Cross-Examination of Expert Witnesses

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 215-246

CROSS:

EXPERT WITNESSES

CHAPTER 27

CROSSEXAMINATION

OF EXPERT WITNESSES

§27:01 New York Trial Notebook 27-2

CROSS:

EXPERT WITNESSES

I. GENERAL POINTS

A. RIGHT TO CROSSEXAMINE

EXPERTS

§27:01 Within Court’s Discretion

Any witness called by one side may be cross-

examined by the other side. [See Ch 25.] “The

scope and manner of cross-examination ‘are left to

the sound discretion of the trial court.’” [Hoberg

v. Shree Granesh, LLC, 85 AD3d 965, 967, 926

NYS2d 578, 580 (2d Dept 2011) (Supreme Court

did not improvidently exercise its discretion in

limiting the defendant’s cross-examination of the

plaintiff’s expert witness).] A witness presented

by one side as an expert naturally may be cross–

examined as an expert. However, a witness called

by one side may be an expert, but not presented or

offered as such. If this is the case, the witness may

often be cross-examined as an expert, sometimes

eliciting expert opinions for the first time, within

the discretion of the court. [See, e.g., In re Eight

Judicial District Asbestos Litigation, 197 AD2d

901, 602 NYS2d 452 (4th Dept 1993) (no error

to allow eliciting of expert opinion from defense

witness on cross-examination); Nicolla v. Fasulo,

161 AD2d 966, 968, 557 NYS2d 539 (3d Dept

1990) (no error to permit plaintiff’s expert to be

made defendant’s expert on cross-examination);

Greenberg v. Yellow Freight Systems, Inc., 237

AD2d 568, 655 NYS2d 998 (2d Dept 1997) (court

did not err in allowing detective called by plaintiff

to give opinion as to cause of accident on cross-

examination, as detective was qualified, and the

opinion was elicited in response to issues raised on

direct examination). But see Cuccia v. The Brooklyn

Medical Group, 171 AD2d 836, 567 NYS2d 772

(2d Dept 1991) (where a treating physician was a

member of the defendant-partnership but was not

himself named as a defendant, no error to preclude

plaintiff from cross-examining him as an expert

witness; point being, the expert sought to be cross-

examined was not a defendant); see §27:03. But

see Daniele v. Pain Management Center of Long

Island, 168 AD3d 672, 91 NYS3d 496 (2d Dept

2019). In Daniele, defendants K, R and W were

improperly precluded from cross-examining two of

plaintiff’s experts as to whether non-party doctors

O and S departed from accepted medical practice.

The evidence at trial failed to demonstrate that

plaintiff’s injuries were capable of any reasonable

or practicable division of allocation among K, R

and W, and of O and S. The error deprived K, R

and W of substantial justice, and a new trial was

required.]

§27:02 Objection to Videotaped

Testimony

Courts recognize the importance of the

opportunity to cross-examine experts at trial. In

Cohen v. City of New York, 211 AD2d 604, 621

NYS2d 616 (1st Dept 1995), the trial court properly

rejected plaintiff’s motion made on the eve of trial

to videotape the deposition of her medical expert

in lieu of the expert testifying at trial, where the

only reason given was that the expert was too busy

to attend the trial, as this would have deprived the

defendant of the opportunity to cross-examine the

expert at trial. [But see Hill v. Sheehan, 154 AD2d

912, 545 NYS2d 868 (4th Dept 1989) (trial court

abused its discretion in not allowing plaintiff to

depose her treating doctor for use at trial where

counsel had just learned that doctor had moved to

California and was not available to testify at trial).]

Modern trial practice is often to have medical

experts testify via video deposition, which is

routinely arranged by agreement between counsel.

However, if the expert is available and cost is not

an overriding factor, it is usually far preferable for

the offering party to have the expert testify live.

§27:03 Defendant as Expert

In general, a defendant who happens to be an

expert may be cross-examined as an expert, even

if he or she is not presented as a witness by the

defense. [McDermott v. Manhattan Eye, Ear &

Throat Hospital, 15 NY2d 20, 255 NYS2d 65

(1964); Segreti v. Putnam Community Hospital,

88 AD2d 590, 592, 449 NYS2d 785, 787 (2d Dept

1982) (“prejudicial error” for the court to prevent

plaintiff’s counsel from cross-examining the

defendant-doctor as a hostile witness, not to require

witness to answer questions whether procedures he

followed were proper medical practice, and holding

plaintiff bound by witness’s answers).]

