Expert Witnesses in Media: The Verdict’s Last-Minute Expert
By Noah Bolmer
Nominated for five academy awards, 1982’s The Verdict is one of the greatest legal dramas put to film. While the movie focuses on Paul Newman’s courtroom performance and redemption arc, we’re taking a look at the memorable last-minute expert witness, and his impact on the case.
Background
A washed-up, alcoholic “ambulance chaser” of an attorney, Frank Galvin (Newman) has a medical malpractice case land in his lap. His associate, Mickey Morrissey (Jack Warden) had referred the case to him over a year prior—which Galvin had entirely forgotten about, but Mickey had continued doing the legwork on. With a court date ten days out, Mickey finds Galvin drunk, never even having read the files. Sufficiently berated, Galvin hastily familiarizes himself with the case.
Apparently, a woman has been rendered comatose during childbirth when she received general anesthesia at a Catholic hospital. Initially, Galvin is ecstatic over a seemingly easy payday, but he changes his mind after meeting the victim’s in-laws. While the family wanted to accept a seemingly imminent settlement, Galvin decided to reject the diocese’s offer and take the matter to trial so that the wrongdoing would not simply be buried and forgotten.
Unfortunately, the star expert witness that Mickey had lined up has disappeared, and the judge—who appears to be in the bag for the diocese—refuses to grant a continuance to find a new one. Desperate, Galvin engages Dr. Lucien Thompson (Joe Seneca), an older physician without any particularly distinguishing credentials. While Dr. Thompson is a minor supporting role, there are some poignant insights to glean from his performance.
Defense Prepares
The defense has done their due diligence and compiled a dossier on Dr. Thompson. A young attorney goes over the details with lead counsel Ed Concannon (James Mason):
YOUNG ATTORNEY: His name is Dr. Lionel [sic] Thompson. City College of New York, Class of twenty-six. Bachelor of Science; New York College of Medicine; sixteenth in a class of twenty-two. Nineteen seventy-six got a courtesy appointment, staff of anesthesiology, Easthampton Hospital for Women. Never married. Has no honors or degrees of any weight. Since nineteen seventy-five he’s testified in twenty-eight court cases, twelve malpractice.
(smiles, saving his best ’til last)
And he’s black.
CONCANNON:
(beat; stern)
I’m going to tell you how you handle the fact that he’s black. You don’t touch it. You don’t mention it. You treat him like anybody else. Neither better or worse.
(smiles)
And you get a black lawyer to sit at our table. Okay…?
YOUNG ATTORNEY: Yessir.
CONCANNON: Good. What else do you do?
YOUNG ATTORNEY: …get the records of his testimony in the twelve malpractice cases.
There are a few things to unpack here. With less than impressive credentials, a jury might find an expert witness less credible, especially if the opposing side has an expert who is distinguished in their field—especially in medicine. The young attorney also implies Dr. Thompson’s marital status and race may be relevant. This highlights juror (and judge) biases, which an unscrupulous trial team might try to exploit.
The second point is that he has worked as an expert witness in over two dozen cases; half of which were malpractice. Expert witnesses go to great lengths to not appear to be a hired gun—an expert which will take just about any side of any case for the right price. This usually involves working for both plaintiff and defense, and in a variety of different matters in different venues.
Finally, retrieving the records from Dr. Thompson’s previous engagements allows the defense to prepare for the person rather than just the action. If they can pull transcripts, the defense team can attempt to get Dr. Thompson to contradict something he has said in the past, and get a read on his testifying style. In reality, this film takes place in the late 1970s, and pulling records would probably have been impossible given the time constraints, as the requests would need to happen in person, and probably from a large archive. Nevertheless, expert witnesses should be aware that their prior testimony is fair game, and assume the other side has reviewed it.
Prosecution Prepares
Dr. Thompson joins Mickey and Galvin. Mickey conducts a loose mock cross-examination, playing the part of the defense attorney:
THOMPSON: They gave her the wrong anesthetic.
MICKEY: Why is that?
THOMPSON:
(starting on reciting a list)
Her sister said she ate one hour prior to admittance… she…
MICKEY: …that’s what the sister said. The chart said she ate nine hours prior to…
THOMPSON: …she went in complaining of stomach cramps. Good doctor would have doubted the information on the chart.
MICKEY: Is that what a good doctor would do? How old are you, please?
THOMPSON: I am seventy-four years old.
MICKEY: What qualifies you as an expert in anesthetics?
