It will happen to every plaintiff trial lawyer… …your own expert witness unexpectedly makes a disastrous mistake during their deposition – creating a crisis for your case and potential testimony for the defense. Join us as veteran medical malpractice attorney Katherine Cárdenas of Lucas and Cárdenas, P.C., in Chicago describes how to abandon your own expert witness and preserve your case.

1. Presenter: Katherine A. Cárdenas
Law Offices of Lucas & Cárdenas, P.C.
Chicago, Illinois
KAC@lucasandcardenas.com
A Presentation of
The National Trial Lawyers

2.  Partner, Lucas & Cárdenas,
Chicago
 20 years representing adults and
minors in every area of personal
injury.
 Tried numerous cases across
Illinois.
 Represented clients in Federal
Court and has argued before the
Supreme Court of Illinois.
 Member:
 The National Trial Lawyers Top 100
Trial Lawyers
 Million Dollar Advocates Forum
 Illinois State Bar Association
 American Association for Justice
 Illinois Trial Lawyers Association.

3.  Plaintiff’s burden of proof in Illinois medical
malpractice cases
 Illinois expert disclosure process
 Presenting an expert for deposition
 Mechanics of abandoning an expert in Illinois
 Hernandez-Jovel v. Northwest Community
Hospital, et al.

4.  The obvious: duty, breach, causation,
damages
 What is the standard:
 “what a reasonably careful physician would or
would not do under the same or similar
circumstances…”
 The standard applicable to each defendant and all
claimed deviations must be established through
qualified expert testimony
 Be careful of being too specific in your certificate of
merit – this can be used against your expert

5.  Specific ways to establish standard:
 Your Expert’s training education and experience
 Practice bulletins and guidelines from
professional organizations
 Policies and procedures of Hospital
 Medical literature – Be careful
 Other legal requirements in your jurisdiction

6.  Causation
 Also requires expert testimony
 See, e.g., N. Trust Co. v. Burandt & Armbrust, LLP,
403 Ill. App. 3d 260, 280 (2d Dist. 2010) (explaining
burden)
 Common defenses
 The empty chair (another provider)/ sole proximate
cause (the plaintiff or birth defect)/ “some other
cause”
 Pre-existing condition
 Importance of teaching jury what plaintiff’s
burden actually is: more probably true than not
true

7.  Illinois Rule 213f(3) requirements
 “[…]person giving testimony who is […] the
party’s retained expert.”
 Subject matter
 Opinions and bases
 Qualifications
 Any reports
 Timing
 After lay witness and treating doctor discovery
 Simultaneous disclosure
 Advantages for plaintiffs

8.  Rule 213f(3) requires strict compliance
 Avoids gamesmanship
 Practical considerations (decreases amount of
time to get to trial, aids in settlement because
defense is forced to spend the money now)
 Discoverability of drafts and writings by
opponent’s expert before your expert sits for
deposition
 Allows both sides to supplement/amend with any
new/additional matters

9.  Even with the best preparation, things can
and will go wrong:
 Confusing/conflating facts
 Relying on bad data
 Blatant/unreasonable advocacy
 Offering new opinions
 Offering opinions outside of expertise
 Excessive evasiveness
 Cavalier attitude/ failing to consider all variables
in hypotheticals
 Retreating/changing opinions

10.  Damage control
 Careful follow up can correct most problems
 Make clear record of scope of each expert’s opinions
 Make clear record of each basis for expert’s opinions
 Take breaks if needed
 Correct factual errors
 Fill in the gaps of incomplete hypotheticals
 But sometimes the Expert can’t be saved…
 Retreating from opinions/conceding that the other
side is right
 Destroying notes

11.  Always remember the following:
 The Expert is NOT an agent of the party
 The Expert cannot make admissions on behalf of
the party
 Why is it so important to properly abandon?
 Consequences of improper abandonment
 The dreaded “missing witness” instruction (5.01 in IL)
 1) Under control of party;
 2) Not equally available to opposing party
 3) reasonably prudent person would have produced
if favorable
 4) No reasonable excuse shown

12.  The proper procedure – Taylor v. Kohli, 162
Ill. 2d 91 (1994)
 May abandon upon “reasonable notice” prior to
trial
 No clear guidelines for “reasonable notice”
 Taylor- 19 months
 Natalino v. JMB– 1 week insufficient
 Bishop v. Baz- 5.01 instruction not allowed where
plaintiff was given ample opportunity to depose or
adopt abandoned witness
 Notice should be in writing (Motion not required)
 Abandonment should be clear and unequivocal

13.  My case: Hernandez-Jovel v. NWCH
 Facts
 Experts
 Vetting process for experts
 Deposition prep. for experts
 What went wrong
 How I fixed it
 Effect on case
 Final Result

14.  September 9, Wednesday
 Presenter Robert Mosier, The Sanders Firm in
Los Angeles.
 His practice focuses on representing
plaintiffs harmed by large pharmaceutical
and medical device companies.
 Register at http://bit.ly/RisperdalUpdate