DONALD K. JOHNSON, individually and DONNA HOOD, as Administratrix of the ESTATE OF CLAIRE GRACE JOHNSON, Petitioners,

v.

RIVERDALE ANESTHESIA ASSOCIATES, P.C. and ROBERT G. LAWHEAD, Respondents.

CASE NO. S01G1138

The Georgia Trial Lawyers Association ("GTLA") is a voluntary organization comprised of approximately 2,700 trial lawyers licensed to practice in this State whose clients have an interest in this Court's rulings on the important issue presented by this appeal.

Over the years the GTLA has consistently appeared as Amicus Curiae in various matters presented before the appellate courts of Georgia, as well as before the federal courts. It submits the following brief in support of the appellant's contention that experts in medical malpractice cases should be subject to cross-examination based on their personal practices in treating patients similar to the pertinent issue.

The Court of Appeals' decision summarily affirms a misguided line of cases that permits medical malpractice defendants to create a fiction that misleads juries in a very unfair way. This case provides a good example of the problem. The defendant presented Dr. Robert Caplan as an expert to defend the decision not to pre-oxygenate Claire Johnson. Through the defense's presentation of Dr. Caplan's testimony, the jury learned that Dr. Caplan had published widely on proper anesthesia techniques and spent a great deal of his time teaching anesthesiology residents at the University of Washington the proper way to practice anesthesiology. Dr. Caplan then placed his stamp of approval on Dr. Lawhead's decision not to pre-oxygenate Ms. Johnson by testifying that it was entirely appropriate. Undoubtedly, the jury was left with the impression that anesthesia residents at the prestigious University of Washington Medical School are taught not to pre-oxygenate patients such as Claire Johnson and that Dr. Caplan himself would not have pre-oxygenated Ms. Johnson. Believing that Dr. Lawhead made the same decision that modern anesthesia residents are taught to make, the jury not surprisingly returned a verdict in favor of the defendant.

The jury should have learned the truth. It should have learned that Dr. Caplan would have taught his residents to pre-oxygenate Ms. Johnson and would have pre-oxygenated her himself. Dr. Caplan then could have explained that the pre-oxygenation decision in this case was one where reasonable doctors could disagree. That way, the jury could make a decision based on the truth, not based on a fiction forced upon it by a series of misguided Court of Appeals decisions.

In Brannen v. Prince, 204 Ga. App. 866 (1992), overruled on other grounds by Gillis v. City of Waycross, 247 Ga. App. 119 (2000), the Court of Appeals made an unfounded leap of logic. Beginning with the unremarkable proposition that a medical malpractice defendant is entitled to judgment as a matter of law if the plaintiff's only evidence on negligence is that another physician would have treated the patient differently, Judge Beasley's majority opinion jumps to the conclusion that such evidence is inadmissible entirely. Eschewing traditional standards for determining the admissibility of evidence, the Brannen court held that personal practice evidence was inadmissible for any purpose because it would not be sufficient to avoid a motion for judgment as a matter of law. Including the case at bar, the Court of Appeals has summarily affirmed Brannen twice. See Switzer v. Gorman, 235 Ga. App. 794, 796 (1998), Johnson v. Riverdale Anesthesia, 249 Ga. App. 152, 152-43 (2001); cf. McNabb v. Landis, 223 Ga. App. 894, 895 (1996) (prohibiting plaintiff from eliciting personal practice testimony from his own expert). These decisions are wrong and are in direct conflict with the Court of Appeals decision in Prevost v. Taylor, 196 Ga. App. 368 (1990).

Evidence of an expert's personal practice is relevant to allow the jury to assess the credibility of the expert's testimony that the standard of care permitted the defendant's conduct. Personal practice evidence is always relevant to the expert's credibility in at least three significant ways. First, it would destroy the highly favorable fiction defendants are now allowed to create. Second, it demonstrates that the expert has minimal personal experience with the treatment method at issue, namely the defendant's chosen method. Finally, it undermines the expert's basis for knowing that the standard of care permits the defendant's conduct. It is a fair subject for cross-examination.

