|
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, the defendants use what is known as advocate experts to target the credibility of the victim. To be specific, the defendants hired psychiatrist, Dr. Margulies, and orthopaedic surgeon, Dr. Bushuk, to provide a rosier picture, regarding my injuries.
Dr. Bushuk did not even sign the "medical" report he reluctantly released to my wife 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 like x-rays, and I wouldn't even mind that if he had produced a thorough and comprehensive report, but like Dr. Margulies, he has a history of seeking to discredit people without having taken the time to examine the medical evidence that is necessary to reach the conclusions his report aggressively advocates.
Subjective reports that ignore documented, scientific medical evidence betray an alarming lack of objectivity. Likewise, it is 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)
When video-taped evidence is not available, cross-examination provides the opportunity to expose the truth, but plaintiffs frequently face an uphill battle because the relentless, ferocious advocacy of defence medical experts is difficult to overcome. The following excerpts of the cross examination of psychiatrist, Dr. Margulies, evidently exposes the tactics of defence medical experts. On April 2nd 2008, I was granted the opportunity to cross-examine Dr. Margulies because the defendants were trying to derail a jury trial in my Tort case against negligent defendants by claiming that I am too mentally incompetent to understand causation.
Dr. Margulies was not a straightforward witness, he was a relentless advocate who imposed barriers which make it difficult to expose the truth.
In particular, his obsession to advance the agenda of those who had hired him was never in doubt, and the following testimony is very clear in that regard:
MR. KAKOUTIS: I said, is it possible, given the fact that Mr. Chadwick served you with a limited diet of what I perceive to be prejudicial documents, that you have formed an opinion of which is not reliable.
DR. MARGULIES: Well, (A), I have no way of knowing to what extent the documentation I received two years ago was – was or was not limited, and I have no way of – and it is your determination, it’s your opinion, it seems, that it’s prejudicial.
It is not realistic to suggest that the defence-fed diet that Dr. Margulies received was not irrelevant and prejudicial, and it is therefore important to equate assertions like “I have no way of knowing” with a a clear admission of ignorance and incompetence.
Throughout the cross-examination, Dr. Margulies was consistently prejudicial and evasive in a rather predictable manner and he consequently fought tooth and nail, in effort to prove that he was not a prejudicial advocate for the defence:
MR. KAKOUTIS: Is it not also possible, Dr. Margulies, that given the fact that expert witnesses are recruited by trial attorneys, that some are tempted to “sell themselves” rather than to provide an accurate diagnosis of the patient?
DR. MARGULIES:No. If you are implying in any way, shape, or form that I am one of those, I take great exception to that, and I would fight you tooth and nail that I fit into that...
MR. KAKOUTIS: Well then I...
DR. MARGULIES: ...when I cannot speak and will not speak or offer an opinion about the motive of others, but I say unequivocally that is not me.
MR. KAKOUTIS: All right, Doctor Margulies, that's fine, but I mean, listening to your testimony I think you had a little bit of loose talk there when you say you don't know if I am a a psychotic or a paranoid schizophrenic. Well then, which is it Doctor Margulies, am I a psychotic or a paranoid schizophrenic?
DR. MARGULIES: I will reiterate what I said, that was part of my differential diagnosis. I am not certain at this point whether it is one or the other, but that is irrelevant.
MR. KAKOUTIS: Would you not agree, Doctor Margulies, that experts learn "facts of the case from the attorneys who hired them, teachers who have a very peculiar agenda?"
DR. MARGULIES: I hope not.
MR. KAKOUTIS: "Sacks 1992, a study", have you read this book, "Forensic Psychology" by Lawrence S. Wrightsman?
DR. MARGULIES: No.
MR. KAKOUTIS: That's a conclusion of that study.
DR. MARGULIES: Very well.
MR. KAKOUTIS: Would you not agree, Dr. Margulies, that the actual truth is in fact more important than "selling yourself or promoting the agenda of attorneys who hire you?"
DR. MARGULIES: Most assuredly agree with that.
Dr. Margulies is a very intelligent man who understands the obligation of the scientist but he also belongs to an organization called The Canadian Society of Medical Evaluators (CSME) which primarily exists to serve Canadian physicians who perform medicolegal evaluations for the legal profession. They are famous for their "hired gun" conferences, and the lectures of topgun advocates like Dr. Margulies are promoted through sensational generalizations like the Psychological Squeal of Personal Injury.
