EP 717: When Experts Go Rogue & Meta Verdict Fallout

Episode Notes

Transcript

John Simon [00:00:01 – 00:00:18]

Welcome to The Jury Is Out, a podcast for trial attorneys who want to sharpen their skills and better serve their clients. Your co-hosts are John Simon, founder of the Simon Law Firm, Tim Cronin, personal injury trial attorney at the Simon Law Firm, and St. Louis attorney Eric Veith.

Christine Byers [00:00:20 – 00:00:41]

I’m your host, Christine Byers of Simon Law, and I’m joined by John Simon and special guest, Simon Law attorney Tim Cronin. He’s filling in for 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.

Tim Cronin [00:00:41 – 00:00:45]

So we lost 20 years’ worth of experience by inviting Tim. We’re limited today.

Christine Byers [00:00:45 – 00:00:45]

Yes.

Tim Cronin [00:00:45 – 00:00:46]

Okay.

Christine Byers [00:00:46 – 00:01:40]

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. 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 users’ well-being. In this case, Meta must pay $4.2 million in combined compensatory and punitive damages, and YouTube must pay $1.8 million.

Christine Byers [00:01:40 – 00:01:59]

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 $300 $175 million in that case.

Speaker D [00:01:59 – 00:02:25]

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 themselves. formed serious anxiety and depression problems.

Tim Cronin [00:02:25 – 00:02:46]

They are so powerful, these companies, and they basically, you know, run our economy, run our government to a large extent. And, you know, what happens a lot of— I mean, I kind of— 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.

Speaker D [00:02:47 – 00:02:47]

Probably.

Tim Cronin [00:02:47 – 00:02:53]

And it’s probably in the works now. You can see the same thing with Uber and some of the transportation businesses.

Speaker D [00:02:53 – 00:03:03]

I’m sure there’s a bill trying to be pushed past federally right now to say it’s preempted. I mean, look, we have tech oligarchs that are dictating the entire dialogue.

Tim Cronin [00:03:03 – 00:03:09]

The conduct is what it is. It’s outrageous. It’s manipulative. It’s not like they can’t afford good lawyers.

Christine Byers [00:03:10 – 00:03:10]

True.

Tim Cronin [00:03:10 – 00:03:18]

And do have a very— I mean, 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 [00:03:18 – 00:03:31]

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.

Tim Cronin [00:03:31 – 00:03:32]

Simple, simple theory.

Speaker D [00:03:32 – 00:04:01]

Yeah, it’s accurate. I mean, a lot of companies have followed the tobacco playbook, not just in creating addictive products, but then in— there’s a litigation playbook that Big Tobacco created that a lot of these companies follow, 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 attorneys, plaintiffs’ attorneys, have been dealing with for decades.

Christine Byers [00:04:01 – 00:04:13]

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&M’s Saying each piece of candy represented $1 billion of the company’s debt.

Speaker D [00:04:13 – 00:04:15]

That sounds like something John would do.

Tim Cronin [00:04:15 – 00:04:18]

Yeah, we’ve done that before. That’s one way of doing it.

Speaker D [00:04:18 – 00:04:54]

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 a case, and I— John, the case that John and I tried with Johnny back in 2018, um, it was about a little girl that went to an emergency room 3 times and they turned her away. And she had, um—

Tim Cronin [00:04:54 – 00:05:11]

Severely dehydrated. She was like 2 liters, you know, short of, 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.

Speaker D [00:05:12 – 00:05:12]

In his underwear.

Tim Cronin [00:05:12 – 00:05:13]

In his underwear.

Speaker D [00:05:13 – 00:05:13]

Yeah.

Tim Cronin [00:05:13 – 00:05:27]

To get her to the emergency room. And so what we did is we elicited testimony from one of the doctors, you know, or one of our experts, as to the amount of, you know, fluid that they were able to replace within the first few hours at the hospital.

Speaker D [00:05:27 – 00:05:28]

They had to.

