Attacking a Defense Expert: Stopping the Defense Expert in Their Tracks

Attack, attack, attack—go after their qualifications, their research, their testing (or lack thereof), their interpretation ofthe facts, find their mistakes, their money, and the list goes on and on. Experts have now become standard in nearly every case we have, no matter the value. On catastrophic injury and death cases, we regularly will have six to ten defense experts to prepare for.

An effective cross-examination can wrap up a case quite quickly. When the defense is worried about having their expert stuck, it can move settlement talks and save all the other cases where the defense has the expert retained.

If prepared correctly, cross-examination of an expert can be exhilarating. It is one of the few times that a professional witness will be completely at your mercy, and you can own the room. The more times that you do it, the better and easier it will become.

STEP #1: It’s all about the Facts – How many fact witnesses can I find?

I like to gameplan a case from the beginning. For my high-value cases, I know from the beginning that there will be defense expert because I have already hired my liability and damage experts. Most defense attorneys lack creativity, so they will naturally hire their own ”counter” defense experts to each one of my own experts. In a case with multiple parties with significant injuries, I could be facing somewhere between eight to twelve defense experts.

With that in mind, I focus on the one witness the defense always overlooks—fact witnesses; I find as many facts witnesses as I can. I always ask myself: How many fact witnesses can I take? I will dig for ex-employees, nurses, property assessors, corporate representatives, safety personnel, receptionists, and anyone else I can find that had some bearing on the case itself. On average, I have taken about 10-15 fact witness depositions, at least, on every one of my high-value cases. There is always a weak link in the defendant’s chain that can be exploited. You just have to find it.

I have found in most cases, only the fact witnesses matter. Experts are great to get you across the summary judgmentline, help flesh out the details of the injury, and to bolster your case up. However, at the end of day, I do not believe acase should hang on the balance of an expert opinion. It’s all about the facts.

As an additional bonus, the more fact witnesses you take, the less likely the defense expert will be able to keep up. Each defense expert that I have taken in these types of cases will either: 1) never received all the fact witnesses depos; 2) chose to ignore key fact witness testimony; or 3) just dismisses the facts. Either way, it creates glaring gaps in the expert’s testimony that they simply cannot get around. A lazy expert is a bad expert.

The more fact witnesses you take, the easier it is to cross-examine not just a defense expert, but any defense witnesses. Finding and taking the fact witnesses are key to any case.

STEP #2: What’s the Objective? – To Take or Not Take the Expert Deposition

The second thing we look at when tackling an expert is: Do I need to depose this expert before trial? Sometimes theanswer to that is No. Sometimes, especially for smaller cases, it may not help to take an expert’s deposition. This is typical for an expert that you want live and in-person in front of a juror, and the expert is out of subpoena range. The worry we often have is that once we take the expert deposition, the Defendant may only designate the deposition video, rather than bring the expert live. This can hurt a cross more than anything since it then takes the drama out of the courtroom and your connection with the jury. Most of the time, these kinds of tactics are for your smaller cases with damage experts like a life care plan rebuttal expert, a doctor on causation, or a counter-economist.

Additionally, when deciding on taking an expert, I like to ask myself the following:

• Can I flip this expert?
• Will taking this deposition help my case?
• Is there something I see in the report or my review on the case where I can get this expert struck?
• Does this expert need to get nailed down on what their actual opinions are?

You should never take an expert witness “just because.” Each expert witness cross requires extensive planning, research, and time. Do not just take a deposition because you think you are supposed to. Sometimes that can hurt a case more than if you just pushed the cross examination to the time of trial. Taking a deposition allows the expert to prepare for trial better, and they get a glimpse of your tactics or questions that you can rely on. I have never seen an expert maintain their exact same opinion at trial after a deposition. A live examination at trial preserves that element of surprise. Plus, a defense attorney will panic if you do not ask for a deposition. They do not know how to react to that.

The determination of whether to depose the expert witness or not can completely change your case.

Step #3: Searching for Gold – Background Checks and Past Depositions

The most time-consuming thing about taking expert depositions is finding the gold. Doing the detective work and finding out as much as you can about an expert. I might spend days gathering up as much information as I can once the defense expert is disclosed.

