Sunday, December 05, 2004

Georgia Judge Bans Expert for Life

According to a story in 12/13/04 edition of American Medical News, a Georgia trial judge has issued an order purporting to bar a physician from testifying as an expert witness in his courthouse for life.

The case that occasioned this unusual order involved a coronary bypass in which the surgeons inserted an intra-aortic balloon pump that allegedly restricted blood flow to the patient's right leg, precipitating its ultimate amputation. It seems that Fulton County Judge Craig L. Schwall, Sr., took umbrage when Dr. Larry R. Williams, the plaintiffs' expert, executed an errata sheet recanting on some deposition testimony. In two previous affidavits, Dr. Williams had attributed the patient's injury, in part, to the hospital nursing staff's failure to notify the patient's physicians of changes in his condition. Apparently Dr. Williams backpedaled on that position at one or both of his depositions, but then corrected the transcript and recurred to his original opinion.

Not in my courtroom, said Judge Schwall. From the American Medical News story:

"Dr. Williams repeatedly agreed that Mr. Whitley's physicians were fully aware of Mr. Whitley's condition during the critical time period at issue, that additional medical interventions likely would not have been ordered even if additional communication between the nurses and physicians had occurred and that none of the alleged deviations from the standard of care by the hospital nursing staff caused any injury to Mr. Whitley," Schwall wrote.

Instead of just dismissing the case against the hospital, the judge went a step further, saying that he was "troubled by the fact that Dr. Williams has offered testimony ... by three separate affidavits and two separate depositions." Schwall also said that he believed that the testimony was "conflicting, lacking in credibility and apparently untruthful."

The judge pointed to changes that were made in Dr. Williams' testimony through the errata sheet. Schwall, who also said the plaintiffs' lawyers played a role in the changed testimony, said that four deletions or additions were made in areas that were damaging to Whitley's case.

"Dr. Williams does not remember whether he conceived the changes to his testimony or whether they were suggested to him by plaintiffs' counsel," Schwall wrote, "but he knows that he was never sent a blank errata sheet and that he did not make any changes or edits to the typewritten errata sheet sent to him by plaintiffs' counsel."
Can changing the substance of your testimony in an errata sheet warrant a lifetime ban on testimony as an expert witness? Is there even anything improper about it?

We're not Georgia lawyers, but we have taken a peek at O.C.G.A sec. 9-11-30(e), the applicable Georgia provision, which tracks the language of Fed. R. Civ. P. 30(e) on witness revisions to deposition transcripts. Like the federal rule, section 9-11-30(e) permits the witness to make changes "in form or substance."

We've also taken a look at J. Harvey Co. v. Reddick, 240 Ga. App. 466, 473-74, 522 S.E.2d 749, 755 (1999) (citations and footnotes omitted):

Although our Georgia courts have not directly addressed the question of whether a witness may make substantive, material changes to his deposition, the statute expressly contemplates changes to form or substance. In addition, federal courts which have addressed this issue have overwhelmingly concluded that a witness may make "any changes in form or substance which the witness desires, even if the changes contradict the original answers or even if the deponent's reasons for making the changes are unconvincing." These decisions are based on the plain language of Federal Rule 30(e), which is virtually identical to O.C.G.A. [sec.] 9-11-30(e).

There are several important safeguards which curtail abuse on the part of the deponent. First, the deponent's original answers remain part of the record and can be read at trial to impeach the witness or for further clarification. This is because "a deposition is not a 'take home examination' and an 'errata sheet' will not eradicate the import of previous testimony taken under oath." Second, if the changes are "so substantial as to cause the deposition to become incomplete or useless without further testimony," then the examiner may reopen the deposition and propound further questions to the witness concerning the nature of and reason for the changes. Finally, where the deponent is a party, his self-contradictory testimony must be construed against him and cannot create an issue of fact for the purpose of summary judgment unless the contradiction is adequately explained.

In other words, it would appear that the rules permit more than the mere correction of transcription errors; they permit substantive recantations. No doubt there might be other legal bases for sanctioning a party or a witness who offers shifting testimony. But from the news story, the good Judge Schall seems pretty interested in that errata sheet. To us, here in Pennsylvania, it seems that banning future testimony from witnesses who have made substantive changes in deposition testimony, besides being a draconian sanction, may be in significant tension with the policies of a state whose general rule is to permit just such changes.

That general rule, moreover, seems eminently defensible. Witnesses say all sorts of things under the bright lights at deposition, for reasons that sometimes defy rational explanation. No experienced litigator would assume that every such excited utterance is automatically true. We are not familiar with the details of the Georgia case, but we do know that experts are often taken aback by the adversarial character of deposition questioning, and by the unfamiliar litigation protocols that tend to thwart experts' attempts to control the exposition (as they may be accustomed to doing). That, of course, is all well and good, and part of the adversary process. But the search for truth should not be a game of gotcha, where a deposition witness is sanctioned unless he or she acquiesces to being irrevocably tied to his words, every time he misspeaks, with no possibility of revision or clarification. Cf. Stanley v. Lennox Indus., Inc., No. 29809 (Idaho Nov. 5, 2004) (error to discount summary judgment affidavit contradicting expert's earlier deposition testimony). Still less should traps be laid, in which deposition witnesses are told to make what changes they will, only to be sanctioned later for making them.

Nor does it seem deeply scandalous, to us, that a witness confronted with a lengthy deposition transcript might consult with the attorney retaining him, to figure out what revisions might matter. Such consultation may be potentially damaging to the witness's credibility, but if it warrants a lifetime testimonial ban, the expert registries will be emptying pretty quickly.

Through his counsel, the expert has filed a motion for reconsideration. We'll keep you posted.

Update 12/6/04: Well, apparently that motion for reconsideration is actually a mandamus petition. An interested bystander has drawn our attention to an article at (registration) that provides a somewhat richer description of the legal and procedural wranglings. Meanwhile, HealthLawProf Blog has also noticed the story, calling the judge's sanction "shocking."


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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.