Tim Cronin [00:05:28 – 00:05:33]

It was 2 liters. It was 2 liters. She was a little 6-year-old. And so what I did is I took a bottle—

Speaker D [00:05:33 – 00:05:34]

You opened a box—

Tim Cronin [00:05:34 – 00:05:38]

Yeah, with a 2-liter bottle with water and just set it on our table the whole time.

Speaker D [00:05:38 – 00:05:47]

Held it and went, that’s how much this 5-year-old little girl was short on water. It was a good picture. And then we left it on our table the rest of the trial for the jury to see.

Christine Byers [00:05:47 – 00:05:49]

I bet that was pretty powerful.

Speaker D [00:05:49 – 00:05:49]

Yeah.

Christine Byers [00:05:49 – 00:05:51]

Did you ever see any props backfire?

Tim Cronin [00:05:53 – 00:05:55]

I probably have, but I don’t want to talk about it.

Speaker D [00:05:56 – 00:05:57]

I might have blocked those out.

Christine Byers [00:06:00 – 00:06:30]

Our next hot topic, it brings us over to Charlotte, North Carolina, where a federal jury found that Uber— 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— Is it just sort of your opinion that no matter the amount, a win is a win?

Tim Cronin [00:06:31 – 00:06:34]

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

Speaker D [00:06:34 – 00:07:09]

It might have been a defense pick. If it’s a defense pick, and it’s a plaintiff win, yes, it’s helpful. Um, 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 talk— be talking about in terms of risk to resolve it. 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.

Tim Cronin [00:07:09 – 00:07:13]

And it also could be, you know, a compromise version.

Christine Byers [00:07:13 – 00:07:18]

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

Speaker D [00:07:18 – 00:07:20]

If it’s a defense pick, for sure. Yeah.

Tim Cronin [00:07:21 – 00:07:24]

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

Speaker D [00:07:25 – 00:07:57]

I had a client, we had a case we lost down in Louisiana. That we thought we were gonna win. It was tough, and Johnny and I tried it, and Johnny and I were like more upset than our client was when we lost, like, ah! 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 one way to look at it.

John Simon [00:07:57 – 00:07:57]

That is true.

Christine Byers [00:07:58 – 00:07:58]

That is true.

Tim Cronin [00:08:00 – 00:08:09]

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

Christine Byers [00:08:09 – 00:08:53]

Time now to turn to our email inbox for the cases our viewers have sent us. 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, we are just going to focus on the issue in each of them. 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 asynchronous chart sign-off. However, the physician never saw the patient who ended up having a catastrophic spinal infection.

Christine Byers [00:08:53 – 00:09:08]

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 physicians’ opinions on breaches when care is delivered by APPs?

Tim Cronin [00:09:09 – 00:09:40]

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

Speaker D [00:09:41 – 00:09:43]

Handoff, lack of communication.

Tim Cronin [00:09:43 – 00:10:01]

And then the other thing too is, and, you know, what types of responsibilities has the doctor delegated, right? You know, and so, It’s— they’re so, you know, intertwined. You can’t separate one claim from another. I think you’re going to need an expert for everybody involved.

Speaker D [00:10:02 – 00:10:35]

And some states, like Missouri’s a little lax, you can just maybe have one expert and it should be a physician that addresses it all. But you’re probably better off having all 3. 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 collectability 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—

Tim Cronin [00:10:35 – 00:10:35]

Where you’re headed, right?

Speaker D [00:10:36 – 00:10:43]

Yeah, who you wanna be trying to say, oh, well, the doctor didn’t really see him, and it was mostly them, and they’re employed by a hospital that has $20 billion.

Tim Cronin [00:10:44 – 00:11:06]

You know, one of them that we had was, It was a situation where the doctors were— it was limited coverage, but there was— it was a practice group with multiple doctors. And this was sort of crazy. There were 4 or 5 doctors in the practice group. It was a pediatric group, and they had 1 physician’s assistant, a single one. And she was like doing the work for 5, 4 or 5 doctors.

Speaker D [00:11:06 – 00:11:06]

Yeah.

