Key Takeaway
Court rules expert witness impeachment with DVD improper when expert doesn't accept material as authoritative, highlighting evidence foundation requirements.
Expert witness testimony forms a cornerstone of many personal injury cases, but the rules governing how attorneys can challenge these experts during cross-examination can be complex. A recent Fourth Department decision illustrates an important limitation on impeachment tactics when the foundation for evidence is lacking.
The case of Wild v. Catholic Health System presents a scenario where plaintiff’s counsel attempted to undermine the defendant’s expert by using an instructional DVD that the expert had helped create and finance. While this might seem like a compelling impeachment strategy, the court found it improper under the specific circumstances presented.
Jason Tenenbaum’s Analysis:
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Wild v. Catholic Health System, 2011 N.Y. Slip Op. 05337 (4th Dept. 2011)
“We reject the contention of Dr. Martin and her partnership, defendant Buffalo Emergency Associates, LLP (collectively, defendants), that Supreme Court exhibited bias in favor of plaintiffs or abused its “broad authority to control the courtroom, rule on the admission of evidence, elicit and clarify testimony, expedite the proceedings and to admonish counsel and witnesses when necessary” (Carlson v Porter , 53 AD3d 1129, 1132, lv denied 11 NY3d 708 ). We agree with defendants, however, that the court erred in permitting plaintiffs to attempt to impeach defendants’ expert during plaintiffs’ cross-examination of that expert by playing an instructional DVD that he had helped to edit and finance, inasmuch as the expert testified that he did not accept the DVD as authoritative (see Winiarski v Harris , 78 AD3d 1556, 1557-1558). Under the circumstances of this case, however, we conclude that the error does not warrant reversal.”
Key Takeaway
This decision reinforces that expert impeachment materials must have proper foundation to be admissible. Even when an expert helped create educational content, if they explicitly reject its authority, courts may exclude it from cross-examination. The ruling emphasizes that expert testimony standards require careful attention to foundational requirements during both direct and cross-examination.
