptoms and injuries are caused by a pre-existing condition (for the purpose of negating causation of plaintiff’s current injuries), then it is the defendant’s burden to satisfy the requirements of relevance and admissibility. This analysis was cogently explained by the Court in Voykin v. Estate of DeBoer, 733 N.E.2d 1275 (Ill. 2000):
In Caley, the Defendant sought to question the plaintiff regarding the accidents occurring before and after the accident at issue. The defendant’s theory was that these accidents were the cause of plaintiff’s injuries. The defendant contended that, because the plaintiff always bears the burden of proving proximate cause, the defendant did not need to demonstrate a connection between the other accidents and the plaintiff’s injuries. The appellate court rejected the defendant’s argument. It explained that although the burden never shifts between parties, the “burden of going forward with the evidence may shift from party to party.” Caley v. Manicke, 29 Ill. App. 2d 323, 327 (1961). The court further reasoned that although the defendant bore the burden of demonstrating the connection between the other accidents and the plaintiff’s injuries, that did not mean that the burden of proof shifted to the defendant. Caley, 29 Ill. App. 2d at 327, the court explained:
Proximate cause was part of plaintiff’s case. It was as indispensable as the elements of defendant’s negligence, plaintiff’s freedom there from and damage. Without it, plaintiff’s action would have failed. But, when he has borne the burden of proof and established the material elements necessary to make out a case, it is the defendant’s right, but certainly not his duty, to put on his defense. This is not shifting the burden of proof. One cannot say to have a burden if one may pick it up or not as he pleases. Obviously, if there is evidence negative of causation, a defendant would show it, but the law in according him his privilege of going forward in no way shifts to him the burden of proof as the law knows that phrase.
To evaluate testimony that sometime before a rear-end accident in question plaintiff had been bumped, bending a trunk handle, and that after the accident and before onset of a more serious lower back complaint, his front headlight was struck, to the status of contributing, intervening causes, suitable for submission to triers of fact, is to misread standards of relevancy required as preconditions of admissibility. That this devolves on the defendant to the same extent as on the plaintiff initially in presenting his case, which it does, does not shift the burden of proof, or indeed have anything to do with it. It is a question of relevancy, pure and simple. Caley, Id. at 330.
The question remains, however, whether expert testimony is necessary to determine whether a prior injury is relevant to the current injury. In a similar context, namely, medical malpractices cases, this court has recognized that expert testimony is normally necessary “because jurors are not skilled in the practice of medicine and would find it difficult without the help of medical evidence to determine any lack of necessary scientific skill on the part of the physician… [citations omitted].
We believe that similar considerations must govern here. Without question, the human body is complex… In most cases the connection between the parts of the body and past and current injuries is a subject that is beyond the ken of the average layperson. Because of this complexity, we do not believe that, in the normal circumstances, a lay juror can effectively or accurately assess the relationship between a prior injury and a current injury without expert assistance. Consequently, we conclude that if the defendant wishes to introduce evidence that the Plaintiff has suffered a prior injury, whether to the “same part of the body” or not, the defendant must introduce expert evidence demonstrating why the prior injury is relevant to causation, damages, or some other issue of consequence. Voykin v. Estate of DeBoer, Id. At 56, 58-59.
The foregoing rationale for requiring expert medical testimony to support the relevance of a pre or post injury medical history was recently adopted in Muncie Indiana Transit Authority v. Smith, 743 N.E.2d 1214 (Ind. App. 2001):
According to the Arizona Court of Appeals, the “obvious reason for this rule is that lay persons are no better able to testify concerning the functioning of the human body than they are able to treat its infirmities.” [citations omitted]. The Court further explained that although “most lay person have opinions and theories of their own as to how the human body functions, our courts have decided that, in order to recover compensation, a standard of expert evidence on the subject is required where the injury is not apparent to the layman.” [citations omitted]. When the cause of the injury is not one, which is apparent to a layperson, and multiple factors may have contributed to causation, expert evidence on the subject is required.
