 How to cross examine an expert By Louis Kakoutis Litigation is a challenging and messy business because aggressive advocates who are not able to oppose the facts use their resources to keep the truth out of the courtroom. If reason is against them, they turn against reason. In my particular experience, negligent defendants caused a serious, traumatic accident and in order to evade accountability, they used what is known as "advocate experts" to target my credibility. To be specific, the defendants hired psychiatrist, Dr. Margulies, and orthopaedic surgeon, Dr. Bushuk to misrepresent the nature of my injuries because their only concern is to evade liability.
Dr. Bushuk did not even sign the "medical" report he reluctantly released to my spouse after I threatened to report him for refusing to release it and I will not waste any time talking about the fictitious allegations in his report until or if I am granted the opportunity to cross-examine him in a court of law. To be brief, Dr. Bushuk evidently thinks he has the power to contradict scientific medical evidence and like Dr. Margulies, he has a history of seeking to discredit people who have been injured and to selectively ignore evidence that is necesary to reach a reliable, scientific conclusion.
Subjective reports that ignore documented, scientific medical evidence betray an alarming lack of objectivity and it is therefore not surprising that Dr. Margulies is a psychiatrist who likes to conduct his assessment without providing the opportunity to verify or refute the reliability of the content of his report. For example, in Willits v. Johnston, the plaintiffs advanced the argument that a defence medical assessment ought to be audio-video recorded because language barriers threatened to obscure the outcome of the medical evaluation.
In mock defiance, defence "expert" Dr. Marguiles, filed an affidavit stating that the “video-audio recording of the examination would threaten the integrity of the examination and, thus, affect his ability to properly conduct a complete psychiatric examination.” Dr. George Glumac, for the plaintiff, filed an affidavit which disagreed with the position taken by Dr. Marguiles, and stated that “videotaping is completely unobtrusive”. He was of the opinion that the majority of psychiatrists would not object to recording an examination as, in his opinion, it would not “interfere with or compromise the assessment.”
The decision in Willits came down to a battle of expert evidence and the Court was satisfied that “a videorecording
would not adversely impact or impair Dr. Margulies' ability to conduct the medical examination.” This triumph of the openness that is necessary to confirm or refute integrity was shortlived.
In Sousa v. Akulu the plaintiff’s counsel was only prepared to consent to a psychiatric defence medical if it was videotaped. In an attempt to accommodate the plaintiff’s request, several doctors were contacted all of whom refused to permit recording equipment during the assessment. This zeal to deny a plaintiff the opportunity to scrutinize a defence medical psychiatric assessment does not inspire faith in the reliability of expert testimony..
Despite the overwhelming obsession to deny the opportunity to scrutinize subjective, psychiatric assessments, most reasonable jurists ought to support the view of Master Dash, who found that it was in the interests of justice to permit the plaintiff to record the defence medical examination.(May 26, 2005 in Otote v. Shenouda)
Dr. Margulies generally operates under the veil of immunity because he has succesfully convinced at least one Ontario Superior Court Justices that he deserves it, but in my experience, he merely seeks to discredit traumatized accident victims through a heap of ignorance and bias. Perhaps part of the problem resides in the fact that Dr. Margulies is not a posttraumatic stress disorder specialist, he is a hired gun who belittles victims of trauma through lectures that his colleagues have dubbed, "the psychological squeal of personal injury" and the intellectual bias of these dismissive views is not appropriate.
In the past, those who have sought to claim damages against Dr. Margulies for being unfairly targeted have failed to overcome the argument that he is protected by absolute privilege, but in my opinion, the fact that he gives evidence in a legal proceeding should make him more, not less accountable.
We will never effectively oppose the reckless disregard for the truth unless we acknowledge the thoughts of Justices like Wilson J. In her dissent at the Divisional Court (which was largely adopted by the Court of Appeal), Wilson J. stated that the law relating to the doctrine of witness immunity and the law relating to the tort of public misfeasance were uncertain and constantly evolving. In paragraph 23 of the Court of Appeal’s decision in Reynolds supra, Borins J.A. stated as follows:
"The essence of Ms. Reynolds’ claims against Dr. Smith is in respect to his role as a public official investigating a suspicious death under the Coroners Act, and not to his role in testifying in her criminal prosecution."
The principles that Justices like Smith and Borins emphasize are necessary to shield victims from deceptive "experts" like Dr. Margulies because their predictable, "one-trick pony" tactics invariably distort the truth and potentially pervert the course of justice.
