Getting cold feet

A patient goes to an orthodontist. She is unhappy with the treatment and decides to sue the orthodontist. She still needs the orthodontic treatment continued, so she goes to another orthodontist to finish it. This orthodontist treats the patient and agrees along the way to be her expert witness at the trial against the first orthodontist. The second orthodontist writes 2 expert opinion letters in preparation for the trial and is paid for both. On the eve of the trial, the second orthodontist gets cold feet and decides not to testify. He is subpoenaed by the court but still doesn’t show. The patient, now without an expert witness, loses her malpractice case. She decides to sue the second orthodontist for about half a dozen claims, all of which are dismissed. She appeals. The appellate court upholds all dismissals except the one pertaining to the breach of implied contract and remands the case for a new trial on the basis that such a contract did in fact exist. These are essentially the facts of Rambo v Greene, 906 A.2d 1232 (2006 Pa. Super.).

Noting that there was no written contract between the parties, the court found sufficient evidence that the defendant did agree to be an expert for the plaintiff at her trial against the first orthodontist. What makes a contract a contract are the objective manifestations of the parties, regardless of any subjective beliefs or reservations. The court stated, “In ascertaining the intent of the parties to a contract, it is their outward and objective manifestations of assent, as opposed to their undisclosed and subjective intentions that matter. . . . [I]t does not matter if Greene did not believe there was a contract if his actions suggested the contrary to Rambo.” Further on in the decision, the court also stated, “A contract implied in fact is a contract arising when there is an agreement, but the parties’ intentions are inferred from their conduct in light of the circumstances.”

There is a wonderful side note in this case. One of the defendant’s arguments rested on the proposition that 1 party (either the plaintiff or the defendant) may not contract with another party (an expert witness) based on the expectation that the expert witness will offer only favorable testimony. The court beautifully responded: “The primary purpose of expert witness testimony is not to assist one party or another in winning the case but to assist the trier of fact in understanding complicated matters. A witness cannot be required to testify, and no witness should be expected to testify, to anything other than the truth as he or she sees it and according to what he or she believes it to be.”


Obviously, this is a common sense sort of thing. You are being treated by someone who says “sure, I’ll help you out.” Even if you never spoke specifically about appearing at trial, when you agreed to be an expert, you agreed to appear at whatever legal proceedings come down the pike from depositions to trial. When you write expert opinion reports and get paid for them, you are acting in an adversarial capacity, and the party who is paying you expects you to champion his or her cause.

The real issue here is the recognition that, if you are in for a penny, you are in for a pound. If you agree to be an expert witness for someone, you are agreeing, in part, to go the distance. It might not be the perfect case; very few ever are. There will be some issues about which you cannot advocate positively. Regardless of whether you are testifying for the plaintiff or the defendant, there are often aspects of the case that you cannot defend. You might totally disagree with some parts. The point is that you made a decision, based on all the circumstances, that you believed in the side for which you chose to testify. On direct examination, your arguments will be strong and clear. On cross examination, some flaws and weaknesses will be discovered. Such is the lot of an expert witness, and that is the road you have chosen to travel.

I have an admonition. Fight the good fight. Win or lose, leave the courthouse with your head held high. You fought for what you believed in. You won’t win all the time, but getting cold feet at the 11th hour is not an option.

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Apr 13, 2017 | Posted by in Orthodontics | Comments Off on Getting cold feet
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