Personal practice evidence is routinely admitted to impeach experts in other contexts. This Court has held that an appraisal expert is subject to cross-examination about whether he personally would sell the property at issue for his estimate of the property's fair market value. Bowers v. Fulton County 221 Ga. 731, 742 (1966). Federal courts follow this approach as well, permitting inquiry into an expert's personal practices and preference as a matter of routine. See Fed. R. Evid. 702 (advisory committee notes to 2000 amendments). In fact, the United States Supreme Court has stated that the very purpose of the inquiry into the admissibility of expert testimony in federal court "is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). There is no reason to carve an exception to the general rule of admissibility of an expert's personal practices for experts who testify in medical malpractice cases.

Admitting evidence of personal practices would not create a risk of undue confusion on the part of the jury. Juries decide cases involving incredibly complex subject matter and could certainly understand that there may be a number of acceptable treatment regimens in a particular situation. Indeed, plaintiff's experts routinely acknowledge that a physician can choose from among a number of acceptable treatment options. Far from causing undue prejudice, admitting evidence of personal practices would prevent the undue prejudice of allowing defendants to create the illusion that their experts would have treated the patient and taught residents to treat the patient in the same way as did the defendant. Amicus respectfully requests that this Court reverse the Court of Appeals and hold that plaintiffs and defendants are entitled to inquire about how an expert would have treated the patient in question.

A. The Current State of the Law Allows Defendants to Create an Unfair Fiction That Is Misleading to Jurors.

This case provides an example of the charade that is played out repeatedly in medical malpractice trials in this state. Defendants parade an extremely well-qualified expert to give a "blessing" to the allegedly negligent care provided by the defendant. Often these experts have published widely in the field and are responsible for training residents at prestigious medical facilities. Using carefully-phrased questions that avoid either opening the door or informing the jury of the conflict, defendants create the impression in the jury's mind that the national expert employs and teaches the same treatment methods as those employed by the allegedly negligent defendant. The law currently prohibits Plaintiffs from correcting this sham.

This case provides a typical example. The defendants called Dr. Caplan to the stand and asked him at length about his qualifications. He explained that he "graduated first in his class at Yale Medical School [and] got a Distinguished Faculty Award at [University of Washington] two years ago . . . ." [T-1129] He told the jury that he is "one of the physicians who determines whether . . . other anesthesiologists become board certified . . . ." [T-1129] He said that he is "in the operating room about four days a week, and a great deal of [his] time in the operating room is spent teaching young residents in anesthesia how to practice the specialty of anesthesia." [T-1130]

Carefully crafting her questions, defense counsel then asked Dr. Caplan whether Dr. Lawhead's decision not to pre-oxygenate Mrs. Johnson was in compliance with the standard of care [T-1138], whether he "see[s] anything that Dr. Lawhead could've done that would've made it safer for Mrs. Johnson to have this anesthesia" [T-1156], and whether it was "appropriate judgment for Dr. Lawhead not to preoxygenate her before he began giving her medication." [T-1177] Of course, Dr. Caplan responded favorably to the defense. With this sort of examination, the jury was likely left with the impression that Dr. Caplan would not have pre-oxygenated Ms. Johnson and would have taught his students not to pre-oxygenate patients like Ms. Johnson.

This is wrong. Plaintiffs should be able to present the truth to the jury. The presentation of the truth would cause no prejudice to either party. On cross-examination at the re-trial, plaintiff's counsel would establish that Dr. Caplan's personal practice is to pre-oxygenate a patient such as Ms. Johnson. Dr. Caplan would then be free to explain that while his personal practice is to pre-oxygenate, other alternatives, including the defendant's chosen method, are within the standard of care. He could explain the basis for his belief that the defendant's conduct, while not his choice, is acceptable. The jury, having heard from plaintiff's expert that pre-oxygenation is required by the standard of care and that the defendant was negligent, would have its usual responsibility of weighing the credibility and reliability of each expert's testimony and accepting one as more believable than the other. By considering evidence of the expert's personal practices, the jury's decision would be based on the truth and not on a fiction that is highly favorable to defendants.

• Evidence of an Expert's Personal Practices is Relevant and Admissible..



• The Court of Appeals used the wrong standard in establishing the Brannen rule.

