EP201: When Experts Go Rogue & Meta Verdict Fallout

Episode Notes

Transcript

John Simon:

This expert showed up at noon to meet with me over the lunch hour.

Christine Byers:

Welcome to the Case Doctors.

John Simon:

Intoxicated.

Christine Byers:

Oh dear.

John Simon:

For trial.

Christine Byers:

Oh boy. With John Simon and Alvin Wolf.

John Simon:

Oh, I was like, well …

Christine Byers:

The show where two of the greatest legal minds offer you advice on your cases.

John Simon:

Goodbye. Hurry up and get out of here.

Christine Byers:

The case doctors will see you now. Welcome to The Case Doctors. I’m your host, Christine Byers of Simon Law, and I’m joined by the case doctors, John Simon and special guest, Simon Law Attorney, Tim Cronin. He’s filling in for case Dr. Alvin Wolf who couldn’t be here today because he’s in trial. Imagine that. Tim has worked with John at Simon Law for 16 years. So combined, they have almost 60 years of experience as plaintiff’s attorneys.

John Simon:

So we lost 20 years worth of experience by- Yes. We’re living it today.

Christine Byers:

Yes. Okay.

So there aren’t too many scenarios they haven’t already encountered on a case and figured out how to handle them. Now they’re offering you the chance to tell them about the various problems or issues that are coming up in your cases and hear how they would tackle them. But first, let’s turn to some of the civil cases making headlines and hear what today’s case doctors have to say about them. Our first case is attracting national attention, and it has to do with Meta and YouTube. They have been found negligent in a landmark social media addiction case. Jury recently concluded the social media company, Meta and the video streaming service YouTube, harmed a young user with design features that were addictive and led her to mental health distress. Now, they’re calling it a landmark decision that could open social media companies to more lawsuits over user’s wellbeing.

In this case, Meta must pay 4.2 million in combined compensatory and punitive damages, and YouTube must pay 1.8 million. There was also a ruling by a New Mexico jury in another case brought by the State’s Attorney General there, which found Meta liable for violating state law by failing to safeguard users of its apps from child predators. So that was just a little bit different. And that jury decided Meta should pay 375 million in that case.

Tim Cronin:

I think they are incredibly important cases. They’re alleging in those cases, and I think it’s important and a stop needs to be put to it, is there are manipulative design decisions that have been made to addict very vulnerable preteens and teens to these where their self-worth gets wrapped up in it and kids have killed themself, formed serious anxiety and depression problems.

John Simon:

They are so powerful, these companies and they basically run our economy, run our government to a large extent. And what happens a lot of … I mean, I don’t know anything specifically, but what’s likely to happen is legislation will get passed on a state by state basis, providing them immunity or protection. Probably. And it’s probably in the works now. You can see the same thing with Uber and some of the transportation.

Tim Cronin:

I’m sure there’s

John Simon:

A bill

Tim Cronin:

Trying to be pushed past federally right now to say it’s preempted. I mean, look, we have tech oligarchs that are dictating the

John Simon:

Entirety office. And the conduct is what it is. It’s outrageous. It’s manipulative. It’s not like they can’t afford good lawyers. True. And they probably have some of the best lawyers around doing the best job ever in presenting their side of the case and they’re still losing.

Christine Byers:

Another interesting tidbit. The personal liability argument draws inspiration from a legal playbook used against big tobacco last century in which lawyers argued that the companies created addictive products that harmed users.

John Simon:

Simple theory.

Tim Cronin:

Yeah, it’s accurate. Simple theory. A lot of companies have followed the tobacco playbook, not just in creating addictive products, but then there’s a litigation playbook that Big Tobacco created that a lot of these companies followed, pharmaceutical companies follow and now the tech giants follow. So it’s kind of the same story, but like a little bit of a twist that plaintiff’s attorneys have been dealing with for decades.

Christine Byers:

I’m wondering if the two of you have ever done something like this. During arguments on punitive damages, Mr. Lanier held a jar of M&Ms saying each piece of candy represented a billion dollars of the company’s value.

Tim Cronin:

Yeah. That sounds like

John Simon:

Something John would do. Yeah. We’ve done that before.That’s one way of doing it.

