A plaintiff’s expert takes the oath and describes the standard of care with complete certainty. A resident with an overnight fever should have been sent out immediately. Waiting until morning was a breach. No room for judgment. No room for context.
Now imagine that same expert, two years earlier and two states away, in a case with nearly identical facts. Back then, the standard had room in it: assess the resident, monitor, call the physician, transfer if the picture worsens. The kind of answer that respects how care is actually delivered at 2 a.m.
The standard of care is supposed to be the fixed point in a case. When an expert’s version of it shifts to fit whoever retained them, that shift is the story. The defense just has to be able to see it. Here’s how to find it.
1. Treat prior testimony as the expert’s own benchmark. The standard of care isn’t an expert’s personal preference. It’s what a reasonably prudent provider would do under similar circumstances. If an expert has described that standard differently under oath before, that’s fair ground for cross-examination, within the rules of your jurisdiction. And a contradiction in the expert’s own words carries weight no rebuttal expert can match. It isn’t the defense saying it. It’s the witness.
2. Look for the pattern, not just the contradiction. One inconsistent answer can be explained away. A pattern is harder to explain. The expert who finds a causal link in every fall case. Who describes the same “obvious” warning sign no matter what the chart says. Who hasn’t cared for a patient in years but testifies about bedside practice with total confidence. None of that is visible in a single deposition. It shows up across ten.
3. Watch the testimony — don’t just read it. A transcript records “I don’t recall.” Video shows the long pause before it, the glance toward counsel, the shift in tone when a prior opinion is read back. Seeing how an expert handles pressure tells you where to apply it, and which questions to save for trial.
4. Put what you learn where the next team can find it. Plaintiff experts carry their talking points from courtroom to courtroom. Too often, the defense’s knowledge of those experts stays in one lawyer’s file. Every deposition shared in Second Chair’s Expert Database adds to the national defense record, so the next attorney facing that expert starts with history instead of from scratch.
Experts are entitled to their opinions. They are not entitled to a different standard of care for every case.
The standard is supposed to be the constant. When it moves, look at who’s moving it.
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