New York Personal Injury Trials,
The Use of Hypothetical Questions
as Weapons at Trial
New York Law Journal, Tuesday, October 31, 2006
Ben B. Rubinowitz and Evan Torgan
Hypothetical questions are a vital tool for a trial lawyer.
Without them, we would have more difficulty proving cases, more
difficulty disproving opposing theories, and more difficulty
convincing juries of the righteousness of our cause.
This is true in spite of the adoption of CPLR 4515, which
removed the requirement of posing hypothetical questions to
obtain expert opinion at trial. The Legislature evidently felt
that the use of hypothetical questions was unduly
time-consuming, one-sided, and added very little to trial
practice. Famous legals scholars even said that such questions
were 'misused by the clumsy and abused by the clever.' [FN1]
Even the Federal Rules of Evidence did away with the requirement
for hypothetical questions.
Streamlined Hypothetical Questions
Nothing in the law, however, prohibits the use of streamlined
hypothetical questions and the tactical advantage in using this
questioning technique is one that should not be overlooked.
The premise behind all trial lawyers' strategic decisions at
trial serve one uniform purpose: to convince the trier of fact
that his position is correct. This is not an easy goal to
achieve, particularly in personal injury cases where expert
opinion is a mandatory part of the proof: to show that an injury
is permanent and painful; that a doctor departed from accepted
standards of medical practice; that the negligence in question
caused a specific injury; that an injured victim can no longer
work; or that scientific or technical expertise, such as that
possessed by an accident reconstructionist, reveals which party
was at fault. In truth, all of these opinions can be made clear
by the effective use of hypothetical questions.
Consider a typical case involving an automobile accident
where a 19-year-old plaintiff sustained a herniated lumbar disc
in a rear-end accident. The trial lawyer could simply go through
a direct examination of the treating physician, having her
define medical terms, discussing the history given to her by the
patient, and her findings. He can then ask the doctor her
opinions as to injury, causation and future prognosis without
using a hypothetical question. It is far more persuasive and far
more dramatic, however, to ask a hypothetical question that
incorporates the relevant facts that you have already proved
through other witnesses and the expert physician herself. Such
an approach strengthens the effect of the expert's testimony by
focusing the jury on the facts upon which it is based:
Q: Doctor Patel, I would like to assume the following as
true. That on June 29, 2004, my client, your patient, Tom
McMurray, was sitting in his automobile stopped in traffic,
looking straight ahead. That he was struck from behind by a
garbage truck which the defendant testified weighed over three
tons. That although Tom was belted in, his head, neck and back
were thrown first backward and then forward. At that very time
he felt a pain in his low back. He was taken to the emergency
room, where X-rays were negative for fracture and came under
your care the following day. By that time he had pain radiating
from his back into his right leg and big toe. As a result you
did a physical examination which revealed muscle spasm in his
lumbar spine, an absent Achilles reflex and positive straight
leg raising on his right side, the significance of which you've
already informed this jury. As a result of those findings you
made a presumptive diagnosis of a herniated lumbar disc which
was confirmed on MRI the following day. That MRI that you showed
this jury revealed a right-sided herniated disc at the level of
L5-S1. That Tom has been under your care since that time up to
the present time, and that you have prescribed anti-inflammatory
medications and physical therapy. My question is as follows:
Q: Do you have an opinion, to a reasonable degree of medical
certainty, as to whether or not the accident in question was a
substantial factor in bringing about the herniated disc? What is
the basis for your opinion?
Q: Do you have an opinion, also to a reasonable degree of
medical certainty, as to whether or not the injury is permanent?
Why do you say that?
Q: Do you have an opinion, to a reasonable degree of medical
certainty as to whether or not that herniated disc is a
competent producing cause of pain from the time of the accident
until today?
Q: Do you have an opinion to a reasonable degree of medical
certainty as to whether or not the herniated disc will be a
competent producing cause of pain in the future?
Q: For how long, in your medical opinion, will he have such
pain in terms of years?
Q: What is the basis of your opinion?
Q: Do you have an opinion as to what, if any, medical
treatment Tom will need?
Proving Causation
The hypothetical question is particularly important in the
cases involving difficulty in proving causation. Take, for
example, the same automobile accident, but this time with a
55-year-old plaintiff with a prior arthritic condition in the
lower back. The use of a hypothetical question can crystalize
your proof:
Q: Doctor, I would like you to assume the following. That at
the emergency room right after the accident, Tom's X-rays showed
an osteoarthritic condition. That although the X-rays showed
bony spurs, Tom had never been treated for a back problem, and
in fact, never felt pain in his lower back before this accident.