THOMPSON: I am on the staff of…
MICKEY: Easthampton Hospital for Women. Excuse me, what is that, a joke? Let me tell you something, Doctor, those men at Catherine Laboure. Men who are known not only in this city, but the world, were trying to save a woman’s life. They were there, and here you are, four years later, read some hospital report, and say…
THOMPSON: …I made a detailed physical examination of the patient, Sir, yesterday evening, I…
MICKEY:
(to Dr. Thompson, casually)
She getting good care over there?
THOMPSON: Actually, yes. It’s by no means bad, I…
MICKEY:
(grilling him again)
Then what good would it do to ruin the reputation of two men, to help a girl whose life’s not going to be changed in the least? You know what CODE BLUE means?
THOMPSON: ‘Code Blue’…
MICKEY: It’s a common medical term.
(Mickey half-turns to Galvin, shrugs minutely, meaning, “We’re in trouble.”)
Mickey continuously interrupts Dr. Thompson, which would foreshadow the actual trial. During mock cross-examinations, attorneys will often employ a “worst case scenario”, so that experts are prepared for anything that might occur. Besides interrupting, Mickey throws multiple low blows, including impeaching Dr. Thompson’s credentials due to his appointment at the (ostensibly not prestigious) Easthampton Hospital for Women, and his age. Dr. Thompson is visually shaken, before the scene culminates in “We’re in trouble” which was both the answer to Mickey’s question about “Code Blue” but also an accurate assessment of the case. For an experienced expert witness, his demeanor belies a lot of discomfort.
Voir Dire
As Dr. Thompson was a last-minute substitution, the defense has not deposed him. Concannon conducts a voir dire of Dr. Thompson on the stand:
CONCANNON: Dr. Thompson, just so the Jury knows, you never treated [comatose victim] Deborah Ann Kaye. Is that correct?
THOMPSON: That is correct. I was engaged to render an opinion.
CONCANNON: Engaged to render an opinion. For a price. Is that correct? You’re being paid to be here today?
THOMPSON: Just as you are, Sir…
CONCANNON: Are you board-certified in anesthesiology, Doctor?
THOMPSON: No, I am not. It’s quite common in New York State…
CONCANNON: …I’m sure it is, but this is Massachusetts, Doctor. Certified in Internal Medicine?
THOMPSON: No.
CONCANNON: Neurology?
THOMPSON: No.
CONCANNON: Orthopedics?
THOMPSON: I’m just an M.D.
CONCANNON:
Do you know Dr. Robert Towler…?
THOMPSON: I know of him.
CONCANNON: How is that?
THOMPSON: Through, through his book.
[…]
‘Methodology and Techniques of Anesthesiology.’ Yes.
CONCANNON: How old are you?
THOMPSON: I am seventy-four years old.
CONCANNON: Uh-huh. Still practice a lot of medicine?
THOMPSON: I’m on the staff of…
CONCANNON: Yes, we’ve heard that. Doctor: you testify quite a bit against other physicians? Isn’t that right? You, you’re available for that? When you’re paid to be there?
THOMPSON: Sir. Yes. When a thing is wrong… as in this case, I am available. I am seventy-four years old, I am not board-certified. I have been practicing medicine for forty-six years and I know when an injustice has been done.
CONCANNON: Do you, indeed. I’ll bet you do. Fine. Fine. We’ll save the court the time. We will admit the Doctor as an ‘expert witness,’ fine.
This is an unusual situation. Typically, expert voir dire takes place in the pre-trial phase, as a deposition, Daubert hearing, or similar formal event. Even with the time constraints, the judge would usually qualify an expert outside of the presence of the jury. Of course, the defense can always impeach an expert—even a court-qualified expert—during cross-examination, but this is not cross, as direct has not yet occurred. Nevertheless, Concannon acquiesces to Dr. Thompson’s inclusion.
During this voir dire, Concannon hits on all of the areas that the plaintiff team prepared for during mock-cross, even interrupting him as expected. With the jury in earshot, Concannon belabors the point that Dr. Thompson is not board-certified—listing numerous practice areas, which Dr. Thompson must respond to with a “no”, until he finally states “I’m just an M.D.”. Concannon brings up his age, and the fact that he is paid, to which he appropriately responds that everyone present is being paid. In the late 1970’s, lay jurors may not have been aware of expert witnesses, or that they are paid for court appearances, meaning Concannon’s questioning was designed to imply to the jury that Dr. Thompson was doing something below-board or unusual.
Dr. Thompson never makes an admission that should be discrediting, but the manner in which he is questioned is designed not to invalidate his ability to opine as an expert, but to influence the jury’s perception. This is evidenced when Concannon asks Dr. Thompson if he knows the treating doctor, Dr. Towler, who had literally written the book on anesthesiology. He was forced to answer in the affirmative. Despite the browbeating, Dr. Thompson does manage to indicate that “an injustice was done” as the voir dire concludes, although whether the outburst is helpful is unclear.
