Gary Fox’s cross-examination of a “frequent flyer” expert medical witness

Slayton v. Professional Park Pediatrics, P.A., Case No. 03CA1622, 2nd Judicial Circuit, Florida, June 22, 2007.

[Malone comments are throughout the transcript in red]

The cross-examiner is Miami attorney Gary Fox, and the witness is a pediatric infectious diseases specialist from New Mexico with a long testimonial history, which is the first thing Fox explores. Note in this exchange how the witness repeatedly reasserts his objectivity at every turn.

Q. Dr. Radetsky, would it be fair to say, sir, that you are no stranger to the courtroom?
A. I have probably given courtroom testimony around 50 times, Mr. Fox.
Q. And you are no stranger to the legal process, are you, sir?
A. I’m not quite sure I understand your question.
Q. Well, having given in excess of 400 depositions, you understand parts of the legal process, you understand why depositions are taken and so forth?
A. Well, I — to the best of my ability, I understand from my point of view, sir.
Q. Well, what I’m trying to get at is you said it was 50 two years ago, and we are now at two years later, and we know you’ve testified in court at least seven or eight times over the last two years, correct?
A. Well, I don’t recall saying that I testified 50 times a couple of years ago, but, again, since I don’t really keep a running total, sir, what I try to do is kind of have an order of magnitude. I know it’s not ten, and I know it’s not a hundred, so it’s probably in the
middle range.
Q. Well, Doctor, can we agree that, in any event, that a substantial amount of your professional time is devoted to dealing with lawyers?
A. No. My professional time is spent being a doctor. I do do this work, sir, but I really do it mostly on my own time. I get up at four in the morning if I have to. I’ll work on weekends, or I’ll work when my kids are in bed. On days like today, I do have to take off time from work and time from my family to come here, but I’m a full-time doctor.
[Note the witness’s carefully planned zinger, trying to establish himself as a “one of us” family man and full-time doctor. But the cross-examiner is ready for this.]
Q. Doctor, it is very misleading to tell this jury that your legal work is done at four in the morning and on weekends, isn’t it, sir? Isn’t that just a little misleading?
A. No, I don’t think so, Mr. Fox. That’s actually when I do do the work, because during the middle part of the day I’m either at the hospital consulting with doctors, visiting my hospice patients in the nursing homes or wherever, so my days are pretty well filled. The weekends are freer, and I do work on the weekends.
Q. Well, I’ve got — I don’t have all 400 of your depositions here, but I’ve got about 80, and I would be happy to go through them if the need arises. But I would represent to you, sir, that in all 80 of these depositions, not a single one was taken at 4:00 a.m. or on the weekends. Every single one was taken on a weekday between nine and five. Could you accept that possibility, sir, or should we walk through them?
A. Well, then I’m confused, sir. The major work in a case like this really is going through the records, going through the depositions. That actually takes a quite a long time. I do give depositions during the middle of the day, so I take off time from work to do
that. And, obviously, I’m here during the weekday so I’m not back at my practice in New Mexico. But the bulk of the work is paperwork and research work and going on the Internet and that sort of thing, and that really is done on my own time.
Q. Doctor, I’m not arguing whether it’s done on your own time or not. I’m simply saying that it would be misleading to tell this jury that the legal work that you do is done at 4:00 a.m. and on weekends when we know that a good part of it is done Monday through Friday between nine and five.
A. The depositions are given during the daytime, but I don’t think the jury is misled, sir.
Q. And, in fact, Doctor, the answer you just gave us, about you doing legal work at 4:00 a.m. and on the weekends, that’s an answer that you give quite frequently, isn’t it, sir?
A. Happens to be the true answer.
Q. And when you were in Jacksonville last year –do you remember going to Jacksonville to testify?
A. I do.
Q. Do you remember who you testified for, sir?
A. Well, I don’t testify for anybody, sir. I try to give the same testimony no matter who retains me, but it was Mr. Craig Dennis’s firm.
[This was the same defense lawyer in the courtroom in this case.]
Q. Yes, sir, and Mr. Dennis paid you, right?
A. Oh, sure. I charge for my time just like everybody else does.
Q. Yes, sir. Well, we’re going to talk a little bit more about your charges, sir. But that case over in Jacksonville — you told the jury the same thing. You get up at 4:00 a.m., you do the work on — at 4:00 a.m. and on the weekends. Do you recall that testimony?

