Expert witness fees often raise credibility issues with juries, but rarely more so than in one recent DeKalb County State Court case. In Evan Terrell v. Alexandria Hamilton (14A51260), the defense’s expert witness claimed that the fees charged by plaintiff’s treating physician were excessive but then revealed on cross examination that his own fee was greater than the treating physician’s entire bill.
The case arose out of a multi-car rear end auto accident on Panola Road in DeKalb County on June 28, 2013. Alexandria Hamilton’s car hit a pickup truck that was stopped in a line of traffic, and the truck was knocked forward into Evan Terrell’s vehicle. Terrell first sought treatment from a chiropractor and then visited Dr. Robert Karsch, an orthopedist. Terrell later filed suit against Hamilton, claiming he had suffered a broken big toe in the accident. Before the trial, Hamilton admitted liability for the accident but contested the severity of plaintiff’s injuries and the damages to which he was entitled.
At trial, Terrell’s attorney Sutton Slover introduced the video deposition testimony of Dr. Karsch, who diagnosed Terrell’s broken toe and said it was caused by the auto accident. He added that, because of Terrell’s weight (the plaintiff was an amateur football coach who weighed 300 pounds), it was likely that he could develop arthritis in his toe in the future and require surgery.
To counter Dr. Karsch’s opinion, Hamilton’s attorney, Himanth Digurmathi, submitted the video deposition testimony of his own expert, Dr. Bennett Axelrod, an orthopedic surgeon. Dr. Axelrod was critical of many aspects of Terrell’s case. He criticized the initial set of x-rays taken by the chiropractor Terrell consulted and also criticized Terrell for waiting over a month before seeking treatment from Dr. Karsch.
While he agreed with Dr. Karsch’s diagnosis that Terrell had a broken toe when Dr. Karsch took a follow-up x-ray, Dr. Axelrod could not say with any reasonable degree of medical probability that the accident caused the broken toe. Based on his own experience, Dr. Axelrod stated that this type of auto accident rarely caused injuries to the toe. He also noted that Terrell was not limping when he saw the chiropractor only a few days after the accident, although he was limping when he first visited Dr. Karsch.
In addition to testifying about Terrell’s treatment and diagnosis, Dr. Axelrod also provided an opinion about Dr. Karsch’s fees. Dr. Axelrod opined that Dr. Karsch’s charges for x-rays and office visits were considerably higher than normal in the Atlanta area and were not usual and customary given the type of services provided.
This last testimony presented a problem for Digumarthi. According to the medical records introduced by plaintiff, Dr. Karsch’s charges for Terrell’s treatment totaled approximately $3,300. However, as Slover brought out in cross-examination, Dr. Axelrod’s fees in the case totaled $3,400. In his closing statement, Slover would bring up Dr. Axelrod’s fee again, calling the testimony a “bought opinion.” Slover stated, “[They are] hiring a doctor who got more money than anybody … He wants to charge a high amount but complain about [Dr.] Karsch’s bills.”
Digumarthi, who delivered his closing statement before Slover’s, wanted to ensure that the jury was not influenced by the size of Dr. Axelrod’s fee, especially in light of his opinion regard Dr. Karsch’s charges. He began addressing the issue by reminding the jury of Dr. Axelrod’s lengthy training and experience (27 years as a surgeon). Digumarthi then stated that it was this lengthy experience and training that enabled Dr. Axelrod to inform the jury of the information he knew and the opinions he had formed as a result of that experience and training.
Digumarthi acknowledged that Dr. Axelrod charged “a lot of money” but noted that LeBron James also got paid a lot to play basketball, “and he didn’t even do that well last night” (referring to James’s playoff game the night before). Digumarthi continued, “Doctors in general get paid a lot of money because of what they do in our society. They go through all of this work, all of this training, and they get paid a lot more money than an average person does. … I’m not disputing that [Dr. Axelrod] is getting paid a lot of money.”
Digumarthi then directly addressed the fact that Dr. Axelrod’s fees were higher than Dr. Karsch’s charges. He stated that, unlike Dr. Karsch, Dr. Axelrod was hired specifically for the purpose of giving an expert opinion and should be paid in accordance with what expert witnesses are paid. He finished by noting that Dr. Axelrod also served as an expert witness for plaintiff’s attorneys on occasion, including testifying forthe law firm in which Sutton Slover’s father was a partner.
The jury did issue a verdict for Terrell in the case but only awarded $7,000 in damages, considerably less than the “bottom line” figure of $62,000 that Slover requested.
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