OUTDATED CURRICULUM VITAE EMBROILS PHYSICIAN AND ATTORNEY
By: Michael R. Webber
Danger can lurk in unexpected places for attorneys and their witnesses. During a recent trial in the United States District Court for the Central District of Illinois, Springfield Division, a vague Curriculum Vitae and evasive testimony has led to criminal contempt proceedings against a retained expert witness and possible repercussions for the attorney retaining the expert.
During a May, 2016 prisoner civil rights jury trial, plaintiff presented a retained physician expert witness in support of plaintiff’s claims of medical negligence. As part of routine pre-trial filings, the physician expert’s Curriculum Vitae had been submitted. The Curriculum Vitae stated that the expert had been certified by the American Board of Internal Medicine in 1993. On direct examination before the jury, the expert testified: “Q. Are you board certified in any areas? A. I’ve been board certified in internal medicine. I’ve also been certified by the American Board of Independent Medical Evaluators.” Following this testimony, the expert rendered testimony on relevant standard of care and causation issues in support of plaintiff.
Prior to the conclusion of the expert’s direct examination, a lunch break was taken. When the judge returned to the bench, she advised the parties outside the presence of the jury that she learned from an unrelated attorney over the lunch hour that plaintiff’s expert was not certified by the American Board of Internal Medicine or the American Board of Independent Medical Evaluators. Under direct questioning by the court, plaintiff’s expert conceded that both certifications had lapsed. The court noted that the expert “didn’t exactly lie” on the stand as he testified he had “been” certified. The court subsequently reviewed the expert’s deposition testimony in the same matter, finding it to be “certainly misleading, as it was, the testimony here in court, if not an outright lie.” The court then questioned plaintiff’s counsel regarding his knowledge of the expert’s board certification status, who replied that he “thought” the doctor was board certified. The court went on to state she was “very close” to finding the doctor in contempt of court.
At the conclusion of the evidence, the court readdressed the issue. At that time, the court indicated that she was considering whether any action should be taken as to the expert witness or plaintiff’s counsel. In June, 2016 the court issued a Rule to Show Cause directed to the defense expert for criminal contempt, and further ordered the doctor to supply an updated Curriculum Vitae including the effective and termination dates of all licensing and certifications.
On July 7, 2016 the court conducted a hearing on the criminal contempt proceedings. The court advised the doctor that various potential sanctions were available, and further allowed both the doctor and plaintiff’s counsel to file written memoranda addressing the contempt and potential sanctions. The record does not reflect whether the court has taken any action regarding plaintiff’s counsel.
This is an ongoing matter which will likely be resolved in the near future. Irrespective of the outcome, this matter provides a clear warning to physician witnesses and counsel. Doctors should take all necessary steps to introduce updated and accurate Curriculum Vitae when testifying, especially in anticipation of trial. Attorneys must ensure that witness certifications are accurate and current.
These issues arose in the matter of Trimble v. Gonzales, M.D., 13-cv-3133 (C.D. Ill.; filed 05/08/16). This article will be updated to reflect the outcome of the court’s contempt proceeding.