MR. DENNIS: Objection, Your Honor. This is improper impeachment. If he has something that he wants to read he can ask him if it’s what he says, and we would just object to that.
MR. FOX: I can do that, Judge.
Q. We’ll come back to that in just a moment, Doctor. Doctor, see if you remember this question. I’m trying to find out — look for the specific part of what I’m trying to find here. Ah, yes.
MR. DENNIS: Also, please have a designation of what it is you’re reading from.
MR. FOX: Sure. Sure, sure. It’s the trial transcript. Mr. Dennis was a counsel in the case of Jackson versus Soud, page ten. You’re asked the question: How much of your time — obviously, you’re testifying and you’re being asked questions by Mr. Dennis here. How much of your time — obviously, you’re testifying here in this medical legal environment –how much of your time is devoted to doing this type of activity in your practice? And you say, your answer is: Well, Mr. Dennis, I’m a full-time doctor. I’m in private practice in Albuquerque. I primarily do consultations in infections in children. There are only two of us in the state of Mexico (sic), that’s — said the same thing here. There’s one doctor over at the university, and there’s me at the big Presbyterian hospital that I mentioned. And that’s all there is in the whole state, so we’re pretty busy, as you can imagine. This sort of
thing, the reviews of cases for attorneys, I do in my full time, if I can put it that way. So I have two kids, so I do it at four in the morning, I do it on weekends. And then, of course, for a trial I’m having to take time out from my practice to come here, obviously.
Do you recall that question?
MR. DENNIS: Objection, Your Honor. That’s exactly what he just said. Improper impeachment.
THE COURT: Okay. That’s consistent with what he said.
MR. FOX: Yes, sir. He said he didn’t recall it, which is why I was bringing it up.
THE COURT: It’s consistent.
[Here both the court and defense counsel have misconstrued the point of the impeachment. Impeachment with prior testimony isn’t limited to showing inconsistent testimony. Here, the cross-examiner’s point is that the testimony is too consistent, that is, the witness is following a script. But since the objection doesn’t go anywhere, there is no point arguing it.]
Q. And, in fact, Dr. Radetsky, that was not the first case in which you testified for Mr. Dennis’s firm or the George, Hartz, and Lundeen firm, is it?
A. I don’t really testify for anyone, but I have been retained by Mr. Dennis’s firm before. And I think really in the questioning that Ms. Santoro took me through, I think I already told the jury that I had been retained by her firm before.
Q. Yes, sir. What I was trying to get at was the magnitude. You didn’t tell us how many times you had been hired by Mr. Dennis’s firm or Ms. Santoro’s firm. That’s what I was trying to get at. And, in fact, sir, you’ve been hired, between those two law firms — not just her firm, probably 21, 22 times; is that fair?
A. I don’t think so, sir. But, again, since I don’t keep a running total of these things, I think that Mr. Dennis’s firm has consulted me a number of times and –
Q. How many?
A. Well, I’m thinking four, five times would be probably the number. It may be a little higher than that. With regards to Ms. Santoro’s firm, she’s never consulted me before, but I’ve reviewed cases for that firm certainly in the past.
Q. Do you remember who you testified for, sir?
A. Well, I don’t testify for anybody, sir. I try to give the same testimony no matter who retains me, but it was Mr. Craig Dennis’s firm.
Q. Yes, sir, and Mr. Dennis paid you, right?
A. Oh, sure. I charge for my time just like everybody else does.
Q. But, in any event, can we agree, Doctor, that in the 450 cases in which you’ve testified, either by deposition or at trial, that in 95 percent of the cases you’ve testified for the defendants and against the patient?
A. Well, again, sir, I don’t testify for or against anyone. I try to give exactly as accurate a testimony as I can no matter who may have retained me. I think that’s the job of an expert is to give accurate testimony. It is true that I would say 95 percent of the time, by the time it comes to a deposition or a trial, I’m brought there by a defense attorney, but my testimony is not for or against anyone.
Q. Yes, sir. You are brought there by and paid for by a defense lawyer to testify in a case against a baby or a baby’s parents. Isn’t that true, sir?
A. No. Mr. Fox, again, I’m not testifying for or against anyone. I think that that’s really a mischaracterization of what my job is. My job is to try give accurate and, I hope, scientifically based testimony to the jury for them to make the decision.
Q. Yes, sir. Well, how about you and I not quibble about words. In 95 percent of the cases you-are paid by the defense; can we agree to that?
A. Yes.
[ This was a good turnaround question to get the witness to agree with what the cross-examiner wanted here. It was obvious that the witness would not agree with the fact that he “testifies for” someone, so specifically pinning down who pays him was a good way to step around that dodge. And after the witness had repeated, too many times for his own credibility, that he doesn’t testify for or against anyone, this starkly highlighted the key point. The witness then finds a reason to reassert his objectivity. One could argue that the point had been made and the cross-examiner should have moved on, rather than hammer the point. But at some point here, the witness’s protestations of objectivity come to seem overly slick.]
Q. And in 95 percent of the cases you come in and you tell a jury that the defendant did nothing wrong or anything the defendant did didn’t cause an injury or death?
A. No, sir. That’s not what my job is. My job is, first of all, to answer the questions put to me, but secondly, to try to give the jury as accurate and honest testimony as I can based on the science that I know. So, again, you’re really mischaracterizing what I think the job of an expert witness — at least me as an expert witness actually is.