Absent competent and relevant evidence of a causal connection between a pre-existing condition and the injuries that plaintiff is alleging in this lawsuit, such evidence of any pre-existing condition may be inadmissible.
Claims of Sudden Emergency.
In a defendant may lists as an affirmative defense a claim of sudden emergency. In my jurisdiction, the case law is clear that for the jury to be given the instructions defining the sudden emergency defense three factors must be shown in the evidence.
A. The actor must not have created or brought about the emergency through her own negligence.
B. The danger or peril confronting the actor must appear to be so imminent as to leave no time for deliberations.
C. The actor’s apprehension of the peril must be reasonable.
Barnard v. Himes, 719 N.E. 2d at 862 (Ind. Ct. App. 1999).
If there is no factual basis for applying the sudden emergency defense, then allowing a defendant to suggest such defense would only confuse and mislead the jury. See Rule of Evidence 403 of the Federal Rules.
Red- Herring Claims of Other Causes of a Plaintiff’s Injuries.
Counsel may be precluded from making any argument or articulating any theories as to the cause of plaintiff’s injuries unless defense counsel’s arguments and theories are in fact supported by competent expert medical testimony. In the case of Kristoff v. Glasson, 778 N.E. 2d 465 (Ind. App. 2002), the Indiana Court of Appeals held that defense counsel may not argue pre-existing injuries, failure to mitigate and subsequent injuries unless and until their arguments and theories are supported by competent medical testimony. Id. at 473. If you know there is no evidence to support a bogus theory you may be well served in filing such a motion in limine. It could also force the defense to disclose evidence you may have overlooked or which was not produced in discovery.
Employment of Counsel.
The time or circumstances under which plaintiff employed counsel, including, the fee arrangement between the plaintiff and counsel is irrelevant unless there is an attorney fee claim by contract or statute. The purpose of this evidence is to prejudice the jury and to portray to the jury that plaintiff is “litigious.” Any such evidence is immaterial to the issues that will be decided by the jury and potentially very prejudicial.
Unnecessary Medical Treatment.
You should preclude or prohibit the defense counsel from alleging or arguing that plaintiff’s accident-related medical expenses are unnecessary or unreasonable. All damages directly attributable to the wrong are recoverable by the victim. The law also typically allows an injured plaintiff to recover reasonable costs of necessary medical treatment. Dee v. Becker, 636 N.E. 2d 176, 178 (Ind. App. 1994). The Indiana Supreme Court has held that the phrase “reasonable and necessary,” as a qualification for the damages recoverable by an injured party, means (1) that the amount of medical expense claimed must be reasonable, (2) that the nature and extent of the treatment claimed must be necessary in the sense that it proximately resulted from the wrongful conduct of another… . The Indiana Supreme Court observed and found that a defendant may not dispute the medical judgment of the plaintiff’s medical providers in choosing to administer the questioned studies and treatment. Sibbing v. Cave, 922 N.E.2d 594, 599-600 (Ind. 2010)
Rule 413 of Evidence as adopted in Indiana eliminated the confusion regarding the evidence that is required to satisfy the “reasonableness” requirement. The very first sentence of IRE 413 asserts flatly that medical statements occasioned by an injury are admissible. Rule 413 provides that the bills shall constitute prima facie evidence that the charges are reasonable and medical bills come into evidence without any proof of reasonableness or necessity. In Indiana, personal injury plaintiffs no longer have to prove that they personally paid the medical bills or produce an expert as to the reasonableness of the charge, just necessity when it is contested. Normally , competent medical testimony is necessary to enable the jury to determine which of a plaintiff’s damages and medical expenses are related to a trauma and which are not. Sikora v. Fromm, 887, N.E.2d 499 (Ind. App. 2002). In Sikora, the Court of Appeals stated that expenditures for various medical treatments, drugs, and tests, like MRI’s, cannot be properly evaluated by the jury without a medical explanation that they were causally connected to the fall.
I will address additional areas to consider for a motion in limine in later posts.
