By James J. Mangraviti, Jr., Esq.
An expert witness’s opinions are only as strong as the “facts or data” they are based upon. See Federal Rule of Evidence 702. An excellent way to cross-examine an expert witness is to show that the expert did not consider all relevant facts when forming their opinion. An expert who is shown to be “cherry picking” favorable facts and ignoring unfavorable facts can be easy pickings on cross examination.
The expert witness’s deposition is an excellent opportunity to establish that the expert engaged in cherry picking data. Please consider the following example of cherry picking facts expert witness deposition questions.
Example: Cherry picking facts expert witness deposition questions.
Q: Okay. And in that note, Dr. McEllin says, “His foot looks fine.” That’s the third paragraph down?
A: Yes.
Q: He also says, does he not, in the final paragraph, that the foot—that “It was possible that that foot would always be somewhat uncomfortable given the degree of injury that he had.” Do you see where he says that?
A: “It is possible,”—Yes, I do have that. Yes, indeed.
Q: Okay. And in March of ‘99, McEllin was saying that the foot looked fine, but it was possible that it might never be normal?
A: Never normal in terms of the total elimination of discomfort, I guess, is what he’s saying here, yes.
Q: Right. Now, you didn’t include that comment about the foot possibly being always somewhat uncomfortable. You did not include that in your report, did you?
A: I didn’t.
Q: Do you recall—did you review an April of 1999 report—April 28, 1999 report from Dr. McEllin?
A: I have that.
Q: And you see in there that Dr. McEllin said that he was—that he felt, McEllin, that Mr. Strayve was “Not ready to return to his regular activity,” and that he would, “expect many months before he was going to be able to tolerate that degree of work.” Do you see where he says that?
A: I do see that.
Q: You didn’t include that in your report—that quote, in your report, did you, Doctor?
A: I didn’t, no.
Q: You say in your report, Doctor, on page eight, and that would be almost at the bottom of the last paragraph, you say in your report that Dr. McEllin had no explanation for Strayve’s persistent symptoms?
A: Yes.
Q: And—but later—but in that report—that office note, Dr. McEllin diagnosed a chronic residual pain after right foot crush injury. Correct?
A: I have that page now and I see my quote, and then you’re asking me about what he said?
Q: Your quote was—you quoted Dr. McEllin as saying the foot looks “great.” Right?
A: Yes.
Q: But you did not quote him in terms of his assessment that Mr. Strayve was having chronic residual pain after right foot crush injury. You did not quote that?
A: I didn’t quote it.
Q: And you also did not quote him, Dr. McEllin, that he concurred at that point that it was appropriate for Mr. Strayve to have a pain clinic evaluation and treatment plan. You did not quote that either, did you?
A: I didn’t quote it.
Q: Okay. Now, you quoted Dr. Czycyk in your report?
A: I did.
Q: And that was, I believe, also on page eight of your report, in the end of that second to last paragraph.
A: Yes.
Q: And you quoted her as saying that Mr. Strayve had “some type of a syndrome”?
A: I did.
Q: And that was the extent of your quoting of Dr. Czycyk. Correct?
A: That was the extent of my quote.
Q: And what she actually said was—starting at the bottom of page one, “that he most likely had some sort of a pain syndrome.” Correct?
A: He most likely has some sort of pain syndrome going on, yes.
Q: And she also went on to opine that it might be “a combination of RSD with a nerve crush injury syndrome.” Correct?
A:Opposing counsel in the above example pointed out time and again the damaging or non-helpful language that the expert left out of his report. The implication is that the expert tried to soften the damaging information by intentionally leaving out key parts of the underlying report. Cherry picking facts expert witness deposition questions can be very effective to develop lines of inquiry to use at trial to undermine an expert witness’s credibility.
James J. Mangraviti, Jr., Esq., has trained thousands of expert witnesses through seminars, conferences, corporate training, training for professional societies, and training for governmental agencies including the FBI, IRS, SEC, NYPD, Secret Service, and Department of Defense. He is also frequently called by experts, their employers, and retaining counsel to train and prepare individual expert witnesses for upcoming testimony. Mr. Mangraviti assists expert witnesses one-on-one with report writing, mentoring, and practice development. He is a former litigator who currently serves as Principal of the expert witness training company SEAK, Inc. (www.testifyingtraining.com). Mr. Mangraviti received his BA degree in mathematics summa cum laude from Boston College and his JD degree cum laude from Boston College Law School. Mr. Mangraviti has designed dozens of expert witness training programs and has personally taught experts in a group setting over 250 times since 1997. He is the co-author of thirty books.
