Secret Video Exposes Expert Witness to Criminal Proceedings

A New York state judge recently provided a compelling reminder of the serious ramifications for failing to provide truthful testimony on the stand.  The focus of Queens Supreme Court Justice Duane Hart’s admonition was an orthopedist routinely hired to assist in the defense of personal injury cases. When the court discovered through a hidden camera recording that the expert’s testimony was exaggerated at best – or an outright lie at worst – the court ordered a mistrial and directed his attention to potential criminal proceedings against the expert.

Last week, Justice Duane Hart unsealed the expert’s April 12, 2013 testimony wherein he testified that he spent approximately 10-20 minutes during his examination of a plaintiff who injured his ankle in a work-place accident.  The expert described numerous medical findings relating to the injury that formed his conclusions following the exam.  The expert was wholly unaware, however, that counsel for the plaintiff had surreptitiously recorded the doctor’s examination.  The video revealed that the examination actually took less than two minutes—too short a time for the expert to have reached his various conclusions.  When the video was eventually disclosed during the plaintiff’s impeachment of the expert, Judge Hart declared a mistrial and directed his fury toward the expert.

The expert’s alleged dishonesty has placed his medical license in jeopardy and exposed him to a possible perjury charge from the District Attorney.  Perhaps the takeaway from this cautionary tale was best summarized by Justice Hart, who rhetorically asked the attorneys:

How do I stop carriers from putting people like [this expert] on the stand and causing the state to spend thousands and thousands of dollars trying a case and putting a lying witness on the stand? How do people like me, people in this building, people that wear black robes send a message to them that they cannot condone perjury?

There is no easy answer to the court’s question. However, this is an extreme example of an unusual problem.  Competent professionals utilize a system of best practices to carefully screen all experts before presenting the witness. Simply put, anything less than 100% truthful testimony is not an option for witnesses or the attorneys who proffer them.

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