In establishing the rule prohibiting plaintiffs from cross-examining experts on their personal practices, the Court of Appeals ignored longstanding evidentiary law and adopted the misguided notion that evidence should be inadmissible unless the disputed evidence is sufficient by itself to withstand a motion for judgment as a matter of law. See Brannen v. Prince, 204 Ga. App. 866, 867-68 (1992) (summarily approved by Switzer, 235 Ga. App. at 796 (1998); and Johnson, 249 Ga. App. at 152-53.⁽¹⁾ In Brannen, the first case to prohibit cross-examination based on personal practices, the Court of Appeals failed to cite a single evidence case and instead cited three cases respectively involving directed verdict, summary judgment, and jury charges - at least one of which permitted the admission of personal practice evidence. See Slack v. Morehead, 152 Ga. App. 68, 71 (1979)(affirming directed verdict in favor of defendant physician where only evidence offered by plaintiff at trial was testimony of one physician that he would have treated the patient differently); Hayes v. Brown, 108 Ga. App. 360, 361 (1963)(affirming summary judgment in favor of the defendant physician where only testimony offered by plaintiff was expert who testified he would have treated patient differently); Laughridge v. Moss, 163 Ga. App. 427, 428 (1982)(holding evidence at trial supported the jury charge that "a mere difference in views between doctors . . . is insufficient to show malpractice when it is shown that the procedure or judgment preferred by each doctor is an acceptable and customary medical approach"). Ignoring precedent and longstanding evidentiary law, the Court of Appeals reasoned that because personal practice evidence alone would be insufficient to withstand a motion for judgment as a matter of law it was irrelevant and should be excluded from evidence entirely. Brannen, 204 Ga. App. at 868. The Court of Appeals was wrong to apply a sufficiency of the evidence test to determine the admissibility of evidence.

"Georgia law favors the admissibility of any relevant evidence, no matter how slight its probative value. Evidence of doubtful competency or relevancy should be admitted and its weight left to the jurors." Georgia Power Co. v. Irvin, 267 Ga. 760, 766 (1997) (emphasis added); see also Lovejoy v. Tidwell, 212 Ga. 750, 751 (1956) ( "It has long been the rule of this state that where the relevancy or competency of evidence is doubtful, it should be admitted and its weight left to the determination of the jury"). "Any evidence is relevant which logically tends to prove or to disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant." Owens v. State, 248 Ga. 629, 630 (1981)(emphasis added); accord Kelly v. Floor Bazaar, Inc., 153 Ga. App. 163, 165 (1980); Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 338 (1984). The standard for impeachment evidence is even more lenient. Impeachment evidence is admissible if it "in the slightest degree affects the credit of an opposing witness" and "need not be of the kind or quality required for proving facts." Pound v. Medney, 176 Ga. App. 756, 760-61 (1985)(emphasis added).

Under these familiar standards, there is no requirement that the evidence completely disprove the witness's testimony or that it be sufficient, when standing alone, to withstand a motion for judgment as a matter of law. This Court should rectify the Brannen court's mistake. It should apply the correct standard and hold that evidence of an expert's personal practices "affects the credit of an opposing witness," id, and "elucidates or throws light on a material issue or issues." Owens, 248 Ga. at 630.

• Personal practice evidence is relevant to an expert's credibility.

The standard for admitting impeachment evidence on cross-examination is very lenient. This Court has held for over a hundred years that "it is better that cross-examination be too free than too much restricted." Harris v. Central R.R., 78 Ga. 525, 534 (1887). "Generally, 'a party may show anything which in the slightest degree affects the credit of an opposing witness.'" Pound v. Medney, 176 Ga. App. 756, 760 (1985) (quoting Atlanta Recycled, etc. Co. v. Tri-Cities Co., 152 Ga. App. 259, 263 (1979).⁽²⁾ Under this standard, evidence of an expert's personal practices should be admitted if it "in the slightest degree affects the credit of " the expert. Id. Without question, personal practice evidence meets this standard, which is precisely the reason this state's medical malpractice insurers have taken such an interest in this case.

The jury in a malpractice case is faced with the task of deciding which expert testimony to accept as accurately setting forth the standard of care. Where the plaintiff's expert testifies the standard of care requires pre-oxygenation and the defense expert testifies pre-oxygenation is not required, one is right and one is wrong. The jury must determine which expert is correct because it cannot create an arbitrary standard of care. In deciding which expert is correct, the jury must be allowed to evaluate the reliability and credibility of each witness and the probability or improbability of his testimony. In the face of positive evidence that the standard of care requires pre-oxygenation and the denial of that by the defense expert, the fact that the defense expert personally pre-oxygenates his own patients and teaches that practice to his students is a legitimate factor for the jury to consider in deciding which witness's testimony is more believable and reliable in identifying the standard of care. Such information would allow the jury to decide whether the expert is simply wrong about which practices the standard of care permits, has ulterior motives (e.g., wants to protect a fellow doctor), or simply chooses another equally-acceptable method of treatment.