That the MRIs you sent him for showed both a herniated disc
impinging on the exiting S1 nerve root on the right as well as
dessication or drying out of the disc at L5-S1 and narrowing of
that disc space as well. Yet, as you told this jury not five
minutes ago, the narrowing and dessication was a typical finding
for a 55-year-old man, and that you could tell the herniation
was an acute injury based upon the high signal or brightness of
the herniated portion of the disc on MRI.
Q: Doctor, do you have an opinion, based on a reasonable
degree of medical certainty, as to whether the disc herniation
was caused by the accident?
Q: Do you have an opinion, to a reasonable degree of medical
certainty, as to whether it was the pre-existing osteoarthritis
or the accident that caused the herniated disc?
Q: Do you have an opinion as to whether it is the arthritis
or the disc herniation which is the competent producing cause of
Tom's pain?
Do not be concerned with streamlining your direct of the
expert witness. The better method is to take a methodical
approach to this problem, set forth objection-proof hypothetical
questions, and enhance the opinion of your expert by using
factual data already brought out on your direct case.
Vocational Experts
Vocational experts are very important in bridging the gap
between your expert physician and economist when it comes to
proving lost earnings. This is particularly true where your
physician gives an opinion that your client can no longer work
as a construction worker, but the defense experts say that he
could do other more sedentary work. Pointed mini-hypotheticals
based on facts in evidence can be very persuasive in this area
as well.
Q: Dr. Stine, I want you to assume that Tom McMurray has been
a laborer all his life. He has never been employed in any other
capacity. That his highest level of education is 11th grade, and
he has been unable to pass high school equivalency exams. Do you
have an opinion, to a reasonable degree of vocational
rehabilitative certainty, as to whether or not Tom McMurray is
employable in any capacity now that he can no longer perform
manual labor?
A: Yes I have an opinion. At Tom's age he is not easily
employable to begin with. Moreover, the fact that he does not
have a high school degree dramatically limits the pool of jobs
to which he would have access. And the intelligence exams I have
given him demonstrate his inability to be retrained for other
work. My opinion is Tom is functionally unemployable now based
on his injuries and intellect.
Q: The defense opened to this jury saying: That although Tom
can no longer perform manual labor he could perform sedentary
work like security or filing. I want you to further assume,
however, that his treating physician testified that he has a
herniated disc at L5-S1 that causes severe pain radiating down
his leg into his foot and that, as a result, he can not sit for
extended periods of time, nor stand for extended periods of
time. Dr. Patel further testified that the injury was permanent.
Do you have an opinion, to a reasonable degree of certainty, as
to whether or not Tom will be able to work in a sedentary
position as either a file clerk or a security guard?
A: My opinion is he could not do either. Sitting for extended
periods of time is one of the hallmarks of performing sedentary
work. Tom certainly cannot do that based on his medical
condition. Also his physical limitations, due to the injuries
suffered in this accident, would prevent Tom from becoming a
security guard.
Liability
The use of hypothetical questions is equally as important in
establishing liability. In any malpractice action, expert
testimony is required to prove medical negligence. Here,
hypothetical questions are the best way to prove liability.
Imagine a scenario where the plaintiff's lawyer attempts to
establish negligence in the absence of a hypothetical question:
Q: Dr. Caruso, did you review the records in this case?
Q: What did they reveal?
Q: Based on those records, do you have an opinion as to
whether the defendant departed from accepted standards of
medical practice as of June 29, 2003?
As you can see, this type of questioning is not particularly
persuasive. Just as importantly, such bare-boned minimal
questioning would most likely draw an objection from counsel
based upon a lack of foundation. The better way is to question
the doctor with a series of hypothetical questions which
incorporates prior testimony of the defendant doctors and the
records themselves:
Q: Doctor, I would like to assume the following facts as
true. I would like you to assume that Tom McMurray was involved
in an automobile accident where he was actually struck from
behind by a truck. He felt immediate neck pain and was taken by
ambulance to an emergency room. At that time they took X-rays of
his Tom's cervical spine which were negative for fracture. While
in the hospital he felt pain radiating into both arms. After a
time he felt weakness and numbness in both legs. Do you have an
opinion as to the significance of the pain in both arms and the
numbness and weakness in both legs?
A: That is a clear sign of spinal cord compression.
Q: I would like you to further assume that the emergency room
physician sent Tom downstairs for an MRI which revealed a large
herniated disc at C4-C5 compressing the spinal cord. As a
result, a neurosurgical consult was called with a Dr.