Q. Doctor, can we at least agree that in 95 percent of these cases in which a lawsuit is brought by a parent or by a child against a doctor or healthcare provider, your testimony is paid for by the defendant?
A. I think you asked me the question already, sir.
MR. DENNIS: Objection, Your Honor. It’s already been asked and answered. It’s
THE COURT: Well, just — I don’t know that he had a straight answer. Was it a yes or a no? Can you just answer the question, whether it’s accurate or not?
THE WITNESS: Yes, that’s true, sir.
[It doesn’t hurt when the judge steps in, which sometimes happens with overly slick witnesses.The questioning went on to highlight the corollary point – that a testimonial history of always being on one side meant that the witness was never on the other side – a point worth making to drive in the core point.]
Q. In fact, Doctor, in all the 25 years that you’ve been doing this, you’ve only come in and testified for a patient or a patient’s family how many times at trial?
A. Again, I don’t testify for or against. But out of the trial testimony that I’ve given, I have been brought there by a plaintiff’s attorney now I think four times.
Q. Four times in 25 years?
A. That’s correct.
[Considering the number of cases the witness has participated in, the stark number contrast works well here. Fox didn’t let the line of questioning go there, but had one more angle on it that ended with a bang. The witness fences with questions about his testimonial pattern by first denying any inconsistency in his prior answers to the questions, then claiming a lack of knowledge, then when the fact that he had at one time prepared a list (required in federal court) comes out, well, let’s see what happens. ]
Q. Doctor, would it be fair to say that with respect to the testimony you have given in the past in deposition that you have given wildly inconsistent testimony about the number of times that you’ve testified and who you’ve testified for and so forth? Can we at least agree to that?

A. I don’t believe that’s true, sir. I try to give an honest answer each time.

Q. Well, let’s — well, Doctor, in the year – let’s go back to the 19 — no, we won’t go back that far, let’s start in 1999. Eight years ago. In 1999, sir, every time you testified in court or by deposition, it was for a defendant, wasn’t it?

A. You know, sir, I don’t remember what my activity was eight years ago in medical legal cases. I’m just afraid I can’t answer your question.