When first analyzing an expert, look up past cases, if any, where the expert was struck. Westlaw, TrialSmith, and the TTLA Listserv are good places to start. After finding any opinions or orders on striking the expert, look for any reasoning behind prior opinions on excluding the expert and see how it compares to your current case. Even if it is not a reason to exclude in your case, it is always a great topic to bring up when deposing an expert since they rarely keep track of each time they get excluded and the reasoning behind it. It makes them look silly.

Most of these experts testify solely for defendants. My favorite thing to do is once I get the trial and deposition disclosures from the expert, I look for any times the expert has testified on behalf of a plaintiff. Sometimes, these transcripts, no matter how old, are absolute gold as they provide testimony in your favor or take a completely opposite position once they testify for a defendant. Numerous times I have reached out, sending personalized emails and correspondence to attorneys who took these plaintiff depositions of the expert, and most will typically respond. So, while it is great to put on post on the Listserv, taking it just one step further can pay off dividends in your case. Also, if the depositions were videotaped, you can play the expert clips of himself to him at your current deposition.

Additionally, after getting their case list, I will pull federal and state motions asking to strike the experts and see if there were any good evidence, depositions, or documents to help bolster my cross examination. I find that if you just keep digging, there is always some kind of dirt on each of these experts.

For a look at how to conduct an extensive background examination, Dorothy Clay Sims has compiled some of the best resources and techniques in finding the gold. I have used the resources she has provided in verifying the resumes and resources on defense experts. A quick visit to zsinformationgroup.com will provide a verification for anything and everything on an expert’s resume see if it is true. I am often surprised by what I can find. I like to think that each lie helps to strip down the credibility of the defense expert.

Step #4: What’s My Goal? – Preparing and Designing an Effective Cross Outline

Preparing for a defense expert is no easy task – I was once told that a good cross takes one hour of preparation for every five minutes of a good cross examination. I have really taken that to heart as it does take a massive amount of preparation to make a professional witness stumble.

I have read and reviewed multiple different books on different techniques on cross examination, many who were also speakers at a TTLA event. Whenever I have an important deposition or a big trial, I will refer back to these books and videos to refresh myself on the techniques and strategies that have helped me.

For organization purposes, I like to use The Fearless Cross Examiner by Patrick Malone. Malone really does have a great tactic on setting up the outline that can be used for both trial and deposition, whether you like to type it out or handwrite everything. The focus for all my crosses is organization and speed. Collen Clark, the senior partner at my firm, threw me into expert depositions within my first year as an attorney on big wrongful death and oil-and-gas explosion cases. This book, especially, Chapter 7- Planning: The Essential Weapon for Speed, has become my bible. While I no longer need to go through the list verbatim as I use to, much of the tactics have become second nature to mentally refer back to for all my cross examinations.

The first thing I do is list each goal for the deposition on the top of page. That way, no matter what happens during the deposition, you will be able to backtrack to your initial point. Much of the time, these goals lay out some type of “Rule of the Road” or other principle that deals directly with our case. Once I create the goals, I begin to brainstorm key questions below each goal. Under each question, I list out all the evidence and testimony that support the answer I want. Many times, as defense experts are notoriously lazy, they have either never fully reviewed the file nor kept any type of tabulations on what supports their opinion. By having the evidence within your own outline, it allows you to quickly dismember the expert with facts from the case (from your fact witnesses). The most important thing that I have that I bring with me is my “Contradiction Memo.” I lay out of all the deposition testimony, documents, and items that I can always refer to. I have recently started using the TrialPad apps, including TranscriptPad and DocReviewPad, which has greatly cut down on the time needed to create these documents.

Unless there is some unique reason, start by getting all the admissions and easy questions out of the way first before going on offense. Often, if you notice a glaring mistake in their report or testing, getting them to admit the validity of a test before slamming them with their own mistakes really does a good job in destroying the expert. If I notice a glaring mistake, I try to write out the easy question or admission on paper, get them to sign it, and then come back to it when it is time to show their error. It becomes a good video to play for a Judge when deciding on striking the expert. If you start off the deposition rocky, it’s harder to get the expert back on your side when it comes to the easier items.