1. The Expert’s Curriculum Vita: You should thoroughly review the expert’s c.v. Expert’s will exaggerate and even make up credentials. In a criminal case I was defending the State’s expert, an environmental specialist, claimed he had a B.S. in engineering and was a P.E. which is typically short for being a certified professional engineer. He had signed all of his reports as a P.E. which at the deposition he claimed was short for “plant engineer” apparently suspecting he was at risk. Surprisingly, he claimed that he had never intended that anyone believe he was a certified professional engineer as I move through over twenty separate reports where he used this designation. He admitted that to make such a representation would be a bold-face lie. I then concluded his deposition by looping back to the first exhibit I had him identify and authenticate as being true and accurate, his c.v. There buried about half-way through the c.v. in his own words was the assertion that he was a “certified professional engineer”. He end up admitting to a number of other fabrications as well, including his educational background and other professional certifications. These were all done so he could raise his profile and make more money. All criminal charges against my clients were dismissed shortly after this deposition.
2. Prior Testimony: Expert’s who testify have often times covered similar ground in other cases. Depositions are an excellent source of inconsistent positions and damaging concessions. You can also find areas of bias explored in other depositions. I have subpoenaed expert’s records which they claimed that they no longer retain and ended up using the expert’s prior testimony to establish that they could in fact obtain such information. Trial lawyers often maintain data banks for frequently used experts. Westlaw and Trial Smith also have data banks you can search for a fee. Don’t ignore these sources.
3. Prior Writings of the Expert: Such articles contain principles upon which you can anchor your cross exam because they are the expert’s own words. These are admissible under Rules of Evidence 613 (prior inconsistent statements and 803(18) (learned treatises).
4. The Expert’s Report: A careful analysis can uncover implicit assumptions and the basis of the expert’s opinions. Often times the best way to challenge an expert is to show the foundation of his opinion is resting on sand, not bedrock. The truism of computer science is equally applicable to expert witnesses, “Garbage in, garbage out”. Just remember to anchor the items which are “garbage” as important early in your examination before looping back and pulling the rug out from the expert.
5. Learned Treatises: You should consult the central authorities of your expert’s field as well as journal articles in his field. You should in particular focus on those items you know he will have to admit are authoritative such as journals of organizations he is a member or leading educational textbooks in the expert’s field. Don’t forget the requirements of Rule of Evidence 803(18) which require that someone establish that the writing is authoritative and the text of the treatise you want to use must be read into evidence while the expert is on the stand.
6. The Internet: The Internet is the great equalizer. You can find journal articles, licensing databases, training videos, literature, the expert’s website, test protocol, websites listing experts for hirer and more. I have used training videos to demonstrate law enforcement experts have failed to follow testing protocol for determining whether blood was present and have found You Tube videos regarding protocol for surgical procedures for use in questioning doctors. Google your expert’s name; you can find all sorts of interesting background information and leads. You can check Google Scholar for journal articles and case law from across the land to see if your expert has testified or written any articles he may not have listed.
7. Private Investigators: They can help you verify credentials and degrees as well as identify other lawsuits where the expert has testified or been sued. You might even turn up an impeachable offense.
8. Consulting Experts: They can assist you in spotting errors and mistakes in an expert’s analysis. They are also an excellent source for finding learned treatises and journal articles.
9. Other Attorneys: This probably is not the expert’s first rodeo. Check with other trial lawyers in your area who may have come across the same expert. Call lawyers identified in your search of case law or the list of past cases found in the mandatory disclosures required in federal court cases. They can provide useful tips or identify tendencies of the expert.
10. Know Your Case: You will in all likelihood have a better working knowledge of your case than the expert. Cross-reference your evidence, exhibits, documents and deposition testimony and be ready to pounce on any mistakes the expert makes in understanding the case. I have beat adverse experts more often than not by knowing the facts better than the them. This allows you show the jury they are not a trustworthy guide.
11. iPhone Apps: Yes, there is an app for that too. I have used accident reconstruction apps to test and see what a change in the input data would mean to the expert’s ultimate conclusions. I have also used well known apps such as Wolfram Alpha and Power One FE Calculator for similar purposes.