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A Strategy for Excluding Evidence (Continued from page 22)

with the issue of mitigation of damages. The Supreme Court held that the statis- tical evidence argument was based on a percentage unsupported by the evidence: that perforations are just as likely to oc- cur in the absence of negligence as in its presence. The Court found the statistical evidence so misleading that, for all the jury could determine, each of the perfora- tions in the statistics could have been due to negligence. Now that is an argument that makes sense. As was the case in Holly, plaintiff ’s

counsel should explore the issue of complications and statistical evidence in discovery and, in particular, during the deposition of the defense experts. I conducted the following examination of a defense expert in a Virginia case involving dissection of a common bile duct during a laparoscopic cholecystectomy:

Q. With respect to the rate of injury to the common bile ducts, I think you said something under one percent?

A. Obviously.

Q. And of that under one percent, that’s all injury to common bile

ducts, removing the gallbladder with laparoscopic cholecystecto- mies throughout the country; is that fair?

A. I would think so. But that would not include all of that. There are some minor injuries that may bring that up to above one percent which is cystic duct lesions and a few other lesser injuries but a major injury to the ductal injury which this is would be somewhat less than one percent.

Q. And of those, of that something under one percent, that involves cases where you have inflamma- tion; correct?

A. It can.

Q. It involves cases where you may have excessive bleeding?

A. It can.

Q. Where you’ve got a gangrenous gallbladder?

A. It can.

Q. Where you have to go in and remove the gallbladder on an emergency basis?

* * *

Q. No…my question was talking about this under one percent com- plication where you have an injury – a major injury to the common bile duct, that one percent also includes plaintiffs where you’ve got emergency surgery to remove a gallbladder; right?

A. It surely does. Of the – and let’s just talk about the subset of plaintiffs that are injured. A certain percent- age of those would be from, say scarring, bleeding, whatever, and an acute cholecystitis, pus every- where or whatnot, and a subset of those would be from an aberrancy of the anatomy which is not ap- preciated in the operative field; and therefore, the injury occurs. Of the one percent, there’s a number of ways that that injury occurred.

* * *

Q. My point is that when you talk about that one percent you’re not talking about all of those plaintiffs being with pristine abdomens, are you?

A. No. There is – of the one per- cent, there are a number that are bleeding, a number that are scarred down, very difficult that are injured and ensue–– an injury occurs, and then there are aberrant anatomy. [sic]

Q. And you also have the emergency cases we talked about?

A. Many of those like the acute cho- lecystitis is the one that we talked about there.

Q. So of all of those those are all in- cluded in that under one percent we talked about; is that fair?

A. That is correct.

Q. Do you know how many of that one percent involved cases like Ms. Smith’s where there – none of those things are present and where the surgeon doesn’t describe any sort of aberrant anatomy?

A. Of that subset, what that particular sub subset would makeup of the one percent, I do not have before me or in my surgical data bank in my mind right now. But it is appreciable. And, Counselor, of those cases when you, if you – as far as being if we were in a death and complications or morbid- ity and mortality conference, a plaintiff that you persevered in a

24 Trial Reporter Summer 2006

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