While having the outline is great, listening is the most important part of any deposition. I like to ask lots of open-ended questions to see where they lead. While I might have what it seems like everything written out, I usually only briefly refer to my notes. The real trick is listening intently and seeing how far the rabbit hole goes. A defense expert will make key admissions and throw a defendant under the bus if they begin to worry, then they will get struck. A defense expert’s true motivation is to continue being a defense expert. Nothing is more harmful to them than getting struck. Most of the time, especially in the heat of a cross examination, an expert will spew out some type of nonsense that you will need to respond to in real time. Being able to respond quickly and efficiently is the key to any great cross examination.

Step 5: “Leave Them Bloody”

I was taught from one of mentors, Collen Clark, that the main objective when you cross an expert is to “Leave Them Bloody.” I take that to heart when I start my cross examination. Now, there are many different strategies of how to tackle an expert: Credentials, bias, ignorance, money, rules, ignoring evidence, and so on. Below are some examples ofthe different ways we have handled experts and their cross-examination.

(A) Crushed by a Manlift – Exploiting the Gap in the Expert’s Report and Knowing the Law

Background:

This case involved a push-type manlift that the defendant, a rental equipment company, had placed on top of a tilt-trailer, a type of trailer that turns into a ramp when the latch is left open. The company had placed the manlift on top of a company trailer which was planned to be used on some repairs at a local church. The church’s volunteer left the trailer and manlift overnight in the church’s parking lot attached to a pillar. The next morning, our client showed up to help. He got on top ofthe trailer while it was attached to the pillar, turned away from the manlift, and was subsequently crushed when the manlift fell on top of him.

When Steve Pipkin and our firm began to work on the case, the biggest problem we had (and the reason it was kicked multiple times by other attorneys) was that our client was drunk and high on cocaine. He admitted in his deposition to doing multiple lines of cocaine the night prior and drinking the night away.

There were about ten defense experts in the case, but the primary focus from the first deposition was the BAC and drug use. That was essentially the bulk of the defendant’s case. We looked into the case law and found a nugget that I planned on using for the cross of the defense toxicologists. In Bedford v Moore, 166 S.W.3d 454, the “evidence of the use of intoxicants is inadmissible as immaterial unless there is further evidence of negligence and improper conduct onthe part of the user.” The key here was that there was no proof that our client being drunk or on drugs contributed to the incident. We did not think anyone could say that a different result could have occurred if our client was sober.

The Cross:

When looking at the report by the toxicologist, it was pretty straight-forward. It talked about our client being intoxicated, and that his intoxication led to him being incapable of accurately and safely assessing the situation.

We knew that if we could keep this opinion out, we would have a pretty good shot to keep out all the drug and alcohol evidence. Most of the report had to do with the science and math behind the intoxication but failed to really grasp how the injury itself occurred.

I started with innocuous questions about the incident itself. These are typically open-ended questions that are used to probe what the expert knows or does not know.

• Do you know how this accident took place?
• What type of trailer was it?
• What color was it?
• Who provided the trailer?
• Do you know how they selected that trailer?
• What did Sunbelt do wrong in this case?

The best thing about taking experts in person is that you get a much better sense of when there is blood in the water. I got an idea that I was on the right path when defense counsel began to instruct the witness not to answer. This expert claimed that our client could not safely assess the situation, but the expert had no idea what the situation even was at location. Once I got that sense, I went rapid fire using his own verbiage and only open- ended questions that he was unable to answer.

• When you safely assess the situation out there, you can’t even tell me the type of trailer out there right?
• Do you know what made it unsafe since you do not even know what type of trailer it was?
• Was he facing forwards or backwards toward it?
• Where was he on the trailer?
• How long did it take him to intervene?
• What was his response time?
• What’s a normal response time for this situation?
• How fast was the manlift going when it started moving?
• Which way was the manlift facing?
• Do you know how this trailer worked?

By asking these open-ended questions, the expert set up his own trap and fell into it. These are all technical questions that the expert should have been able to answer to show that intoxication was a factor. By answering “I do not know” to every question, the expert dug his own grave. Again, this was all organic. I had a feeling that he had no grasp of the facts, but since I was listening so intensely and had memorized the facts, I knew I had him. If I had just stuck with leading questions or my outline, I would not have gotten there.

