Commercial Litigation and Arbitration

Experts —Exaggerated Credentials — New Trial

Experts gild their credentials in many ways. It is not always a blessing for the proponent of the witness. The defense won a jury verdict in In re Vioxx Prods. Liab. Litig., 2007 U.S. Dist. LEXIS 40612 (E.D. La. May 29, 2007), after the first trial had resulted in a hung jury. On the way to the jury verdict, the well-credentialed defense medical expert couldn’t resist the following on direct:

Q. Good afternoon, Dr. Rayburn. Sir, you're a medical doctor; is that correct?

A. That's correct.

Q. You're also a professor of medicine at the University of Alabama; is that also correct?

A. That's correct.


Q. Doctor, before we get to your opinions, let's review your background. What is your field of speciality [sic]?

A. Cardiologist.

Q. Are you board-certified, sir?

A. Yes. I passed boards in internal medicine and cardiovascular disease.

Six weeks later, in a different lawsuit (also Vioxx-related), the cross revealed that passing boards and being board-certified are not necessarily one and the same:

Q. Are you a board certified cardiologist?

A. No. My boards are currently being renewed, but that's not my certification.

Q. Your board certification was lost in cardiology years ago, true?

A. My board certification expired.

Q. That's what "lost" means. It is not valid anymore, true?

A. I think there was an implication that I lost it through something I did and it expired in 10 years.

Q. I'm not suggesting that you butchered somebody and lost it because you did something bad. I'm just saying it is gone. It ran out. You knew it was going to run out. It is only good for 10 years and it ran out, didn't it?

A. Yes, and I'm in the process now of renewing it.

Q. Years later?

A. Well, two years later.

Q. And your internal medicine board certification ran out over five years ago, right?

A. I think that's correct and I'm actually going to renew that, I'm in the process of renewing that, as well.

The expert's subsequent attempt to explain away his prior testimony fared about as well as you’d expect:

Q. ...Remember you testified six weeks ago to a jury in New Orleans?

A. Yes.

Q. You were sworn in as a witness?

A. Yes.

Q. And about a minute later, seven questions into the exam by a Merck lawyer they said, "Are you board certified, sir"? You answered, "Yes. I passed boards in internal medicine and cardiovascular disease." That wasn't true, was it?

A. Well, actually, I wouldn't put a period after the yes, I made it very clear I passed my boards internal medicine and cardiovascular disease, I did.

Q. But the question is: "Are you board certified, sir"? And you told a jury under oath, yes, and you are not board certified.

A. I absolutely in no way intended to misrepresent the currency of my certification, absolutely not.

Q. But you may not have intended it, but it was wrong, and you told a jury it was wrong.

A. No, sir, I did not intend to represent that I wasn't lapsed or expired at all.

Q. Are you board certified or not?

A. My boards have lapsed. I'm not currently board certified. I have been very clear about that.

Q. So you think that was clear to the jury in New Orleans?

A. Yes, I believe so.

Held, (1) the doctor ‛misrepresented his status as a board-certified cardiologist,“ and (2) the ‛misrepresentation prevented the Plaintiff from fully and fairly presenting her case to the jury.“ Plaintiff’s motion for a new trial granted.

Share this article:


Recent Posts