Q. Well, that’s fair. I appreciate you telling me that. Do you recall your deposition being taken in the Palmer versus Keller case on April 27th, 2001, in Albuquerque, New Mexico. Page 14. See if you remember being asked these questions and giving this answer. Line 16. In 1999, those 28 times you testified in medical malpractice cases, was every one of those testimonies for the defendant doctor or hospital? Answer, I believe so.

Q. Do you recall that question and that answer, sir?

A. I’m sorry, sir. You’re asking me about events that happened eight years ago, and I don’t recall questions and answers of a particular case.

Q. Do you recall, sir, that in the year 1998 every case you testified in was for a defendant, 100 percent of the cases?

A. Again, sir, I don’t have that information. I’m sorry.

Q. I appreciate you telling me. Same deposition, page 15, line four. Question: And in 1998 was 100 percent of your testimony for cases on behalf of the defendants? Answer, Yes.

Q. Do you recall that testimony, sir?
A. No, I don’t, sir. I presume you’re reading it accurately, but I don’t recall that. I’m sorry.

Q. Now, these days, Doctor, you’re giving – what would you say, 30, 40 depositions a year?

A. No, sir. I give between 20 and 30 depositions a year.

Q. Thirty would be a fair number, you think?

A. I said between 20 and 30.

Q. You know, in the first two months of this year alone you had given at least five or six depositions; would that be fair, sir?

A. It might be true, sir. I’m sorry. I just don’t keep a running total.

Q. What you did do at some point though, Doctor, was create a list of cases in which you testified. Do you recall doing that?

A. Yes. The last time, I believe, I did that in a federal court was a federal court up in Idaho, and they have a requirement that you put a list together, so I did it to the best of my ability.

Q. Yes, sir. And you created that list on your computer, didn’t you?

A. Yes, it was typed on the computer.

Q. And since that time you’ve been asked for that list by many, many lawyers, haven’t you, sir?

A. No, I haven’t been asked about that list by many lawyers, but I have been asked about it. In fact, I think I was asked about it in the deposition I gave in this case.

Q. Yes, sir, you were, because you reviewed the deposition you gave in this case, right?

A. Of course. I have it with me.

Q. And it turns out that with respect to that list — and you’ve been asked for it by lawyers other than just us, sir; isn’t that true?

A. No. I have been asked by lawyers — it’s not an uncommon question — whether I keep such a list, and I don’t. And they may ask if I’ve ever compiled such a list, and if they do I give them the answer.

Q. Doctor, were we the first lawyers to ask for that list?

A. You know, sir, I think I just answered your question. I have been asked by other attorneys, and I give them the answer to the questions that they ask me.

Q. So the answer would be yes, other lawyers have asked you for the list?

A. I think I have said that already.

Q. And what you’ve told those lawyers, sir, is that you can’t create a copy of a list. You haven’t kept a copy of it. Isn’t that correct?

A. What I told them is I don’t keep a copy of the list. And then if they ask me whether I’ve ever compiled such a copy, I give them the answer.

Q. Now, after you compiled the list, what did you do with it?

A. I sent it to the attorney who requested it of me.

Q. And you deleted it from your computer?

A. That’s correct, sir.

[This might have been a good opportunity to break the old rule against asking ‘why’ questions on cross. Is there any good answer to why a witness would delete a list of his testimonial work from his computer? It’s especially pertinent here, as the witness feigned lack of memory about his earlier accounts of his testimonial history. Variations of the ‘why’ question, each with their own lines of potential followup, depending on the answers, could have included:
• Is it something you want to run away from, your history of which cases you’ve testified in?
• Or, “if you were proud of your testimonial history, why wouldn’t you save it?”
• When you pressed the ‘delete’ button, were you thinking you would never need this document again? (If yes, he was retiring from the testifying game, and if no, other avenues of questions open.)
• Were you running out of room on your computer’s hard drive?
• Is there any chance you were trying to make it hard for adverse lawyers to find out the details of your testimonial history? ]
[The next topic that Fox turned to with this witness was his pay for the case. ]

Q. Now, Doctor Radetsky, how much are you being paid in this case? I know what your hourly rate is. I want to know how much — by the time you get back to New Mexico — what the total bill for the defendants is going to be for your work in this case?