Dr. Margulies, who has an answer for everything when his bias is exposed, excused his generalizations about "the psychological squeal of the personal injury victim" by saying, "there was a most unfortunate typo error. What was meant to be said was, "The psychological sequela of personal injury", and somehow or other it came out, "The psychological squeal of personal injury", the net result being by the time I discovered this it was too late so I just - there's really nothing that could be done at this point. The conference went on, it was a success, and that's what this nonsensical thing is about."
The fact is, it was not a "typo error" as Dr. Margulies falsely asserts, and his overwhelming obsession to dub himself an unqualified success is pathetic, in my opinion.
In my opinion, the only people who are successful are those who do not lose their credibility and under the circumstances, it is clearly too late for Dr. Margulies, in that regard.
The fact is, the lecture dubbed, The psychological Squeal of the Personal Injury Victim were publicized through a great variation of promotional material and the claim that all the different formats contained the very same "typo error" is nothing more than another feeble explanation that wears thin and betrays the willingness to deceive.
MR. KAKOUTIS: And - and this nonsensical thing which bears your name, Doctor Margulies, I think, would you not agree, that it would make people like myself see you as more of a legal advocate than a psychiatrist?
DR. MARGULIES: I do not take an adversarial role, that is not my position. I try to present a balanced opinion based upon psychiatric data.
MR. KAKOUTIS: And is it balanced, Dr. Margulies, to essentially ignore what in my view is the weight that the psychological disorder, posttraumatic stress disorder deserves?
DR. MARGULIES: Could you ask that again? I'm - I'm not sure what you're asking.
MR. KAKOUTIS: What I'm saying Dr. Margulies, is I think you're essentially trying to make a huge issue out of the claim that I am a psychotic, in my respectful submission, without any reliable evidence, and despite the fact that there is reliable evidence which in my view proves that I suffer from posttraumatic stress disorder...
DR. MARGULIES: I'm waiting for the question.
MR. KAKOUTIS: So I'm saying, is it possible that your position within organizations that paint the impression that you are more of a legal adversary than a psychiatrist, are colouring your perspective?
DR MARGULIES: No.
MR. KAKOUTIS: Do you not agree, Dr. Margulies, that a legitimate use of an expert is to dispel common myths or incorrect beliefs?
DR. MARGULIES: That's kind of a fuzzy question. I'm not sure what kind of things we're talking about. I mean, I see my position as - in - in this area as one in which I try to present - to provide an interpretation of these psychiatric data as is available to me, that's what I try to do. I - I'm not sure what...
MR. KAKOUTIS: Well let me, let me....
DR. MARGULIES: ...about these myths, I don't know...
MR. KAKOUTIS: Let me...
DR. MARGULIES: What myths are we talking about?.
MR. KAKOUTIS: Let me talk about one of your conclusions to give you an idea of what kind of a myth we're talking about. "Book was too controversial to be published" -what does that mean?
DR. MARGULIES: I don't know, you said it.
MR. KAKOUTIS: Yeah but you quoted it for...
DR. MARGULIES: That was an exact quote.
MR. KAKOUTIS: ...for what purpose?
DR. MARGULIES: Yes. ...from you, Mr. Kakoutis..
MR. KAKOUTIS: You quoted it for what purpose? What does it signify?
MR. MARGULIES: I guess you're the one who would know because you're the one who told me it was too controversial.
MR. KAKOUTIS: Could it be a simple fact?
DR. MARGULIES: I don't know, what did you mean?
Nedless to say, if Dr. Margulies does not even know what I mean. he is not in any position to assess my mental competence.
When I cross-examined Dr. Margulies, relevant excerpts regarding his tendency to trivialize the seriousness of posttraumatic stress disorder were quite dramatic, and the following evidence is quite clear, in that regard;
MR. KAKOUTIS: : "And now let me quote directly from your report, Doctor Margulies. You say, "At times he would awaken from his sleep questioning - questioning not only his survival..." - excuse me, (struggle to regain composure) one minute, (struggle to regain composure) just one second (struggle to regain composure) "...but the occurrence of the accident in the first place." Does that sound like post traumatic stress disorder? "
DR. MARGULIES: : "NO !
