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Cross-Examination of a Doctor Who Lied During a New York Medical Malpractice Trial

Posted by attorney Gerald Oginski

This was a case involving claims of a failure to properly perform foot surgery here in New York. The defense had brought in their expert to testify. The defense lawyer was done questioning his expert and now it was my turn.

This was my opportunity to cross-examine the defense's medical expert. He was very well credentialed. He was sharp. He had been testifying 3-4 times a year for the past 25 years...only for the defense.

He was savvy.

As part of my cross examination, I began asking some collateral questions having nothing to do with the merits of the case. Specifically, I wanted to know what records and documents he brought to court with him.

Every time I asked him whether he was aware that if he brought documents to court, I would be able to see it. He kept giving excuses without giving me an answer. Finally, I got him to admit that if he brought anything to court, he knew that I would be able to see it.

The turning point during this cross examination occurred when I asked him where the cover letter was that had been sent to him by the defense attorney.

He immediately answered that he had reviewed the records and the letter just the day before, and they were sitting on his desk in his medical office.

"Perfect, at the break I want you to call your office and have them fax over the cover letter to the court. This way I'll be able to see it."

"Oh, I just remembered, it's not sitting on my desk in my office, it's in the trunk of my car."

"Really? You just told us a moment ago that you just looked at those records yesterday, and left them sitting on your desk. Now you're saying that they are in the trunk of your car? Perfect. At the break, you can have one of your staff go to your car in the parking lot and get the records and the letter from trunk and fax over the cover letter to the judge's chambers."

"Oh, I misspoke, it's not in the back of my car..."

Find out how those words changed the entire focus of this case...

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