Although personal practice evidence could conceivably be relevant in numerous ways, it is always relevant to the expert's credibility in three specific and very important areas. First, it removes the illusion that the highly-qualified expert would have treated the patient in the same way the defendant did. Second, it demonstrates to the jury that the expert has much less personal experience with the disputed treatment method than it might appear following direct examination. Third, it undermines the expert's basis for knowing that the standard of care permits the defendant's conduct.

• Eliminating the misconception.

As noted above, the current state of the law leaves the jury with the misconception that the defense expert would teach and personally use the same treatment methods as those of the defendant. Such a misconception makes it difficult for the plaintiff to prevail. Operating under this misconception, to find Dr. Lawhead negligent, the jury in this case would have had to decide that the University of Washington trains its residents in a negligent manner and that Dr. Caplan would have committed medical negligence himself. Correcting the misconception would allow the jury to conclude that neither Dr. Caplan nor his residents are negligent, but that Dr. Caplan was simply wrong about the permissive nature of the standard of care. Personal practice evidence would "affect the credit of" Dr. Caplan's testimony that the standard of care did not require pre-oxygenation. Id. Evidence of an expert's personal practices is a fair subject for cross-examination.

• Establishing the expert's lack of experience with the treatment method at issue.

An expert's personal experience with the disputed treatment method (i.e., providing anesthesia to patients like Claire Johnson without pre-oxygenation) is central to his credibility.⁽³⁾ An expert who testifies that he personally chooses the defendant's method and personally instructs residents to choose the defendant's method would be more credible in testifying that the standard of care permits it than would an expert who does not use the defendant's method. In this case, Dr. Caplan would be less credible if the jury knew that he had limited experience inducing anesthesia on patients like Ms. Johnson without pre-oxygenating them. The jury would be entitled to wonder how Dr. Caplan could be so certain that pre-oxygenation is not necessary in patients like Ms. Johnson when he has little experience with such patients without pre-oxygenation. The fact that an expert has limited experience with the treatment method at issue "in the slightest degree affects the credit of" his testimony. Id. It should be permitted.

c. Examining the basis for the expert's contention that the standard of care permits the defendant's conduct.

The primary question for the jury to answer in evaluating the credibility of a defense expert is whether the expert is correct in his testimony that the standard of care permits the defendant's conduct. The jury is entitled to examine the basis for this testimony. As such, the plaintiff's attorney should be entitled to explore with the expert why he believes the standard of care allows the defendant's conduct. In so doing, the plaintiff's attorney should be allowed to ask whether the expert employs the defendant's method, whether the expert's colleagues employ it, whether the expert teaches it, and any other question designed to elicit information about why the expert believes the standard of care is as he testifies.

The "standard of care" is nothing more than what reasonable doctors actually do in a given situation. A defense expert's chosen course of action in that situation is relevant to the determination of what the "standard of care" is because it is evidence of what a doctor would do in the situation at issue. Currently, a defense expert is permitted to testify about a theoretical "standard of care" but cannot be asked what he really does, what he really teaches, or what other doctors really do. This is wrong. Personal practice evidence is relevant to the expert's basis for knowing what the standard of care permits. It should be admissible.

The following hypothetical cross-examination, which is based on the medical issues in this case, would be very effective in minimizing an expert's credibility, but would currently be prohibited by the Brannen rule:

Q: Dr. Caplan, you say that the standard of care permits an anaesthesiologist not to pre-oxygenate a patient like Claire Johnson. Let's examine why you say that. You pre-oxygenate patients like Claire Johnson?

A: Correct.

Q: You teach residents to pre-oxygenate patients like Claire Johnson?

A: Yes.

Q: Your colleagues at the University of Washington pre-oxygenate patients like Claire Johnson?

A: Yes.

Q: In fact, when I took your deposition you were unaware of a single physician, medical school, or residency program that advocates not pre-oxygenating a patient like Claire Johnson?

A: That's correct but I still believe the standard of care permits a physician to make the decision not to do so.

