ABANDONING AN EXPERT

WITNESSPresenter: Katherine A. Cárdenas

Law Offices of Lucas & Cárdenas, P.C.Chicago, Illinois

KAC@lucasandcardenas.com

A Presentation of The National Trial Lawyers

KATHERINE A. CÁRDENAS Partner, Lucas & Cárdenas, Chicago 20 years representing adults and

minors in every area of personal injury.

Tried numerous cases across Illinois.

Represented clients in Federal Court and has argued before the Supreme Court of Illinois.  

Member: The National Trial Lawyers Top 100

Trial Lawyers Million Dollar Advocates Forum Illinois State Bar Association American Association for Justice Illinois Trial Lawyers Association.  

OUTLINE Plaintiff’s burden of proof in Illinois

medical malpractice cases Illinois expert disclosure process Presenting an expert for deposition Mechanics of abandoning an expert in

Illinois Hernandez-Jovel v. Northwest

Community Hospital, et al.

BURDEN OF PROOF REQUIREMENTS The obvious: duty, breach, causation,

damages What is the standard:

“what a reasonably careful physician would or would not do under the same or similar circumstances…” The standard applicable to each defendant and

all claimed deviations must be established through qualified expert testimony

Be careful of being too specific in your certificate of merit – this can be used against your expert

BURDEN OF PROOF Specific ways to establish standard:

Your Expert’s training education and experience

Practice bulletins and guidelines from professional organizations

Policies and procedures of HospitalMedical literature – Be careful Other legal requirements in your jurisdiction

BURDEN OF PROOF Causation

Also requires expert testimony See, e.g., N. Trust Co. v. Burandt & Armbrust,

LLP, 403 Ill. App. 3d 260, 280 (2d Dist. 2010) (explaining burden)

Common defenses The empty chair (another provider)/ sole

proximate cause (the plaintiff or birth defect)/ “some other cause”

Pre-existing condition Importance of teaching jury what plaintiff’s

burden actually is: more probably true than not true

ILLINOIS EXPERT DISCLOSURE PROCESS

Illinois Rule 213f(3) requirements“[…]person giving testimony who is […] the

party’s retained expert.” Subject matter Opinions and bases Qualifications Any reports

TimingAfter lay witness and treating doctor

discoverySimultaneous disclosure

Advantages for plaintiffs

ILLINOIS EXPERT DISCLOSURE PROCESS

Rule 213f(3) requires strict compliance Avoids gamesmanshipPractical considerations (decreases amount

of time to get to trial, aids in settlement because defense is forced to spend the money now)

Discoverability of drafts and writings by opponent’s expert before your expert sits for deposition

Allows both sides to supplement/amend with any new/additional matters

PRESENTING YOUR EXPERTS

Even with the best preparation, things can and will go wrong:Confusing/conflating factsRelying on bad dataBlatant/unreasonable advocacyOffering new opinionsOffering opinions outside of expertiseExcessive evasiveness Cavalier attitude/ failing to consider all

variables in hypotheticalsRetreating/changing opinions

PRESENTING YOUR EXPERTS

Damage controlCareful follow up can correct most problems

Make clear record of scope of each expert’s opinions

Make clear record of each basis for expert’s opinions

Take breaks if needed Correct factual errors Fill in the gaps of incomplete hypotheticals

But sometimes the Expert can’t be saved… Retreating from opinions/conceding that the

other side is right Destroying notes

MECHANICS OF ABANDONING EXPERT

Always remember the following:The Expert is NOT an agent of the partyThe Expert cannot make admissions on behalf of

the party Why is it so important to properly abandon?

Consequences of improper abandonment The dreaded “missing witness” instruction (5.01 in IL)

1) Under control of party;2) Not equally available to opposing party3) reasonably prudent person would have produced

if favorable4) No reasonable excuse shown

MECHANICS OF ABANDONING EXPERT

The proper procedure – Taylor v. Kohli, 162 Ill. 2d 91 (1994) May abandon upon “reasonable notice” prior to

trial No clear guidelines for “reasonable notice”

Taylor- 19 monthsNatalino v. JMB– 1 week insufficientBishop v. Baz- 5.01 instruction not allowed where

plaintiff was given ample opportunity to depose or adopt abandoned witness

Notice should be in writing (Motion not required)

Abandonment should be clear and unequivocal

MECHANICS OF ABANDONING EXPERT

My case: Hernandez-Jovel v. NWCHFactsExpertsVetting process for expertsDeposition prep. for expertsWhat went wrongHow I fixed itEffect on caseFinal Result

NEXT WEBINAR:UPDATE ON RISPERDAL MASS TORT

LITIGATION September 9, Wednesday Presenter Robert Mosier, The Sanders

Firm in Los Angeles. His practice focuses on representing

plaintiffs harmed by large pharmaceutical and medical device companies.

Register at http://bit.ly/RisperdalUpdate

QUESTIONS