Q: Where was he at when the manlift started moving?
A: I don’t know.
Q: Would that matter?
A: It might.
Q: How?
A: If he was ten yards away vs. ten inches away, I guess it would make a difference.
Q: How would it make a difference?
A: I guess it would depend on if he was trying to run toward it or just trying to stop it.
Q: Do you know?
A: No.
Q: Would that matter?
A: It could.
Q: Should it?
A: Potentially.
Q: Do you know if he got hit in the back with this thing?
A: I don’t.
Q: If he was hit in the back how would that affect your opinion?

By the end, I began incorporating his own words into the next question to get to the key question that will lead to his dismissal.

Q: So, if his back was turned from it, and he gets hit in the back with it, his reaction time would not matter, is that right?
A: Correct. If he was not responding to it, then his reaction time would not matter.
…
Q: So, to be fair, if wasn’t intoxicated at all, for all you know it could have happened anyway?
A: True

With the final admission, everyone knew that this expert was out. Along with him went the intoxication evidence and essentially, their main defense. The case soon settled at mediation.

(B)  Turning a 5 MPH Crash into a Windfall – ignoring the evidence makes an expert look stupid.

Background:

Our firm has never had a client suffer from so many past medical issues prior to a car wreck. For example, the client suffered from POTS, Ehlers-Danlos Syndrome (EDS), Lupus, depression, back pain, Lumbar disc disease, dysphasia, long COVID, and the list went on and on. And this case had everything else wrong with it that is common in these small car wrecks. For example, the client had a 10- month gap in treatment from the day after the wreck until she got treatment on her back.

She was getting treatment for back pain the week prior to the wreck with a chiropractor. Between the date of the first diagnostic treatment and the wreck, she had suffered from numerous documented falls and gave birth to her first child.

To top it all off, this wreck was so small, there was no police report, nearly no documented damage to the car, and she had told the insurance adjuster that she was fine two weeks after the wreck. As for the wreck itself, the defendant hit our client somewhere between 3-7 MPH at a stoplight.

The few things that her case had going for her were that there was a large insurance policy, and it was a rear-end wreck at a stop light, so liability would not be an issue. Further the crash was in Dallas.

The case came down to causation. Our client’s condition continued to deteriorate after this wreck, but it remained unclear, even to our firm, how a 5 MPH wreck could have caused such lasting damage. The focus of our case was on EDS, which is an inherited disease that can cause joint hypermobility, tissue fragility, and weaker collagen. This simply means that a person with EDS has weaker connective tissue, making them more susceptible to injury. Thus, I hired a doctor with an expertise in EDS to draft a life-care plan for our client, which turned into a large six figure sum. With her expertise, she claimed that all of her conditions, especially her EDS, were aggravated by the wreck and that explained the downward trajectory. Our case became an eggshell plaintiff theory, and we ran with it.

I do believe that we were lucky, as it turned out the client had not gotten any diagnostics on her back until after our wreck which showed multiple bulges and a herniation that needed surgical intervention. And we had deposed two separate treaters who, at least in theory, supported our causation.

The Cross:

The defendant hired Dr. Xing Zhoa, a board-certified physician in physical medicine and rehab. Dr. Zhoa provided counter-affidavits and a rebuttal life care plan. Dr. Zhoa’s main opinion was that all the treatment and future treatment she would need was from pre-existing conditions, and the only injury stemming from this wreck was a strain on the lumbar spine. My plan was to simply make Dr. Zhoa look stupid and try to knock out his preexisting argument. Most of my attacks were based on The Domino Theory by Edward Capozzi, who really does a great case theory and cross for any type of MIST (Minor Impact, Soft Tissue) case.

The first domino was Dr. Zhoa’s technique and lack of support for his underlying theories.

Domino #1:

Q: And so you–you understand what an independent medical examination is, right?
A: Yes.
Q: And I’m telling you you could have requested one through your attorneys to do it in this case, right?
A: Okay.
Q: And you did not do one before you rendered this report in this case, correct?
A: I have–I have not performed a direct examination or–of this patient, yes. That’s –that’s correct.
Q: And if a–if a physician wants to render a diagnosis, do you typically go and get an examination done?
A: In terms of a–am I the treating physician?
Q: Yes.
A: Then usually, yes. As a treating physician, that’s one of the –that’s one of the ways that–that’s part of the overall care for the patient as a treating physician, yes.
Q: That’s something that you do currently in order to form a diagnosis, right?
A: Yes.
Q: But before you rendered your opinions in this case, that was not done on your behalf, correct?
A: Yes. I did not do a direct examination of the plaintiff.