A. Are you asking me what my bill will be for coming here to Tallahassee?

Q. No, sir. I’m sorry. I didn’t ask the question right. What I thought I asked — well, I’ll try to ask better — is what is your total bill going to be, what — for all of the work that you’ve done in this case?

A. I don’t know, sir. I don’t have that information.

Q. Well, I understand you may not know it to the nickel, but give our jury the best estimate as to what your charges are going to be.

A. You know, I just don’t know. I’ve sent in invoices in the past and been paid for them, but I don’t have that information with me today.

Q. Well, I understand that you don’t, you don’t have all the invoices. I’m just asking for an approximation. Give us your best approximation as to what your total charges are going to be.

A. I just don’t know, sir. You know, the case was first sent to me four years ago. So, I’m sorry, I just don’t have that information.

Q. So could it be 30, 40, $50,000?

A. I don’t have the information, sir.

Q. Could it be as high as 30 or $40,000?

A. Again, sir –

MR. DENNIS: Objection, Your Honor. The question has been asked and answered. Objection.

MR. FOX: I’m just asking for a range.

THE COURT: I understand, I understand. If you can answer it, answer it. If you can’t, then that’s the best you’re going to get and you need to move on.

MR. FOX: I think you’re right.

Q. Doctor, let me rephrase the question. Can you give our jury your best estimate – I’m not asking you to the penny, but say within $5,000, give the jury your best estimate as to what your total charges are going to be for your work in this case.

A. I’m sorry, I can’t, sir. The time and the work has been spread out over four years, and I just don’t know.

Q. Well, let’s move on.


Q. Let’s visit, if we could, a little bit about Levi Slayton. And I listened carefully to your testimony. And I wrote down some notes. And correct me if I’m wrong, but your testimony is based upon the assumption that Levi Slayton was not sick before the illness occurred, and the illness being the time that he stopped breathing; is that correct?

A. It’s based on the medical records, that the child did not have an illness prior to the time his heart stopped.

Q. That’s an assumption of yours in this case?

A. It’s not an assumption, sir. It’s based on the records as they actually exist.

Q. It’s based upon your belief that that represents the true state of facts; can we at least agree to that?

A. Well, I mean, that’s the — that’s the information that’s available. So based on the information that’s available, I interpret the information.

Q. In any event, your understanding is Levi had no illnesses prior to his instantaneous death, correct?

A. He was not a sick child prior to his heart stopping. He –

Q. Is that a yes?

A. I’m sorry, sir. The reason — words are so tricky. He had problems as a newborn. He was a little bit premature. He had some feeding problems. Evidently, he had a bout or two of irregular breathing, but he wasn’t a sick child prior to his heart stopping.

Q. As far as you know, he had no illnesses prior to the time he stopped breathing; is that fair or not?

A. It’s fair as I use the word illness, but he had newborn problems. Feeding problems, he had the jaundice problem, but those aren’t illnesses in the way that can explain why his heart stopped. That’s why I’m trying to answer it my own way, sir.

Q. Well, Doctor, using your definition of illness, can we at least agree that you believe that Levi had no illnesses until he stopped breathing?

A. As I understand that word, sir, that is correct.

[I count seven questions before the cross-examiner obtains a clean, simple answer to the question.]

Q. You’ve read the deposition of Julie Slayton?

A. Yes.

Q. You don’t question her truthfulness or her memory, do you?

A. I’m sure she testified based on her best memory of the time.

[The concession implicitly made here is that the mother’s testimony about her son’s symptoms in his last day of life was truthful, which contradicts the witness’s basic assertion that the child had a silent disease without any detectable signs.]

