Experts are often the most crucial witnesses in a trial: their testimony, and how they present it to a jury, can turn a verdict. In this series, CVN analyzes the nation’s most important experts, their testimony, and their impact on a trial’s verdict. Today we look at one of the nation's leading thoracic surgeons.
The Expert: Dr. Robert Cerfolio, M.D., Professor of Thoracic Surgery at the University of Alabama, Birmingham, testifying for the plaintiff.
Qualifications in brief: A practicing surgeon for more than a quarter century, Cerfolio is Chief of the Thoracic Surgery Section at UAB. According to the university's website, Cerfolio, an internationally recognized expert on thoracic surgery, has performed more than 18,000 operations and written more than 180 peer-reviewed articles and 75 book chapters.
The Trial: Hubbird v. R.J. Reynolds. A tobacco trial against R.J. Reynolds in which Robert Ellsworth, the smoker at the case's heart, died from lung cancer in 1994. The plaintiff argued decades of smoking caused Ellsworth’s cancer, while the defense claimed tubercular scarring or dust exposure caused the disease.
At Issue: Ellsworth's cancer contained several different types of cells, including bronchioloalveolar carcinoma, or BAC, which is not typically associated with smoking. Although Ellsworth's tumors also contained adenocarcinoma and squamous cell carcinoma, which is more often tied to smoking, the defense contended the presence of the BAC indicated Ellsworth's cancer was likely caused by a reason other than cigarettes.
On Direct
Through more than two hours of direct examination by The Ferraro Law Firm’s Allan Kaiser, Cerfolio, who reviewed Ellsworth's medical records but did not treat him, walked jurors through Ellsworth's pathology reports, detailed the different cancer cells in Ellsworth's tissue samples, and explained why he believed smoking caused Ellsworth's cancer.
Cerfolio appeared relaxed throughout his direct, and he testified in a conversational style, breaking down medical jargon with colorful language jurors could easily understand. For example, pathology samples were compared to slices of pizza, and squamous cell carcinoma was described as a "big, giant raging forest fire" while BAC, by comparison, is "a little pail in the corner that's on fire."
At one point, Cerfolio described the surgical process Ellsworth likely underwent to remove the tumor that grew into his ribs. “They have to take this big giant clamp to cut the ribs,” Cerfolio said. “There’s no subtle way to tell you what it is. It’s a rib cutter. It’s a big, giant, steel, like you would use outside if you were pruning really big twigs off a tree. You’d just snap the rib and cut it.”
Cerfolio went into great detail with each question, expounding in support of his opinion that Ellsworth “developed a very aggressive cancer from smoking. And that cancer took his life.”
On Cross-Exam
Cerfolio spent nearly three hours on cross-exam, grilled by King & Spalding's Todd Davis on the treating pathologist's findings and description of BAC in Ellsworth's tissue sample. Cerfolio was unwavering in his opinion, detailing that multiple cell types in cancers were rather common. He also never appeared intimidated under the sometimes contentious questioning, respectfully, but repeatedly, challenging Davis’s characterization of Cerfolio's prior deposition testimony. At one point late in cross-exam, Cerfolio seems to become frustrated after a long line of questioning regarding a radiation oncologist's description of Ellsworth’s cancer.
Davis asks: "You agree that it would have been within the standard of care for the radiation oncologist to put adenocarcinoma in the description of the tumor, even if it were a BAC?"
Cerfolio responds: "That's such a convoluted question, I guess I would say yes because the answer is yes to that question no matter what you say. He could've put a Volkswagen and I guess it's not outside the standard of care."
The Result: Cerfolio's testimony played a key role in a $2 million verdict for the plaintiff.
Email Arlin Crisco at acrisco@cvn.com.
Related information
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