Tim Cronin [00:11:06 – 00:11:28]

They had a written, you know, practice agreement, and it required the physicians to pull at the end of each day, you know, to pull files and review them. And, and, and, um, it just wasn’t being done. I mean, they were all, you know, delegating, uh, things to this, uh, you know, physician’s assistant that she just wasn’t, wasn’t able to keep up and do it. So.

Christine Byers [00:11:29 – 00:11:31]

And what happened to the client in that case?

Tim Cronin [00:11:31 – 00:11:53]

Um, it was, it was a heart procedure. It was a minor child with a heart defect that went undiagnosed. He was 2 or 3 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, you know, the doctor missed something.

Christine Byers [00:11:53 – 00:11:53]

Mm-hmm.

Tim Cronin [00:11:53 – 00:12:24]

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 the panel, I said, who here, you know, thinks that their doctor doesn’t spend enough time with them? And every hand in the room went up. And I asked, and I asked, I called on one, one of the panel members, some woman, and she said, you mean y’all get to actually see a doctor?

Christine Byers [00:12:25 – 00:12:26]

No, really?

Tim Cronin [00:12:27 – 00:12:49]

Right. So, you know, and again, that’s what’s happening. It’s like, it’s like a lot of other You know, things that we see is it’s all about efficiency and money and the insurance, and the person that suffers, that gets the brunt of it is the patient. The person that’s lost in the mix is the patient, and the patient should be at the top of the list, not at the bottom.

Christine Byers [00:12:50 – 00:13:10]

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, 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.

Tim Cronin [00:13:11 – 00:13:11]

Well, that never happens.

Speaker D [00:13:12 – 00:13:15]

Never. I haven’t experienced that one.

Christine Byers [00:13:15 – 00:13:20]

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

Speaker D [00:13:21 – 00:13:21]

Yeah.

Tim Cronin [00:13:21 – 00:13:27]

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

Christine Byers [00:13:27 – 00:13:38]

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?

Tim Cronin [00:13:38 – 00:13:41]

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

Speaker D [00:13:41 – 00:14:38]

Yeah, there’s some options. I mean, sometimes, if it goes poorly enough, sometimes you have to, 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, this seems kind of bad. And he’s like, yeah, this is real bad. Uh, I don’t know if we have a case. And so out of, out of fear for that exact concern, here’s what John did, and it worked out. He decided, I’m gonna 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.

Speaker D [00:14:39 – 00:14:50]

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, like, expert in— it’s not as effective as if you have a good expert who’s live in front of the jury.

Tim Cronin [00:14:51 – 00:14:51]

Right.

Speaker D [00:14:51 – 00:15:07]

But that’s one thing to consider. If you think, They’ll do a better job not with the jury staring at them and the judge staring at them, but in a depo setting again, and you can do your direct and help them. That’s one option you can consider, or get a new expert.

Tim Cronin [00:15:07 – 00:15:23]

I’m with getting a new expert, and I will tell you, you know, you’ve got a good lawyer on the other side, and if somebody— if you have an expert that does not hold up and made some, you know, bad admissions, or, you know, didn’t know what the facts were, wasn’t prepared, that transcript doesn’t go away.

Christine Byers [00:15:23 – 00:15:23]

Mm-hmm.

Tim Cronin [00:15:23 – 00:16:02]

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— 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 You know, we could do a whole— we could do an entire day talking about experts and issues, but, you know, one of the things I would tell everybody is don’t ever, ever hire an expert unless you’ve called the last 5 attorneys that that expert has worked for.

Christine Byers [00:16:02 – 00:16:02]

Hmm.

Tim Cronin [00:16:02 – 00:16:19]

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 sounding great, and, you know, but you really want to see how they, how they, how they do you know, under fire, you know, at the, at the depo and at trial.

Speaker D [00:16:19 – 00:16:31]

And depending 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 was videotaped or not. In other words, it doesn’t go away.

Christine Byers [00:16:32 – 00:16:32]

Right.