Tim Cronin:

Some of our colleagues can’t ask for a number, right? Which is they refer to a local sports team stadium and say how many seats would have to be unoccupied before the team would start taking note and making some decisions to make a better team, things like that. I mean, we try to … I don’t want to call them props, but they kind of are. We want to keep the jury’s attention. I know the case that John and I tried with Johnny back in 2018, it was about a little girl that went to an emergency room three times and they turned her away and she had-

John Simon:

Severely dehydrated. She was like two liters short of fluid. She was so dehydrated. And when her father … She was in such bad shape the last time, the third time that her father brought her to the emergency room, he literally left, picked her up out of her bed, ran into his car barefoot- In his underwear. … in his underwear to get her to the emergency room. And so what we did is we elicited testimony from one of the doctors or one of our experts as to the amount of fluid that they were able to replace within the first few hours at the hospital. They had two. It was two liters. It was two liters. She was a little six year old. And so what I did is I took a bottle.

Tim Cronin:

You opened a box.

John Simon:

Yeah, with a two liter bottle with water and just set it on our table the whole time.

Tim Cronin:

Hailed it and went, “That’s how much this five-year-old little girl was short on water.” And then we left it on our table the rest of the trial for the jury to see.

Christine Byers:

I bet that was pretty powerful.

Tim Cronin:

Yeah.

Christine Byers:

Did you ever see any props backfire?

Tim Cronin:

I

John Simon:

Probably have, but I don’t want

Tim Cronin:

To talk about that. I might have blocked those out.

Christine Byers:

In our next hot topic, it brings us over to Charlotte, North Carolina, where a federal jury found that an Uber driver committed battery during a North Carolina ride. And this is a bellwether case, and this passenger accused him of grabbing her leg in 2019 and awarded her $5,000 in damages. Not a whole lot, but the plaintiff’s attorney says this is a really big deal for the rest of the cases in the MDL to have this win. So is this sort of your opinion that no matter the amount, if a win is a win?

John Simon:

I think they picked the wrong case for the bellwether probably.

Tim Cronin:

It might have been a defense pick. If it’s a defense pick and it’s a plaintiff win, yes, it’s helpful. Even if it’s a plaintiff pick and they won, but it’s a low amount, the point of the bellwether system is to give guidance to everybody in the litigation of what should we be talking about in terms of risk to resolve it. So is it beneficial to the litigation to figure out how to bring it to a resolution? It is either way. I mean, the plaintiff can know even if we win, we might not get much, but I think it’s going to be very particular to the circumstances. And it also

John Simon:

Could be a compromise verdict.

Christine Byers:

Sure. So even though it’s a low amount, a win is a win, especially on a defense pick.

Tim Cronin:

If it’s a defense pick, for sure.

John Simon:

Yeah. As a lawyer I worked with years ago would say it beats a sharp poke in the eye.

Tim Cronin:

I had a client, we had a case we lost down in Louisiana that we thought we were going to win. It was tough and Johnny and I tried it and Johnny and I were like more upset than our client was than we lost. And we went, “Thomas, we’re just so sorry.” And he went, “You know, I can’t do his Cajun accent, so I won’t try.” Any day you’re leaving a courthouse and you’re not in handcuffs is a good day. Well, Thomas, that’s when you’re going to look at it.

Christine Byers:

That is true. That is true. I

John Simon:

Mean, you guys, you’ve created some very low expectations for that man, apparently. I guess.

Christine Byers:

Time now to turn to our email inbox for the cases our viewers have sent us for the case doctors to diagnose. Now, just so everyone knows, we’re not going to reveal where these cases came from. We’re not going to name any names or firms to protect the confidentiality of the cases. Instead, the case doctors are just going to focus on the issue in each of them. So as they say, the case doctors will see you now. Our viewer says, “Greetings. I’ve enjoyed the podcast and I’d be curious to hear your take on physician experts and their ability to opine on standards of care for NPs and PAs.” I’m currently serving as an emergency medicine expert on a case where the care was loosely supervised by an emergency physician in the form of a synchronous chart sign off. However, the physician never saw the patient who ended up having a catastrophic spinal infection.

The patient was seen by both a PA and then signed out to an NP. Could you discuss the pros and cons of involving PA and/or NP experts versus physician’s opinions on breaches when care is delivered by APPs?