After Zhoa was softened up, I went after the evidence that he did not bother to read or consult prior to giving his opinions. I thought that I could get him struck for failing to consider the actual evidence in this case.

Domino #2:

Q: Are you aware that your opinions in this case are the complete opposite of the treating physicians who have been deposed and actually examined the causation of the injuries?
A: I’m–I’m not sure.
Q: Okay. And would you agree that the treaters in this case that actually maintain a doctor-patient relationship with her, actually examine her, actually prescribe her procedures for her to perform in order to help her would be in a better position to render those opinions that you, who did not do those things?
A: I–only in terms of the physical examination. Yes. Yes, only in terms of the physical examination.
Q: Right. So the answer is: Yes, I agree that they would be in a better position than me, Dr. Zhoa, in rendering those opinions?
A: In that–in that aspect, yes.
Q: Your opinions in this case are not subject to a malpractice suit if it turns out you’re completely wrong, right?
A: That–that is correct.
Q: So you don’t have to worry about whatever you say today about her treatment of care, her causation of injuries, becase, at the end of the day, you’re not legally liable for what you’re about to testify to the jury to?
A: That would be–I would say that statement is incorrect becasue I approach every case with–with–with diligence after reviewing all the material. And I give them my–my medical opinion.

With two dominos down it became clear Dr. Zhoa’s house of cards was close to falling. Despite his opinion that everything she had was preexisting, Dr. Zhoa was unable to testify when her back injuries took place or what caused them to occur. Furthermore, Dr. Zhoa was unable to tell when the pain in her back went from the “lumbar strain” from the wreck, and then back to the preexisting condition. This was simply circular logic that makes no sense.

Domino #3:

Q: Isn’t it true that the first time she was diagnosed with disc bulges or herniations in her lumbar was after this wreck?
A: With the records that I currently have–with the records that I currently have–you were mentioning the disc bulges themsevles specifically?
Q: Disc bulges and herniations in her lumbar.
A: Yeah. Yeah. With the records that I have, yes.
Q: And so are you saying that it’s your opinion that the herniation in L5 to S1 and the bulges at L2 to L3, L3 to L4, and L4 to L5 all took place prior to the car wreck we’re here to discuss?
A: Based off of the –based off of the information that was provided to me, that would be–that would be the higher possibility, yes.
Q: When did–when did she get the bulge over at L2 to L3?
A: I do not know the–the answer to that.
Q: You can’t give me a date?
A: No.
Q: You can’t give me any kind of information of when that bulge actually took place?
A: No.
Q: What about L3 to L4, can you tell me that one?
A: I–I do not know.
Q: You can’t tell me when that bulge took place either, right?
A: That’s correct.
Q: All right. What about L4 to L5, when did that bulge take place?
A: It is also difficult to say.
Q: What about a disc herniation at L5 to S1?
A: Also difficult to say.
Q: I mean it’s difficult to say. Can you say it or not?
A: No, I do not know.
Q: My question is different from that. When did her pain stop being from the lumbar strain and start all of a sudden being from this preexisting injury that predated the accident?
A: Within a period of six to eight weeks.
Q: So then it somehow went back to a preexisting injury?
A. That I–it is difficult to–difficult to–I can only attest to what I read about my–my medical opinion regarding the accident, itself.
Q: Can you show the jury the date of where it changed from the pain caused by the accident to where the pain was caused by this preexisting injury?
A: It’s an estimation, but within six to eight weeks.
Q: You can’t tell–You can’t tell us, though, when she bulged her discs or herniated the discs, right?
A: That is difficult to–difficult to time.
Q: It’s not difficult. You can’t do it, right?
A: Right. I do not know the exact time, yes.

The dominos had collapsed—as did Dr. Zhoa’s opinions. The case soon settled at mediation.

(C) Breaking the Expert – Expert will not put his moneywhere his mouth is.