Well, it certainly sounds like Dr. Marglies is highly paid to argue that post traumatic stress disorder is "the psychological squeal of personal injury" and he is extremely proud of his "success" in that regard.
MR. KAKOUTIS: Do you not think that we are all subject to misinterpretations of reality in varying degrees?
DR. MARGULIES: No, I don't at all.
MR. KAKOUTIS: When you ridiculed the suggestions that professional journalists made, weren't you essentially saying that your interpretation of reality is superior to that of a professional historian?
DR. MARGULIES: I don't think I said that at all.
The fact is, Dr. Margulies contradicts himself. His overwhelming tendency to suggest that anybody who does not agree with him is wrong is not appropriate because people are entitled to have their own opinions and their own view of what it means to be a success. Dr. Margulies thinks that he has the power and the authority to impose his own opinions and values, and he does not.
To be sure, Dr. Marglies is entitled to believe whatever he wishes to believe but he crosses the line when he produces a report that is factually inaccurate.
In paragraph 4, page 3 of his report, Dr. Margulies writes, “he has been unable to work on and to complete a book which he had begun writing a number of months prior to the subject accident..” and then, on the very next page, Dr. Margulies contradicts himself with the claim “since April, 1993, he has embarked upon the writing of a second book, Leadership and Education, not yet completed because of the purported fall out of the motor vehicle accident which occurred roughly ten years earlier.”
The purposeful deception regarding when I began to write Leadership and Educationis obviously intended to erase the link between the injuries inflicted by the defendants on June 30, 2003, and my failure to complete my book and this relentless obsession to evade liability has ben consistent since I was injured. Needless to say, the defendants are very creative when it comes down to the effort to evade liability. If I had in fact started to write Leadership and Education in 1993, it would not be reasonable to suggest that injuries sustained on June 30, 2003, are significan with respect to failure to complete my book about Leadership and Education.
Ironically, the fabrications in Dr. Margulies's report betray the disturbing and deliberate effort to evade liability for injuring me and Dr. Margulies excuses this deception in the following terms:
"Well you started writing it. In that case that -if that is in error, and it may be, it should have read then, 2003, if that's the case, 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 in - it's an oversight and I don't know how I missed it, if that is the case."
All these "if's", "but's" and "maybe's" are supposed to sustain the following, false claim of the defendants;
According to the defendants:
"He [Louis Kakoutis] claims that since April of 1993 he was planning on writing a second book about education but that it has not been completed as a result of the accident. It is the position of the defendants that with or without the accident it has no chance of being published."
Needless to say, it is no surprise that the defendants hired Dr. Margulies to prove that my book has no chance of being published and that became quite clear when Dr. Margulies said that "insanity" is the reason that my book will never be published.
I was stunned when Dr. Margulies demonstrated the audacity to claim that "insanity" is the reason that my book Leadership and Education will never be published. In fact, if this claim is meaningful, then my history professor, who has said, "clearly, Mr. Kakoutis is a researcher and writer of considerable ability..." is also hopelessly insane. In fact, it is ludicrous to suggest that there is any reliable correlation between sanity and having published a book or not, and any suggestion to the contrary shatters credibility.
Clearly, Dr. Margulies was obviously not hired to make sense, he was hired to "certify" the ignorance and the misrepresentation that the defendants flagrantly promoted, in effort to evade accountability for the injuries they caused. Dr. Margulies interviewed me on a single occasion on April 18, 2006 to assess what he called the fallout of my motor vehicle accident, and the well coordinated deception in a report that took about 5 months to release, speaks for itself.
This is not the firt time that somebody has challenged the integrity of Dr. Margulies, he has a history of submitting what is called medico-legal reports and the accident victims he "discredits" are known to insist that Dr. Margulies maliciously falsifies facts in both his written report and in oral testimony, and it is my direct experience that such allegations are in fact true. I firmly believe that Dr. Margulies does not have the power or the authority to discredit anybody beyond himself, and to my knowledge he has done that better than I could have possibly imagined.
I must conclude by emphasizing the fact that in my experience, when unfortunate typo errors are explained away in an understandable fashion, they are deliberate misrepresentations.
Justice is very elusive.
|