January 7, 2022

December 16 2021 Trial Tips

We finally have a few trials to write about as the lingering effects of Covid-19 continue to place restrictions on jury trials in New York. Hopefully the year 2022 will allow us all to get back into the Courthouse and try cases on a regular basis. As vaccinations increase and Covid cases decline, we wish to see more of our colleagues in the courthouses. We have had trials go forward in all venues in NYC and the surrounding counties of Nassau, Suffolk and Westchester. Suffolk County and Kings County appear to be the most active for trials at the moment.

Spinal Fusion cases continue to dominate the landscape on our large policy cases. Invariably, on a million dollar policy case, we will see an ACDF (Anterior cervical discectomy and fusion) or a PLIF (Posterior Lumbar Interbody Fusion). We have had several trials with Spinal Surgeons testifying for the plaintiff in 2021. One of the more formidable witnesses for the plaintiffs is Dr. Alexandre B. de Moura, an accomplished spinal surgeon with over 30 years in practice. Dr. de Moura has built a very active practice at the NY Spine Institute with eight locations across New York. Personally and professionally, he is a surgeon I have tremendous respect for. On the witness stand, testifying for the plaintiff, he can be very effective.

For defense counsel, I would suggest that the usual collateral attack based on the number of times the witness has testified and the fees paid for in Court appearances should not be either a lengthy discussion or the focus of your examination. On the issue of causation, counsel for the defense needs to focus on three issues. The first would be the failure of the plaintiff to give an accurate history. The second would be the degenerative nature of the condition for which surgery was performed and the third, either the positive outcome of the surgery or the failure to follow recommended procedures. Consider the attached transcript from the cross examination Dr. de Moura (cross examination starts on Page 96), taken in his office by videotape prior to the trial. In this case, the witness was questioned about the history the plaintiff gave to the surgeon when the first consultation was made and the lack of transparency regarding an opioid dependency. 

Q. Would it be fair to say based on your review of those records that Mr. Durlach had a ten-year history of opioids use prior to this April 2015 accident?

A. I answered that already.

Q. And your answer is?

A. My answer was yes.

The second area of questioning dealt with the plaintiff’s pre-existing degenerative condition. The focus on this line of inquiry was the degenerative findings upon MRI evaluation, a condition from which Dr. de Moura recommend surgery. See excerpts from the cross-emanation below.

Q. Let's talk about that traumatic injury. When you first saw him in June 2017 you also reviewed not the actual MRIs but you reviewed the reports that were ordered by Dr. Obedian at Zwanger Pesiri Radiology and those reports were taken in 2015, is that accurate?

A. Yes.

Q. So you didn't look at the actual MRI films themselves, you just looked at the reports from Zwanger Pesiri Radiology. Is that fair to say?

A. At one point in time I had reviewed the actual film but he was presented for the first time with a report.

Q. The day that you gave your diagnosis, your assessment that he was traumatically injured in the accident, you looked at the reports that were prepared in 2015 from Zwanger Pesiri Radiology, is that fair to say?

A. Yes.

Q. So going back to this MRI that was taken within three months of the accident is there any mention in the entire MRI report of the word "trauma"?

A. That's not something a radiologist reviews.

Q. Is there any mention in the MRI report of the word "traumatic disk herniation"?

A. Once again the word "traumatic" is never used by a radiologist.

Q. So let's look at the words that were in fact used. In this report there is a mention at L-3, L-4 there's "diffuse", meaning throughout, correct?

A. Yes.

Q. "Degenerative bulging disk with mild stenosis"? When we talk about diffuse degenerative bulging, that's something that's not a traumatically induced condition, that's something that happened over time over years to develop, is that fair to say?

A. Yes.

Q. There's also an indication at L-4, L-5 there's a right paracentral disk protrusion abutting without compressing the exiting right L-5 nerve route. When we talk about radiculopathy or radicular pain there's radicular pain because the disk that is exiting the vertebral space is in fact compressing on a nerve, correct, that's what causing the radicular pain?

A. You're ill-informed, that's not correct.

Q. This disk profusion that's described in the MRI has no compression on the exiting right L-5 nerve route as per this MRI evaluation, is that fair to say?

A. That's correct.

The third area of focus was on the plaintiff’s failure to follow recommendations. In a case where the plaintiff has not gone forward with the surgery(ies), defense counsel can get a lot of mileage with the argument that the suggested procedures were “litigation driven” as opposed to medically necessary.

Q. So you recommended to him a procedure or two procedures three years ago and he hasn't done anything in terms of moving forward with those procedures, is that also a fair statement?

A. Yes.

Q. In terms of your recommendations, he has not followed your recommendations to proceed with these surgeries, he has not done anything in terms of going forward with the surgeries that you recommended, is that also fair to say?

A. Correct.

For defense counsel, perhaps the most difficult task in cross-examining an accomplished surgeon, who is adept in the operating room and the courtroom, will be to focus the witness on “yes” or “no” answers. On this issue, I would suggest intense preparation and framing of your questioning based on the medical records. Showing the witness the records and having the witness affirm the meaning of the terms is very effective. Boxing the witness in on the diagnosis and a discussion of a “differential diagnosis” (a process wherein a doctor differentiates between two or more conditions that could be behind a person's symptoms) in our cases, degenerative versus traumatic, is the key to success.

Click here to view a full transcript

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