Defense attorney Dennis Rasor was poised to attack. Before him, on the witness stand in a Daley Center courtroom, was Merle Haber, a prominent pathologist from Rush-Presbyterian-St. Luke`s. Haber had just spent two hours describing in detail the autopsy of Tony Affatato, who died in 1985 after he contracted salmonella poisoning from a gallon of Jewel`s brand of 2 percent milk.
Now Rasor, tall, lean and starchy, rose to do his job. Which was to try to destroy Haber`s credibility.
In a voice full of sarcasm, Rasor said he was impressed by Haber`s credentials and knowledge. But then he noted that Haber, who had witnessed the autopsy, earlier had testified Affatato`s body was in the ”prone” position when he should have said ”supine,” meaning face up.
”Isn`t it true,” Rasor concluded acidly, ”that somebody who gets $450 an hour to come to court to testify should know the difference between prone and supine?”
Haber`s face reddened as jury members tittered.
”I should know it,” Haber said, ”but I`m a little more nervous than you.”
Rasor`s attack on Haber was largely for show, irrelevant to the accuracy of the pathologist`s testimony. But it was a way to startle the jurors, to demonstrate that even though Haber was an ”expert,” he also was a human being who could make a mistake.
That episode was part of a wider trial strategy known as ”impeaching the witness,” an effort by both sides to discredit opposition witnesses and to ferret out discrepancies and inconsistencies in the other side`s version of events. The goal is to raise doubts, no matter how tiny, about the character or motives of their opponents.
Sometimes it is enough merely to embarrass a witness in front of a jury.
Sometimes, as in the Affatato case, the lawyers must try to impeach a dead man and his widow.
In the five-week Affatato trial, jurors heard from 15 doctors, nurses and other medical experts who tried to establish how Affatato died. These experts- often doctors or professionals in technical fields-are the ”hired guns”
of civil law today. They are lavishly paid-up to $10,000 a day in some cases- to espouse a professional point of view. Then the other side pays its experts to rebut that point of view.
Much of the outcome in a high-stakes civil case often depends on this battle of the expert witnesses. In the last 30 years, an explosion of such lawsuits has created a demand for experts on everything from medical CAT scans to skeet shooting. The trade in expert witnesses has in turn spawned a thriving multimillion dollar industry of companies that do nothing but find experts for lawyers.
”We have people in our listings who are experts in the psychology of suicide, others in the psychology of drowning and the agony suffered while drowning,” says Maureen Roy, president of Export Resources Inc., one of many large national and regional firms that supply experts to lawyers for testimony in lawsuits. ”We have experts on how snowplows should be operated, hired by people hit by snowplows in snowstorms. We have them in dog behavior, in voice tape identification, in rape in the workplace.”
Many big-money cases hinge on complex arguments, requiring the plaintiff to prove that an injury was caused by a defendant who misused technology or erred in his professional judgment. In such cases, either the law or the judge demands that the plaintiff produce experts in court to substantiate charges against the defendants. Experts explain and lend credence to the plaintiffs`
claims; the defense marshals its own experts to refute those claims. In this thicket of conflicting opinion, a jury is left to decide which experts are more believable.
Critics contend the expert witness business corrupts the nation`s tort system. They contend experts will say anything in court, if a lawyer pays them enough.
Even though Maureen Roy`s Peoria Heights-based firm charges lawyers a fee for finding witnesses, the experts themselves set their own rates for their testimony. Those can range from $40 an hour (an expert on skeet shooting), to $150 an hour (an architect), to $10,000 a day (for certain high-risk medical specialties).
Though Roy concedes there may be some unscrupulous experts who can be bought, she said reputable firms take care that the experts in their listings don`t operate that way.
”We tell our experts and clients that the expert is to tell it like it is, and not say what the client wants to hear,” she says. ”Lawyers don`t want yes men as much as people think. They`re looking for people who can point to the holes in their case. Generally an expert will review a case to see if he can support it. If he can`t, he will say so.”
Influential law firms often keep their own lists of expert witnesses, especially in medical malpractice. Phil Corboy, one of Chicago`s most successful personal injury lawyers promises the doctors he employs as expert witnesses that he will never represent a client against them.
”A defense firm that specializes in medical malpractice builds up lists of good experts as one of the assets it uses to sell the firm” to potential clients, says Louis B. Potter, executive director of the Defense Research Institute, a defense lawyer consulting service. It, too, has an expert file it sells to lawyers. But Potter thinks reliance on experts may have gotten out of hand in recent years.
”Is there such a thing as a neutral expert? There are people who make their whole living this way. If you want people to hire you, you tend to say things certain sides want to hear.
”If, as a juror, I sat listening to two learned men discussing the same thing and find out they have opposite opinions, who do I believe? Do I pick the one who reminds me of my father?”
The experts in the Affatato trial agreed on very little. Pathologist Haber`s testimony carried the crux of the Affatato claims. He agreed with the autopsy by Cook County medical examiner Dr. Michael Chambliss, who ruled that Affatato died from a heart attack, with salmonella poisoning contributing significantly. Haber also said heart tissue taken from Affatato proved that he actually had suffered a severe heart attack several days before his death. At death, Affatato`s heart was enlarged to about half again its normal size, a condition Haber attributed to extended dehydration.
The issue of whether salmonella contributed to Affatato`s death was never fully examined in the trial because the judge refused to allow the autopsy report to be submitted into evidence and Chambliss was not called to testify. Several other medical issues, however, were vigorously debated in the trial.
