Brooklyn Bar Association medical malpractice series covers direct and cross examinations

November 15, 2018 By Rob Abruzzese, Legal Editor Brooklyn Daily Eagle

The Brooklyn Bar Association's series on medical malpractice continued this week as attorneys and experts gave tips and advice on how to direct and cross examine expert witnesses. Pictured from left: John Bonina, Kristin Kucsma and Tim Sheehan. Eagle photos by Rob Abruzzese

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The Brooklyn Bar Association, along with the NYS Academy of Trial Lawyers, held part two of its “Med Mal Skills” series of continuing legal education seminars on Tuesday with a panel of attorneys and an economic expert.

Part two of the lecture was titled “Going the Extra Inning: Direct and Cross of Expert Witnesses,” and featured attorneys John Bonina, Jim Wilkens and Tim Sheehan plus economics expert Kristin Kucsma.

Bonina served as a panel moderator as the three others took turns explaining their perspectives on direct and cross examinations.

“Many of you were here last week for part one, where we discussed jury selection and openings,” said Bonina, who is the chair of the Medical Malpractice Committee at the BBA. “Tonight, we have another lineup of all-star faculty. The two lawyers are experts who are at the top of their game and in the middle of battle, and Kris is sought after widely by both plaintiff and defense lawyers as an economic expert because of her ability to explain complex economic concepts in simple terms for a jury.”

Sheehan, a defense attorney with the firm Decorato, Cohen, Sheehan and Federico, opened the CLE with his perspective on how defense attorneys should approach direct and cross examination. He explained that the most important thing is for attorneys to do their homework on the expert witnesses.

“Who is the expert?” Sheehan asked. “You can’t wait until the last minute to find out. If you are looking for a transcript, it takes time. It’s not something slapped together in a couple of weeks.

You have to get transcripts, CV’s, hospital affiliations. Find out the kinds of hospitals are they practicing at. Those are there for you to develop some friction and angles.”

Sheehan explained that even knowledge about how often an expert testifies — or if they have ever testified at all — can be useful in determining strategies to winning a case. He also explained that part of an attorney doing their homework involves knowing the judge.

Wilkens, a plaintiff’s lawyer with the firm Sullivan, Papain, Block, McGrath and Cannavo, opened up by explaining his theory that juries are very visual. As a result, he said that he puts a lot of importance on knowing the medicine involved with all of his cases as best he can so that he can more easily gain the upperhand when direct or cross examining doctors.

“I’m obsessed with the medicine,” Wilkens said. “On any given minute topic, I will generally know the important medicine in my case at least as well as the defendant. To me, it’s only by knowing the medicine so you can take those instances where the smart-ass doctor says something they think they can lord over you because they’re a doctor and you’re not. Then you turn on them and watch them react that maybe you’re right.”

Kucsma, the principal and chief economist of the Sobel Tinari Economics Group, talked about how attorneys can best prepare their expert witnesses. She said that one of the most important aspects is to not just treat economic experts as human calculators and to let them help guide a case.

“I’m there to help you tell the story,” Kucsma said. “It’s important for me to be able to put the numbers into perspective for the jury on your behalf. That’s why it’s important for me to know the kind of case you are working on. The methodology I use doesn’t matter, but in order for me to tell the story it’s important for me to have a sense of what happened in the case.”

The BBA will hold part three of its Med Mal Series on Nov. 20., with a lecture titled “Bringing it Home: Charge Conference and Summation,” with attorneys John Barker and Robert Danzi along with Justice Ellen Spodek.