This hypothetical series of questions illustrates the potential impact an examination of an expert's personal practices could have on the credibility of his testimony that the standard of care permits the defendant's conduct. Such an examination can undermine an expert's credibility by demonstrating limitations on his basis for claiming that the standard of care permits the defendant's conduct. It more than satisfies the minimal requirement of affecting the expert's credibility "in the slightest degree." Id. It should be admissible.

• This Court and federal courts have routinely admitted evidence of an expert's personal practices in other contexts.

This Court has recognized in other contexts that evidence of an expert's personal practices is relevant to allow the jury to assess the expert's credibility. See Bowers, 221 Ga. at 743. In Bowers, a condemnation action, the county called an expert witness to testify about the value of the property at issue. The trial court refused to allow the condemnee's attorney to ask the expert on cross-examination whether he personally would sell the property for the value he had placed on it if he were in the condemnee's circumstances. On appeal, this Court held that the trial court committed reversible error by excluding the personal practice evidence because "[t]he testimony was pertinent and material to the special value of the property taken." Id.; see also Department of Transportation v. 2.734 Acres of Land, 168 Ga. App. 541, 546 (1983) (affirming a trial court's decision to permit evidence on cross-examination that appraisal expert who testified that the rental value of the commercial property at issue was $1.40 per square foot paid $8.40 per square foot himself to rent office space near the condemned property).

Federal courts have repeatedly used an expert's personal practice not merely to discredit the expert, but to exclude the witness entirely. See Fed. R. Evid. 702 (advisory committee notes to 2000 amendments ); Kumho Tire, 526 U.S. at 157 (noting the absence of evidence that excluded expert would have used the same method of evaluating a tire for defects as he had used when he was employed by Michelin); Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7^th Cir. 1997) (holding statistician expert's testimony inadmissible because of the "failure to exercise the degree of care that a statistician would use in his scientific work, outside of the context of litigation"); Braun v. Lorillard Inc., 84 F.3d 230, 234 (7^th Cir. 1996)(affirming exclusion of biochemical expert and noting that "the district court is responsible for making sure that when scientists testify in court they adhere to the same standards of intellectual rigor that are demanded in their professional work"). Indeed, personal practice evidence is central to the federal court system's evaluation of expert credibility. Kumho Tire, 526 U.S. at 152.

As demonstrated by this Court's holding in Bowers and the numerous federal court cases on the admissibility of expert testimony, evidence of an expert's personal practices more than satisfies the minimal requirement that it "in the slightest degree affect the credit of an opposing witness." Pound, 176 Ga. App. at 760. There is simply no justification for excepting experts in medical malpractice cases from the general rule that an expert's personal practices are a proper subject of cross-examination.⁽⁴⁾ This Court should reverse the Court of Appeals and hold that a medical malpractice expert's personal practice is a proper subject for cross-examination

C. Evidence of an Expert's Personal Practices is Necessary to Prevent Unfair Prejudice to the Plaintiff.

The current state of the law is unfairly prejudicial to plaintiffs because it allows defendants to reap a tremendous benefit from a fiction. Plaintiffs should be permitted to correct the fiction. Juries are more than capable of understanding the relatively simple concept that physicians can employ different practices and both be within the standard of care. There is no valid reason for excluding personal practice evidence.

1. The Brannen rule is unfair and should be reversed for that reason alone.

As demonstrated above, the Brannen rule permits defendants to create the impression in the jury's mind that an expert would both treat and teach the defendant's approach. The reason this is so harmful to plaintiffs is that it forces a jury to conclude that a national expert and an entire medical school are negligent. Instead, the jury should be permitted to conclude that neither the medical school nor the expert would commit negligence, but the expert is simply wrong in his testimony that the standard of care permits the defendant's conduct. This approach is fair and workable.

2. Any possible problems from the admission of personal practice evidence are minimal.

The defense and defense amici argue that admission of personal practice evidence would create a tremendous strain on the jury system because juries are incapable of understanding such testimony. The fact that juries hear medical malpractice cases and other extremely complex cases illustrates the fallacy in this argument. Juries are trusted with determining complex medical and scientific issues in a wide variety of cases including medical malpractice, products liability, toxic tort, intellectual property, and a host of other cases. If juries are capable of rendering decisions in these cases involving complex scientific and technical information, juries are surely capable of understanding that physicians can have different views and both be in compliance with the standard of care.