In fact, I think it is reasonable to seek a general, restraining order to keep Dr. Margulies from testifying before any tribunal or any Court, without leave, because he is not a credible expert and it is rather easy to prepare a book of authorities as a means to illustrate a simple point: If we continue to sheild, immunize or enable ignorance, extreme bias and professional misconduct, we invariably produce unacceptable, miscarriages of justice.
After examining me, Dr. Margulies took over 6 months to release his defence medical report. If he had released it within a month or two, it would have been far different and I can say this with some certainty because my meticulous attention to detail is far more reliable than the inaccurate report that Dr. Margulies produced, and I offer these excerpts from my cross-examination of Dr. margulies as proof in that regard.
This is Dr. Margulies, talking about what his report claims about a book that I will allegedly never complete because, according to Dr. Margulies, I am mentally ill. (page 65, Trial of an issue, April 2, 2008, before Justice McIsaac):
"Well you started writing it. In that case that -if that is in error, and it may be, it should have read then, 2003, and if that's the case then you would have started writing it not ten years before the accident but three months, or two months -two or three months, and if that is the case, I apologize for that error. It's an error - it's an oversight and I don't know how I missed it, if that's the case."
Does this man who cannot even explain the inaccuracy in his own report, or how he missed it, deserve to be called an expert before any tribunal or any court of law?
Consider the expertise of Dr. Margulies, in this line of questioning. (page 65, Trial of an issue, April 2, 2008, before Justice McIsaac):
Dr. Margulies: ...It's not necessarily always curable, it depends on the severity of the P.T.S.D. (posttraumatic stress disorder).
Louis Kakoutis: So you say it comes into your minds and uncalled for?
Dr. Margulies: Yes.
Louis Kakoutis: How - how does that happen?
Dr. Margulies: I don't know.
Louis Kakoutis: Have you ever suffered from posttraumatic stress disorder?
Dr. Margulies: No, not that I am aware of?
Louis Kakoutis: Doesn't the person who suffers from posttraumatic stress disorder suffer it instantly?
Dr. Margulies: I'm sorry?
Louis Kakoutis: You don't know how it comes into your mind so how do you know how it happens? You don't know how it happens. You don't know what causes posttraumatic stress disorder.
Dr. Margulies: No, I didn't say that. You asked me what - do I know why these thoughts would intrude in a person's mind, and other than the fact that they do, I cannot answer - I'm terribly sorry, I'm sorry, Your Honour. What - what was I saying?
Justice McIsaac: You were explaining, or you were unable to explain...
Dr. Margulies: I've lost my train of...
Justice McIsaac: ...why the thoughts invade.
Dr. Margulies: Okay. I cannot - I cannot explain the process whereby a thought would intrude into a person's mind.
I think this ignorance is extremely significant because if you cannot explain the process, then I do not believe that you are in a position to treat somebody who suffers from posttraumatic stress disorder.
I do not blame Dr. Margulies for being confused about posttraumatic stress disorder, I don't think it is possible for him to understand it as clearly as somebody who is aware of being affected. But I do find the following line of questioning to be inappropriately evasive. (page 65, Trial of an issue, April 2, 2008, before Justice McIsaac):
Louis Kakoutis: Doctor - Doctor Margulies, given the fact that many psychiatrists disagree with you with respect to your calling my view of what posttraumatic stress disorder is -is idiosyncratic...
Justice McIsaac: Are you asking him if many people do?
Louis Kakoutis: He - he - what I'm asking him is, is it possible that psychiatrists who are more qualified than you are with respect to diagnosing post traumatic stress disorder have a different view?
Dr. Margulies: Can I really answer that for you. I don't think I can...
Justice McIsaac: Well, if it's - well, is there any...
Dr. Margulies: ...I mean, it's loaded. It's like when did you stop beating your wife.
I think it's outrageous for Dr. Margulies to evade responding to the obvious fact that he is not a posttraumatic stress disorder specialist, and having asked world renowned, posttrumatic stress disorder specialist, Dr. Patricia A. Resick, PhD., the very same question that Dr. Margulies inappropriately dodged, I offer her credible response to illustrate the stark contrast between a hired gun like Dr. Margulies and genuine, expert testimony:
"As our understanding of various psychological/psychiatric problems have deepened with extensive research it is very difficult for professionals to be expert on every topic. Most specialize. For example, I am a specialist on PTSD and would not profess to have any expertise on Schizophrenia or bipolar
disorder. It is also the case, that within specialists, there are different theories of disorders. Experts on PTSD do not speak with one voice. Psychiatrists are more likely to believe that PTSD has a biological basis. While your statement is true, (my definition regarding posttraumatic stress disorder) it is not true of everyone with PTSD."