Those included:
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– His weight. Shirley Affatato`s experts testified Affatato dropped to 202 pounds from 240 during the illness, and that should have been a tipoff to doctors that he needed hospitalization. The defense experts countered that no doctor recorded his weight until 22 days into the illness-when he weighed 217 pounds-and that the 240-pound figure was only Mrs. Affatato`s claim.
– His condition. Mrs. Affatato`s experts testified Affatato was increasingly dehydrated throughout his illness, causing his heart to weaken, and that the two doctors inadequately tested him for that condition. The defense experts countered that nothing in Affatato`s medical record indicated dehydration and that the two doctors made no error.
– His prior health. Mrs. Affatato`s experts testified that before the salmonella poisoning, Affatato was in reasonably good health, and had at least 10 years of life ahead of him, probably more. The defense experts said he was in terrible shape. He had been a smoker much of his life. He regularly drank as much as a case of beer and a half gallon of wine a week in his 20s. He ballooned up to 290 pounds at some points. He had emphysema and a 50 to 60 percent blockage of a major artery to the heart.
The defense experts concluded it wasn`t necessarily salmonella poisoning that killed him. With such previous medical conditions, Affatato could have suffered a heart attack on June 10, 1985, anyway, they said.
A ritual attends the trial appearance of every expert. Once he is introduced, the lawyer who hired him leads the witness through an exhaustive outline of his credentials, including schooling, special training, years of experience, papers and books published, the number of court cases in which he has appeared as an expert and his fee for such appearances.
That can take up to half an hour. Then the lawyer delves into the current case, extracting the opinions favorable to the lawyer`s
client and damaging to his opponent.
An expert witness` studied analysis of a case under friendly questioning is only half the job, however. The other half is to withstand a withering attack from opposing lawyers who will invariably deride not only his opinions but his qualifications as an expert.
Courtroom pyrotechnics against unfriendly experts is the hallmark of some lawyers, such as Rasor and Affatato attorney Robert Holstein. In the Affatato case, however, it may have worked against Holstein because it soon became clear that Judge William Kelly found Holstein`s style excessive.
”MISS-ter Holstein,” became a familiar, exasperated cry from the bench, as the judge in his deep, resonating voice would scold the attorney for one infraction or another of trial conduct.
When Rasor called an emergency room physician to testify in defense of Dr. Tighe Zimmers, for instance, Holstein immediately attacked the physician`s expertise.
”You, the person who sets toes,” Holstein said, ”do not agree that
(the EKG) is abnormal?”
The jury giggled but the judge threatened sanctions if Holstein continued to breach rules of conduct the judge had privately set for the lawyers. After that, Holstein decided he would leave most of the courtroom work to his colleague, David Poindexter.
A trial is more than a clash of experts and opinions, it is a duel of personalities. Lawyers use their personalities, or develop trial personas, in an attempt to influence the jury.
In the Affatato trial the counterpoint to Holstein was Richard Devine, 48, the chief defense attorney. Both men are short and powerfully built, but their courtroom styles could hardly be more different. Holstein is rambling and flamboyant; Devine, though six years Holstein`s junior, is the courtroom statesman, precise and unflappable.
Devine, a protege of the first Mayor Richard Daley and a staunch ally of the second, is president of Chicago Park District. He is also politically well-connected in one of the city`s hottest law firms, Phelan, Pope & John. The Phelan stood for Richard Phelan, the attorney who brilliantly defended Jewel during a major salmonella class action suit in 1987. He is now president of the Cook County Board and has since resigned from the firm.
Devine projected the ”nice guy” image among the defense attorneys in the Affatato trial. Rasor, 42, defending Zimmers and Resurrection Hospital, and Jack Mustes, 40, defending Dr. Oscar Osimani, adopted tougher personas.
Even before the first witness was called, Rasor began the campaign to undermine Tony Affatato`s character in the jurors` minds. He did it in his opening statement by introducing a subject that shocked the other side: He told the jury about Tony Affatato`s diary.
In pre-trial hearings, Mrs. Affatato`s lawyers had asked to admit the diary as evidence but the judge refused. It was a major blow to Affatato`s case.
Now Rasor was citing the diary and accusing Affatato of compounding his illness by failing to follow his doctor`s instructions.
”For five hours . . . he had chest pains,” Rasor declared in his opening statement. ”It`s in his diary, and he didn`t do anything.
”On June 6 (1985), four days before he died, Mr. Affatato was following his lawyer`s instructions, not his doctor`s instructions. When Mr. Affatato should have been worried about his health, he was worried about how to pursue his claim against Jewel to get rich.”
Early in the trial, Rasor had been allowed to see the original diary, which until then had been kept by Mrs. Affatato. He compared the original with his photocopy and found several slight alterations inked into the original. The changes appeared innocuous.
”Still no better, pains in stomach, ankles starting to swell up again,” Tony Affatato had written in one passage.
Somebody had inserted the word ”both” to read ”both ankles.”
In another, a sentence referring to what Dr. Osimani had told Affatato after an office visit was underlined. ”He said go home and hang in there.”
The slight changes did nothing to change the intent or meaning of the entries, but they puzzled Rasor and Devine. Under cross-examination, Devine asked Mrs. Affatato about them.
When Mrs. Affatato insisted to Devine that she had no idea how the alterations appeared in the diary, he quietly turned his attention to other matters.
After a lunch recess, it was Rasor`s turn to cross-examine Mrs. Affatato. Though most defense attorneys believe it is tactically unwise to badger a widow who is suing your client, Rasor had no such qualms.
”And then, lo and behold,” he sarcastically said of the diary,
”sometime after 1987 somebody changed this original to read something different, and you have no idea who made the change. Is that true?”
”No,” Mrs. Affatato replied, embarrassed. ”I do remember now.”
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