In this episode . . .

Attorneys choose expert witnesses to reinforce their case, but Dr. Maibach sees an additional opportunity to promote public policy at the same time. One of his engagements impacted a Supreme Court decision:

In [my] case, I didn’t have a deposition, but the case went through the testimony. It went through an appellate court, and it ended up in the Supreme Court. And I’m very happy I did that one because the result was the government scientists proved their point . . . so it is public policy and that was worth any of the trouble that was involved.

Similarly, he chooses cases that have the largest impact. When deciding whether to accept an engagement, he considers:

Is any of this likely to affect public policy? If it affects public policy and is likely to get to a higher court, I’m very much more interested . . . I only want to support the fair side of the story, I don’t want to make up stories . . . [I]f I can figure that out in the first call, I’m delighted.

Additional topics include getting worn down by opposing counsel, preparing using self-cross examination, and the importance of repetition.

Episode Transcript:

Note: Transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest: Dr. Howard Maibach, M.D.

Noah Bolmer: Welcome to Discussions at the Round Table. Today. I am excited to welcome Dr. Howard Maibach. Dr. Maibach is a dermatologist with specialties including allergic skin disorders and toxic exposure. He has served on the editorial boards of more than 30 scientific journals. He is a member of 19 professional societies including the American Academy of Dermatology, the San Francisco Dermatological Society, and the International Commission on Occupational Health. Dr. Maibach has a Medical Degree from Tulane and is a very experienced expert witness with many publications in many journals. Dr. Maibach, thank you for joining me today.

Dr. Howard Maibach: Happy to be with you.

Noah Bolmer: Let’s jump into it. You have had a long and illustrious career as a doctor, professor, editor, and expert witness. Tell me about how you first got into expert witnessing. Was it kind of out of the blue or is it something that you were looking to do?

Dr. Howard Maibach: I was not looking for it. It was out of the blue. A few years into my joining the University of California San Francisco (UCSF), a senior faculty member asked to meet with me. He had a son-in-law who needed some expert witness help. I assured my senior faculty member and another department, a wonderful gentleman, that I had no experience. He said, “That is all right.  You are the only one I know that can do this. Everybody else has turned me down.” Common sense told me that I want to know more than just pleasing a faculty member. So, he sent me the medical records and his young son-in-law, the lawyer in a little town in Northern California was on the right side of fairness. I reviewed the records more intensely, got all the literature, and on the appointed day took the early morning flight to the little town in Northern California. I was then able to get from the little airport to a courtroom in the little town. When I got into the courtroom, I realized I had no idea where I belonged in the little courthouse. Eventually, somebody working in the courthouse saw a lost young doctor and said, “I know exactly where you belong, but who are you?” I told him who I was, and he said, “Son, you are in trouble. Do you know who the opposing side is?” I said, “No, I do not. He said, “Well, it is the District Attorney. They eat you up for breakfast.” I was intimidated before I got to the courthouse, but with that comment, I was more intimidated, but I did give my testimony. The jury agreed with me. For decades after that, the gentleman with whom I had breakfast had me take care of his family and represent him in other cases. What did I learn from that? I learned not to be intimidated.

The next vignette, which I found highly instructive and solidified my interest in occasionally doing this was a case, not about an individual, but about society. The issue was what was the responsibility of government agencies to make decisions based on science? The chemical exposure was skin exposure to a potentially toxic chemical. In that case, I did not have a deposition, but the case went through the testimony. It went through an appellate court, and it ended up in the Supreme Court. It was public policy and worth any of the trouble that was involved in doing it. In preparing for today’s short presentation, what have I learned over the years of expert testimony? One, I knew in the beginning what you were talking about. Two, sometimes, you have the opportunity to see that the right side is represented. Three, learn that lawyers are like physicians. Some of them are fairer than others.