Q. Let me ask you this. You — you understood why we went out, or why we took your deposition that was taken in Albuquerque?

A. It was taken in Albuquerque.

[Here’s a rare example of a professional witness being asked a “why” question on cross, and the witness not taking up the offer to give an extensive answer. That was likely because the witness knew he was about to be impeached with his deposition, and the “why” question was intended to set up the importance of the deposition.]

Q. And from the 400 plus depositions you’ve given, you understand that the reason we do that is so we can find out what opinions you have and what thoughts you have and so we can prepare ourselves for a trial like this. You understand that’s the purpose of the deposition.

A. That was even said at the time of the deposition, sir.

Q. Yes. Because folks like us, we’re lawyers, we’re not doctors, so we want to try to be thorough and get out all your opinions at the time of the deposition. And you understand that’s the process?

A. It was told to me at the time.

Q. But you knew it long before that, didn’t you?

A. You know, sir, I’m there to answer the questions that are put to me and to answer them honestly. My understanding is that’s the purpose of the deposition is so the person who’s asking the questions can get those answers.

[This witness has a habit of gratuitously inserting into his answers that his job is to answer questions “honestly.” The cross-examiner can either let it go, as here, and save for closing argument a comment on the curiosity of a witness asserting his own honesty without being asked, or the lawyer could confront the witness along these lines:

  • Isn’t this now the third or fourth time you’ve told us today that your job is to answer questions honestly?
  •  Doesn’t that go without saying, when you get on the witness stand and you’ve taken an oath?
  •  When you told us these several times that your job was to answer questions honestly, were you worried that someone might think you were dishonest?

Here the lawyer probes the honesty issue a little differently, by bringing out the witness’s attendance at law school. He drops it after a couple of questions and returns to impeaching with the deposition. Here his approach is to ask the witness to contradict what he has just said, that the child had no illness before his lungs and heart stopped working, and to agree instead with the plaintiff’s contention that the baby had a lung infection for a day before his death. When the witness disagrees with the plaintiff’s contention, only then does he spring out the deposition transcript. ]
Q. Yes, sir. And you probably know that from law school, right? You went to law school, didn’t you?

A. Well, I went to one year of law school, many years ago, sir.

Q. And did you learn about depositions at law school?

A. No, I didn’t.

Q. In any event, Doctor, while you and I may disagree about some things about Levi Slayton, one of the things we can agree on is that, for at least a day or so leading up to the time that Levi Slayton stopped breathing, for at least a day or so, maybe more, Levi Slayton had pneumonia?

A. No.

Q. Do you have your deposition there, Doctor?

A. I do, sir.

Q. Page 60?

A. Six-oh?

Q. Six-oh, yes, sir.

A. All right.

Q. See if you remember this question being asked and you giving this answer. So now, if I understand correctly, Doctor, you don’t believe Levi had any illness up until the time that he stopped breathing?

Answer: In retrospect, he must have had the pneumonia for a day or so based on what I understand to be the histology of the lungs at the time of autopsy, but there were no clinical manifestations of it.

A. That’s correct, sir.

Q. Do you remember giving that answer to that question?

A. I do. I thought I gave exactly the same answer moments ago.

Q. No, sir, you didn’t. Now, if in fact, as you testified under oath, Levi had pneumonia at least a day or so before he stopped breathing, Levi would have had pneumonia at the
time that Dr. Penrod examined him. Is that true, sir?

A. No.

MR. FOX: Those are all the questions I have, Your Honor.

[The examination ends with the witness having contradicted himself: (1) No, the child had no illness before he stopped breathing; (2) Yes, the child had pneumonia for a day before he stopped breathing; (3) But no, the child didn’t have the pneumonia when the doctor examined him a day before he stopped breathing. While it’s usually better to bring out a multitude of contradictions when doing a contradiction cross-examination, it worked here to focus on a single subject because it was (a) central to the case, and (b) the witness had a three-way contradiction, and (c) all this followed a bias impeachment where the witness evaded giving a straight answer.]