Skilled Cross-Examination Greatly Reduces Value of Wrongful-Death Claim
In a medical malpractice action, a crucial issue in any case is the value of damages to the plaintiff if liability is established. The Supreme Court of Pennsylvania recently issued an opinion clarifying that a defendant does not have to call a competing expert to respond to the plaintiff’s damages expert in order to avoid having the plaintiff’s expert’s figures considered “proven.” Rather, the defendant can rely on his attorney’s cross-examination skills. The ruling allows defendants the flexibility of deciding whether to call their own expert to challenge a plaintiff’s expert or whether to rely on cross-examination of the plaintiff’s expert. The latter is what the physician-defendant and his group did in Carroll v. Avallone.
Carroll involved a wrongful-death and survival-claim against Dr. Avallone and his medical group filed by the deceased patient’s husband, Mr. Carroll. At trial, Mr. Carroll’s expert damages witness, an actuarial economic consultant, testified that Mrs. Carroll’s lost earning capacity, fringe benefits, and past and future household services were between $832,498 and $1,486,713.
Dr. Avallone and his group did not call their own damages expert to challenge the plaintiff’s expert. Instead, they relied on their attorney’s cross-examination of the plaintiff’s expert. During cross-examination, the defense attorney challenged the expert’s factual assumptions underlying his numbers, including the assumption that Mrs. Carroll, who was unemployed when she died, would have returned to work in the nursing field. (A valuation of damages in a wrongful-death claim requires the parties to present to the jury evidence about what the decedent would likely have done if he or she had survived. A crystal ball would be very helpful in that context, but the parties and their attorneys proceed without that useful tool.) The defense attorney challenged that assumption, pointing out through cross-examination facts inconsistent with the assumption. For example, she had no plans to return, she had long-term health problems, and she had illegal drugs in her body when she died.
The jury returned a verdict, splitting liability 50/50 between the parties and awarding Mr. Carroll $29,207 on the wrongful-death claim and nothing on the survival claim. The Superior Court of Pennsylvania remanded for a new trial on damages because it concluded that Mr. Carroll’s expert’s damages range was “uncontroverted” because the defense did not present an expert witness to challenge the opinion. Therefore, the appellate court found that the five-figure verdict was not reasonably related to the proven damages (in the range of six or seven figures).
The case went up to the Supreme Court of Pennsylvania upon the defendants’ appeal. That court reversed the Superior Court’s order. The Supreme Court of Pennsylvania explained that the defense attorney’s cross-examination of the expert was sufficient to challenge the evidence and to put it before the jury for consideration. Independent evidence by a separate witness is not required. It held that the Superior Court’s determination that “the failure to present affirmative evidence makes the other party’s opinion evidence uncontroverted, rendering it ‘proven damages’ that must be reflected in the jury’s verdict” was inconsistent with Pennsylvania law.