Mechanowitz who observed diminished sensation to pin-prick in
both arms as well as decreased biceps reflex, patellar reflex
and Achilles reflex. Dr. Mechanowitz sent Tom home with
instructions to come in to his office the following day. Tom's
wife asked that Tom be kept in the hospital because she was
afraid that her husband's health was rapidly deteriorating. Dr.
Mechanowitz refused to admit Tom, so Mrs. McMurray asked that
the ER physician intervene. Dr. Hannah, the ER physician
refused, saying that was improper protocol. Do you have an
opinion, to a reasonable degree of medical certainty as to what
Dr. Hannah should have done at that time?
A: Dr. Hannah should have intervened and called the head of
the service to see to it that Mr. McMurray was observed closely
and not released.
Q: Do you have an opinion to a reasonable degree of medical
certainty as to whether Dr. Hannah's refusal to intervene was a
departure from good and accepted standards of medical practice?
A: It was a departure.
Departures and Causation
Do not forget, in a medical malpractice case, to immediately
connect the departures with causation of injury.
Q: Do you have an opinion Doctor, as to whether that
departure was a substantial factor in bringing about the
injuries of Tom McMurry, including his paralysis?
A: It was a substantial factor, yes.
Q: I want you to further assume that, that night, Tom's pain
increased and he could no longer hold his urine. He called Dr.
Mechanowitz who told him to take two aspirin and call him in the
morning. The next morning, Tom woke up paralyzed from the neck
down. My question is Doctor, do you have an opinion, to a
reasonable degree of medical certainty, as to whether or not Dr.
Mechanowitz' failure to admit, follow and operate on Tom, was a
departure from good and accepted standards of medical practice
as of June 29, 2003?
Q: Do you have an opinion, to a reasonable degree of medical
certainty as to whether Dr. Mechanowitz's failure to admit,
follow and operate on the patient was a substantial factor in
bringing about Tom's injury?
Hypothetical questions are also helpful when questioning
safety engineers. In many automobile accident cases the defense
asserts a seatbelt defense. Take for example a case involving a
fractured pelvis where the driver was injured in an intersection
collision with the impact on his driver side door, and the
plaintiff admits he did not have his seatbelt connected.
Q: Mr. Ross, I am going to ask you to assume
that the following facts are true: That Tom McMurray was taking
his child, who was in a carseat behind him, to the hospital. Tom
had not fastened his seatbelt, and one block from his house the
defendant ran a stop sign striking Tom on the driver side door.
The impact caused the door to come in to Tom's body and Tom to
be thrown into the door. He was taken to the hospital where
X-rays revealed a fracture of the pelvic ring. Dr. Gold
testified that the pelvic fracture was caused by the intrusion
of the adverse vehicle into Tom's body through his car door. Dr.
Gold testified that the fracture was from a 'classic' side
impact. My question is, do you have an opinion, to a reasonable
degree of engineering certainty as to whether a seatbelt would
have prevented Tom's pelvic fracture?
A: My opinion is a seatbelt would not have
prevented that injury. The defendants' vehicle struck the
precise spot where the plaintiff was sitting, literally
intruding into his space. A seatbelt could not have prevented
that at all. Seatbelts are useful to prevent ejection or going
through the windshield. They do not prevent pelvic fractures on
side impact situations.
It is essential not to exaggerate or modify
prior testimony in any way so as not to undermine your
credibility while phrasing the hypothetical. Only those facts in
evidence (or those taken subject to connection of proof to be
adduced at a later point in time), may be included in the
question. The manner, method and speed of delivery should be
calculated to be of interest to the jurors and hold their
attention throughout. Changes in the tone of your voice and
position should be made to enhance your presentation.
Opposing Expert
The use of a hypothetical question on
cross-examination of an opposing expert is a vital technique to
undermine and limit his opinions.
This will be the subject of an upcoming
article. As demonstrated above, the hypothetical on direct
provides context, support and resonance to your expert's
opinion. Its value should not be overlooked when seeking to
achieve a successful result.
Ben B.
Rubinowitz, a partner at
Gair, Gair,
Conason, Steigman & Mackauf, is an adjunct professor at Hofstra
University School of Law and Benjamin N. Cardozo School of Law. Evan Torgan, a member of Torgan & Cooper, is an
adjunct professor at Cardozo School of Law.
Richard Steigman, a
partner at Gair Gair Conason, assisted in the preparation of
this article.
9/21/2006 NYLJ 3, (col. 1)
