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When You Lie Down With Dogs....

Posted Oct 23 2008 1:32pm


I emailed Medical Justice a while back to ask about their program, and I've been on their mailing list ever since. (Click the link to learn more about them, as this post is on a tangential topic.)

The latest news bulletin from MJ concerns an expert witness with a conscience, and how it got him in trouble.

It seems that a Dr. Swerdlow signed on with a malpractice attorney to testify against a surgeon whose patient died after a a breast augmentation procedure.

Swerdlow was later deposed and found the experience unsettling. He was asked if he had read the deposition of the operating surgeon, and honestly answered no. Specifically, the attorney asked if Swerdlow "believe[d] it's consistent with ethical practices [for] expert witness[es] in the guidelines approved by the [his professional society] to testify against an anesthesiologist when you have not asked for his deposition transcript, if there is one, so that you can see his side of the story?"

Swerdlow responded, "I think it would have been good for me to have seen it, and I did not ask for it. I did not think to ask for it. And I wouldn't comment upon the ethics thereof." Swerdlow also admitted that he had "never testified in trial," that he "was not aware that [the surgeon's] deposition had been taken," and that he was "a relative novice at this whole thing."

Swerdlow then did what he believed was eminently reasonable. He asked for the defendant's side of the story; namely the surgeon's deposition. He read it. Then he wrote an addendum addressed to all attorneys stating now that he had read the entire record, he did NOT believe the treatment rendered was below the standard of care. It was clear that such testimony would not serve the plaintiff's mission. So, their team pleaded for more time to find a new witness. A motion for summary judgment was already pending and the judge ruled too late. Case dismissed.


But, the story isn't over. The plaintiff attorney wasn't going to be embarrassed in that manner, so he sued his own witness, Dr. Swerdlow for:

(1) professional malpractice

(2) fraud

(3) negligent misrepresentation

(4) breach of fiduciary duty

(5) breach of contract

(6) breach of the implied covenant of good faith and fair dealing, and

(7) negligent infliction of emotional distress.

The case was actually dismissed by a lower court, but the lawyer appealed, and the case will indeed go to trial.

In this case, at least, we are slapped in the face with the fact that the truth is the last thing on the lawyer's mind. Litigation becomes nothing more than a game, and woe to anyone who changes the rules that the lawyers themselves create.

Dr. Swerdlow may have initially felt he was doing the right thing, but more than likely the fee for his expert witness testimony was enticing. I have written about this before, and nothing has really changed. There has been a little more talk of tort-reform here and there, but not a lot. The problem of contingency cases and paid plaintiff whores continuies unabated. (Note to Dr. Swerdlow...I'm not calling you a plaintiff whore as I don't know all the details of your agreement with your friend the lawyer.)

My opinion is simple, as that's usually all I can muster anyway. If testimony can be paid for, then it can be bought. We have to disconnect the cash from the testimony, and I think the only way that can happen is if it becomes illegal to pay some of the outlandish fees for expert witnessing. There are docs out there that make a living off of this low-life behaviour, which can yield up to $20,000 or more per trial. My personal policy is to refuse all payment, and to insist on a subpoena. That way, I am free to tell the truth with no strings attached. Yes, it costs time and money to review a case, and those who accept the money will say on the stand that they were paid for their time and not their opinion. Nice, meaningless words that distract from what is probably obvious to everyone. Especially if serial testimony becomes a significant supplement to the expert's income.

You would think lawyers would beat down my door for the free testimony, but that is hardly the case at all. They don't want testimony they can't control. Or own.

So, if you ever get the itch to testify on a paid basis, keep in mind where you are lying (pun intended). Not only might you get fleas, you could get mauled by the dog in question as well.

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