In fact, defense lawyers commonly request a jury charge that "a mere difference in views between doctors . . . is insufficient to show malpractice when it is shown that the procedure of judgment preferred by each doctor is an acceptable and customary medical approach." Laughridge, 163 Ga. App. at 428. The very existence of this charge assumes that juries are equipped to make the determination as to whether the defendant and the defense expert have a mere difference in views about how to handle a particular situation or whether the defense expert is simply wrong. Juries are more than capable of handling this simple concept.

Finally, amicus understands that some suggestion has been made that permitting personal practice evidence would somehow increase the amount of discovery necessary in the case. Amicus suggests that this concern is unfounded. First, trial judges have the discretion to restrict unnecessary discovery. Second, personal practice evidence is admissible in numerous other contexts, and has not caused a problem in those circumstances. See infra § B(3). Finally, pre-Brannen there was no outcry over discovery or any other problem related to personal practice evidence. There is no reason such a problem would arise now.

There is no valid reason to prevent plaintiffs from cross-examining defense experts about their personal practices. This Court should reverse the Court of Appeals.

Amicus GTLA respectfully requests that this Court reverse the Court of Appeals and hold that a trial judge cannot prevent plaintiffs from cross-examining defense experts about their personal practices.

DOFFERMYRE SHIELDS CANFIELD KNOWLES & DEVINE

/s/ Kenneth S. Canfield

/s/ Geoffrey E. Pope

COOK, NOELL, TOLLEY, BATES & MICHAEL

/s/ J. Vincent Cook

HENRY, SPIEGEL, FRIED & MILLING, LLP

/s/ Phillip C. Henry

MATHIS & ADAMS

/s/ Charles A. Mathis, Jr.

BUTLER, WOOTEN, FRYHOFER, DAUGHERTY & SULLIVAN, LLP

/s/ Joel O. Wooten, Jr.

1. McNabb v. Landis, 223 Ga. App. 894-895 (1996) did not address the issue of whether a plaintiff can cross-examine a defense expert on his personal practice. Instead, it affirmed a trial judge's exclusion of questions the plaintiff asked his own expert about how the expert personally would have treated the patient.

2. There is no requirement that credibility evidence "contradict" the expert's testimony as argued in the brief submitted by amici curae for various medical insurers. While this rule is true for prior inconsistent statements, it is not true for credibility evidence in general. For example, the fact that a tall bush lay between the witness to an accident and the stop light at issue would be an appropriate subject for cross-examination even though the existence of the bush would not contradict the witness's testimony.

3. Indeed, experts are invariably asked at length about their experience. The defendant in this case presumably could have asked how often Dr. Caplan induced anesthesia, how often he evaluated whether to pre-oxygenate patients like Ms. Johnson, whether he taught residents to make decisions about pre-oxygenating patients like Ms. Johnson, and whether he evaluated anesthesiologists on their decisions about whether to pre-oxygenate a patient like Ms. Johnson. Under the current state of the law most trial courts would not allow the plaintiff to ask Dr. Caplan about his actual experience (what he actually did) in each of these circumstances.

4. None of the briefs submitted thus far has cited a single case from another jurisdiction holding that a plaintiff should not be allowed to cross-examine a defense expert on personal practice issues. The cases cited all deal with the plaintiff's examination of his own witness or the sufficiency of the evidence. See K.P. v. Reed, 676 So.2d 922 (Ala. App. 1995) (prohibiting personal practice questions of treating physician); Corbonnel v. Bluhm, 318 N.W.2d 659 (Mich. App. 1982) (requiring plaintiff to ask his expert about "standard of care" instead of personal practices); Zelzenick v. Jewish Chronic Disease Hospital, 366 N.W2d 163 (N.Y. Sup. 1975) (holding plaintiff's evidence sufficient because questions phrased in terms of "standard of care"). In candor, Amicus GTLA must disclose that it has located one case favoring the defendant's position that has not been cited in any other brief. See Shaw v. Klompien, 522 N.E.2d 1267, 1275 (1988) (affirming trial judge prohibiting cross-examination of defense expert on his personal practice). Amicus GTLA believes that Shaw contains the same analytical mistake as Brannen and urges this Court not to adopt its reasoning. Amicus suggests that the reason so few cases exist on this subject is because cross-examination of a defense expert on personal practices is so well accepted that it is almost never the basis for an appeal.