John Simon:

I don’t know how you could pursue this case without involving not only a doctor as an expert, an emergency room doctor, but a nurse practitioner expert also, because I would say you need to show that the conduct of the nurse practitioner was negligent. It may be in certain signs or symptoms, that’s going to be the focus of the conduct of the nurse practitioner is going to be the initial focus maybe. And then should that information have been conveyed to the doctor-

Tim Cronin:

Handoff

John Simon:

Lack

Tim Cronin:

Of communication.

John Simon:

And then the other thing too is, and what types of responsibilities has the doctor delegated, right? I

Christine Byers:

See.

John Simon:

And so they’re so intertwined. You can’t separate one claim for another. I think you’re going to need an expert for everybody involved in the treatment. In

Tim Cronin:

Some states, like Missouri’s a little lax. You just maybe have one expert and it should be a physician that addresses it all, but you’re probably better off having all three. Here’s the first question that I would ask. Who employs each one of those? Are they different entities and what kind of insurance and collectibility issues are there? Because the advanced practice nurse and physician assistant may be employed by the hospital and the doctor may be contracted out and employed by a different medical group that has less money and less coverage. So that may impact whether you want- Where you’re headed, right? Yeah. Who you want to be trying to say, “Oh, well, the doctor didn’t really see them and it was mostly them and they’re employed by a hospital that has $20 billion.”

John Simon:

One of them that we had was, it was a situation where the doctors was limited coverage, but it was a practice group with multiple doctors. And this was sort of crazy. There were four or five doctors in the practice group. It was a pediatric group and they had one physician’s assistant, a single one, and she was like doing the work for five, four, five doctors. They had a written practice agreement and it required the physicians to pull at the end of each day, to pull files and review them and that just wasn’t being done. I mean, they were all delegating things to this physician’s assistant that she just wasn’t able to keep up and do it. And what

Christine Byers:

Happened to the client in that case?

John Simon:

It was a heart procedure. It was a minor child with a heart defect that went undiagnosed. He was two or three years old and ended up having a heart attack, believe it or not, and ultimately a heart transplant. So we had a case a while back and it was someone who … The doctor missed something and the issue was that the doctor was in too much of a hurry and didn’t really spend enough time talking to the patient. And when we tried the case, I remember one of the questions in voir dire that I asked the panel, I said, “Who here thinks that their doctor doesn’t spend enough time with them?” And every hand in the room went up and I asked, I called one, one of the panel members, some woman, and she said, “You mean you all get to actually see a doctor?”

Christine Byers:

No, really.

John Simon:

Right. And again, that’s what’s happening. It’s like a lot of other things that we see is, it’s all about efficiency and money and the insurance and the person that gets the brunt of it is the patient. And the person that’s lost in the mix is the patient

Christine Byers:

And the

John Simon:

Patient should be at the top of the list, not at the bottom.

Christine Byers:

Yeah. Absolutely. All right, gentlemen, we’ll turn now to our next letter from a viewer. And this person is also needing advice on an expert witness issue. “Hello, case doctors. I’m having an issue with one of my expert witnesses. This expert is qualified, but their deposition didn’t go as smoothly as I had hoped and-

John Simon:

Well, that never happens.

Christine Byers:

Never.

Tim Cronin:

I haven’t experienced that one.

Christine Byers:

And I’m worried about how they’re going to hold up at trial.

John Simon:

Yeah. If they can’t make it through a depo, I don’t … I’m not holding up much hope for trial.

Christine Byers:

Have you ever had to rehabilitate an expert after a tough depo? Should I consider finding a new expert at this stage or is there a way to mitigate the damage?

John Simon:

Get a new expert if you got time, is what I would say.