Tim Cronin [00:16:32 – 00:16:36]

Um, and in some states you don’t, you, you can dis—

Speaker D [00:16:36 – 00:16:59]

disendorse and they can still read it, but they can’t play that you hired them. But they can still say, here’s another person who has these qualifications, and they made— 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.

Tim Cronin [00:17:00 – 00:17:19]

This just came to mind, and this was a long, long time ago. I think I’d been practicing for about 4 or 5 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, was out in rural Missouri. And this expert showed up at noon to meet with me over the lunch hour intoxicated.

Christine Byers [00:17:19 – 00:17:19]

Oh dear.

Tim Cronin [00:17:20 – 00:17:20]

For trial.

Christine Byers [00:17:21 – 00:17:21]

Oh boy.

Tim Cronin [00:17:21 – 00:17:25]

For trial. So I was like, well, goodbye.

Speaker D [00:17:28 – 00:17:29]

Hurry up and get out of here.

Tim Cronin [00:17:30 – 00:17:30]

What I did—

Speaker D [00:17:30 – 00:17:31]

The trial!

Tim Cronin [00:17:31 – 00:17:46]

What you can do in Missouri is, you know, 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 going to read the deposition of— I can’t remember who our next witness was.

Speaker D [00:17:47 – 00:17:47]

Read it.

Tim Cronin [00:17:47 – 00:17:48]

So I stood up there and read the deposition.

Christine Byers [00:17:48 – 00:17:49]

You read the whole deposition?

Tim Cronin [00:17:49 – 00:17:52]

Read it. Question, answer, question, answer.

Speaker D [00:17:52 – 00:17:57]

But— So you get your technical case in to be submissible, but drowned out.

Tim Cronin [00:18:01 – 00:18:02]

Yeah.

Speaker D [00:18:02 – 00:18:05]

Maybe his favorite sports team won the national championship the night before. Yeah, who knows?

Tim Cronin [00:18:05 – 00:18:13]

I think if I picked the top 5, 10 worst things ever happened to me in any kind of case, 9 out of 10 of them are experts.

Christine Byers [00:18:13 – 00:18:13]

Really?

Tim Cronin [00:18:13 – 00:18:24]

My own experts, 9 out of 10. And you just, you can’t take too much time researching, you know, finding out the background.

Christine Byers [00:18:24 – 00:18:31]

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?

Tim Cronin [00:18:31 – 00:18:31]

Oh yeah.

Speaker D [00:18:31 – 00:18:32]

We do it all the time.

Christine Byers [00:18:33 – 00:18:33]

Oh.

Speaker D [00:18:34 – 00:18:45]

To quote 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 them.

Tim Cronin [00:18:45 – 00:18:50]

They’re a dangerous thing, man. You gotta, you know, that they withdraw them and I still read—

Speaker D [00:18:51 – 00:19:01]

I’ll read or play the depo to the jury. And then they think nobody hired him, this is just some independent expert that like we found out what they think and they think the plaintiff’s right.

Tim Cronin [00:19:01 – 00:19:08]

So to our, our, our, uh, person that called in, I would say Uh, get you a new expert.

John Simon [00:19:08 – 00:19:08]

Yeah.

Tim Cronin [00:19:08 – 00:19:11]

That’s what I would say. Get you a good one.

Christine Byers [00:19:11 – 00:19:12]

Moral of the story.

Tim Cronin [00:19:12 – 00:19:13]

Moral of the story, get a new expert.

Christine Byers [00:19:13 – 00:19:14]

Gotcha.

John Simon [00:19:18 – 00:19:57]

The Jury Is Out is brought to you by the Simon Law Firm. At the Simon Law Firm, P.C., we believe in the power of pooling resources in order to create powerful results. We often lend our trial skills and experience to lawyers around the country to achieve better results for their clients. Our attorneys welcome the opportunity to work with you on your case, offering vast resources, seasoned litigators, and a sterling reputation. You can contact us at 314-241-2929. And if you enjoyed the podcast, feel free to share your thoughts with John, Tim, and Erich at [email protected]. And subscribe today because the best lawyers never stop learning.

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