Background:

Our client was a nurse at a hospital who was struck in the back by an EMS stretcher. The hospital was a non-subscriber. The incident caused the need for her to have fusion surgery and nerve damage. She remained in constant pain since the incident and was unable to lift or move properly to maintain her job as a nurse. One of the defendants’ strategies was to deflect her pain and ongoing care on the fault of her spinal surgeon.

The Cross:

The defendants recruited Dr. Stephen Tolhurst help muddy the waters. My main goal was to leave him looking foolish in front of the jury by using his own code of ethics against him.

Dr. Tolhurst believed the cage from the fusion surgery was the cause of all my client’s injuries. However, while his report did not outright use the words “medical malpractice” against her doctor, it was clearly between the lines. I figured I could push his opinion into the light.

Q: All right. Your Opinion Number 5 is that the cage from surgery was improperly placed; is that right?
A: Correct.
Q: And so the surgeon, he did a bad job in your opinion?
A: At the bottom cage, I think it’s malpositioned, correct.
Q: All right. So he–so did he breach standard of care?
A: I would say so. 
Q: Are you going to submit a complaint to the Texas Medical Board?
A: No.
Q: When–when are you going to do it?
A: I said “no”.
Q: Why not?
A: Because I don’t–I don’t think it’s appropriate.
Q: Why not?
A: Because breaches of medical–because it’s not my responsibility to do that, and I’m opining as to whether–what the cause of her ongoing left leg pain is. I reviewed her imaging studies and I feel that the cage is positioned laterally.
Q: You say it’s not your responsibility, is that what you just said?
A: Correct.
Q: You don’t think it’s your duty as the orthopedic surgeon in Texas to report these things to the Texas Medical Board if you firmly believe them?
A: I do not.
Q: Okay. So Ms.–Ms. Dunn comes to you after this trial and says, “Will you be the expert when I have to sue him for malpractice,” what are you going to say?
A: I don’t know what I would say. I can’t speculate as to that.
Q: Why not?
A: Because I have a busy clinical practice and multiple demands on my time, and I can’t speculate as to what I would do in the future.
Q: Well, I mean, you’re here right now testifying for the defendant, right?
A: That’s correct.
Q: And you’re here telling the jury that this surgon committed malpractice. Don’t you think that’s important?
A: Do I think it’s important?
Q: Yes.
A: Yes.
Q: But you’re not willing to represent or help–help her out if she has to sue him for malpractice?
A: That’s not what I said. I said I’m unsure as to what I would do. I wouldn’t commit to it either way.
Q: Well, you made time today to help the defendant out in this case, right?
A: Correct.
Q: Why wouldn’t you help a plaintiff?
A: I’m not saying I would or I wouldn’t. I’m just not willing to commit either way. 

Dr. Tolhurst had already begun to show his true colors. Doctors never like to attack each other in the limelight. Dr. Tolhurst was willing to attack the doctor on paper, but I figured after that statement he would never actually commit to his opinions. Doctors are notorious for backing off their opinions to save the face of one of their colleagues.

I then decided to go that “extra mile.” Prior to the deposition, I had figured that Dr. Tolhurst would not commit to the malpractice claim or want to help the plaintiff. I wanted Dr. Tolhurst to commit to his own lack of integrity. I asked Dr. Tolhurst to sign and date (I even put it on his own letterhead).

Dr. Tolhurst’s reaction, as well as his attorney’s reaction, did not go well for them.

Q: Sir, did you review Exhibit 70? I think it’s 70.
WITNESS: Casey, do you want me to review–do you want me–
OPPOSING COUNSEL: No, I
WITNESS: –to respond to this?
OPPOSING COUNSEL: You’re not going to answer any of these questions about this form.
Q: Did you review Exhibit 70?
A: I decline to answer.
Q: Okay. Did you have a chance to look through it?
A: I decline to answer.
Q: If the Texas Medical Board files a complaint against this surgeon, are you willing to testify for the Texas Medical Board?
A: Decline to answer.
Q: Are you willing to sign this statement?
A: Decline to answer.

This was also the first time that a defense attorney had claimed I was involved in witness tampering. I may not be a criminal lawyer, but I am not sure how I can tamper with a defendant’s expert. It put the expert into a box that Dr. Tolhurst will have a hard time crawling out of. Dr. Tolhurst claimed to have these opinions but then refused to put his reputation behind them. Dr. Tolhurst’s opinions were bankrupt.