Tim Cronin:

Yeah. There’s some options. I mean, sometimes if it goes poorly enough, sometimes you just have to dismiss the case without prejudice and start over. And I know we’ve had to do that a few times. I was a baby lawyer working with John, and we both were reading that depo around the same time, and I walked into his office and I was like, ” This seems kind of bad. “And he’s like, ” Yeah, this is real bad. I don’t know if we have a case. “And so out of fear for that exact concern, here’s what John did and it worked out. He decided,” I’m going to set this expert’s depo for a videotaped trial depo where I think opposing counsel won’t be as prepared for that as they will be at trial

By then. “And so he set the depo and we did a lot of prep with him and John did his full trial direct, videotaped, and he said all the things we needed and the lawyer who did the cross wasn’t as prepared as I think he would have been at trial. And then we had our expert in … It’s not as effective as if you have a good expert who’s live in front of the jury, but that’s one thing to consider. If you think they’ll do a better job not with the jury staring at him and the judge staring at him, but in a depo setting again, and you can do your direct and help him, that’s one option you can consider or get

John Simon:

A new expert. I’m with getting a new expert and I will tell you, you got a good lawyer on the other side and if somebody, if you have an expert that does not hold up and made some bad admissions or didn’t know what the facts were or wasn’t prepared, that transcript doesn’t go away. It’s still there and a good lawyer is going to just tear him up at trial. And again, I think if there’s any possibility at all … And what Tim says, I agree. It depends on how important the issue is that the expert is addressing, but also how bad the mess up was. But if it’s a significant mess up on an important issue, try to get another expert and it’s all about … We could do an entire day talking about experts and issues, but one of the things I would tell everybody is don’t ever, ever hire an expert unless you’ve called the last five attorneys that that expert has worked for and call them and say,” How did they do at deposition?

How did they do at trial? ” They may have the best background and they’re on the phone and sounding great, but you really want to see how they do under fire at the depo and at trial.

Tim Cronin:

And dependent on the state, I’d look at whether even if you withdraw that expert, the other side still might be able to read or play that trial, whether it’s videotaped or not. In other words, it doesn’t go away

Christine Byers:

And-

Tim Cronin:

But in

John Simon:

Some states you can disendorse, but

Tim Cronin:

The

John Simon:

Depo is still fair game.

Tim Cronin:

But they can’t play that you hired them. But they can still say,” Here’s another person who has this qualifications and they said this, this and this and they don’t get to say and plaintiff hired them, but the terrible nature of their testimony is still there. So look into whether that depo is still going to be able to be used and they maybe can still say plaintiff retained them.

John Simon:

“This just came to mind, and this was a long, long time ago. I think I’ve been practicing for about four or five years, and it was a commercial case I was working on with an older attorney who I was working for at the time, and the case was out in rural Missouri, and this expert showed up at noon to meet with me over the lunch hour, intoxicated.

Christine Byers:

Oh, dear.

John Simon:

For trial.

Christine Byers:

Oh boy.

John Simon:

For trial. So I was like, ” Well, that’s not good. Goodbye. Hurry up and get out of here. “What I did trial. What you can do in Missouri is they had questioned him at the deposition and so I just said,” Please leave now. “And he went under subpoena and so I said,” Next witness, Your Honor, we’re willing to read the deposition of the expert was. “Read it. So I stood up there and read the deposition.

Christine Byers:

You read the whole deposition? Read it.

John Simon:

Question, answer, question, answer.

Tim Cronin:

So you get your technical case in to be submissible but drowned out. His favorite sports team won the national championship the night before.

John Simon:

I think if I picked the top 10 worst things ever happened to me in any kind of case, nine out of 10 of them are experts. Really? My own experts, nine out of 10. And you can’t take too much time researching, finding out the background.

Christine Byers:

So that’s interesting. The defense can actually turn around and use your own expert against you should their deposition not be favorable to you. We

Tim Cronin:

Do it all the time. John, one of his favorite sayings is make your case with your expert, win your case with theirs. I’ve had defense experts that their depo went very bad for-

John Simon:

They’re a dangerous thing, man. You got to … That

Tim Cronin:

They withdraw them and I still read … I’ll read or play the depo to the jury. And then they think nobody hired them. This is just some independent expert that we found out what they think and they think the plaintiff’s right.

John Simon:

So to our person that called in, I would say,” Get you a new expert. “That’s what I would say. Get you a good

Christine Byers:

One. The story.

John Simon:

More of the story. Get a new expert.

Christine Byers:

Gotcha. Okay, gentlemen, that will do it for this episode of The Case Doctors. If you have a case that you would like the case doctors to dissect, send us an email at [email protected]. And here’s a QR code that will take you directly to our contact page. Once again, we will be keeping all names and cases confidential. Thank you for joining us and we will see you next time on The Case Doctors.