The trial moves forward to direct.
Direct Examination
In one of the most unusual direct examinations of an expert ever filmed, the judge completely hijacks the proceeding:
GALVIN: Dr. Thompson. From your review of the hospital records of May twelfth nineteen seventy-six. In your opinion, what happened to Deborah Ann Kaye?
THOMPSON: Cardiac arrest. During delivery her heart stopped. When the heart stops the brain’s deprived of oxygen. You get brain damage. That is why she’s in the state she’s in today.
GALVIN: Now, Dr. Towler’s testified that they restored the heartbeat within three or four minutes. In your opinion is his estimate correct?
THOMPSON: It’s my opinion it took him much longer. Nine… ten minutes. There’s too much brain damage.
(The Judge leans over.)
JUDGE: (to Dr. Thompson)
Are you saying that a failure to restore the heartbeat within nine minutes in itself constitutes bad medical practice?
THOMPSON: Well…
GALVIN: Your Honor!
(He has shouted unconsciously; the whole Courtroom turns to look at him.)
JUDGE: Yes, Mr. Galvin?
GALVIN: If I may be permitted to question my own witness in my own way…
JUDGE: I’d just like to get to the point, Mr. Galvin. Let’s not waste these people’s time. Answer the question, Mr. Witness. Please. Would a nine minute lapse in restoring the heartbeat in and of itself be negligence?
THOMPSON: I… in that small context I would have… I would have to say ‘no.’
JUDGE: Then you’re saying there’s no negligence, based on my question?
THOMPSON: I… given the limits of your question, that’s correct.
JUDGE: The Doctors were not negligent.
THOMPSON:
(beat)
I… um…
JUDGE: Thank you.
(The Witness starts to step down. Galvin strides over to him and speaks to the Judge.)
GALVIN: I’m not through with the witness, your Honor. With all due respect if you are going to try my case for me I would appreciate it if you wouldn’t lose it.
(The Judge stands, furious.)
JUDGE: Thank you. I think that’s enough for this morning.
Rule 614 of the Federal Rules of Evidence allows the court to “examine a witness regardless of who calls the witness”. This is also the case in Massachusetts state court, where the film takes place, as they have adopted a similar rule stating, “The court may examine a witness to clarify an issue, to prevent perjury, or to develop trustworthy testimony, provided that the judge remains impartial.”
Here, the judge has clearly gone astray of the rule, infuriating Galvin, and leaving Dr. Thompson apoplectic. The judge has not remained impartial—going so far as to draw conclusions of fact, which is the jury’s purview. He has excluded Galvin altogether, and conducted what is essentially a cross-examination by proxy, before direct had truly begun. Moreover, he did not allow Dr. Thompson to finish sentences, clarify, or object to the manner in which he was treated. Finally, Galvin was not even allowed to do any damage control, as the judge abruptly ends the examination after railroading Dr. Thompson.
The pair meet one final time just after the morning session concludes:
THOMPSON: I didn’t do too well for you.
GALVIN: No, you did fine.
THOMPSON: I’m afraid that’s not true.
(beat)
Will you want me to stay on till Monday?
GALVIN: No. No thank you, Doctor. You go home.
THOMPSON: You know… sometimes people can surprise you. Sometimes they have a great capacity to hear the truth.
Dr. Thompson implores Galvin to remember that jurors are not stupid. They witnessed the outrageous conduct in the court. They also witnessed Dr. Thompson, although unable to get a word in, never raised his voice or lost his composure. While experts should make sure they are not misinterpreted or have words put in their mouths, they should avoid getting baited into outbursts. Let the attorney deal with unruly examinations, unfair judges, and unforeseen circumstances.
Aftermath
This abusive treatment of an expert witness is never acceptable and would be unambiguous grounds for an appeal (and possibly disciplinary action), but ultimately, Galvin would prevail due to an impassioned closing argument. Dr. Thompson was right; jurors do have a great capacity to hear the truth. He may have not been the expert that Galvin wanted, but ultimately, his level-headed performance played an important role in the successful verdict.
Expert witnesses are unlikely to find themselves cross-examined by judges in jury trials to this degree, but in bench trials, the judge is the fact-finder, so be ready for a potentially intense examination. Choose a pre-trial routine that works for you, so that you’re calm and ready for anything that comes. Above all, even when things go poorly, maintain your demeanor and trust your attorney to clean it up.
For over 30 years, Round Table Group has been connecting litigators with skilled and qualified expert witnesses. If you are interested in being considered for expert witness opportunities, contact us at 202-868-8712 for more information or sign up now!