IV. Some Specific Problems
a. Medical Negligence Cases Te subject of drafting certificates of merit and reports to be signed by your experts and filed in medical negligence cases is both complicated and fraught, and beyond the scope of this article. I commend to you the article “Compliance with the Court of Appeals’ Edicts on Certificates of Merit and Reports in Walzer v. Osborne and Carroll v. Konits” by David J. Wildberger, Esq. that appeared in the in the Fall 2007 issue of Trial Reporter, and the materials he produced for the April 17, 2009 MAJ Hot Tips in Medical Malpractice seminar. Beware the “20% Rule.” Under Cts. & Jud. Proc. Art. § 3-2A-04(b)(4), “A health care provider…who testifies before an arbitration panel or in a court concerning…departure from standards of care may not devote annually more than 20 percent of the expert’s professional activities to activities that directly involve testimony in personal injury claims. See also, Waldt v. University of Maryland Medical System Corp., 181 Md.App. 217, 956 A.2d 223 (2008), cert. granted, 406 Md. 744, 962 A.2d 371 (2008). Beware the “turncoat expert,” one who reviews your case,
tells you he cannot support it, and later agrees to testify for your opponent. Having researched and litigated this issue in Maryland a few years ago, I learned that the best way to exclude a turncoat expert is to demonstrate to the court that you have shared your work product (i.e. theories or misgivings about the case) with the expert. Merely discussing negative facts that could easily be gleaned from the records of the case will not suffice. If you get a negative opinion from an expert, try to keep him on the case as a consulting expert (confirm this in writing) before he can become a turncoat.10
Tis could cause the other side to back away from using him before you need to file a motion to strike or exclude.
b. Frequent Flyers/Hired Guns If you are weighing whether to go after such an expert’s
financial records (see Wrobleski v. de Lara, 353 Md. 509, 727 A.2d 930 (1999)), beware the boomerang. In other words, first consider whether your opponent could make a prima facie case to obtain your expert’s financial records. If so, detente might be the better part of wisdom.
V. Conclusion Undoubtedly, in many cases we cannot justify dedicating
the resources to employ every suggestion in this article. Nonetheless, I hope it provides a few useful tips for your next case involving expert testimony.
Biography Eric N. Stravitz is a partner at the Washington, D.C. law firm
Mesirow & Stravitz, PLLC, where he handles personal injury and medical malpractice lawsuits and trials in federal and state-level courts across the region. A member of the District of Columbia and Maryland Bars, Mr. Stravitz handles Virginia cases pro hac vice. He teaches Trial Advocacy as an Adjunct Professor at Te George Washington University Law School. Mr. Stravitz is a member of TLA-DC’s Board of Governors, MAJ, and AAJ. He has served as a member of the Trial Reporter Editorial Board since 2000. He also moderated an AAJ teleseminar. Mr. Stravitz graduated magna cum laude from the State University of New York at Albany in 1988, and graduated from Te George Washington University School of Law in 1991.
10 Tis approach has worked for Mr. Wildberger, who suggested it to me. 20 Trial Reporter / Summer 2009
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