Cross-Examination of the Consulting Orthopedist By Frank Scahill

This month's trial found us back in Queens County with a challenging case, Jose Rivera v. Lloyd Lampell (Index No:16240/13). Summary Judgment was granted to the Plaintiff on this automobile accident case and the trial was limited to the question of damages. The accident totaled both vehicles with EMS, Police and Fire Units responding to the scene. The Plaintiff had immediate complaints of neck and back pain with ER treatment and continuous medical care after the accident. The Plaintiff was a 43 year old Verizon worker, earning in excess of $120,000 per year. Post-accident, the Plaintiff underwent cervical and lumbar discectomies and fusion surgery by Dr. Sebastian Lattuga and claimed a permanent disability. At the time of trial the Plaintiff was on social security disability, had been on worker's compensation for four years and was deemed "totally disabled" by Dr. Paul Kleinman, who examined him twelve times over the last four years for the worker's compensation carrier. Our client maintained $3.3 million in coverage. The Plaintiff rejected a $1.5 million dollar offer to settle. The Plaintiff's economist projected economic damages at $4.6 million and we were assigned to Judge Ritholtz for trial. Prior to the trial, we agreed to a high/low agreement with a $1,000,000 low and $3,300,000 high. The trial actually went on for a full week with eight expert witnesses. In a three day period we completed the direct and cross-examination of three orthopedic surgeons, two vocational rehabilitation experts, an economist, radiologist, the Plaintiff and two lay witnesses. A good analogy would be trying the case while the building is on fire.

Summations and jury charges were completed on Friday morning and the jury got the case at 12:40 pm. By 1:00 pm they were back with a complete defense verdict finding that none of the injuries alleged were causally related to the accident.

An important lesson for defense counsel on this case deals with the opportunities for cross-examination of the Plaintiff's consulting orthopedist. Rather than call the Plaintiff's surgeon, Dr. Lattuga, the Plaintiff chose to call Dr. Jerry Lubliner, who saw the Plaintiff on one occasion, a year prior to the trial, on a consulting basis only. Similar to Dr. Ali Guy, Dr. Lubliner has been a Plaintiff's consulting witness for many years. His arrogance on the stand, coupled with his incredible statements, were a great benefit to the defense including this exchange on cross-examination:

Q: Are you claiming that the accident of 2012, or is it your medical opinion that the accident of 2012, caused the injury that lead to the two surgeries?

A: I said it exacerbated his previous condition to cause him to have the two surgeries.

Q: If you were going to put a percentage on it, he had accidents in 1998, in 2004, in 2011, in 2012, the accident of July 5, 2012, what percentage in your opinion would be the contributing factor towards the two surgeries that you discussed?

A: Based on the fact that he went back to work after all the injuries before this, and based on the fact that my notes indicate he was asymptomatic for seven months before this accident, I would have to put it around the 50 percent area.

Q: So this accident, the July of 2012 accident, was at least 50 percent responsible for the two surgeries that he had, not all of those prior accidents; is that your opinion?

A: He would not have the surgeries in July of 2013 and November of 2013 if not for this accident. Whether he would have had surgery in the future without this accident I don't know. No one knows.

Our whole defense was built on the theory of pre-existing conditions. The Plaintiff's own doctor cut any potential award in half by his statements above. The failure to call the treating surgeon is a gift to the defense on these cases and the seed to be planted and fertilized before the jury is the illegitimacy of the claim, based on the failure to call the surgeon who could relate the true facts. We were successful in obtaining a missing witness charge on this case and the jury obviously gave this issue it's due consideration. I have attached the direct and cross examination of Dr. Lubliner, which is worth a quick read.

Read the transcript here.