We recently wrote on strategies for effectively cross-examining expert witnesses, noting that litigators can make good use of deposition time by exploring in detail the facts supporting the expert’s opinion. While it is difficult through cross-examination to cause an expert to abandon his or her opinion, it is nevertheless true that even the most damaging expert testimony will crumble like a house of cards if the cross-examining attorney establishes that the expert is laboring under a misapprehension of the facts of the case.
The Connecticut Appellate Court’s ruling in Gianetti v. Neigher, No. AC44340 (Conn. Ct. App., Aug. 9, 2022), is a good example of this strategy in action.
In Gianetti, a legal malpractice action, the plaintiff’s expert revealed during his deposition that he knew very little about the facts of the prior litigation in which the legal malpractice allegedly occurred. This was because the plaintiff’s attorney who had retained the expert’s services restricted the expert’s access to critical case documents and had, in fact, advised the expert to not spend too much time reviewing the file.
The trial court precluded the expert’s testimony at trial, finding that the plaintiff had engaged in discovery abuse and that the expert lacked an adequate factual basis on which to base his opinion. The trial court then dismissed the case, concluding that, without expert testimony on the issue of whether the defendant had breached his professional duty of care, the plaintiff would be unable to establish a legal malpractice case at trial.
The state appellate court ruled that, under the circumstances, the trial court had not abused its discretion. There are lessons in the ruling for litigators offering – or challenging – expert testimony.
Expert Witness Kept in the Dark
A few excerpts from the expert’s deposition will illustrate the problem. Here, the cross-examining attorney explores with the expert the extent to which he has reviewed the case file. It was, apparently, voluminous.
Cross-Examiner: Have you been limited in any way in the work that you’ve done so far?
Cross-Examiner: How so?
Expert: When [counsel for the plaintiff and I] saw the scope of those [sixteen] boxes . . . we realized that it was going to take a lot of time to review [the materials therein]. . . . So, I have not been authorized. I said to [counsel for the plaintiff], one of us has got to look at this, either your office or me or mine, or a third party, or somebody in order to understand this better as you go forward with the depositions, and I look forward to us dividing up that work.
Cross-Examiner: So, let me see if I understand that. You have not been authorized to look through the sixteen boxes of . . . [materials from the defendant’s representation of the plaintiff in the prior action], correct?
Expert: I have not been authorized to read them. I can flip through them, as I did a couple of times, just to see how they work . . . .
The underlying litigation in which the alleged legal malpractice occurred was a breach of contract case that the plaintiff, a doctor, brought against a hospital that declined to renew his clinical privileges. The crux of the plaintiff’s legal malpractice action was that his attorney should have asserted a state unfair trade practices claim against the hospital as well.
When the cross-examining attorney asked the expert to identify evidence of the hospital’s allegedly unlawful conduct, the following colloquy occurred:
Cross-Examiner: What evidence is there that [this allegedly immoral, unethical, oppressive, or unscrupulous conduct occurred]?
Expert: I’m sure it’s in those sixteen boxes . . . .
Cross-Examiner: It’s in those sixteen boxes that you’ve never looked at?
During a subsequent portion of the expert’s deposition, the cross-examining attorney returned to the question of why the expert had not reviewed the case file to any significant extent.
Expert: . . . I have got all these piles of paper. . . of the various parts of the file . . . . I just flipped through them to see what’s there.
Cross-Examiner: Did you read them?
Expert: I did not. I just breezed through them. I skimmed a few. . . .
Cross-Examiner: Have you reviewed [the] boxes and boxes of [materials from the file]?
Expert: I have reviewed pieces of [them] . . . .
Cross-Examiner: . . . [A]m I to understand that [the] letter [from counsel for the plaintiff] [was] your authorization to look at . . . specific boxes and . . . specific items in those boxes?
Expert: That’s not how I understood it.
Cross-Examiner: Okay, then how did you understand it?
Expert: I understood it as, this is a foreshadow of what is to come, and that I will be told when I am authorized to dig in deeply.
Cross-Examiner: So, as we sit here today, you still have not been authorized to dig in deeply, correct?
Notwithstanding his unfamiliarity with the materials in the case file, the expert testified during his deposition that the hospital had violated the state unfair trade practices law and that the plaintiff’s attorney should have asserted that claim against the hospital. According to the expert, the plaintiff’s attorney had instructed him that he could “assume” certain facts that the plaintiff hoped to prove at trial and, in light of those facts, opine as to the elements of legal malpractice.
Cross-Examination Revealed ‘Gamesmanship’
Defense counsel’s cross-examination of the expert witness uncovered two reasons, according to the trial court, that the expert’s testimony should be excluded at trial.
The first reason is that the expert’s evident lack of preparation had deprived the defendant of his right to pretrial discovery of how the expert would testify at trial. In Connecticut, Practice Book Section 13-4(3) provides that “the party disclosing an expert witness shall … produce to all other parties all materials obtained, created and/or relied upon by the expert in connection with his or her opinions in the case within fourteen days prior to that expert’s deposition.”
This conduct violated Practice Book Section 13-4 and, under the circumstances, amounted to discovery abuse.
The second reason for precluding the expert’s testimony was that it lacked an adequate factual foundation – a point developed repeatedly by the defendant’s attorney during cross-examination in the deposition. The expert’s opinion was based almost entirely on assertions that he would have to assume were true or facts that would not have been established – if at all – until trial.
Essentially what happened in Gianetti was the trial court lost patience with the plaintiff’s approach to pretrial discovery. The trial court concluded that what was going on here was gamesmanship by the plaintiff’s attorney; essentially, an effort to keep the defendant in the dark about important aspects of the case until shortly before trial. By raising this issue repeatedly during cross-examination of the plaintiff’s expert, the defendant’s attorney successfully undermined the basis of the expert’s opinion and motivated the trial court to impose the most serious sanction possible, namely, dismissal of the plaintiff’s case.