A CHEMIST IN COURT
Kenneth S. Suslick
The events are real.
In early December, I was approached by both the Plaintiff and Defense attorneys of two major medical ultrasonic equipment manufacturers. They wanted to find out if I was available to act as a Court-appointed independent expert witness (invoking the seldom-used Federal Court "Rule 706" — which sounds like a great title for a detective novel). While I've served as an expert witness before, I'd never been a Rule 706 expert before.
As an expert witness for either the defendant or the plaintiff, the job is like being a hired gun in an old western. As a court-appointed expert, however, it's a lot more like being a deputy sheriff. My role was to act as a technical arbitrator between conflicting expert witness testimony in the interpretation of a patent.
The dispute was over the scientific interpretation of a patent owned by the plaintiff that claimed the invention of "ultrasound-assisted liposuction." The procedure involves inserting a long titanium metal tube about the diameter of a McDonald's straw into rich people's fatty tissues and vibrating the tube 20,000 times a second, back and forth three thousandths of an inch. This liquefies the fat inside the body, and it's then sucked out with a vacuum pump. Surgeons can remove 25 pounds of fat at a time this way, and yes, it is just as completely gross as you probably think!
The trial was set to go to court in the second week of January, so the Court needed a pretty rapid response from me. As described by the lawyers for both sides, my charge from the Court was to write a report based on two fifteen page summaries from both sides, followed a few days later by five page rebuttals from both sides. Seemed simple enough, and I thought I'd have the time over the winter break. What they didn't tell me, but I learned a week later, was that each side would also send me 1000 pages of "supporting material" to go with their 15 page briefs and 5 page rebuttals. Who’d have thought there was so much to read about fat-sucking? So, 60 hours of reading and writing later, that is how I spent the holidays (reasonably well-paid by the hour, admittedly).
I filed my report, and two days later, on Dec. 31, the lawyers came out to take my deposition. Since these guys wanted to try and get out of Champaign for New Year's Eve (can’t imagine why…), we started early and took only the most minimal of breaks. Even so, the deposition went on for ten long hours (both sides got to cross-exam me, of course, since I wasn't supposed to be a hired gun for either side). The Defendant's attorney was particularly aggressive, since my report had been strongly in favor of the Plaintiff's point of view. They never did get out of town that night — serves 'em right!
For the trial, I flew out to L.A. about half-way through the Plaintiff's case, only to discover that the Judge had ruled my testimony should be presented in the rebuttals rather than in the direct testimony. This judge is the archetypal Hollywood version of the old curmudgeon judge: completely cynical of attorneys' motives, irascible and bullying. At one point, four lawyers were standing up, all arguing a motion in front of the Court, when the Judge slaps his forehead with his palm, turns to the jury and says vehemently, "Do you see what I have to put up with every day?! In my last trial, I lost seven pounds because of things like this!" Fun to watch.
So, I go back home (no complaints from me — I'm getting paid by the hour, portal to portal). A week later, the Plaintiff lawyer calls me and asks me to come out again. Now it turns out that the Defense and conceded the major point of the case to which I was the Rule 706 Expert. The Judge rules that I can still be called as an expert witness by either side, in the rebuttal. He will not allow me to be identified as the Court-appointed witness, however, for fear of unduly weighting my testimony, but with the following caveat:
Suslick, okay. I have made a ruling and I'm going to stay with it to a point and that ruling is that the witness is not The Court's witness, and that he will be identified as the witness of the Plaintiff. However, there are limits to what I perceive as just, here; and that is, if the Defendant embarks upon an impeachment about your witness, then I don't believe that it's appropriate to leave it your witness. I will take the next step and say that he was a joint witness, and one side decided to select him to testify.
So, I will listen to you, as the Defense, but what I am telling you is, my preliminary ruling is: you start mucking around with impeaching that witness, and you're looking at a real fast ball right at your head from the Plaintiff. The fast ball is going to be: both of you selected him, and one of you got a good answer; and so, the Plaintiff used him.
I think that's the fair way to play this out. And I think that I am able to craft this kind of response under the law.
If there is any input from the Defense, I'll certainly listen to you.
I understand your ruling, your honor; and I don't intend to impeach Dr. Suslick, at all. In fact, I like his testimony.
So, here I am in L.A. again a week later, during the rebuttal witnesses, and the Plaintiffs are trying to get the Judge to change his mind and inform the jury of my original status as court-appointed. He won't.
During the rebuttal phase of the trial, the Plaintiff's expert witnesses are doing a bang-up job dismantling the Defendants' earlier expert witnesses testimony. The Plaintiff's lawyers decide that the case is going well enough that they don't want to call me as a witness after all. As an independent expert, I was about in 80% agreement with them, but they were worried about what the Defense would do with the other 20%. They very politely ask me to go back home yet again. I depart, stage rear.
The next day in court, the Plaintiffs announce that they won't be calling me as a witness after all. The Defense attorney then gets very upset and, in front of the jury, starts attacking the Plaintiff's lawyers' motives for their decision, stating that my evidence was important to their Defense — odd, since the Defense had been trying to block my testimony all along! The Judge gets pissed off at this and announces to the jury that I was originally appointed by the court at the mutual selection of both sides. With this revelation, the Plaintiffs now do want to put me on the stand, but alas, I'm already on a plane somewhere over Nebraska. There are advantages to being paid like a taxi driver.
The Plaintiffs rest. The Defense rests. After a week's worth of travel and court time, but absolutely no time on the stand, I'm already resting.
This was a week ago, the jury is still out, so I don't know the verdict yet.
P.S. The Plaintiff won; justice is served. 2/5/99