One of the disastrous lessons that I learned. I went to a courtroom and was promised that the testimony would be short, which it was, and that I could get back for a lecture late that afternoon. But lo and behold, when I got finished, I found out there was no airport there to wing my way back. Hitchhiking on airplanes was quite an experience. I learned to double-check anything I am promised by a physician or an attorney. The next lesson I learned is that the law is different than medical training. I will give you an example. The case involved a chain pharmacy that gave the patient the wrong medication three times, and there was a great deal of money at stake. I prepared the attorney as carefully as I could. I thought that he understood everything. But when I ended up in a federal courthouse in Northwest America, I could tell by his examination of me that he did not understand what we were talking about. Lo and behold, I was saved, or the client was saved because a juror raised his hand and said, “This does not make sense to me, Judge. May I ask a question?” I did not know a juror could do that. Lo and behold, the question was the right question. The juror understood it without any preparation, even though the lawyer that I was trying to help had forgotten the whole story. So, I have learned to not only be careful but be super careful and to repeat the message three times, to be sure I got it across.

Noah Bolmer: That is an incredible story. Is that something that you have come across more than that one time? Do you find that communicating that to your attorney is difficult?

Dr. Howard Maibach: I have found it extremely difficult, and I will give you another example. It was a patent case, and because of the complexity of the patent case, I could not just fly into Baltimore and fly out. I had to sit to listen to testimony all week, but I had to return to work. On the last day, I told Counsel that I had to leave. Could they ask the judge if I could testify that day? I testified, and during his examination, I guess the attorney was tired, had been away from home for a week, and missed the entire point, and he lost the case. Luckily, he appealed, and the appellate court judge got it right, so, saved again. That reinforced the belief that you must be extremely careful and cannot assume that the attorneys are going to get it when you explain it. Their background is so different that you have to be extremely careful.

Noah Bolmer: Do you have a specific strategy that you employ to try and mitigate that?

Dr. Howard Maibach: Yes, if I am asked to examine plaintiffs. I have developed a simple method in terms of dermatopathology. The main claims are irritation, photo irritation, allergic contact dermatitis, photoallergic contact dermatitis, and percutaneous penetration or contact or to carry a syndrome. Every report covers every one of those issues to minimize the likelihood of miscommunication. Maybe there are a few more words than you need, but I think it helps.

Noah Bolmer: So, you are saying that there are not many people with your precise specialty who are necessarily also expert witnesses. Do you feel that for an expert witness not just in the medical field, but in general, it is important to have a niche?

Dr. Howard Maibach: I entered medicine a long time ago. What is known today compared to what was known then is not one order of magnitude. Today, it is several orders of magnitude and is often based on evidence. It was not when I started. So yes, in medicine, you want to know what you are doing and do not want to take any case that flies across your desk. You want to deal with things you have experienced and know the science.

Noah Bolmer: Let’s talk about the vetting process. So, as you said, you have been doing this for a long time. When you get that initial call, what sort of questions do they ask? Also, it is a two-way vetting process. How do you decide whether you want to take a potential engagement?

Dr. Howard Maibach: I have a very simple process before they reach. To me, they have probably seen what I’ve done in the lab or clinically for decades, so they know a fair amount about what I’ve said. They might have also gone into the courtroom records which they can easily access and see what I’ve done there, but I don’t have that advantage when they call. So first I ask for a simple presentation. What is their position? What is their client asking you to do? Second, I asked them if this was likely to affect public policy and get to a higher court. Then, I am much more interested. In many of the phone calls, I can say I do not agree with their position without having to review every record. I am not there to make things up. When I tell them during the call that I cannot support their position. They do not want me.

Noah Bolmer: Do you turn down a significant number of cases?

Dr. Howard Maibach: At least half.

Noah Bolmer: No kidding. Is that typically because, as you said, you either do not find yourself in agreement with the position that they are taking, or it does not have the public policy effect that you are hoping for? Are there other reasons?

Dr. Howard Maibach: The main reason is I only want to support the fair side of the story. I do not want to make up stories to support the wrong side, and if I can figure that out in the first call, I will be delighted. Sometimes it takes me the first call and then I change my mind when I see the records, namely the records do not fit with what I was told in the first call.

