Jurors largely ignore expert witnesses. They almost never compare what one said with another. It's kind of like a German tank versus a Russian tank. They are all the same, right? Now back to Kursk.

Let's practice storming into the town of Kursk, which the German Army never did. Try overcoming defenses in the following "battle."

Facts: Heart by-pass surgery brings unusual pain in the left flank. An X-ray taken three days later shows a laparotomy pack (sponge) left behind. Again, pretty clear liability. Video-assisted thoroscopy removes the sponge eight days later. Suit falls against the surgeon.

Defense: No breach -- it was the nurses' duty to count sponges. Secondary defense: No injury. Thoroscopy did not add to the patient's overall pain. Third defense: The by-pass surgery saved the patient's life. (Noble physician.)

Overcoming Defenses: Yes, that's right! The nurses were negligent and there is no Captain of the Ship doctrine any more. So remember this: Never, let the hospital out of a case because the doctors will always blame the nurses/hospital even when they said in depositions the nurses/hospital did no wrong. Don't settle with one defendant just to fund the rest of the case. Defendants know what you are doing and are ready to shift defenses. Just like the Russians did on the third day of the Battle of Kursk. To overcome these latter defenses, offer proof of pain. Show the jury pictures of a thoroscopy.

Consider weakening the defenses by putting them in front of the jury early. "They say that because the patient smoked cigarettes, she was likely to have this so-called complication. But they didn't tell her about it!" (The shewas- a-smoker defense resonates with health conscious jurors, who eagerly want to fix blame on the patient.) "We _______________________

Always use motions in limine to restrict off-the-wall defenses. Remember, there are no real sanctions against frivolous defenses, only frivolous claims. Demand a jury instruction that no one has a duty to get a second opinion -- that's what the jury is thinking, so you can better overcome this fake defense. Never, never take the defendants' Answer at face value. Same with Interrogatory answers. Don't think the jury will see the defendants as liars when they come up with defenses different from the Answer or Interrogatory answers. To overcome a "new" defense, you need to show the lie: always put the defendants in front of a video camera.

Finally, this. Even the best generals -- of course, I mean trial lawyers -- get caught up in their own theory of the case and down play the defenses. Consider General Manstein, the German general in charge of Kursk. In his memoirs published in 1965 he insisted that his soldiers would have carried the day at Kursk if Hitler had not pulled away those 30,000 troops and sent them to Italy. No, not really. Why? Because historians are now quarreling about whether the Russian had seven lines of defense, not the six usually claimed.

Lewis L. Laska is a Nashville trial lawyer. He is a Professor of Business Law, College of Business, Tennessee State University.

¹ Walter S. Dunn, Jr. Kursk: Hitler's Gamble, 1943. (Praeger, 1997) p. 108.

² Your author publishes a monthly jury verdict reporter, Medical Malpractice Verdicts, Settlements & Experts. Go to mmvse.com.