If this stark contrast is recognized, I do not think it is reasonable to suggest that Dr. Margulies is a credible, expert witness.
Finally, it is very interesting to note that Dr. Margulies was evidently hired to claim that I am a psychotic so that the defendants can evade liability for the fact that my traumatic accident caused me to suffer posttraumatic stress disorder, and I think that this line of questioning is quite clear in that regard. (page 75-76, Trial of an issue, April 2, 2008, before Justice McIsaac):
Louis Kakoutis: ....So, basically, what you're trying to prove is that I'm a psychotic, and if a psychotic gets into an accident and suffers post traumatic stress disorder, it's not the fact of the incident but it's the fact that he was psychotic, is that what you're trying to say in other words?
Dr. Margulies: No...
Louis Kakoutis: Well it sure seems...
Dr. Margulies: ...I'm not saying that at all.
Louis Kakoutis: ...like it to me. What are you trying to say?
Dr. Margulies: I'm saying is that quite simply, Mr. Kakoutis, you were ill before the accident, you were ill, equally ill, after the accident, and the accident only served - only - and with the occurrence of the accident, that became incorporated into some of your beliefs. Had the accident not occurred, the only thing that would be different, you wouldn't believe that there - you -that the accident had been intentional to kill you, that's all.
Louis Kakoutis: Doctor - Doctor Margulies, are you familiar with the psychological effect, you know, piling on? For example, if you're a psychotic that you can still suffer posttraumatic stress disorder, are you familiar with that?
Dr. Margulies: No.
Louis Kakoutis: No. So you think that somebody who - who is a psychotic cannot possibly suffer post trumatic stress disorder?
Dr. Margulies: I didn't say that.
Louis Kakoutis: Oh, you didn't. What did you say then?
Dr. Margulies: I said - I - to reiterate, I said that you were psychotic before the accident, and sadly, you remain psychotic, and the accident had nothing to do with the psychosis, that's what I'm saying.
Clearly, this man is a one trick pony and he in fact predictably says the very same thing for practically everybody he examines: ie, he rarely fails to locate what he calls a non-compensable, pre-existing mental illness, in effort to minimize the consequence of a traumatic accident.
Sadly, Dr. Margulies was extremely predictable, before the accident, he remains predictable, and my alleged psychosis is clearly a product of his extreme bias.
Proudly, I will always be a psychotic until Dr. Margulies abandons his fixed beliefs.
My own beliefes mesh with the the Louisiana Supreme Court, that determined the following in Marrogi, supra:
"Without some overarching purpose, it would be illogical, if not unconscionable, to shield a professional, who is otherwise held to the standards and duties of his or her profession, from liability for his or her malpractice simply because a party to a judicial proceeding has engaged that professional to provide services in relation to the judicial proceeding and that professional testifies by affidavit or deposition."
The defendants think they can use Dr. Margulies to evade the liability for having caused me to suffer posttraumatic stress disorder, but is it possible to credibly endorse their predictable tactics?
Justice can be very elusive.
Unfortunately, Justice McIsaac embraced Dr. Margulies's report, but his reasons for calling me incompetent are factually incorrect. In his endorsement wherein he explains the reasons for appointing a Litigation Guardian, Justice McIsaac writes; "He complained of being drummed out of teaching because of his beliefs in this conspiracy."
I quote directly from the transcript of the Hearing in question, to prove my point: (page 26 of the Hearing Transcript)
Dr. Margulies: And then he goes on to tell me as - further about his teaching. He was jerked around and he complained and he was considered a troublemaker. Bottom line was he ended up being discredited and this was all wrong, but he did - was drummed out of teaching, one might say.
Mr. Chadwick: Okay, and did he tell you that, that he had been drummed out of teaching?
Dr. Margulies: Those - that's my term, but that he...
Mr. Chadwick: Okay.
When Justice McIsaac misrepresents what I actually said to create the false impression that I am a conspiracist, he betrays the agenda of the firm Flaherty, Dow, Elliot & McCarthy. In fact, I am anything but a conspiracist. If they seek to label me simply because I have written about controversial topics, it is not only inappropriate, it is ouside the scope of their practice and their inability to produce factually correct reports reflects their incompetence, not mine.
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