27-3 Cross-Examination of Expert Witnesses §27:11

CROSS:

EXPERT WITNESSES

NOTE:

Contrary to a criminal proceeding, a civil

defendant can ordinarily be called to the stand

by plaintiff. [But see Pedro v. Burns, 210

AD2d 782, 620 NYS2d 524 (3d Dept 1994)

(in medical malpractice case, defendant was

in precarious health and had been served with

a trial subpoena; reversed denial of protective

order).]

Party defendants examined as experts by the

other side are usually medical practitioners, but

not always. [E.g., Lingener v. State Farm Mutual

Automobile Insurance Co., 195 AD2d 838, 600

NYS2d 395 (3d Dept 1993) (questions seeking

expert opinion from an adverse attorney in a legal

malpractice case were proper).

§27:04 Interpreters

Experts may on occasion testify through

interpreters. For example, a foreign manufacturer

may have some of its employee engineers testify

as experts. Unless the expert is completely fluent

in English, it is a mistake to not testify through an

interpreter. After thorough preparation, the expert

may be able to get through the direct presentation

without an interpreter. But cross-examination is

a distinctly different situation, where it is crucial

that the witness understand the complete potential

ramifications of a question, and shades of meaning

of words, both those used by questioning counsel

and by the witness in responding, may come to be

of great importance. If a skillful interpreter is used,

the expert’s seeming handicap may be turned into

a positive factor; the question must be interpreted

completely before the witness can be expected to

answer, so the pace of the questioning is always

limited. The process allows additional time for the

expert to think of a response, particularly if the

expert has some understanding of English to begin

with. And, as the questioning attorney should not

interrupt the interpreter when the interpreter is

translating the witness’s answer, it is more difficult

for questioning counsel to control the witness’s

responses. See §27:58.

[§§27:05–27:09 Reserved]

B. LIMITATIONS ON CROSS

EXAMINATION OF EXPERTS

§27:10 Scope: Issues Brought out on

Direct and Credibility

The scope of cross-examination is limited to

issues brought out on direct or issues of credibility.

While this rule may seem to be honored more often

in the breach, the appellate courts will ordinarily

uphold the trial court’s exercise of discretion in

limiting the scope of cross.

An attorney may encounter this limitation

when attempting to introduce additional evidence

favorable to his or her own case through an

opposing expert. In Grcic v. City of New York, 139

AD2 d 621, 527 NYS2d 263 (2d Dept 1988), the trial

court did not abuse its discretion in restricting cross-

examination of treating physicians about their

opinions on plaintiff’s failure to wear a seat belt

when the treating physicians were not asked about

this on direct and defendant had the opportunity to

call his own witness on the subject.

On occasion the trial court’s limitation of

expert cross-examination will amount to an abuse

of discretion. [See, e.g., Hennessey v. Long Island

University, 51 AD2d 965, 380 NYS2d 719 (2d

Dept 1976) (where a security guard had fallen

down an elevator shaft and the defense expert

had admitted the elevator door windows had been

painted over, the court erred in sustaining an

objection to a question of whether this was good

practice). But see Cornier v. Spagna, 101 AD2d

141, 475 NYS2d 7 (1st Dept 1984) (expert was

effectively impeached by showing that he did

not know that plaintiff had flown through the air

before coming to rest, so that a restricted cross-

examination on plaintiff’s lacerations “was of

minor value”; and in the context of a “protracted

trial,” the error was harmless).]

§27:11 Extent of Examination Within

Court’s Discretion

The extent of expert cross-examination

is discretionary with the trial court. [Feldsberg

v. Nitschke, 49 NY2d 636, 404 NE2d 1293, 427

NYS2d 751 (1980); Cassell Vacation Homes, Inc. v.

Commercial Union Insurance Cos., 157 AD2d 700,

700, 549 NYS2d 799, 799 (2d Dept 1990) (upheld