(D) Setting a Trap – Never Let a Cop Decide Your Case.

Background:

Our clients, a husband and wife, were driving down I-20 in Eastland County, when they collided into an overturned 18-wheeler. Little did they know, about ten minutes prior, a separate wreck took place between that 18- wheeler and a Scion, that resulted in an overcorrection causing the 18-wheeler to turn over with the undercarriage facing oncoming traffic. Unfortunately, after my client’s impact into the undercarriage, another 18- wheeler with faulty brakes collided into them, causing a “sandwich effect” resulting in severe injuries to both parties.

Both 18-wheelers only had minimum limits. Given the serious injuries, I decided to sue the brokers who hired both commercial vehicles to add those policies to a potential pot. In total, I believe I had about seven different defendants.

The police performed a DPS investigation and reconstruction. The trooper decided to pin the entire accident on the Scion, an 18- year-old driver with minimum limits.

The trooper argued that the Scion had drifted to the outside shoulder, overcorrected, then entered the left lane, colliding into the first 18-wheeler and causing it to overturn. When asked about the wreck, the Scion testified that the 18-wheeler came into his lane and collided into him, causing the collision. The Trooper charged the Scion driver with negligent homicide charge. So, I figured I had to get rid of the trooper’s conclusions to make this case work.

The Cross:

All of the defendants named the trooper as an expert. His investigation was the main argument of why none of the parties, except the Scion, should have to pay anything.

By all accounts, the Trooper was an expert. He had Level 5 Accident Reconstruction certification, served on the district’s crash team, had investigated over 1,000 crashes, and had been designated as an expert in many other cases before this one.

After pouring through the documents for the thousandth time, I figured out the problem with their investigation: they never considered that the Scion driver was right. He did what most experts should never do: came up with a conclusion first.

The reconstruction that the trooper used had a fatal flaw: if you analyzed the scale diagram, it would show the 18-wheeler was in the right lane, not the left lane, at the time of impact.

The blue line indicates the front left tire of the 18-wheeler. The red line is the front left tire of the Scion. I enhanced the scale drawing provided by the trooper and zoomed in on the impact zone.

The purple line indicates the 2-lane cross section. When shown like this, it clearly shows the impact occurring with the 18- wheeler in the right lane. Armed with this knowledge, I set a trap around the trooper.

Q: So let’s take a look at your reconstruction, which is marked at Exhibit 69. Is Exhibit 69 a copy of your reconstruction?
A: Yes, sir.
Q: Did you perform this reconstruction?
A: Yes, sir, I did. Myself and Ricka Mckee.
Q: And this red line represents Mr. Rasbury’s vehicle, correct?
A: Yes, sir.
Q: And what’s this blue line represent?
A: That’s the 18-wheeler that laid over. Mr. Rody, if I’m correct.                                                         

Once I established that he created the reconstruction, he relied on the reconstruction, and used the reconstruction, then I sprang the trap. Prior to this point, the defense attorneys had proved how great the scale drawing and reconstruction were. They had unknowingly set the trap themselves.

Q: Okay. So looking back at your reconstruction on Exhibit 69, this is where you believe the impact took place correct?
A: Yes, sir.
Q: And which tire is the blue line supposed to represent?
A: I would have to look at the pictures.
Q: Please.
A: Okay. The skid marks are going to be the left side of the 18-wheeler.
Q: So the blue line we see on your reconstruction that’s the left side of the 18-wheeler?
A: Yes, sir.
Q: If that’s the left side of the 18-wheeler wouldn’t that pur Mr. Roddy in the right lane?
A: No, sir. Point of impact is left side is in the left lane.
Q: I understand that, but this is a –this is a reconstruction done by you, correct?
A: I didn’t do the drawing.
Q: Okay. Well, this is reconstruction you relied on thought, right?
A: Yes.
Q: And according to this reconstruction of that’s the left tire, is it he left tire of the tractor or the trailer?
A: That would be the left tires.
Q: Of the tractor?
A: At point of impact we have marks showing it on the right that when ipact occured Mr. Roddy was in the left lane. The marks that he leaves are the left tires.
Q: This reconstruction is based on the evidence you got at the scene, right?
A: Yes. I didn’t do the drawing.
Q: I understand that, but you relied on it, right?
A: I didn’t use it, but yes, it’s part of the invetigation.
Q: I mean, I think your name’s on it.
A: Yes, as the investigator.
Q: I mean, this is your name right here, investigated by, right?
A: Yes. I didn’t do the drawing. The skid–
Q: I understand–
A: –the skid mark–the blue line is his travel path after impact, which would be the marks left at that point would be the left side of the vehicle.
Q: This is–your name’s on this reconstruction, right?
A: Yes, sir, I agree to that.
Q: And did you help make these pictures and the calculations used to create this drawing, right?
A: Correct, yes, sir.
Q: All right. And so I’m just looking at the reconstruction itself, and I’m simply zooming in on the blue line, which you said is Mr. Roddy, correct?
A: Yes, sir, that’s correct and that’s his path.                     