Noah Bolmer: Have you ever had an attorney try to push you to not necessarily lie, but to say something in a way that makes it sound like you are taking a position other than the one that you mean to take? And if so, how do you deal with that from an ethical perspective?

Dr. Howard Maibach: Well, you have to back away. I cannot support positions that the data does not support.

Noah Bolmer: Is that something that comes up with any frequency in your practice?

Dr. Howard Maibach: It has come up several times. Yes, the ethical conundrum that I have come across is a sad ethical conundrum. Several times I have realized that the Counsel that has retained me does not have the depth to deal with the client’s problem.

Noah Bolmer: You have been in every expert witness relationship over the years. Have you done a significant number of cross-examinations and depositions where you have been put in front of somebody trying to impeach you as a witness and if so, how do you deal with that? How do you keep your cool and maintain your composure?

Dr. Howard Maibach: I learned a lesson a couple of years ago, an associate, not a partner of a national law firm, thought he could wear me out to change my opinion. We agreed to meet in a law office in downtown San Francisco at 7:00 p.m. At 1:00 a.m., I was exhausted, but he said he was not finished with me. I came back the next night. We did that for three nights in a row. I learned from that lesson. I knew what he was trying to do. He was trying to wear me out and change my testimony and my report. I know that I should have walked out at 11:00 p.m. the first night and he would have had no ability to wear me down. That was a valuable lesson.

Noah Bolmer: You are well-published. You have been writing for 50 years or maybe longer in many medical journals and elsewhere. Is it important that you remember everything you have ever written? Over time, people’s opinions change. As you were saying, medicine has changed since then. How do you deal with somebody trying to impeach you on something that you said a very long time ago?

Dr. Howard Maibach: I try to be careful in preparation. I go back to my bibliography. I go back to the text. I Look to see what has changed in the intervening years. Namely, be prepared. The attorney and expert should be prepared.

Noah Bolmer: Are there any preparation methods that you find are particularly effective? For example, do you like mock cross-examinations?

Dr. Howard Maibach: I had a mock cross-examination, but I did not find it helpful. I think it helped the Counsel that I was prepared, and luckily, I was.

Noah Bolmer: Are there other preparation techniques that you find more effective?

Dr. Howard Maibach: I cross-examine myself constantly when I see patients and when I am involved in courtroom work. Namely, I ask myself do I have the story straight, or have I rapidly jumped to a conclusion without examining all the data?

Noah Bolmer: Before you wrap up, I have a question that I ask of all of my interviewees, and that is how important is winning to you? Do you keep a tally of wins versus losses? Is that something that is in the calculus when you decide to take a case? Do you feel comfortable, are you on the right side, and is it winnable? How Important is that to you?

Dr. Howard Maibach: I hate to admit this, but I do not like to lose. I think it is a very human trait. The few times that I have lost I ask myself how did it happen? And I think I learned from that.

Noah Bolmer: Do you stay abreast of the case as it progresses and unfolds?

Dr. Howard Maibach: I tell the Counsel this is not something that I jump in and out of. I will learn the long-term, the little picture, and the big picture. I keep a list of all the cases and if they do not voluntarily tell me, I call them after.

Noah Bolmer: Sure. So, you do like to know what is going on. It is interesting. I have heard from other experts that it is important. In other words, experts never hear from the attorney again after their portion of the cases is finished. Do you have any advice for experts?

Dr. Howard Maibach: My big picture is that although it is stressful when you are on the witness stand, it is well worth it if you can make the legal system fairer for the companies, plaintiffs, and defendants.

Dr. Howard Maibach

Our guest, Dr. Howard Maibach is a dermatologist specializing in allergic skin disorders and toxic exposure. He has served on the editorial boards of more than thirty scientific journals, and he is a member of 19 professional societies including the American Academy of Dermatology, the San Francisco Dermatological Society, and the International Commission on Occupational Health. Dr. Maibach has a Medical Degree from Tulane and is an extremely experienced and sought-after expert witness.