They immediately saw the mistake and attempted to overcorrect, but it was too late. The trooper had already established the reliability of the scale drawing and his dependance on it. Once faced with his mistake, he attempted to distance himself from the drawing.

Q: Okay. And that would put that–and the blue line that’s on this reconstruction is the left part of Mr. Roddy’s vehicle, correct?
A: Yes, sir, based on that drawing.
Q: And this little white line we see, that’s the middle part of the road, isn’t it?
A: I can’t tell what they are, sir.
Q: Well, I mean, we can just–we can zoom out a little bit.
A: That would be great. 
Q: And do you see these little white lines?
A: Yes, sir.
Q: And they go down throughout the entire road, right?
A: That’s correct, sir.
Q: So if we zoom in on the part where you claim the impact took place based on the reconstruction, there’s a white line right here. Do you see that?
A: Yes, sir. I know where you’re–I can see what you’re pointing at. That would be–the drawing–
Q: Hold on. Hold on. Let me ask you a question first. Okay? And do you see this line I’m drawing on Exhibit 69?
A: Yes, sir.
Q: All right. I’ll make this a–I don’t want to make it red–let’s make it purple. Do you see that, sir?
A: Yes, sir, I do.
Q: And is that–that’s the–and I’m using that to represent the center of the road. Do you see that?
A: Yes, sir.
Q: And his left side of Mr. Roddy’s vehicle according to this reconstruction is over that line, true?
A: Based on that diagram, but I’m looking at the picture and the impact area was on the left side.
Q: My questions was: Based on this reconstruction performed by you and Texas DPS the left side of Mr. Roddy’s vehicle is over the line into the right lane on I20, correct?
A: Based on what you’ve drawn there, yes, sir. What you’re saying is, is that those mark and that angle of travel is in that lane, but that’s not what the pictures show.
Q: I understand that. But hypothetically, if he was in the right hand lane at the time of impact then he is invading Mr. Rasbury’s lane, ture?
A: He would have to be in the right lane to be doing that, yes, sir.

The trooper was never able to get away from his own evidence that he created and relied on. The trap, in my opinion, ended the case. At pretrial, both 18 wheelers tendered their policy limits, and the brokers provided another large seven-figure amount.

Conclusion

Expert cross-examination takes patience and a deep understanding of your case. There is always some type of angle to exploit and use to your advantage. You must always search for the gold, relentlessly prepare, lay your dominos, and “leave em bloody.”

About the Author

Jacob von Plonski is a partner at CLARK, VON PLONSKI, ANDERSON LAW FIRM. The firm takes cases throughout the United States, and has offices in Dallas, Lufkin, and Tyler, Texas. We take only personal injury cases, ranging including 18-wheelers, oil & gas explosions, premise liability, workplace accidents, wrongful death, construction incidents, and anything else that causes people to get injured. Our unique way of looking at the case allows us to take complicated cases involving severe injuries and find a path forward to liability and recovery for all our clients.

Please reach out with any questions or requests:

jake@cvpalaw.com & info@cvpalaw.com

Below is the list of books that I constantly refer to and use during my depositions:

1. Advanced Depositions by Phillip Miller & Paul Scoptur
2. Rules of the Road by Rick Friedman and Patrick Malone
3. Polarizing the Case by Rick Friedman
4. The Fearless Cross-Examiner by Patrick Malone
5. The Domino Theory by Edward Capozzi